May 31, 2003

Law - More on Drafting Third World Constitutions

This story, in today's New York Times, titled "Constitutionally, A Risky Business," is a welcome addition to other recent coverage on constitution-writing reported here in a May 15 entry (Drafting Third World Constitutions) and a May 12th entry (Drafting an Iraqi Constitution). Some highlights from this latest article on a fascinating topic:

Drafting a constitution is often the first step in transforming a country to democracy, but the questions seem to be endless. Parliament or president? Centralized or decentralized authority? Ethnic and religious power-sharing or majority rule? Who can vote? What is the scope of judicial review? Is there a right to housing and jobs? And who should answer these questions? This formidable task has produced a cottage industry of constitutional consultants. Experts in areas like conflict resolution, law, development and political science have taken on the tough nuts-and-bolts work of converting high-minded ideals and aspirations into workable laws, rules and institutions. If there is one conclusion that can be drawn from these experiences, it is that there is no one right way to do the job. * * *

Mr. Selassie [Bereket Habte Selassie, a professor of law and African studies at the University of North Carolina at Chapel Hill] said an overriding principle in the process "is the participation of the people." He said, "The thing is to make them feel they own the constitution." Even illiterate citizens can listen to radios or attend meetings, he said. Many countries begin the process by identifying their biggest problems and then using the constitution to fix them. Cass R. Sunstein, a professor of political science and law at the University of Chicago, calls this approach countercultural. "The Americans were very alert to this," said Mr. Sunstein, who worked on the creation of constitutions in Poland, South Africa, Ukraine, Russia and Lithuania. "The Bill of Rights is just partly a set of recollections of what went wrong under the British."

Later in the NYT story reference is made to a "Century Foundation * * * 58-page report on establishing an Iraqi constitution." With that "clue", I was able to locate a very interesting 68-page report of the Carnagie Endowment for International Peace, titled "Establishing a Stable Democratic Constitutional Structure in Iraq: Some Basic Considerations." You may access it here. From the introduction:
This report aims to serve as a constitutional primer. Its purpose is to help navigate the complexities of the constitution building process by providing analysis and recommendations on the various state structures and processes by which states have sought to achieve both stability and democracy when faced with a diversity of ethnic and religious interests. The report is careful to acknowledge that no two situations are the same and tries to take particular care to identify the unique challenges facing Iraq.

The report does not set forth a proposed constitutional structure. Rather, it examines the principal issues that must be addressed in order to craft a viable constitutional framework. The report works from the premise that stability is best preserved by recognizing and protecting the interests of various groups, while also fostering an inclusive national identity.

The main Carnegie Endowment page on Reconstructing Iraq may be accessed here.

Posted by Marcia Oddi at 06:58 PM

Law - What next from US Supreme Court?

The Washington Post carried an AP story yesterday (5/30/03) listing the major issues awaiting rulings from this term of the Supreme Court.

As for the next term, Tony Mauro reports this morning in the LA Times on what cases the Supreme Court may review.

Mauro's column is also interesting today because of the "informative note" or "credit and disclaimer" now included at the end of his column, presumably as a reaction to the recent troubles at the NY Times involving use of uncredited information from "stringers."

Posted by Marcia Oddi at 08:44 AM

Indiana Decisions - Every good dog gets one bite in Indiana

Poznanski v. Horvath (Ind SCt 5/30/03)
Rucker, J.

A mixed-breed sheepdog named "Hey" had never bitten anyone and was well-behaved:

No one had ever complained about Hey, and he did not usually wander out of Horvath’s yard. On July 23, 1997, Horvath allowed Hey to remain outside unattended. The dog was neither on a leash nor confined by a fence. When Alyssa Poznanski and her mother walked by Horvath’s home, Hey bit Alyssa without provocation. As a result Alyssa suffered a cut to her face requiring stitches. Among other things, a South Bend city ordinance provides in pertinent part “[e]very owner and/or his agent of an animal within the City shall see that his or her animal . . . is properly restrained and not at large.”
The mother sued Horvath for personal injuries and medical expenses. The trial court granted Horvath's motion for summary judgment, finding there was no genuine issue of material fact as to whether he knew or should have known of any vicious tendencies of the dog. The Court of Appeals reversed and remanded. The Supreme Court granted transfer:
The question we address in this opinion is whether the very act of an unprovoked biting by a dog that in the past displayed no vicious tendencies is sufficient by itself for a jury to infer that the animal’s owner knew, or should have known, of the dog’s vicious tendencies. We grant transfer to hold that it is not.
The Court of Appeals had relied on a 1977 Court of Appeals case, Layman v. Atwood, where that Court, noting that the dog-biting incident was unprovoked, still held:
A jury could reasonably infer that the very act of unprovoked biting by the Atwoods’ dog was evidence of that animal’s vicious tendencies. If an animal does, indeed, have vicious tendencies a jury could reasonably infer that the animal’s owner knew or, at least, should have known of those vicious tendencies.
The Supreme Court in the instant case, however, observes that:
the “very act of unprovoked biting” by a dog does not necessarily mean the dog is dangerous or vicious. Under our common law, all dogs, regardless of breed or size, are presumed to be harmless domestic animals. Ross v. Lowe, 619 N.E.2d 911, 914 (Ind. 1993). This presumption is overcome by evidence of a known or dangerous propensity as shown by specific acts of the particular animal.
Regarding the question of whether:
in light of a dog exhibiting dangerous or vicious tendencies for the first time, may a jury reasonably infer that the dog’s owner knew, or at least should have known of those tendencies. If so, then this inference alone is enough to create a genuine issue of material fact to defeat a dog owner’s claim that he or she was unaware of such tendencies. We conclude however that a jury may not make such an inference.
The Court concludes:
In the case before us, there was no evidence presented that Horvath had any knowledge that Hey exhibited dangerous or vicious propensities. The record shows Hey was very well trained, behaved well, responded when Horvath called to him or told him to stay. Hey did not wander out of Horvath’s yard or wander around the neighborhood. The record also shows that Horvath never received any complaints about Hey’s conduct or behavior. And even though Horvath’s home was near an elementary school, Hey did not get excited or nervous when he heard children playing, screaming or making loud noises. Nor was there any evidence presented to the trial court that the breed to which Hey belonged, a mixed-breed sheep dog, exhibited dangerous or vicious propensities. Accordingly, a jury could not infer that Horvath knew that his dog was dangerous or vicious. On the question of whether there is any genuine issue of material fact that Horvath knew or should have known of Hey’s vicious tendencies, we affirm the judgment of the trial court.
This case is also reported this morning in an AP story, available here via The Indianapolis Star.

Posted by Marcia Oddi at 08:25 AM

May 30, 2003

Indiana Decisions - Construction of will; Court cites to internet dictionary

Oneida Kelly v. Estate of Jimmie "JJ" Johnson (Ind CtApp 5/29/03)
Mattingly-May, J.

The issue in this case : "Whether the trial court erred when it interpreted 'all the remaining living room furniture' to mean 'everything in the living room including everything on the walls and everything placed on a flat surface.'"

The relevant provisions of the will itself are set out in the opinion, which may be accessed via the link above. The Court said:

At issue is the meaning of the word "furniture." Each party cites numerous sources, including dictionaries, case law, and the opinion of an auctioneer/appraiser, to support his or her version of the meaning of furniture. Much to our surprise, there is in fact a wide divergence in the meaning given to "furniture" across sources. Interestingly, it appears that the definition of the term has, to some extent, changed over time. Older sources tend to interpret furniture as all the items in a room, including china, lamps, paintings, and candlesticks. * * * Newer sources tend to interpret furniture to mean only large movable items, such as chairs, couches, desks, cabinets, and tables. For example, the dictionary provided on the internet by Encarta defines furniture as “tables and chairs: the movable items such as chairs, desks, or cabinets in an area such as a room or patio.” Encarta World English Dictionary [North American Ed.](2003), “http://Encarta.msn.com/encnet/features/dictionary/ DictionaryResults.aspx?search=furniture” (last visited May 2, 2003) (emphasis in original) [hereinafter “Encarta Dictionary”].
As a result of this divergence in definitions, the Court held the term "furniture" to be ambiguous. Noting that in another clause in the will Johnson had given another person "the contents of the kitchen," the Court concluded "Johnson must have meant something less than all the contents of the living room when he give Dierlam 'all the remaining living room furniture.'" The Court said it would look at "newer definitons of the word 'furniture' to construe the language of his will." The Court then cited to definitions both in the online Encarta Dictionary and in Cambridge Dictionaries Online, to conclude:
Based upon those definitions, we hold that Johnson intended to give Dierlam large items that one would expect to find in a furniture store, including but not limited to tables, chairs, couches, and cabinets. We also hold that Johnson did not intend to give Dierlam the decorative items sitting in or on the large items, such as lamps, vases, statues, and candlesticks. Finally, because Johnson separately indicated that Dierlam was to get the "Russian Icons" and the exhibits in the record indicate that many of those icons are hanging on the walls, we hold that Johnson’s devise of furniture did not give Dierlam the items hanging on the walls, such as pictures and paintings. Consequently, we reverse the trial court’s order and remand for further proceedings consistent with this opinion.

Posted by Marcia Oddi at 09:02 AM

Law - Federal contracting changes

The Washington Post reports OMB Director (and returning Hoosier) Mitch Daniels' announcement in the Federal Register yesterday of:

an overhaul of the rules that determine whether federal work should remain in-house or be turned over to the private sector. Circular No. A-76, as the rules are called, guides when federal agencies put up jobs for bid by the private sector and how they manage that work when it's underway. It grows out of an Eisenhower administration policy that said the government should not compete against its citizens and that agencies should obtain as many services as possible from industry. In announcing the A-76 changes this morning, Daniels said that the new rules would simplify the procurement process, shorten the time for decisions from as long as four years to one year and create a system that would provide a more level playing field for employees and contractors.
The story, headed "Bush Administration Overhauls Federal Outsourcing Rules," is available here. Today's Post Federal Diary column contains this story: "Disagreements Will Follow Efforts to Change Rules on Contracting Work Out."
The prospect of more federal jobs being put out for bid has made the arcane A-76 process an emotional force in recent months. President Bush and Daniels have called upon agencies to develop plans to open up jobs held by 850,000 federal employees -- nearly half of the government -- to competition with the private sector. That push for "competitive sourcing" has roiled employees across the government. Yesterday, Daniels sent a notice to the Federal Register outlining some of the changes that the Bush administration plans to make to A-76. The changes are aimed at simplifying the procurement process, shortening the time for decisions from as long as four years to 12 to 18 months, and creating a system that could provide a more level playing field for employees and contractors. But there will be disagreements on what the changes mean.
The Indianapolis Star carried this AP story this morning. GovExec.com has this story. Another Washington Post story, titled "OMB Details 'Outsourcing' Revisions: Unions Denounce New Rules Aimed At Competition," contains more specifics. Access it here.

The revisions to A-76 and related information are available here on the OMB website.

Posted by Marcia Oddi at 08:20 AM

May 29, 2003

Environment - Collection of IDEM Fines

The NW Indiana Times has run several stories this week charging, as this headline phrases it, "IDEM fines rarely imposed, often avoided." A long story Monday (5/23/03), bearing that headline, reports:

IDEM [the Indiana Department of Environmental Management] first cited [a] Crown Point businessman for burning construction debris July 7, 1992. It took seven years -- and repeated findings of the same violation -- for IDEM Commissioner Lori Kaplan to order him to stop and pay a $9,000 fine. The money has yet to be paid. [Dominic] Pitzel claims he didn't conduct the burns himself and shouldn't be held responsible. * * *

Since 1997, IDEM has issued commissioner's orders imposing fines in just 23 cases in Lake, Porter, Marion, St. Joseph, Allen, Vigo and Vanderburgh counties. In 14 of those cases, the agency has yet to collect any money. In seven out of the nine remaining cases, fines were substantially reduced before being collected. So far, only a quarter of the nearly $918,000 in fines imposed by commissioner's order since 1997 actually has been collected.


A followup story appeared Tuesday, 5/27/03. A NWI Times story today (5/29/03) headlined "Governor defends IDEM" reports:
Indiana Gov. Frank O'Bannon in a prepared statement Wednesday praised the Indiana Department of Environmental Management for reaching agreements on penalties in the vast majority of its enforcement cases. Citing IDEM data for the past two years, the governor also said that the agency has a "very good collection rate on penalties -- over 89 percent." The governor's remarks were made in response to Times stories published earlier this week on the agency's imposition and collection of fines.
A companion editorial urges: "Gov. Frank O'Bannon should put pressure on the agency to hold polluters responsible. A fine not collected is no punishment. It's time for closer scrutiny of the enforcement actions at the Indiana Department of Environmental Management."

Governor O'Bannon's press release defending IDEM apparently is not yet available -- check here. Information on IDEM's enforcement activities may be accessed here. Thanks to The Indiana Environmental Report for today's NWI links.

Posted by Marcia Oddi at 11:32 AM

Law - U. S. Supreme Court and "Federalism"

More on yesterday's Supreme Court decision in Nevada Department of Human Resources v. Hibbs (USSC 5/27/03). Linda Greenhouse, multiple Pulitizer-winning (and deservedly so) NY Times writer, has a news analysis titled "Steady Rationale at Court Despite Apparent Bend" that expands upon her efforts yesterday to explain the distinction between this decision and the Court's recent precedents.

The deeper message of Chief Justice Rehnquist's opinion was that Congress was free to exercise the discretion the court chose to give it, and no more. The difference between the age and disability discrimination statutes on the one hand and the family leave act on the other was that the court had, for the last several decades, identified sex discrimination as a problem for which, as with race discrimination, Congress simply had more freedom to devise remedies.

If the remedy extended to permitting suits against states that would otherwise be entitled under the 11th Amendment to claim immunity from private lawsuits, so be it, as long as Congress provided sufficient evidence that the states themselves were part of the problem.

Several aspects of this latest decision made clear the degree to which it represented continuity rather than a change in the court's recent direction. While its subject was the Family and Medical Leave Act, the decision's analytical core was an interpretation of Section 5 of the 14th Amendment, under which Congress "shall have the power to enforce, by appropriate legislation" the amendment's substantive guarantees of equal protection and due process. The constitutional question was whether the family leave act's explicit abrogation of the states' 11th Amendment immunity from suit was "appropriate legislation" within the scope of Congress's power under Section 5.

And so forth ... On the other hand, here is a sample of the commentary from Howard J. Bashman of the must-read (and most-read) law blog, How Appealing:
Justice David H. Souter wrote a one paragraph concurring opinion, in which Justices Ginsburg and Breyer joined, to remind us that he still feels nothing but total disdain for all of those Eleventh Amendment cases in which he was on the losing end, and he doesn't plan to change his mind about that any time soon. And Justice John Paul Stevens wrote an opinion concurring in the judgment in which he again advanced the bold concept that the Eleventh Amendment should be understood to mean merely what it says, and such an understanding causes it not to apply to this case. Apply the Eleventh Amendment to mean what it says!!! What fun would that be?

The unfortunate task of dissenting from today's decision fell to Justice Anthony M. Kennedy, although true to form Justice Antonin Scalia couldn't resist throwing a few punches in a short separate dissent. Justice Kennedy's dissent, in essence, was the majority opinion we would have seen had the Chief and Justice O'Connor not jumped ship. In Justice Kennedy's view, the evidentiary record before Congress simply didn't justify abrogation of the State's Eleventh Amendment immunity.

Read all of Bashman's observations on Hibbs (and the other cases handed down yesterday) here (although you may have to be patient because the site is fairly slow-loading).

[Updated 5/30/03] Columnist Michael Kinsley has a piece this morning (access it here in the Washington Post)that begins:

The Supreme Court surprised everybody by ruling Tuesday that even state governments have to obey the Family and Medical Leave Act of 1993. Liberals and women's groups are hailing the opinion and love-bombing its author, Chief Justice William Rehnquist. Still, it's a very odd opinion, especially to anyone who remembers the debate over family leave 10 years ago. The court was expected to add this case, Nevada v. Hibbs, to a series of rulings in which it has held that state governments are exempt from federal laws. Under the Constitution, basic sovereignty belongs to the states and the central government may do only what the Constitution itself authorizes. Ever since the New Deal, this has not been much of a problem. The courts have held that Congress's authority to regulate interstate commerce covers almost everything. Under Rehnquist, though, a doctrine has been growing that the states themselves, as sovereign powers, don't have to obey various federal mandates. Conservatives are thrilled about this, because they tend to favor states' rights and because they hope this exception for the states might lead to more general court-imposed limits on the government in Washington. Rehnquist disappointed them, holding that discrimination against women is such a serious social problem that federal power can trump states' rights.

Posted by Marcia Oddi at 08:44 AM

Law - Driver's license photo: national security matter or religious freedom issue?

The NY Times yesterday carries an AP story with this Times headline: "Florida License Trial Opens in Lawsuit by Veiled Woman." You've probably heard about it on the news - a Florida woman, to whom Florida issued a driver's license in early 2001 with a photo of the woman wearing her full-face veil, received a letter from the state later that year demanding that she submit to a new, unveiled photo or have her license revoked:

"This is about religious liberty," Mr. Marks said as the trial opened in Ms. Freeman's nonjury lawsuit against the state. "It's about whether this country is going to have religious diversity. Allowing the state to chip away at religious liberties is not a path we want to go down."

Assistant Attorney General Jason Vail argued that having an easily identifiable photograph on a driver's license was a matter of public safety because the photographs are used during traffic stops, in financial transactions and to prevent identity fraud. Mr. Vail said there were limits to the religious liberties extended in the Florida Constitution if public safety was at stake. "It's the primary method of identification in Florida and the nation," Mr. Vail said of the driver's license. "I don't think there can be any doubt there is a public safety interest."

Judge Janet C. Thorpe of Circuit Court must decide whether taking the photograph would violate Ms. Freeman's religious beliefs and whether the state has a compelling interest in not allowing her to obtain a license with her covered face in a photograph.

My immediate reaction to the prosecutor's argument here is that if the State revokes Ms. Freeman's driver's license for failure to submit to a photgraph, the State will still have not met its stated public safety requirements -- "an easily identifiable photograph [to be] used during traffic stops, in financial transactions and to prevent identity fraud" -- because rather than having a driver's license without a photo of her face, Ms. Freeman will have no driver's license at all.

Ms. Freeman's black veil that covers the face and head except for the eyes is called a niqab. CNN. com calls it a hijab; it may be that a hijab is a more general term for a scarf. Here is more from CNN.com:

The tradition of the hijab stems from a trio of verses in the Al-Ahzab section of the Quran, one of which reads: "Tell thy wives and thy daughters and the women of the believers to draw their cloaks close round them (when they go abroad). That will be better, so that they may be recognised and not annoyed."

Even within the Islamic religion, the form and function of the veil is widely disputed. Some Muslims take a loose interpretation of the verse, believing it does not mandate Muslim women to wear the veil. Others take a strict interpretation. But even then, some women cover only their hair, some cover only part of their face, and some — like Freeman — cover all but their eyes. "Full hijabs are very rare," said Alan Godlas, an associate professor of religion specializing in Islamic studies at the University of Georgia. But whether full, half or hair only, the hijab is often an integral part of a Muslim woman's identity. "For many Muslim women, it's one of the key features of their identity as a Muslim," said Godlas. "Not only would removing it be a violation in their mind of the Quran, it's a violation of an element that's essential to who they are ... it is the most important single religious symbol to many Muslim women."

An interesting new law blog, The Niqabi Paralegal, written by a Muslin paralegal student (Al-Muhajabah), has been following this story and researching the issues. Read his extensive and excellent commentary here. Al-Muhajabah reports that he has found two cases that "deal directly with the issue of non-photo driver's licenses and religious exemptions." One of them, Al-Muhajabah continues, is an Indiana case:
Bureau of Motor Vehicles of The State of Indiana v. Pentecostal House of Prayer, Inc, 269 Ind. 361 (1978). This is actually the earliest case on the issue that I've found. Like the other cases, it deals with a Christian who believed that photographs were graven images and didn't want a photo driver's license. The Indiana Supreme Court upheld this right.

One point is particularly interesting. The argument of those who oppose religious exemptions is that driving is a privilege, not a right. The Indiana Supreme Court responded to this issue:

The gist of this argument is that there is no "right" to drive in this state, rather, driving is merely a privilege. In other words, the state's position is that no First Amendment problem is raised where a citizen's free exercise right is brought into conflict with a mere privilege. This position was considered and expressly rejected by the United States Supreme Court in Sherbert v. Verner:

"Nor may the South Carolina court's construction of the statute be saved from constitutional infirmity on the ground that unemployment compensation benefits are not appellant's 'right' but merely a 'privilege'. It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege"

Thus the trial court correctly found coercive state action in that the photograph requirement of the statute would operate to deny these appellees the ability to drive, regardless of whether this ability is characterized as a right or privilege (citations omitted, emphasis added)

My question as I read this report of the Indiana decision was, how would these facts play out in Indiana today? The current Indiana DMV statute, IC 9-24-11-5, provides:
Sec. 5. (a) A permit or license issued under this chapter must bear the distinguishing number assigned to the permittee or licensee, and must contain: * * *
(7) except as provided in subsection (c), for the purpose of identification, a:
(A) photograph; or
(B) computerized image;
of the permittee or licensee;
and additional information that the bureau considers necessary, including a space for the signature of the permittee or licensee.
* * *
(c) The following permits or licenses do not require a photograph or computerized image:
(1) Temporary motorcycle learner's permit issued under IC 9-24-8.
(2) Motorcycle learner's permit issued under IC 9-24-8.
(3) Operator's license reissued under IC 9-24-12-6.
(d) The bureau may provide for the omission of a photograph or computerized image from any other license or permit if there is good cause for the omission. * * *
Thus, subsection (d) provides for an exception from the photo requirement. However, the BMV does not appear to have adopted any regulations detailing how this "good cause" exemption may be invoked. One would suspect that this matter comes up in Indiana with some frequency, as we have not only a number of members of the Pentecostal faith in Indiana, but a large number of Amish, particularly in NE Indiana, who also have a religious objection to being photographed. We also have a significant Muslim community.

The BMV statutory provisions regarding photos were similar in 1978 to what they are today; however, at that time no exception was provided for. Here is some of what Justice Pivarnik wrote in BMV of Indiana v. Pentecostal House of Prayer, 269 Ind. 361 (Ind 1978):

The appellee's religious beliefs are derived from a literal reading of the Bible. Of particular significance in the present case is the Second Commandment which states: "Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the waters beneath the earth." Deuteronomy 5:8.

The appellees believe that this passage prohibits them from owning, posing for or otherwise participating in any form of photography, painting or sculpture. The statute's photograph requirement, it is argued, forces the appellees to choose between surrendering their driving privileges and violating a fundamental religious precept. * * *

[F]or the appellees in the present case to prevail in their First Amendment attack upon the photograph requirement, they must show that their objection to the requirement is rooted in religious beliefs, the free exercise of which is impinged by enforcement of the challenged statute. After such showing, it is incumbent upon the state to come forward and show either that the religious beliefs are not, in fact, violated, or that the state has an interest in the statute which is so compelling that it counterbalances the infringement upon the appellees' rights.

The Indiana BMV argued that it was their duty to continually check the competency of Indiana drivers and "It is only through proper identification that such continual checking can be made by the various law enforcement, judicial, and administrative officers who aid the Bureau of Motor Vehicles in its responsibility." The Court responded:
While we agree that the state has a strong interest in insuring driver competency, the idea that the photograph requirement is necessary to that interest is patently absurd. We do not see how having one's photograph on a drivers license can make one a more competent driver. The Bureau's argument that the photograph requirement gives it a means of speedy, positive identification, thus aiding the Bureau in the performance of its duty to insure safe roads in Indiana, is more compelling. Normally we would not question the state's need for administrative efficiency in an area as broad and complex as is involved in the licensing of all Indiana drivers. However, we feel that there are other alternatives available to the Bureau which would satisfy this purpose without impinging on the rights of these appellees. For example, the statistics which are traditionally included on a driver's license, such as license number, height, weight, eye and hair color, have long proven adequate to enable the Bureau to fulfill its important duties. Furthermore, we feel that it is as much to a driver's advantage to have a photo-license as it is to the state. Having a photo-license goes a long way toward easing the problems which arise when cashing checks and transacting other non-cash business. Since a photo-license is arguably an advantage to license-holders, it follows that the exemption sought by the appellees will, to some degree, work a disadvantage upon them. Thus, it is not likely that a ruling in the appellees' favor would result in widespread abuse. In sum, we agree with the trial court's finding that the state's interest in the photograph requirement, such as it is, is not so compelling that it may be allowed to infringe upon the appellees' fundamental right to freely exercise their religious beliefs.

Posted by Marcia Oddi at 08:08 AM

May 28, 2003

Law - U.S. Supreme Court and "Federalism"

The Washington Post today has an editorial that expresses my feelings exactly. Titled "States Rights Muddle," it begins:

THE SUPREME COURT stemmed its deeply troubling line of states' rights cases yesterday by handing down a decision that reaffirms Congress's broad power to prevent discrimination by states. The 6 to 3 ruling, written by Chief Justice William H. Rehnquist, upheld the legislature's power to authorize suits against state governments under the federal Family and Medical Leave Act, which guarantees unpaid leave to workers who have babies or need to care for relatives. The decision tacks against the court's recent jurisprudence, which has reined in Congress's ability to authorize suits for money against states that violate federal strictures. The change is welcome -- yet it underlines the absence of recognizable principles in the court's decisions governing the balance of power between states and the federal government. The result is a muddle. * * * Few observers would have predicted before the court began its reexploration of American federalism that family leave suits against states, but not age or disability discrimination suits, would have been permitted. Law is supposed to be predictable, providing a set of rules under which people -- and in this case states -- can organize their behavior. When it comes to suing states, nobody knows what the court will and won't permit. The decision yesterday is a step in the right direction, but the court has a long way to go to re-create a stable and useful doctrine governing the rights of citizens, the immunity of states and congressional power. [emphasis added]
The decision, Nevada Department of Human Resources v. Hibbs (USSC 5/27/03), is available here via Findlaw.com, and reported on here in the Washington Post, here in the NY Times (where Linda Greenhouse works to explain the distinction between this decision and the Court's recent precedents), and here in the LA Times.

Posted by Marcia Oddi at 09:53 AM

Law - Tax on Charitable Foundations

USA Today's editorial page has "pro and con" opinions today on a proposal pending before the U.S. House to change the way the requirement that a charitable foundation give away 5% of its assets each year is calculated. From the piece titled "Wealth charities are most generous to themselves," urging changes to the law:

Under federal law, private foundations must donate a mere 5% of their assets each year to remain exempt from virtually all federal and state income taxes. But even that modest requirement is undercut by rules that let foundations count administrative expenses, such as rent and salaries, as part of the 5%. And some foundations spend generously on expenses, according to foundation watchdogs. In 2001, for instance, the Robert Wood Johnson Foundation, worth $8.15 billion, distributed $390 million — just 4.8% of its assets. Of that, $91 million was spent on administration.
Abuses cited are meager giving, high overhead, lavish salaries. More from the article:
The foundations' high expenses have prompted Reps. Roy Blunt, R-Mo., and Harold Ford Jr., D-Tenn., to push legislation that would require foundations to give a full 5% to charity annually, excluding expenses. That, together with closer monitoring of foundations, could help curb lavish spending. The IRS and state attorneys general have the authority to police foundations, but they have used their powers sparingly. In 2002, the IRS audited only 120 private foundations, fewer than one in 500, according to the Council on Foundations, a trade group. The council says it would welcome more government oversight. But it argues that increasing the 5%-donation requirement would deplete many foundations' assets and force them to close.
The contrary piece, titled "Don't punish all foundations," begins:
After you write a check to a charity, don't you want to know that it made a difference? So do foundations. That's why foundations — which spend private money for the public good — have staff, conduct research, assist grantees and evaluate the grants they make. But a provision in a bill now before Congress would bar private foundations from counting these activities as charitable work on their tax returns. Congress and the public count on foundations to provide long-term, well-informed, accountable and transparent support to charities, but this provision sends a message that foundations are good only for writing checks.
These articles are also available via Yahoo, here and here.

Reports of this proposed change in the House bill first came to my attention earlier this month. A NY Times story (still available here in the 5/19/03 Lexington Herald-Leader) reported:

The House of Representatives is considering a bill that could force the nation's foundations to give away more of their money to charity each year, creating a potential windfall of billions of dollars for non-profit groups. The bill has created a furor in the philanthropic world, with foundations warning that they could be forced to squander their assets and spend themselves out of existence. Its supporters, however, say it will actually rein in wasteful spending, on salaries and overhead, as it gives charities a needed boost in a time of withering government budgets and growing economic pain.

The legislation is the House version of a bill passed last month in the Senate aimed at creating incentives to spur charitable giving. The House bill, unlike the Senate bill, would modify an existing law that requires foundations to give at least 5 percent of their assets to charities every year. The current law allows foundations to include administrative expenses like rent, accounting fees and salaries in that 5 percent target. The new bill would remove that loophole. Hence the uproar.

"If we are consistently required to pay out more than we already do, it will eat into capital and the country will lose these resources, these public assets for the common good," said Susan V. Berresford, the president of the Ford Foundation, who is one of the most vocal opponents of the proposed changes to the tax law.

The Mercury News ran an excellent analysis 5/26/03 labeled "How House bill would affect 9 top foundations: annual giving would go up by as much as $35 million."
That amount, enough to finance the charitable work of two United Ways of Silicon Valley with millions left over, would be a boon to non-profit organizations that are struggling through an economic downturn. It suggests that nationally, the country's more than 50,000 foundations would have to increase annual giving by billions.

But many foundations, including the William and Flora Hewlett Foundation in Menlo Park, are opposing the legislation, saying it would require them to diminish their assets and perhaps even spend themselves out of business. In a letter to Congress, Hewlett's president, Paul Brest, said the bill would force a "Hobson's choice" on foundations, forcing them either to deplete their assets, or to reduce staff and deplete the quality of their grant-making. It would be a "serious error," he said.

The legislation focuses on a requirement that private foundations spend at least 5 percent of their assets each year on grants. In that 5 percent they are allowed to count operating costs incurred in distributing and administering the grants. In practice, many include basic overhead such as executive salaries, pension benefits and rent for their headquarters, and so give away significantly less than 5 percent. The legislation, aimed at increasing the amount of giving by foundations, would stop foundations from counting expenses as part of the 5 percent. * * *

Some foundation donors, most notably Richard Goldman in San Francisco, have vowed to spend their endowments before they die, on the idea that money donated today should go to today's needs. The Goldman Foundation, as a result, distributes more than 5 percent of its assets each year. But others argue that allowing foundations to maintain their assets and grow serves society. "For me, the issue boils down to, should foundations live in perpetuity?" Vandiver said, pointing out that Cowell, founded in 1954 with $12.5 million, has given out more than $190 million in grants over the years. "That's a strong case for maintaining foundations in perpetuity."

Today's (5/28/03) NY Times, in a story titled: "Foundations Hire Ex-Lawmaker to Lobby Against a House Bill," reports:
A group of the nation's most prestigious private foundations has hired a major lobbying firm in an effort to persuade the House of Representatives to drop a proposal that would effectively increase the amount that foundations have to pay out each year.

Posted by Marcia Oddi at 09:33 AM

May 26, 2003

Indiana Decisions - Wetlands, Rulemaking

Not yet scheduled for oral argument before the Indiana Supreme Court, but pending, is the case of Twin Eagle LLC v. Indiana Department of Environmental Management. An "Order on Pending Motions and Entry of Summary Judgment" in Twin Eagle was entered on 2/11/02 by Judge Michael D. Keele, Marion Superior Court, Civil Division, Environmental Court. A copy of Judge Keele's 23-page order may be accessed here. (IDEM was granted a temporary stay of the order pending IDEM's appeal.) As of this writing, the docket for the case shows a last entry of 8/13/02. (For more current information, access the docket here.)

A story that appeared in the Muncie Star Press at the time (Feb. 2002) stated:

A state agency's attempts to regulate the filling and dredging of isolated wetlands was blocked in court Monday * * * . The Indiana Department of Environmental Management last year began regulating isolated wetlands through an "interim regulatory process" that was unlawful, Marion County Environmental Superior Court Judge Michael Keele ruled on Monday. The judge agreed with Allen County residential developer Twin Eagle Corp. that IDEM essentially tried to implement a new rule without giving fair warning to the public and conducting public hearings. The court ruled IDEM couldn't require Twin Eagle or any other party to obtain a permit to drain or fill an isolated wetland. IDEM had invoked its "interim regulatory process" - a term the judge said did not exist anywhere in state law - in response to last year's U.S. Supreme Court ruling that decided the U.S. Army Corps of Engineers lacked jurisdiction to regulate isolated wetlands - those not adjacent to navigable "waters of the United States."
A second and more comprehensive Muncie Star Press story, published a few days later, gave additional detail:
[IDEM] says a "vast number" of Indiana's remaining wetlands face "considerable damage" unless it wins an emergency stay pending the appeal of a court ruling. Marion County Superior Court Judge Michael Keele last week granted a summary judgment to Twin Eagle, a corporation that intends to build several hundred houses on a 460 acre-site in Allen County that includes 21 1/2 acres of private ponds and wetlands.

In the wake of a January 2001 ruling by the U.S. Supreme Court, IDEM is trying to regulate "isolated" wetlands through the National Pollutant Discharge Elimination System program. NPDES is a regulation requiring cities, towns, industries and others to get a permit to lawfully discharge treated wastewater and other pollution into rivers and other water bodies. But Twin Eagle claimed - and Judge Keele agreed - that IDEM failed to give the public notice and a chance to comment in its eagerness to fill the gap in wetland regulations created by the Supreme Court case. * * *

Judge Keele ruled IDEM lacked authority under the NPDES program to protect isolated wetlands; that isolated wetlands are not waters of the state; that IDEM can't require Twin Eagle or any other party to seek an NPDES permit for activity that impacts isolated wetlands; that IDEM can't bring an enforcement action for filling or draining isolated wetlands, and that IDEM's interim attempts to regulate isolated wetlands constitute improper rule-making.

The U.S. Supreme Court decision referenced is Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (USSC 2001) ("SWANCC"). Access it here via Findlaw.com.

As a result of the Supreme Court's decision in SWANCC, IDEM announced in the spring of 2001:

The Indiana Department of Environmental Management (IDEM) has developed an interim regulatory process to continue protection of water resources affected by the Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) United States Supreme Court decision. Starting June 11, 2001, IDEM will use its authority to implement the National Pollution Discharge and Elimination System (NPDES) permitting program and will apply it to wetland fills in waters considered isolated. IDEM is using the NPDES permit as an interim measure to provide an enforceable mechanism to assure compliance with the state's water quality standards and laws will be implemented. This approach is planned for use until the effective date of new rules authorizing a state wetland permit program. An NPDES permit, at this time, provides the best mechanism by which impacts to wetlands can be legally authorized, and also provides for a public process and a level of certainty for all citizens of Indiana.
Access the above, and related information issued by IDEM, including Commissioner Kaplan's 6/5/01 letter, here. It was this action by IDEM, undertaking an "interim regulatory process," that led Twin Eagle to seek declaratory relief. As stated in Judge Keele's order (p. 11, p. 23):
IDEM's announcement of the new NPDES permit requirements for isolated water bodies is designed to have the effect of law, instituting a new policy that would require a new permit never before required by IDEM. The creation of an "interim regulatory policy" -- a term found nowhere in the state's administrative or environmental statutes, or indeed in any Indiana statute or case -- is IDEM's attempt to interpret law or policy and falls squarely within the definition of rulemaking as defined in Indiana Code 4-22-2-3(3). The "interim regulatory process" was intended to have general application. It was issued in a public press release, a memorandum to "interested persons," and an Indiana Register public notice. The guidelines established by the new permit requirement were intended to and do have a broad impact on private property owners as a new statement of regulatory requirements.

In [IDEM] v. AMAX, Inc., 529 NE2d 1209 (Ind CtApp 1988) the Indiana Court of Appeals held that the adoption of rules that have the force of law without first proceeding through the rulemaking process invalidates the rule. A rule must be promulgated through notice and comment rulemaking. In this case, IDEM has instituted a new policy and permit requirement without any attempt to follow the rulemaking requirements. * * *

IDEM's "interim regulatory process" constitutes improper rulemaking and is ultra vires and void.

In addition to creating the "interim regulatory process," IDEM also has in fact initiated a rulemaking process to govern isolated and other wetlands, but the proposed rules appear to be stalled. (The proposal, WPCB #99-58, was preliminarily adopted by the WPCB on 2/13/02, but there has been no action since that time. Access the 2/13/02 WPCB wetlands materials here.)

The Indiana General Assembly instructed an interim legislative committee, the Environmental Quality Service Council (EQSC), to study the problem during the interim between the 2002 and 2003 sessions, and the 2003 General Assembly did indeed enact a bill concerning wetlands (HEA 1798, access it here) but that bill was vetoed 5/8/03 by Governor O'Bannon. The following is from the Governor's veto message on HEA 1798:

House Enrolled Act 1798 deals with four aspects of environmental law. * * * As this message explains, I have decided to veto this bill because its resolution of wetlands issues is unsatisfactory even as a starting place for state regulation. * * *

The bill * * * addresses the issue of “isolated wetlands” in Indiana. A U.S. Supreme Court decision in 2001 left about one-third of our state’s wetlands without federal protection. State authority to regulate these wetlands has been challenged and is now in state court. * * *

HEA 1798 contains the results of this year’s deliberations on wetland legislation. The bill creates an isolated wetland protection scheme. The bill notes goals of “no net loss of wetlands” and a “net gain of high quality wetlands,” and I support those goals.

It is clear, however, that HEA 1798 will not achieve these goals. Wetlands are natural resources that function to enhance the state’s water quality, to enhance our natural habitat and to provide recreational opportunities. The continued net loss of wetlands in a state that has lost about 85 percent of the original wetlands is unacceptable.

I commend members of the General Assembly, particularly those who participated in last summer’s Environmental Quality Services Council study of wetlands issues, for their hard work on this complex subject. Nevertheless, even the sponsors of SEA 1798 have acknowledged that more work is needed to finalize sound wetland conservation law for Indiana. I agree.

Wetlands policy should take into account the variety of interest and be appropriate for Indiana. However, the concerns with this bill go beyond mere differences of opinion on the parameters of wetlands to be protected. Most isolated wetlands would be subject to no protections because of their size or because they would fall into the new definition of “pond.” The bill would allow excavation in isolated wetlands, contrary to federal rules and the program Indiana has operated historically. The new definition of “pond” would likely prevent Indiana from complying with the federal Clean Water Act. The bill would void more than 2,000 projects that were subject to permitting for wetland development under former rules, even if those projects would be covered under HEA 1798. It would create wetlands classifications that are not supported by scientific definitions, and it fails to define many key terms. The bill would greatly narrow the definition of “waters” of the State. It would not achieve the certainty for developers and others in the regulated community that was the original intention of this legislation. Some of these may be unintended consequences, as some provisions did not receive full debate during the legislative process. But they are of high concern.

Accordingly, I have asked Lori Kaplan, the Commissioner of IDEM; John Goss, the Director of IDNR; and Joe Pearson, Assistant Commissioner of Agriculture to establish a Governor’s Task Force on Wetlands. The Wetlands Task Force will prepare recommendations for the General Assembly to consider in 2004 to further shape wetlands conservation law in Indiana. Commissioners Kaplan and Pearson and Director Goss will solicit knowledgeable members of the environmental, business, agriculture communities, interested legislators and known wetland experts to participate in the Task Force. The Task Force should address the specific issues I have identified in this veto message, as well as other issues raised by the public and Task Force members. The Task Force should complete its work by November 1, 2004.

I understand that vetoing HEA 1798 means that the authority of the state to protect isolated wetlands is now in the hands of the Indiana Supreme Court. I am confident that, with more time and good faith efforts, Indiana can fashion a sound wetlands law that balances our environment and natural resources with economic development. I do not believe that HEA 1798 accomplishes this balance.

Posted by Marcia Oddi at 05:49 PM

Law - Copyright

The Indianapolis Star this weekend carried an AP story titled: "Local company loses battle of bad teeth: Bubba's fake ivories violate copyright of Billy-Bob's, say judges, citing Austin Powers."

Both Billy-Bob and Bubba have repulsive false teeth, but it took the 7th U.S. Circuit Court of Appeals to determine that Billy-Bob's are the real deal when it comes to disgusting dentures. The appellate panel on Wednesday reversed a southern Illinois federal judge's decision to overturn a copyright infringement award to novelty teeth maker Billy-Bob Teeth of Hardin, Ill. * * * Billy-Bob's lawyers said the company was selling $5 million a year in novelty teeth and argued that the Bubba line, produced by an Indianapolis company called Novelty, was biting into profits with too similar a trade name.
The 12-page decision itself, Billy-Bob Teeth, Inc. v. Novelty, Inc. (USCA 7th, 5/21/03), really should be read in its entirety.

Posted by Marcia Oddi at 12:36 PM

Indiana Decisions - planning and zoning

Story Bed & Breakfast v. Brown County (Ind CtApp. 5/21/03)
Brown County v. Broe (Ind CtApp. 5/21/03)
Mathias, Judge

Brown County's land use practice and procedures suffered blows last week in two separate opinions handed down by the Indiana Court of Appeals.

In Story, the issue was whether Brown County could enforce land use restrictions imposed by the planned unit development (PUD) district ordinance governing property owned by Story. Two PUDs had been entered into by the prior owners of the Story property, in 1986 and 1992. "[N]either the covenants nor the PUD designation ... were recorded, and the only written evidence of the covenants attached to either Story property PUD is found in the files of the Brown County Plan Commission and the Board of Commissioners records." Prior to its purchase of the property in 1999, plaintiffs hired a third party to conduct a title search. "Not surprisingly, this search did not disclose any restrictions affecting the use of the Story property." Story brought this action seeking a declaratory judgment that would preclude the Plan Commission from enforcing the unrecorded Story property land use restrictions. The Court said:

We are troubled that a property owner’s common law right to the unrestricted use of his or her property might be encumbered by a condition only discoverable through a search of the minutes of a plan commission meeting. This is further troubling when considered in combination with the fact that the conditions that the subsequent landowner would be required to look for may not even exist. We believe that a prospective BFP, who may or may not know or have reason to know of conditions in the first place, is not likely to possess the necessary specialized knowledge of the parochial filing practices of an individual county, like Brown County in the present case, and is therefore unlikely to have adequate notice of such land use restrictions unless they are recorded or otherwise memorialized in a manner calculated to provide the BFP notice of the land use restriction. * * * [W]e require all PUD land use restrictions, however denominated, to be either recorded or memorialized in a manner reasonably calculated to give notice to subsequent BFPs before such restrictions may be asserted against a subsequent BFP. We determine that the location of the Story property land use restrictions in the minutes of Plan Commission meetings was insufficient to give Story such notice. We also determine that the Zoning Ordinance requires PUD covenants to be recorded before they may be asserted against a subsequent BFP.
In Broe, the County sought to enforce a zoning ordiance and sawmill special exception granted to Broe in 1976. In a lengthy discussion of the facts of the case, the Court refers to "Brown County's continued silence yet actual knowledge of the sawmill operation ... and nearly thirty-year silence concerning any possible zoning violations with regard to the location and operation of the sawmills" and states "we agree with Broe that Brown County is estopped from challenging Broe's industrial use of his property." It concluded:
In this case, the County affirmatively acted many times, including granting the special exception and approving the two, different subdivision plats. Also, the County was well aware of the character of Booe’s nearly thirty-year use of his land, and in fact purchased building materials manufactured at Booe’s sawmill. Reliance on a governmental entity’s affirmative acts is a sufficient public interest to warrant the application of the estoppel defense. Id. at 421; see also Advisory Bd. of Zoning Appeals of City of Hammond v. Found. For Comprehensive Mental Health, Inc., 497 N.E.2d 1089, 1092 (Ind. Ct. App. 1986) (“[W]e find that the public interest will be threatened in this case if the city, under its ordinance, as written, is allowed to issue building permits to property owners who rely on the permits and expend large sums of money, only to be informed at the last minute that they cannot occupy the building for which they expended the funds.”). * * * Under the facts and circumstances of this case, Booe’s and Beckemeyer’s current uses are nonconforming uses that Brown County is estopped from preventing.

Posted by Marcia Oddi at 11:23 AM

May 24, 2003

Law - Planning and zoning

"The prospect of running out of open space to build on, a phenomenon that planners call 'buildout' is at the heart of" New Jersey Governor McGreevey's campaign against urban sprawl, according to a story today in the NY Times:

New Jersey, far more densely populated than any other state — more crowded than Japan or India, for that matter — is on course for another distinction: it will be the first state, land-use experts say, to exhaust its supply of land available for development. * * * Builders accuse the governor of thwarting the American dream, environmentalists say builders will kill agriculture, and many towns try to avoid the costs of growth, like developing infrastructure and building schools, by zoning out housing that would bring in children. * * * The debate now under way will determine whether the population will continue to spread across the landscape or become more concentrated in the cities and older suburbs. It will determine, in short, what a built-out state looks like.
The end result may be "redeveloping cities instead of expanding suburbs." Or maybe not.

Another recent story, this one a lengthy feature from the Knoxville Tennessee News, looks at the problem of buildout in a far less populated state, where the need for economic development to attract new high-skilled, high paying jobs:

... also can compromise the quality of life that brought people ... here in the first place. What most concerns local planners is not a shortage of government services but the disappearance of local land as farms and fields quickly become filled with retail centers and subdivisions. Much of the county's development since the 1950s and 1960s has been sprawling subdivisions with large individual lots and little mix of commercial or industrial development. This type of buildout eats up land and proves costly to the county in terms of services without the payout that more business-oriented development brings, say local planners.
In 1998 Tennessee passed a statewide Growth Policy Law. Access more information about it here.

A number of resources on state-wide planning are available online, including Smart Growth Online and the Sprawl Guide.

Posted by Marcia Oddi at 06:14 PM

Indiana Law - Seatbelt Enforcement Challenge

The Indianapolis Star website reports this afternoon that an Indiana University-Bloomington law student

... has filed a lawsuit challenging the constitutionality of local enforcement of Indiana's seat-belt law. Mark Abplanalp, a third-year IU law student who is representing himself, argues that the local enforcement is unconstitutional because it exempts pickup trucks.
The Star reports that Abplanalp appeared in Monroe County Court yesterday (5/23/03) referencing an appellate court opinion that held the seat belt law to be constitutional although it exempted trucks and SUVs. Abplanalp contended that the Bloomington Police "have been ordered not to issue citations for not wearing a seat belt because the state law exempts trucks and SUVs," and they are unconstitutionally creating a 'privileged class' by not enforcing the seat belt requirements against pickup truck drivers.

The appellate court case referred to is presumably State of Indiana v. Brian K. Price (Ind. Ct.App. 2/29/2000) and the statutue is IC 9-19-10.

[Update: 5/25/03] This updated story appears here in today's Bloomington Herald-Times. Some quotes:

A challenge to the constitutionality of local enforcement of the Indiana seat-belt law has been taken under advisement by Monroe Circuit Judge Marc Kellams. * * * [D]eputy prosecutor Richard Hansen cited prior U.S. Supreme Court rulings that require a showing of "purposeful discrimination" against an individual for a showing of unconstitutionality. He also noted that the state appellate case Abplanalp cited established that distinctions in seat-belt enforcement among various types of vehicles was constitutional.
And a story in today's Indianapolis Star headed "Police must have probable cause for seat-belt stop" discusses the different procedures police are to follow for drunken-driving vs. seat-belt roadblocks:
The courts have ruled that drunken-driving roadblocks are for traffic safety, so police can stop motorists and briefly question them. * * * But when it comes to seat-belt patrols, courts have ruled that police are enforcing laws, not patrolling for traffic safety. That means police must have probable cause to stop a potential violator. So police at safety-belt checkpoints stand in the middle of a street or on a sidewalk and look inside approaching cars to see whether the drivers are wearing belts.

[The IPD case referenced in the story is City of Indianapolis v. Edmond (US SCt 11/28/2000). Access it here via Findlaw.com]

"Is it harder to look inside trucks? The court in Price (see above) thought so:
[W]e find that there are inherent distinctions between the classifications made by the legislature in the seatbelt enforcement statute. We mention only three. First, the passenger vehicles covered by the statute presumably travel at a higher rate of speed than the cargo-laden trucks or the huge recreational vehicles exempted from the statute’s coverage. Thus, the need for the protection afforded by seatbelts is more apparent. Second, the trucks and recreational vehicles provide significantly more structural protection in collisions than the passenger motor vehicles mentioned in the statute. Third, the detection by reasonable means of non-use of a seatbelt in a typical passenger motor vehicle is much more possible than in a truck or recreational vehicle where the front-seat occupants are not so easily observable. We therefore conclude that the disparate treatment in seatbelt enforcement statute is reasonably related to inherent characteristics which distinguish the unequally-treated classes. Accordingly, such classification does not constitute a violation of the equal privileges clause of the Indiana Constitution. [emphasis added]
Another related story in today's Star is headed "Seat-belt scofflaws targeted: Officials hope checkpoints over holiday will lead to safer summer."

Posted by Marcia Oddi at 03:56 PM

May 23, 2003

Indiana Decisions - Responsibility of Appellant Pro Se

Stephen F. Ramsey v. Review Board of the Indiana Department of Workforce Development (Ind. Ct.App. 2/27/03)
Friedlander, Judge

[Note: Although dated 2/27/03, this case was made available online just yesterday, 5/22/03]

Proceeding pro se, Appellant Ramsey appealed the determination of the Review Board denying unemployment benefits. The Court affirmed the determination. Set out below are the first and last paragraphs of the Court's opinion. In between these paragraphs, the Court set out in five pages "a multitude of deficiences [that violate] nearly every provision of App. R. 46(A) in some way."

We begin by observing that one who proceeds pro se is “held to the same established rules of procedure that a trained legal counsel is bound to follow” and, therefore, must be prepared to accept the consequences of his or her action. Mullis v. Martin, 615 N.E.2d 498, 500 (Ind. Ct. App. 1993). While we prefer to decide cases on the merits, we will deem alleged errors waived where an appellant’s noncompliance with the rules of appellate procedure is “so substantial it impedes our appellate consideration of the errors.” Id. The purpose of our appellate rules, Ind. Appellate Rule 46 in particular, is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case. “We will not become an advocate for a party, nor will we address arguments which are either inappropriate, too poorly developed or improperly expressed to be understood.” Terpstra v. Farmers and Merchants Bank, 483 N.E.2d 749, 754 (Ind. Ct. App. 1985), trans. denied. * * *

“While we are often tolerant of minor infractions of the appellate rules so that we may decide appeals on their merits, those rules are nonetheless binding on all persons bringing appeals to this court.” Sartain v. Blunck, 453 N.E.2d 324, 325 (Ind. Ct. App. 1983). In the instant case, because Ramsey’s noncompliance with the appellate rules substantially impedes us from reaching the merits of this appeal, we are compelled to find the issues raised are waived. See Mullis v. Martin, 615 N.E.2d 498.

Posted by Marcia Oddi at 08:33 AM

Environment - Post-mortems on EPA's Whitman

From the LA Times, this story, nicely summarized in its headlines: "Bush Walks a Political Tightrope on EPA: If he picks a moderate, it could anger industry allies. A conservative could aid Democrats." More:

Views on environmental rules tend to be polarized, and Whitman seemed to please few of the EPA's constituencies. She was often out of step with the White House but enjoyed little support from environmentalists, who objected to the administration's withdrawal from negotiations on a global warming treaty and its rewriting of industrial pollution rules. At the same time, industry groups were not big supporters either.
The Seattle Post-Intelligencer has this column headlined
"In The Northwest: At EPA, Whitman paid price for her small victories." A quote from this opinion piece:
The patrician former governor could have ended her tenure at the EPA by listing her own kind under the Endangered Species Act. Whitman is a mainstay of the so-called white-shoe wing of the Republican Party, once-influential Northeast blue bloods isolated and often browbeaten as they try to roost in a militantly conservative party.
This, titled "A mute, toothless watchdog," from The Berkshire Eagle.

[Update 5/24/03] The LA Times has this story today, titled: "As EPA Chief, Whitman Won Some Tough Fights." A quote:

"I don't think you're going to see anyone with Christie Whitman's star power wanting to take the job," said Frank Maisano, a spokesman for several electric utility companies. "That's going to be a detriment to any policy the administration is moving forward."

Posted by Marcia Oddi at 07:50 AM

May 22, 2003

Law - More on tobacco litigation

On Wednesday, 5/21/03, in the case Liggett Group v. Engle, the Florida Third District Court of Appeals ruled:

This is an appeal from a final judgment in a smokers’ class action law suit seeking damages against cigarette companies and industry organizations for alleged smoking related injuries. The final judgment awarded $12.7 million in compensatory damages to three individual plaintiffs, and $145 billion in punitive damages to the entire class. We reverse with instructions that the class be decertified.
For coverage, see this Washington Post story, titled "$145 Billion Award in Tobacco Case Voided: Florida Appeals Court Calls Figure 'Grossly Excessive.'"
A Florida appeals court today overturned the largest punitive damage award in U.S. history, saying a $145 billion verdict against the tobacco industry was issued by a "runaway jury" that had been "swept along in lemming-like fashion" by the racially tinged arguments of lawyers representing Florida smokers. Third District Court of Appeal Judge David M. Gersten called the award "grossly excessive," likening it to the gross national product of "several European countries." He said it violated a Florida law banning jury awards that would bankrupt corporations.
The LA Times story included this analysis:
The decision was the second recent high-profile ruling on punitive damages to favor corporate defendants. Last month, the U.S. Supreme Court threw out a $145-million award against State Farm Mutual Insurance Co. and declared that punitive damages rarely should exceed nine times the amount of compensatory damages. Based on that ruling, the Supreme Court on Monday ordered a California appeals court to reconsider a $290-million punitive damages award against Ford Motor Co. in a vehicle rollover case.
From the NY Times story:
The Engle case dates from 1994, when six Florida smokers, including Dr. Howard A. Engle, filed a suit contending that they had developed cancer and other problems because their addiction to nicotine was so great they could not stop smoking. Mr. Rosenblatt had originally sought to turn the case into a class action on behalf of smokers nationwide but was permitted to proceed only on behalf of all Florida smokers, a group estimated in 2000 to include 300,000 people. In 2000, a jury awarded three class "representatives," former smokers whose claims were typical, a combined $12.7 million in compensatory damages and ordered the tobacco industry to pay $145 billion to the Florida class as a group. It was envisioned that the claims of other members of the group, which had grown since 2000 to 700,000 people, would be judged in subsequent trials and that, if successful, each would receive part of the punitive damage award.

But the appeals panel said the class-action-trial plan was unworkable because there were more factors unique to each smoker than common to them as a group, a test that a case must meet to go forward as a class action. Even without such procedural issues, the panel held that the courtroom behavior of Mr. Rosenblatt was so prejudicial as to merit the throwing out of the punitive award. They rebuked his actions, saying Mr. Rosenblatt had racially "pandered" to the six-member jury, four of whose members were African-American. At various times, Mr. Rosenblatt had asked the jury to ignore the law and had juxtaposed the behavior of cigarette makers with genocide and slavery, the panel found.

[Update 5/23/03] I recommend George Will's column today in the Washington Post, titled "The States' Tobacco Dilemma."

Posted by Marcia Oddi at 12:50 PM

Indiana law - Protective order statute

An excellent and very important article titled "Protective order statute murky: Further amendments, Court of Appeals opinion could help clarify eligibiilty," is the lead story in the May 21-June 3, 2003 issue of the Indiana Lawyer, available on newstands now. (You may access the story here at the Indiana Lawyer site until June 3.)

According to the story, when IC 34-26-5 was amended in 2002 to clarify who could seek a protective order, one of the situtation the authors of the amendments were trying to eliminate was use of protective orders in neighborhood disputes. The revised law was intended to restrict eligibility "to cases involving domestic and family violence, sexual assault, and stalking."

However, on July 11, 2002, less than two weeks after the amendments took effect, a petitioner in Wayne Superior Court was denied a petition for a protective order on the grounds that "stalking" was not a domestic or family violence situation. The Indiana Court of Appeals reversed in an opinion issued 4/24/03, Paula Parkhurst v. Larry Van Winkle:

We agree with the trial court that, looking solely at the language of [IC] 34-26-5-2, it is difficult to discern how a person who alleges she is being stalked by someone other than a family or household member could be a victim of “domestic” or “family” violence. But for purposes of [the Indiana Protection Civil Order Act (CPOA)], our legislature has defined “domestic and family violence” to include stalking, regardless of whether the alleged stalker is a stranger, or a family or household member of the victim. I.C. 34-6-4-34.5 [sic, should read IC 34-6-2-34.5, as at the top of p. 5 of the Court's opinion] Here, Parkhurst amended her petition to allege that she was the victim of stalking. Given the unambiguous definition of “domestic and family violence,” she meets the requirements to seek a protection order under Indiana Code Section 34-26-5-2(a)(2). We conclude that the trial court erred as a matter of law when it determined that Parkhurst lacked standing to seek a protection order and, accordingly, reverse and remand for further proceedings consistent with this opinion.
The opinion also includes this recommendation, at footnote 3:
We note that the Indiana Judicial System website provides an excellent resource for persons with questions about protection orders, no contact orders, and workplace violence restraining orders. See “Protection Orders, No Contact Orders, and Workplace Restraining Order Statutes,” available at http://www.in.gov/judiciary/forms/po/faq.html.
The Indiana Lawyer story notes that "The 2002 changes also allow judges to sign the order ex parte." In this regard, see, for instance, IC 34-26-5-9. The Indiana Supreme Court has remarked on the 2002 changes in a recent disciplinary action regarding ex parte communications, as discussed in our entry of 4/28/03 (see the paragraph beginning at the end of page 9 of the ruling).

A law passed last month, SEA 479 (cite as "P.L. 221-2003"), makes a number of amendments regarding protective orders, including this change to IC 34-6-2-34.5. The change is effective 7/1/03:

SECTION 7. IC 34-6-2-34.5, AS ADDED BY P.L.133-2002, SECTION 41, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2003]: Sec. 34.5. "Domestic or family violence" means, except for an act of self-defense, the occurrence of at least one (1) of the following acts committed by a family or household member:
(1) Attempting to cause, threatening to cause, or causing physical harm to another family or household member.
(2) Placing a family or household member in fear of physical
harm.
(3) Causing a family or household member to involuntarily
engage in sexual activity by force, threat of force, or duress.
For purposes of IC 34-26-5, domestic and family violence also includes stalking (as defined in IC 35-45-10-1) or a sex offense under IC 35-42-4, whether or not the stalking or sex offense is committed by a family or household member.

Posted by Marcia Oddi at 07:49 AM

May 21, 2003

Law - Freedom of information

Here is the link to an outstanding article, the first of two by Miriam Drake, Professor Emerita, Library, Georgia Institute of Technology. Titled "Government Doublethink: Protection or Supression in Information," it deals with:

. . . government information activities after September 11, 2001. This article will cover regulations and actions related to government withholding, suppressing, and altering information. The next article will cover the gathering and disseminating of information about citizens authorized by the USA Patriot Act, the proposed Patriot II, and the Homeland Security Act.
(Thanks to beSpecific for the pointer.)

Posted by Marcia Oddi at 02:31 PM

Law - Asbestos trust fund

Bloomberg.com is reporting today, in a story headlined "Senate Asbestos Trust Fund Proposal May Face 'Uphill' Fight," that:

A Senate proposal to create a $108 billion industry-financed trust fund to pay asbestos victims may have a hard time winning enough support from manufacturers, insurers, labor groups and lawyers to pass Congress, analysts and legal experts said. The measure, scheduled for introduction tomorrow by Republican Senator Orrin Hatch, is aimed at cutting the burden of asbestos lawsuits for manufacturers such as Dow Chemical Co., DuPont Co., and General Motors Corp. and insurers, including Chubb Corp. and Hartford Financial Services Group Inc.
See also this story from the Chicago Sun Times.

For background, see our entry of April 24, 2003.

[5/22/03 Update] The NY Times today has a story titled "Snags Reported in Negotiations Seeking to Settle Asbestos Cases."

Posted by Marcia Oddi at 08:59 AM

Law - Product disparagement

The NY Times this morning has this story that begins:

The federal appeals court in San Francisco on Monday allowed a product disparagement case against the publisher of Consumer Reports magazine to proceed to trial. Eleven dissenting judges called the decision "the death of consumer ratings." The case concerns a review of the Suzuki Samurai, published in 1988. Consumer Reports concluded that the vehicle "rolls over too easily" and rated it "not acceptable." * * *
Monday's decision concerned whether the full appellate court would hear the appeal. The court has 25 active judges, one of whom recused herself, and it rehears cases only when a majority votes to do so. The 11 judges who dissented were voting to rehear the case but fell 2 votes shy. The majority 13 judges who sent the case back to trial did not explain their reasoning. The dissent, written by Judge Alex Kozinski, said the magazine had disclosed its methodology, however flawed, and thus could not fairly be accused of fabrication.
This from the Silicon Valley/San Jose Business Journal (access the story here):
Consumers Union says it will appeal to the U.S. Supreme Court a ruling Monday by the Ninth U.S. Circuit Court of Appeals in San Francisco that Suzuki Motor Corp. can sue the non-profit organization for an article it published in the 1980s. * * * The appellate court was strongly divided. A dozen of the more than 20 judges dissented, with 11 signing the dissenting opinion which says, in part, "I find it incomprehensible that a review truthfully disclosing all this information could be deemed malicious.... If CU can be forced to go to trial after this thorough and candid disclosure of its methods, this is the death of consumer ratings: It will be impossible to issue a meaningful consumer review that a band of determined lawyers can't pick apart in front of a jury. The ultimate losers will be American consumers denied access to independent information about the safety and usefulness of products they buy with their hard-earned dollars. The majority sets a dangerous precedent...."
And the LA Times ran this story yesterday. Some excerpts:
Judge A. Wallace Tashima, writing for the majority, said a jury was entitled to hear whether the magazine acted with reckless disregard for the truth and be permitted to hear whether Consumers Union published the story in an attempt to benefit financially because the article was used as part of fund-raising solicitations in 1996 while the organization was in "substantial debt." Suzuki's managing attorney, George F. Ball of Newport Beach, said the company was pleased with the ruling and looked forward to getting its case in front of a jury. "We think [Consumers Union's] test was structured to support a predetermined result" that the vehicle was unsafe, Ball said. "The evidence shows that in 1988 the Samurai was tested 71 times; 42 times more than the Isuzu Trooper, 36 more than the Jeep Cherokee and 17 times more than the Jeep Wrangler. They kept testing until they got it to tip up and make it look dangerous," Ball said. * * *
Constitutional law professors Eugene Volokh of UCLA and Erwin Chemerinsky of USC predicted that the Supreme Court would take the case. Volokh said the majority opinion was in conflict with rulings in at least two other federal circuits about the appropriate standard of review by an appellate court in a 1st Amendment case. Chemerinsky said the case was important and unique. "Very few defamation cases have involved corporations. I can't think of any Supreme Court case where an organization like Consumers Union was sued over" a story evaluating a product, Chemerinsky said.
The 64-page 9th Circuit opinion, Suzuki Motor Corporation v. Consumers Union, is available here, via Findlaw.com. And I've just found that some of Professor Volokh's comments are available here.

Posted by Marcia Oddi at 07:48 AM

May 20, 2003

Indiana Decisions - Standing in administrative actions

Rosemary Adams Huffman v. Indiana Department of Environmental Management (IDEM) and Eli Lilly and Company (Ind. Ct.App. 5/19/03)
Vaidik, Judge

Shortly after IDEM issued Lilly a renewal of its NPDES permit for its Greenfield facility, plaintiff Huffman filed a petition seeking administrative review by the Office of Environmental Adjudication (OEA) of IDEM's action, citing grounds including that she owned propery contiguous to the facility. OEA dismissed on the basis that "the judicial doctrine of standing, which requires a showing of direct injury, applied to administrative proceedings and that [plaintiff] failed to allege facts sufficient to establish any direct injury." On appeal, the trial court affirmed and this appeal ensured.

The Court of Appeals reversed and remanded, finding:

While we agree that a person is required to show some form of standing in order to petition for administrative review, we do not agree that the judicial doctrine of standing is the proper formulation. The judicial doctrine of standing applies to lawsuits filed in a trial court and to matters not covered by the [Administrative Orders and Procedures Act (AOPA)]; however, this case was before an administrative agency to which the AOPA applied. Therefore, we look to the AOPA for guidance as to the standard one must meet to petition for administrative review.
The Court cited AOPA 4-21.5-3-7(a)(1) as defining who may seek review of an agency action under AOPA, and particularly (a)(1)(B), which requires that the petitioner state facts demonstrating that "(B) the petitioner is aggrieved or adversely affected by the order."
Rather than giving “aggrieved or adversely affected” its plain meaning, the OEA read into the phrase the common law requirements of judicial standing. It did so despite the clear, unambiguous language of the AOPA. This was error. Had the legislature intended to require that a person “aggrieved or adversely affected” also establish that he or she met the requirements of the judicial doctrine of standing, it could have inserted statutory language that clearly suggested that intent.[fn3] Because the legislature already has defined who qualifies for administrative review, it was error for the OEA to read into the phrase “aggrieved or adversely affected” a common law standing doctrine.[fn4] Accordingly, we conclude that in order to qualify for administrative review as an “aggrieved or adversely affected” person, one need not show that he or she has sustained or was in immediate danger of sustaining some direct injury. Rather, a person need show the imposition of a burden or obligation, a substantial grievance, or the denial of some personal, pecuniary, or property right.[fn5]
Footnotes 3, 4 and 5 on page 7 of the opinion are of interest; here is ft 4:
When it determined that the judicial doctrine of standing applied to administrative proceedings, the OEA relied upon cases decided before the AOPA was enacted by 1986 Ind. Acts, P.L. 18, § 1 (completely effective July 1, 1987). In particular, the OEA cited to Indiana Alcoholic Beverage Commission v. McShane, 170 Ind. App. 586, 354 N.E.2d 259 (1976). Because McShane was dealing with the legislative scheme of the [Administrative Adjudication Act (AAA)], and not the AOPA, we find it inapposite on this point.

Posted by Marcia Oddi at 07:57 AM

May 19, 2003

Law - Citing unpublished opinions

Howard Bashman reports today in his excellent How Appealing:

In federal appellate courts, the prohibition on citing to non-precedential opinions is one step closer to the dustbin of history: Last week, the Advisory Committee on Appellate Rules governing procedure in this nation's federal appellate courts approved, by a vote of 7-1, a proposed rule that will allow any judicial disposition -- whether published or unpublished, precedential or non-precedential -- to be cited in proceedings pending before any federal appellate court. This is excellent news!
Bashman has written about unpublished opinions in the past. See, for instance, this article, titled: "In 2002, Small But Important Gains Were Achieved In The Battle To Abolish Non-Precedential Federal Appellate Opinions."

At the same time, some California legislators appear to be trying to force their courts to move in this direction. Denise Howell published this entry May 12th in Bag & Baggage:

Perish The Cite
A bill currently pending in California legislature, AB 1165, would alter California law to permit the citation of unpublished appellate opinions. (Existing California law provides that unpublished opinions "shall not be cited or relied on by a court or a party in any other action or proceeding.") Last week, AB 1165 failed to pass committee. I serve on the Appellate Courts Committee of the Los Angeles County Bar Association, and the Committee now has posted a number of materials related to the issue. [Note: Visit Denise's entry to access a number of linked materials.]
After reading her entry, I dropped Denise this note:
I'm very interested in your post! In Indiana the General Assembly can not amend the Court's rules - the separation of powers. How does this work in California?
Denise not only wrote back: "I haven’t seen the separation of powers problem yet raised in the discussion about the bill but will keep an eye out—thanks for bringing it up!" but also posted this follow-up entry May 15th:
Also, following up on my earlier post about AB 1165, a reader mentioned the separation of powers difficulties that arise when legislatures seek to enact laws that may usurp the constitutional authority of the courts. This issue is addressed in the L.A. County Bar Appellate Court Committee's April 17 letter to the bill's author (available here), and the California Office of the Attorney General wrote the legislators that: "It is our opinion that AB 1165 as enacted most likely would be found to be an impairment of the core power of the Supreme Court in violation of the separation of powers clause of the California Constitution (Cal. Const. art. 111, 3)." [Note: Again, visit Denise's entry to access a number of linked materials.]
What are Indiana's publication rules? Here, from the Indiana Rules of Court, Rules Of Appellate Procedure (Including Amendments Received Through July 2002):
Rule 65. Opinions and Memorandum Decisions
A. Criteria for Publication. All Supreme Court opinions shall be published. A Court of Appeals opinion shall be published if the case:
(1) establishes, modifies, or clarifies a rule of law;
(2) criticizes existing law; or
(3) involves a legal or factual issue of unique interest or substantial public importance.
Other Court of Appeals cases shall be decided by not-for-publication memorandum decision. A judge who dissents from a not-for-publication memorandum decision may designate the dissent for publication if one (1) of the criteria above is met.
B. Time to File Motion to Publish. Within thirty (30) days of the entry of the decision, a party may move the Court to publish any not-for-publication memorandum decision which meets the criteria for publication.
C. Official Reporter. West’s Northeastern Reporter shall be the official reporter of the Supreme Court and the Court of Appeals.
D. Precedential Value of Not-For-Publication Memorandum Decision. Unless later designated for publication, a not-for-publication memorandum decision shall not be regarded as precedent and shall not be cited to any court except by the parties to the case to establish res judicata, collateral estoppel, or law of the case.
E. Certification of Opinion or Not-For-Publication Memorandum Decision. The Clerk shall serve uncertified copies of any opinion or not-for-publication memorandum decision by a Court on Appeal to all counsel of record, unrepresented parties, and the trial court at the time the opinion or memorandum decision is handed down. The Clerk shall certify the opinion or memorandum decision to the trial court or Administrative Agency only after the time for all Petitions for Rehearing, Transfer, or Review has expired, unless all the parties request earlier certification. If the Supreme Court grants transfer or review, the Clerk shall not certify any opinion or memorandum decision until final disposition by the Supreme Court. The trial court, Administrative Agency, and parties shall not take any action in reliance upon the opinion or memorandum decision until the opinion or memorandum decision is certified.
What about Indiana's administrative rulings? The Administrative Orders and Procedures Act is provides:
IC 4-21.5-3-32 Final orders; public inspection; indexing; deletions; precedential effect
Sec. 32. (a) Each agency shall make all written final orders available for public inspection and copying under IC 5-14-3. The agency shall index final orders that are issued after June 30, 1987, by name and subject. An agency shall index an order issued before July 1, 1987, if a person submits a written request to the agency that the order be indexed. An agency shall delete from these orders identifying details to the extent required by IC 5-14-3 or other law. In each case, the justification for the deletion must be explained in writing and attached to the order.
(b) An agency may not rely on a written final order as precedent to the detriment of any person until the order has been made available for public inspection and indexed in the manner described in subsection (a). However, this subsection does not apply to any person who has actual timely knowledge of the order. The burden of proving that knowledge is on the agency.
(As added by P.L.18-1986, SEC.1. Amended by P.L.35-1987, SEC.15.)
In short, at the administrative level the requirement is not that an order must be published to be cited; it is that an order must be indexed (presumably so all have an equal opportunity to know of its existence) to be cited. However, compliance with this requirement varies from agency to agency. With many agencies there is no publication; often there is not even a public index.

[5/21/03 Update] IU-Indianapolis law professor Jeff Cooper had some good comments yesterday on the proposed change to the federal appellate rules in his blog, Cooped Up.

[5/23/03 Update] Tony Mauro's Legal Times column in the LA Times today is titled "Another Step Closer to Citing Unpublished Opinions." Mauro quotes the report of The Advisory Committee on Appellate Rules:

"No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent' or the like," the proposed rule states. Another section of the rule requires parties to include copies of unpublished opinions they are citing, unless the opinions are available on a "publicly accessible electronic database."

In commentary accompanying the proposed rule, the advisory committee states, "It is difficult to justify a system that permits parties to bring to a court's attention virtually every written or spoken word in existence except those contained in the court's own unpublished opinions."

The LA Times also provides a link to a 1/23/03 story, which concludes with these interesting observations:
Meanwhile, one of the most common criticisms of the use of unpublished cases has fallen by the wayside. Many judges have raised concerns that unequal justice might result if large companies and other frequent litigants stay on top of unpublished decisions that individuals or small businesses don't have the time or the resources to track. But now, pretty much everything is available electronically. There is even a book, West's Federal Appendix, that publishes "unpublished" opinions from around the country.

Lawyers in the D.C. area [who have been permitted to cite unpublished opinions in their briefs during a year-long "trial period" in the DC circuit], although they have seen little or no change in circuit briefs and rulings, continue to support the 2002 rules change. "In a number of areas, like the federal sentencing guidelines, there are a ton of unpublished opinions," says Andrew McBride, a former clerk on the D.C. Circuit and on the Supreme Court for Justice Sandra Day O'Connor, now a partner at Wiley, Rein & Fielding. "Permitting them to be cited would help avoid conflicts within the D.C. Circuit. That's a positive trend and a good thing."

Posted by Marcia Oddi at 08:18 PM

May 18, 2003

Law - Trial lawyers to target drug companies

In contrast to today's LA Times story (see our previous entry) about businesses lobbying Congress for laws to protect them from, or limit their, liability, is this story in today's NY Times headlined "Trial Lawyers Are Now Focusing on Lawsuits Against Drug Makers." Consider this:

Medical trends aside, plaintiffs' lawyers acknowledge that much of the momentum behind the suits comes from the increasing aggressiveness and wealth of the trial bar. These days, the battle between drug companies and plaintiffs' lawyers is no longer one between corporate goliaths and individual advocates on a shoestring budget. "We've got plenty of a war chest," said J. Michael Papantonio, a lawyer in Pensacola, Fla., who is a leader in drug litigation. "It's a different day out there. It's not like they're going to look across a table from us and say, `We're going to dry you up.' " Plaintiffs' lawyers can now finance enormously complicated suits that require years of pretrial work and substantial scientific expertise, in the hope of a multibillion-dollar payoff. Scores of firms collaborate on a case, with some responsible for finding claimants, others for managing the millions of documents that companies turn over, others for the written legal arguments, and still others for presenting the case to a jury. Some 60 firms have banded together, for example, in the Baycol litigation.

And even when they do not form explicit partnerships, plaintiffs' lawyers are working much more closely together than they once did. * * * In addition, the plaintiffs' bar has refined a technique in drug lawsuits that it has used effectively against many asbestos companies. Lawyers file a few cases with very sick plaintiffs in states and counties considered favorable to plaintiffs, while building big "inventories" of less seriously ill patients, or so-called pill-taker cases, even people who have used the drug but are not sick. If the lawyers can win large verdicts in the early cases, they then refuse to settle the claims of their other very sick clients unless the defendants also agree to pay the claims of people who are less sick. Under those circumstances, the companies face a difficult choice. If they go to trial in a case that includes a few seriously injured plaintiffs and hundreds more who are less affected, they risk losing hundreds of millions of dollars in a single case, frightening Wall Street and spurring more suits. But if they settle cases without a trial, they run the risk of being perceived as an easy mark for lawyers. Finally, the Internet and television advertising have made finding potential plaintiffs much easier, plaintiffs' lawyers say.

Ernest Svenson, an attorney in New Orleans with a popular law blog, Ernie the Attoney, has an interesting take on the Times article in his entry that begins:
What is the cost of litigation against drug companies? It's difficult to bring new drugs to market in the United States, and it isn't going to get easier if plaintiffs' lawyers continue to methodically target drug companies for lawsuits.

Posted by Marcia Oddi at 09:57 PM

Law - Laws limiting liability for business

Today's LA Times has an article surveying efforts of businesses, including gun manufacturers and HMOs, to limit their liability though federal legislation. The story is titled "Trying Their Case in Congress: Businesses are seeking to limit awards in liability lawsuits. A measure involving the fuel additive MTBE highlights the efforts." Some highlights:

A bill that would shield gun makers from lawsuits for the "harm caused by the criminal or unlawful misuse" of a firearm cleared the House and stands a good chance of passing the Senate. A bill limiting the liability of airlines if armed pilots accidentally shoot a crew member or passenger has become law. An existing law capping the nuclear industry's liability in the event of a catastrophic accident is expected to be extended this year. A bill that would limit medical malpractice awards, a priority of President Bush, has cleared the House but faces an uncertain fate in the Senate. A proposal to limit the liability of former manufacturers of asbestos-containing materials is being drafted. And House GOP leaders are pushing the "Personal Responsibility in Food Consumption Act," a bill that would ban lawsuits — like one unsuccessfully brought against McDonald's — blaming fast-food restaurants for obesity and other health problems. These measures are rooted in the deep-seated belief among Republicans that the legal system has been subject to abuse. Add to that a desire by GOP lawmakers to strike back at a favorite target: trial lawyers, a major campaign contributor to Democratic candidates.

Posted by Marcia Oddi at 07:40 PM

Indiana Decisions - Rule conflicting with statute is invalid

Bryant Health Care v. John Hamilton, Family and Social Services Administration (FSSA) (Ind. Ct.App. 5/16/03)
Brook, Chief Judge

Plaintiff, a residential care assistance program (RCAP) provider, contends that the statute at issue, IC 12-10-6, requires the FSSA to process all RCAP applications, and that a waiting list created by FSSA is invalid. In 1997 the FSSA promulgated a rule, 460 IAC 1-3.5-2, that permitted the director of FSSA, upon making a written determination that funds were not available to carry out the RCAP program, to discontinue processing applications, and to set up a waiting list instead. The lower court found in favor of the FSSA. The Court of Appeals found the FSSA's rule invalid:

An agency * * * may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law. Id. Any regulation that conflicts with statutory law is wholly invalid. Dep’t of Pub. Welfare v. St. Joseph’s Med. Ctr., 455 N.E.2d 981, 983 (Ind. Ct. App. 1983). * * * The waiting-list provisions of 460 IAC 1-3.5-2(b) through -(j) are inconsistent with this requirement and are therefore invalid.
Plaintiff also contended that as IC 12-10-6 requires the FSSA to fund all eligible RCAP applicants:
[Plaintiff] requests that we order the FSSA to fund all eligible RCAP applicants retroactive to the date that the FSSA implemented the waiting list. Central to [plaintiff's] argument is Center Township v. Coe, 572 N.E.2d 1350 (Ind. Ct. App. 1991), in which the relevant statute required the township trustee to furnish temporary aid to persons in need. The Coe court determined that although the statute granted the trustee discretion in determining whether a person required assistance, it required the trustee to furnish such assistance notwithstanding a temporary lack of funds. * * *

In the instant case, IC 12-10-6-9 requires [DDARS, a division of FSSA] to “determine the amount of the assistance and the date on which the assistance should begin.” Unlike the statute at issue in Coe, this statute does not require [DDARS] to provide such assistance. Additionally, IC 12-10-6-10 provides that RCAP assistance “shall be paid monthly … upon warrant of the auditor of state from money appropriated to [DDARS] for that purpose.” (Emphasis added.) “The judicial branch is not at liberty to substitute its judgment for that of the General Assembly in making appropriations and cannot interfere with the clearly expressed appropriations of the legislative branch.” State Bd. of Fin. v. Marion Superior Ct., 272 Ind. 47, 51, 396 N.E.2d 340, 344 (1979). We therefore conclude that 460 IAC 1-3.5-2(a) is valid and that we may not require FSSA to fund all eligible RCAP
applicants.

Having reached this conclusion, however, we note that absent sufficient appropriations to FSSA, applicants determined to be eligible for RCAP assistance may not receive this assistance. We must leave this unfortunate situation to be resolved through the administrative and the legislative process. Affirmed in part, reversed in part, and remanded.

In other words, although the rule creating the waiting list has been found to be invalid, there still may not be money available to fund the program.

Posted by Marcia Oddi at 06:41 PM

Indiana Decisions - Agency

Carlson Wagonlit Travel v. Moss (Ind. Ct.App. 5/16/03)
Baker, Judge
Plaintiffs-Appellees were three couples who planned to take a cruise to Hawaii. At Carlson Travel they discussed travel plans with a travel agent and reviewed the brochures of different tour lines, ultimately selecting a cruise on United Cruise Lines, and paid deposits, which Carlson Travel forwarded to United. Subsequently Carlson Travel informed plaintiffs of United's bankruptcy and cancellation of the cruise. Plaintiffs sued Carlson Travel, arguing that it had not disclosed that it was an agent for United and therefore it was responsible for the unrefunded deposits. A Shelby County small claims court found in favor of plaintiffs. The Court of Appeals reversed:

Generally, in Indiana, “where an agent discloses the identity of his principal and does not exceed his authority when contracting on the principal’s behalf, the agent is not personally bound by the contract unless the agent agrees to be so bound.” * * * This evidence and the reasonable inferences therefrom are not in conflict with the plaintiffs’ own testimony that they knew of United’s existence and identity and Carlson Travel’s role as agent. The brochures themselves identified United as a separate entity from Carlson Travel. Moreover, the itinerary invoices only confirmed that the plaintiffs were booking the cruise “through Carlson.” The plaintiffs knew that Carlson Travel did not own and operate the cruise line. * * * The facts are such that a reasonable person would have known of the existence and identity of United and Carlson Travel’s role as an agent for United. Indeed, the plaintiffs themselves—like their hypothetical counterpart, the reasonable person—knew of the existence and identity of United and Carlson Travel’s role as agent for United. Therefore, as an agent of a disclosed principal, Carlson Travel is not liable for United’s breach of contract.

Posted by Marcia Oddi at 06:24 PM

May 16, 2003

Law - Indiana legislators also have a history of "bolting"

Recent stories of the Texas House' democrats fleeing the State such as this one at CNN.com: "Texas House paralyzed by Democratic walkout: Redistricting at issue" are not unique to the Lonestar State. The Texas story (in case you have been totally out-of-touch for the past week):

With action in the Texas House brought to a standstill, roughly 50 state Democratic representatives said they would remain in neighboring Oklahoma "as long as it takes" to block a Republican-drawn redistricting plan that could cost them five seats in Congress.
Florida (act surprised!) has a similar story to tell, and it is told here, in a Tallahassee Democrat story titled "Missing Texas legislators have nothing on Florida 'babes.'" I recommend it, it is quite a story. A sample:
Go back more than a century to an era when there were spittoons in the rotunda and the horse exhaust around the Capitol actually came from horses, and we had our own episode of legislators high-tailing it across the state line to prevent a quorum. And just like Texas today, the issue was the state's representation in Congress. In 1891, they were called the "Babes in the Woods" - men with handlebar mustaches, bowlers and spats, whose grainy group portrait used to hang in the waiting room of the Senate president's office. Just how many of them there were is unclear, but they fled to Georgia and camped out during a legislative session because they didn't want to re-elect U.S. Sen. Wilkinson Call.
And Indiana has its own recent history, as recounted in this AP story published today in the Hoosier Times. Hoosier Times tells two Indiana stories, the reapportionment walkout of 1995, and the notorious 1925 walkout:
Perhaps Indiana's most storied party bolt took place in 1925 when Senate Republicans tried to alter the congressional districts. Thirteen Senate Democrats broke a quorum by boarding a bus and traveling to Dayton, Ohio. A 14th got there by hitchhiking. "For the next two days, U.S. 40 between Indianapolis and Dayton was jammed with process servers and Republican politicos trying to coax, cajole or coerce the fugitives back to their seats," Justin Walsh wrote in the book, The Centennial History of the Indiana General Assembly. Back in the Senate, Republicans draped the seats of the Democrats in black crepe paper. They also read a telegram purportedly from Ohio's lieutenant governor responding to a proposal to exchange five Ohio Republicans for the Indiana Democrats.
I too have consulted The Centennial History at pp. 347-348 and find there is a bit more to be told about the 1925 "bolting":
The Indianapolis newspapers enjoyed field days from February 25 through 27 [1925] serving a steady diet that included dignified statements from Dayton [Ohio] by Senator Cravens regarding the rights of a legislative majority and a heart-rending account of Senate "widows" left behind in Indianapolis. * * * In the meantime, Klan Grand Dragon D.C. Stephenson did go to Dayton to break the deadlock. Stephenson stood to lose his entire agenda in the General Assembly if Democrats did not return so the session could finish its work.

Posted by Marcia Oddi at 02:38 PM

Law - Technology strikes back: traffic cameras, voting machines

"Trigger-Happy Traffic Camera to Cost County $500,000: A crusader against the red-light devices discovers timing error. Judge orders refunds." So reads the headline in this story today in the LA Times. A quote:

The complaints of a retiree infuriated last year when his picture was snapped by a red-light camera set in motion an unlikely chain of events that ended Thursday with Los Angeles County ordered to pay at least half a million dollars in traffic-ticket refunds. * * * Enter the retiree, one of a small but devoted group of Americans who wage a campaign against red-light cameras. His anger over being ticketed at a Culver City intersection with such cameras last year prompted him to create a Web site devoted to the issue, http://www.highwayrobbery.net.
A story yesterday in the NY Times reports on issues with "touch-screen" and optical-scan machines that can serve as a companion piece to our May 9th entry. The concern posed by computer experts is "that unlike more mechanical machines, electronic systems cannot be opened up to the public for verification. And the only people who know what is encoded on them are computer experts. 'I think it's unreasonable for the public to be asked to accept the security of these machines on blind faith,' he said. 'There's no question the technology is open to tampering.'" These experts urge that the electronic systems be designed: (1) to provide a way to assure that the vote counting software is working accurately and cannot be tampred with, and (2) to provide for an audit-based paper trail. Others quoted in the story assert such precautions are unnecessary:
"If you have electronic machinery, why would you ever do a paper count?" she said. "If you have to deal with pieces of paper I think that you're defeating your purpose." Many election officials appear happy with the machinery, although they concede its inherent problems. "With so many humans who have an opportunity to interface with a machine occasionally things happen," said Denise Lamb, director of Bureau of Elections in New Mexico, where computerized machines have been in use since the late 1980's. Ms. Lamb acknowledges occasional errors, like misprogrammed machines or voters who cannot figure out the apparatus, but over all, she said, "they're very reliable, and voters like them."

Posted by Marcia Oddi at 07:55 AM

May 15, 2003

Law - Drafting Third World Constitutions

A companion piece to our 5/7/03 entry on "Drafting the Iraqi Constitution" is this story in today's LA Times headed: "In Emerging Nations, a California Firm Takes Up Task of Ensuring Rule of Law."

"We do hard," Davis says wryly, ticking off the countries or areas in which DPK and its roughly 100 employees are fulfilling contracts from development agencies such as the U.S. Agency for International Development and the World Bank: Serbia's Kosovo province, Pakistan, Bangladesh, the Gaza Strip and the West Bank among them. The particular issues in each case, naturally, vary widely. In the Palestinian territories, for example, the challenge is to cobble a distinctly Palestinian judicial system out of the diverse cultural and political models that have shaped the community's experience, ranging from the Ottoman Empire to Egypt and Jordan and even the Israeli military. "Attempting to create a single body of law and a frame of reference is no small feat," Davis says. "I'm not a seer, so I'm not sure how it's all going to work out."
The DPK consulting website is here.

Posted by Marcia Oddi at 07:10 PM

May 14, 2003

Environment - Confined Feeding: Federal Court Order

A federal court order, effective today, requires that large Indiana confined feeding operations "must begin applying for permits designed to protect rivers and streams." That according to an Indianapolis Star story published today, titled: "New rule puts farms under more scrutiny: Federal permits aim to ensure measures are taken to prevent animal waste spills." Access the story here.

The Star references are to deadlines set by federal Judge Sarah Evans Barker (SD Ind). At the US DC site for the Southern District of Indiana you can access the relevant court documents, known as Save the Valley v. US EPA 2 (5 page order) and Save the Valley v. US EPA 3 (35 page opinion), both signed 9/17/02. The Court Order provides in part:

FURTHER, it is Ordered that, within one hundred twenty (120) days of the date of this Judgment, IDEM shall either: (1) establish an NPDES general permit for federally-defined concentrated animal feeding operations (“CAFOs”), as authorized by Indiana Administrative Code title 327, article 15, and the revision to the Indiana NPDES program that the United States Environmental Protection Agency (“the EPA”) approved in 1991, or (2) require every CAFO in the State of Indiana who has discharged pollutants in the past without an NPDES permit or proposes to discharge pollutants sometime in the future to apply for and obtain by a date certain an individual NPDES permit, if it has not already done so, or (3) submit an appropriate confined feeding rule to the EPA for approval by the EPA as a revision to the Indiana NPDES program under 40 C.F.R. § 123.62.
At the Indiana Water Pollution Control Board meeting May 8, 2002, the Board enacted an emergency, temporary CAFO rule. A copy may be accessed here. This emergency rule went into effect May 14, 2003 and is a stop-gap until the Board's permanent CAFO rule completes the rulemaking process. At the May 8 meeting the draft document intended to become the permanent CAFO rule (access it here and access the CAFO Fact Sheet here) underwent First Public Hearing and Preliminary Board Adoption. Next it must be published in the Indiana Register so that anyone interested has the opportunity to review it. Then it will be eligible for Second Public Hearing and Final Board Adoption. Thereafter it must be reviewed and approved by the Attorney General and the Governor and filed with the Secretary of State before it takes effect.

Finally, for those who may want to compare the Water Board's requirements with the General Assembly 's requirements, I repeat below an item published here Monday, May 12, 2002:

In a related matter, Governor O'Bannon last Friday, May 9, 2003 vetoed Senate Bill 533. The digest of SB 533 reads:

Confined animal feeding operations. Establishes National Pollutant Discharge Elimination System permit procedures for concentrated animal feeding operations (CAFOs). Establishes civil penalties for CAFOs that commit multiple violations of water pollution control laws or rules or standards adopted by the water pollution control board relating to water pollution control laws.
The final version of Senate Enrolled Act 533 is available here. The Governor's veto message is available here.

Posted by Marcia Oddi at 01:38 PM

Indiana Decisions - Court has no subject matter jurisdiction over ecclesiastical matters

Emmanuel House of Prayer Church of God in Christ, Inc. v. The Rt. Reverend Milton L. Hall (Ind. Ct.App. 5/13/03)
Darden, Judge
In this case, a dispute over who was to be lead pastor of a new church formed from the merged membership of two churches, "the Church" appealed the trial court's order enforcing the settlement agreement with "Bishop Hall." The Court of Appeals reversed. The Court restated the issue as "whether the trial court had subject matter jurisdiction" and cited a 2002 opinion:

More recently, in Stewart v. Kingsley Terrace Church of Christ, Inc., 767 N.E.2d 542 (Ind. Ct. App. 2002), this court held that the trial court properly dismissed the minister's wrongful termination claim for lack of subject-matter jurisdiction because the trial court would have had to "engage in the impermissible scrutiny of . . . doctrinal and/or church polity issues . . . ." Id. at 547. We noted, "The United States Supreme Court has long held that the First Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, requires civil courts to refrain from interfering in matters of church discipline, faith, practice, and religious law. Thus, civil courts are precluded from resolving disputes involving churches if 'resolution of the disputes cannot be made without extensive inquiry ... into religious law and polity....' Accordingly, this court has held that 'personnel decisions are protected from civil court interference where review by the civil courts would require the courts to interpret and apply religious doctrine or ecclesiastical law.'"
The Court continued:
In this case, Bishop Hall's complaint for injunctive relief requires the trial court to interpret ecclesiastical doctrine. * * * Because there are few matters more ecclesiastical in nature than selecting the lead pastor of a church, the trial court erred when it accepted jurisdiction over the complaint. Stewart, 767 N.E.2d 542 (no subject matter jurisdiction where civil courts must interpret religious doctrine or ecclesiastical law).

Posted by Marcia Oddi at 01:13 PM

May 13, 2003

Law - Philip Morris Appeal Bond: An Update

We last reported in mid-April on the dispute over the amount of the appeal bond Philip Morris must post in the Madison County, Illinois Court in order to appeal the $10.1 billion class-action judgment against it - you may access that entry here. An AP story published May 10th in the Louisville Courier-Journal reports:

Madison Circuit Judge Nicholas Byron left intact an order allowing Philip Morris to post a reduced bond before appealing. An Illinois judge yesterday gave more rights to those who won a $10.1 billion judgment against Philip Morris USA to collect if the company ever files for bankruptcy. But Madison County Judge Nicholas Byron [who is among those pictured in this story] left intact an order their attorneys opposed, letting the company post a reduced bond before appealing the verdict. Plaintiffs' attorney Stephen Tillery said he will appeal yesterday's order, arguing it doesn't do what state law requires — ensuring the money will be there if the full verdict amount is ultimately upheld.
And an AP story published today, May 13, in the St. Louis Post-Dispatch gives an interesting look at what may be the cigarette maker's strategy on appeal:
Cigarette maker Philip Morris USA has asked the Illinois Supreme Court to bypass a lower court and hear its appeal of a $10.1 billion verdict in a class-action lawsuit, arguing the suit never should have been allowed to proceed in the first place. A review by the state's top court would bring a quicker resolution and address questions about whether the case should have been certified as a class-action, company lawyers said in a petition filed Monday. * * * Philip Morris' appeal strategy -- challenging the class certification -- goes to the heart of Madison County's reputation as being overly friendly to class-action lawsuits.

The jurisdiction in St. Louis' Illinois suburbs developed a plaintiff-friendly reputation after some of its locally elected judges the past few years certified classes that judges in other jurisdictions would have rejected, critics say. Certifying a class means allowing a class-action lawsuit to proceed after deciding that all plaintiffs suffered from the same wrongdoing in the same way. The Manhattan Institute, a think-tank that supports changes in the judicial system, published two studies showing the number of class-action filings in Madison County jumped from two in 1998 to 77 in 2002. Most alleged wrongdoing by national corporations with thin ties to the area.

Posted by Marcia Oddi at 02:37 PM

Environment - The Nature Conservancy: Update

The Washington Post today has two items updating its series on The Nature Conservancy (see our 5/4/03 entry on the Post stories). The first is a story titled "Nature Conservancy Suspends Land Sales: Board of Nonprofit to Review Practices," which can be accessed here. The story begins:

The Nature Conservancy has suspended a range of practices, including the sale of ecologically sensitive land to its trustees as home sites, in the wake of press accounts describing the Arlington-based nonprofit's activities and concerns expressed by some of its 1 million members. The Conservancy, the world's richest environmental group, said it has halted all "conservation buyer" real estate transactions until the charity's board of governors reviews the practice in June. A Washington Post series last week reported that many buyers have been current and former Conservancy state trustees.
In addition, today's Post carries a response to the series from the president and chief executive officer of the Nature Conservancy, Steven J. McCormick. Access it here.

Posted by Marcia Oddi at 02:12 PM

Indiana Laws - Results of 2003 Regular Session

The first regular session of the 113th Indiana General Assembly adjourned April 26, 2003. The Governor finished signing and vetoing bills on May 9. The results have been tabulated and the final Enrolled Act Summary (updated 5/12/03) is now available from the Indiana Legislative Services Agency. Access it here.

If, after looking at the list, you see a law (or vetoed bill) you would like to know more about, access this page for links to all the enrolled acts. Although the "Current Status" information may not be up-to-date, clicking directly below it on the link to "Latest Printing" (I always prefer the PDF version) will lead to the final version of the bill -- the Enrolled Act that was presented to the Governor.

The Enrolled Act Summary also lists bills that were vetoed by the Governor. Here are links to the Governor's veto messages for the vetoed bills:

  • SEA 337 - Native American Indian Affairs Commission

  • SEA 440 - New Source Review; Confidentiality of Emission Data

  • SEA 533 - Concentrated Animal Feeding Operations

  • HEA 1525 - Various Criminal Law Issues

  • HEA 1660 - Endangered Adults

  • HEA 1798 - Storm Water; Auto Emissions; Wetlands

Posted by Marcia Oddi at 08:08 AM

May 12, 2003

Law - Drafting an Iraqi Constitution

Noah Feldman, a professor at New York University Law School, is Iraq's new constitutional advisor, according to a story in Sunday's NY Times titled, "American Will Advise Iraqis on Writing New Constitution." Access the story here. According to the Times, Mr. Feldman not only is a constitutional law scholar, but has "a Ph.D. in Islamic studies and can speak and read Arabic fluently." Further, "Professor Feldman's book, 'After Jihad: America and The Struggle for Islamic Democracy,' is one of the first efforts to bring the discussion about Islam and democracy to a popular audience."

The adviser's role, Professor Feldman said, is to provide examples of what other governments have done, and to explain what has or has not worked, so the Iraqi constitutional commission members can make their choices. "You're an option provider," he said. "The critical decisions are made by the people."
For more, here is 4/23/03 BBC News interview with Feldman before his departure for Iraq. Here is a 5/2/03 story from Asia Times.

Here is a link to brief article by Feldman that asks the question: "Can Islam and democracy cohere, either in principle or in practice?" And here is a link to a NYU Law Journal article by Feldman titled, "The Intellectual Origins of the Establishment Clause." Finally, here is the agenda for a conference it would have been fun to attend -- Beyond Separation: Church and State, a program of ten seminars probing such matters as the Founding Father's intentions, modern First Amendment interpretation, religious freedom, faith-based initiatives and school vouchers.

Posted by Marcia Oddi at 01:05 PM

Environment - Confined Feeding

Sunday's NY Times had a front-page story on confined feeding, titled "Neighbors of Vast Hog Farms Say Foul Air Endangers Their Health." Access it here. According to the Times:

A growing number of scientists and public health officials around the country say they have traced a variety of health problems faced by neighbors of huge industrial farms to vast amounts of concentrated animal waste, which emit toxic gases while collecting in open-air cesspools or evaporating through sprays. The gases, hydrogen sulfide and ammonia, are poisonous. * * *

Industrial farms often house thousands, if not tens of thousands, of hogs, which generate millions of gallons of waste each year. Runoff and water pollution have been the focus of many of the government and academic studies of such farms' environmental impact. * * *

Bush administration officials are negotiating with lobbyists for the large farms to establish voluntary monitoring of air pollution, which will give farm operators amnesty for any Clean Air Act violations while generating data that will enable regulators to track the type and source of pollutants more accurately. [Access a related earlier entry here] * * *

State and federal efforts to regulate the water pollution from factory farms may actually cause the farms to divert chemicals into the air, the National Academy of Sciences says. Farms have adopted the practice of spraying liquid manure into the air when cesspool levels get too high, a practice that creates mists that are easily carried by the wind.

The Times also published a story Sunday dealing with converting cow manure to electricity via a methane digester, titled "California Dairy Farmers Catch Whiff of Electricity." Access it here.

In a related matter, Governor O'Bannon last Friday, May 9, 2003 vetoed Senate Bill 533. The digest of SB 533 reads:

Confined animal feeding operations. Establishes National Pollutant Discharge Elimination System permit procedures for concentrated animal feeding operations (CAFOs). Establishes civil penalties for CAFOs that commit multiple violations of water pollution control laws or rules or standards adopted by the water pollution control board relating to water pollution control laws.
The final version of Senate Enrolled Act 533 is available here. The Governor's veto message is available here.

Posted by Marcia Oddi at 10:59 AM

May 11, 2003

Indiana decisions - Number of signatures required on will; statutory construction

An unattributed item titled "A life of its own"appears in Sunday's Indianapolis Star weekly column, "Behind Closed Doors." Access it here (you will need to scroll a little more than half-way down the Star's page to find it).

The Star item comments rather derisively upon an opinion the Indiana Court of Appeals issued last week in In the Matter of the Estate of Samuel J. Dellinger, Sr., Deceased v. 1st Source Bank, Representative. I believe the comments are unjustified.

In the case, Dellinger's daughter, Ms. Conrad, had appealed the St. Joseph County Probate Court's denial of her motion to contest her father's will, which disinherited all three of his children and instead left his property to a trust, the proceeds of which would go to Dellinger's sister during her lifetime and to St. Monica's Catholic Church after her death. On 7/30/02 the Court of Appeals reversed and remanded.

Subsequently, the Court of Appeals granted a Petition for Rehearing, and vacated the 7/30/02 opinion (access this vacated 7/30/02 opinion here). The Court issued a new opinion, on 1/23/03. This opinion had the same result, to reverse and remand.

Last week's 5/8/03 opinion (access it here), about which the Star writes, vacates and replaces the 1/23/03 version (access this vacated 1/23/03 opinion here). However, as the Court notes in the first paragraph, this version simply corrects factual misstatements in the prior version. What are the changes? Other than the new explanatory first paragraph, the only change in the new version of the Court's opinion appears to be a rewriting of footnote 3, regarding when a proposed amicus curiae shall tender its brief.

Neither granting a reharing nor correcting an opinion is in the least out of the ordinary. Furthermore, the Star item appears to be off-base factually -- the "changes" it cites are not new, they were in the 1/23/03 opinion.

With that matter disposed of, the case itself is interesting. The issue, as stated by the Court, is: "Whether the witness signatures in a will’s self-proving clause also suffice as attesting witness signatures." The Court's decision turns upon its construction of the statute: IC 29-1-5-3.

Conrad argues that the will was not properly executed because the witnesses signed the will only once in a self-proving clause at the end of the will. She argues the witnesses must sign twice for a valid, self-proving will: first, in an attestation clause pursuant to Indiana Code section 29-1-5-3(a)(2), and second, for the self-proving clause pursuant to section 29-1-5-3(b). The Bank, however, attempted to admit the will to probate through section 29-1-5-3(d). * * *

Under subsection (b), a self-proving provision can be added to an executed will regardless of when the will was executed. However, before using subsection (b), the will must have already been executed. Therefore, under subsection (b), a will cannot be self-proved with one set of signatures. One set of signatures is necessary for the execution of the will; a second is required for the self-proving clause. Under subsection (d), however, a will may be executed and self-proved with one set of signatures. The language of (d)(4) indicates that, if a testator wants to self-prove with only one set of signatures, the will must be executed and self-proved at the same time. And only when the testator is attempting to execute and self-prove at the same time under subsection (d) is one set of signatures sufficient.

The Bank argues that Dellinger intended to execute the will under subsection (d). However, a closer look at the purported will requires that it be construed under subsection (b) as it uses the language of subsection (b) * * *. The language in the will clearly tracks subsection (b) rather than subsection (d). Therefore, before the purported will could be self-proved, it had to be properly executed. The signatures of the testator and at least two attesting witnesses were required for the proper execution of this will. Clearly, they self-proved an instrument which had not been executed or attested to. Because the will in question uses language from subsection (b) instead of subsection (d), it cannot be executed and self-proved with only one set of signatures. These subsections are not interchangeable. “[T]here is no such thing as a substantially correctly executed will.” Keener, 533 N.E.2d at 1270.

The question remains whether Subsection (b) can be construed as a de facto attestation clause. It cannot. On its face, Subsection (b) is not an attestation clause but a self-proving provision secondary to an attestation clause that, here, was never executed. Subsection (b) fails for lack of an antecedent, namely, an attested will, which is a statutory condition precedent. The plain meaning of Subsection (b) is self-evident. Only by disregarding the clear language of Subsection (b) can we convert (b) into an attestation clause. Here, we are not presented with an executed will and asked whether the signatures are sufficient to satisfy the statutory requirements for proving the will. Rather, we are presented with a document which never met the requirements for an executed will. Even the inclusion of a self-proving clause cannot change the fact that the will was never executed according to law.

Conclusion. The trial court erred when it dismissed Conrad’s petition to contest Dellinger’s will. We reverse and remand with instructions for the trial court to grant Conrad’s petition and to proceed accordingly. Reversed and remanded.

I found footnote 6 to be particularly instructive:
The Bank states that there has been universal consensus among commentators that section 29-1-5-3(d) permits attestation and presumptive self-proof of a will with a single set of witness signatures. * * * We find that the only thing universal regarding section 29-1-5-3(d) is confusion. The Bank cites books and Indiana Continuing Legal Education Forum (ICLEF) presentations to illustrate that some believe that a single set of signatures can be sufficient. We, in turn, have researched and found several current examples, many from the same sources, where the self-proving affidavit is used only with two sets of signatures. * * * Additionally, we note that both of the bar review courses currently being taught in Indiana suggest that two sets of signatures are required to self-prove a will in Indiana.
Legislative response. Presumably as a result of the interest raised by the Delliniger decision in the ambiguity of the statute, the Indiana General Assembly has acted in this year's recently adjourned session to amend IC 29-1-5-3 to make it clear that only one set of signatures is needed, effective July 1, 2003, on "a will executed before, on, or after July 1, 2003." You may access the new law, HEA 1116 (P.L. 4-2003), here. A second new law, HEA 1368 (P.L. 176-2003), also deals with the subject. See particularly noncode SECTIONS 8 through 13. Access it here.

Posted by Marcia Oddi at 08:00 PM

Law - Use of eminent domain for private development

Property Owners Fight to Keep Their Land: Bitter disputes play out nationwide as cities seeking to improve their economies condemn homes and businesses for private development. That is the headline of this story published today in the LA Times and a number of other papers.

Bitter disputes are playing out nationwide as city leaders eager to improve their economies condemn homes and small businesses — not for highways, airports or other public projects, but for private development. Local planners struggling to rejuvenate their downtowns or aging suburbs say that sometimes the public good outweighs the property rights of individuals. * * *
The Constitution says that so long as owners receive just compensation, private property can be taken for "public use." In 1954, the Supreme Court ruled that this includes plans that serve a "public purpose," even if the land ends up in private hands. At first, governments targeted slums for redevelopment. "Now they take areas that are in pretty good shape that a developer would want — good, solid, safe areas near the highway or with a beautiful view." * * * Local planners say property seizures can lead to new businesses that add jobs and boost tax revenue that pays for local services.
My favorite quote from the story was: "Almost any home in the country would produce more tax money and more jobs if it was a Costco."

Not surprisingly, there are many similar stories available. An opinion piece from The Cincinnati Post, dated 5/2/03:

The Constitution seems pretty clear on the point: Private property shall not be taken for public use without just compensation. Fair enough; sometimes the public good outweighs property rights. But here in Greater Cincinnati, and across the country, there is mounting evidence that local governments are abusing the definition of "public good'' to help developers acquire property that ought to remain subject to the free market laws of supply and demand. Most often, these abuses involve property taken for retail or commercial development. * * * This is a practice that needs to be curtailed. If the world really does need more retail stores and restaurants, let the developers buy the land themselves. Better yet, let them redevelop the tired strip centers that line such of the land along our commercial arteries.
Here is a link to the libertarian Institute for Justice publication, “Public Power, Private Gain,” mentioned in the Post story.

The Gotham Gazette (read about the Gazette itself here), has a lengthy and comprehensive story from 3/4/02 that includes this information:

"The fact that there might be some incidental benefit to certain private individuals or private businesses, doesn't undermine the overriding public purpose that we would be seeking to accomplish," said Joe Petillo, a lawyer for the Empire State Development Corporation. He and other supporters of the private condemnations point to those that sped West Harlem's recent renewal.

But [Michael] Rikon, the lawyer for several of the businesses being condemned in East Harlem, points out that once the Empire State Development Corporation sells the developer the seven-acre plot, no law requires him to build the promised store. Minic himself says that the existing businesses already employ 144 people full time, people whose jobs would be in jeopardy, and that many of the jobs at Home Depot might not be full-time, nor as well-paying.

Rikon, who has published extensively on the need to reform condemnation law, said that this new business-oriented approach to condemnations dates back to 1981 and the legal case Poletown Neighborhood Council v. City of Detroit. The Michigan Supreme Court ruled that a community could be condemned to allow General Motors to build a factory, accepting the argument that it would revitalize the community. "Because of that case, cases hereafter have approved almost anything that has come along," Rikon said.

He also referred to the landmark 1954 United States Supreme Court case Berman v. Parker, when the court said slums could be condemned for the public use of beautifying a city. The expanded definition of public use from these cases remains the most useful legal precedent for private developers who hope to acquire private property by condemnation.

The Poletown decision is used in a number of Law & Economics courses. Here is one link to the decision. The Detroit News has a great special resource page, titled "Auto plant vs. neighborhood: The Poletown battle." (Be sure not to miss the Click here for more photos option.)

Posted by Marcia Oddi at 04:00 PM

May 10, 2003

Law - The Judicial Nominations: Part 2. Cloture

[Access The Judicial Nominations: Part 1. Filibuster, here.]

For 111 years the rules of the U.S. Senate provided no way to bring debate to an end. In 1917, a "curb on the practice" of unlimited debate was adopted.

Cloture. Robert Caro asserts [p. 93] that Rule XXII, the cloture rule, was passed at the instigation of President Wilson, after a bill the President wanted had failed due to a filibuster. (This of course invokes comparisons to recent efforts to satisfy President Bush's call for an "up or down vote" by the full Senate on all judicial nominees.) Unfortunately I have been unable to find details of exactly HOW this change was accomplished in 1917. Was it done at the beginning of a session, or not? Was it done as an amendment to the rules, pursuant to the first paragraph of Rule V, which apparently requires only a majority vote, and which reads:

No motion to suspend, modify, or amend any rule, or any part thereof, shall be in order, except on one day's notice in writing, specifying precisely the rule or part proposed to be suspended, modified, or amended, and the purpose thereof. Any rule may be suspended without notice by the unanimous consent of the Senate, except as otherwise provided by the rules.
Presumably, the proposal to put in place a closure rule in 1971 was not filibustered. [Note: I have since located a dissertation containing details of the 1917 rule change. See the end of this entry for information.]

According to information provided on the U.S. Senate's website, cloture has not been very effective:

The new Senate rule was put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Despite the new cloture rule, however, filibusters continued to be an effective means to block legislation, due in part to the fact that a two-thirds majority vote is difficult to obtain. Over the next several decades, the Senate tried numerous times to evoke cloture, but failed to gain the necessary two-thirds vote. Filibusters were particularly useful to southern senators blocking civil rights legislation in the 1950s and 1960s. In 1975, the Senate reduced the number of votes required for cloture from two-thirds (67) to three-fifths (60) of the 100-member Senate.
Another Senate report on cloture states:
The only procedure Senate rules provide for overcoming filibusters is cloture, which cannot be voted until two days after it is proposed in a petition signed by 16 Senators. Cloture requires the support of three-fifths of Senators (normally 60), except on proposals to change the rules, when cloture requires two-thirds of Senators voting. If the Senate invokes cloture on a bill, amendment, or other matter, its further consideration is limited to 30 additional hours, including time consumed by votes and quorum calls, during which each Senator may speak for no more than one hour.
Efforts to effectively evade the filibuster. Moving forward to the 1957 session of Congress, Caro recounts the efforts of liberals to find a way to evade the southern filibuster and enact a civil rights bill:
At a January 2 meeting in Paul Douglas' office * * *, the liberals had decided that Clinton Anderson would offer the same motion he had introduced in 1953, and would have reintroduced in 1955 had not Johnson [not yet a liberal] tricked the liberals out of doing so: that deceptively simple motion to have the Senate adopt rules for the current session. And this year the liberals had a new ally, a very shrewd one. [Vice President Nixon had agreed to take the presiding officer's chair at the crucial moments.] It had therefore been agreed that as soon as Anderson made his motion, Douglas and other liberal senators would ask Nixon to rule on whether it was in order -- on whether, in other words, the adoption of new senate rules was permissible. And Douglas would also ask Nixon, "Under what rules is the Senate presently proceeding?" Nixon would then rule that the motion was in order, because it would be in order under normal parlimentary rules -- and he would rule further that the Senate was at that moment proceeding under standard parlimentary rules because it was not a continuing body but a new Senate which had not yet adopted any rules of its own. [p. 856, emphasis supplied]
However (read the details in Chapter 36 of Caro's excellent book), Johnson outsmarted the liberals once again, forcing Nixon to recognize him rather than Anderson, by "demanding the prior recognition that was the Majority Leader's prerogative."

In the end, the liberals could not ask for the ruling

as they had planned to do, but could make only a "parlimentary inquiry" as to what would happen if it became the pending business, and Nixon could not give a ruling but only an "advisory opinion." In his opinion, the Vice President came down strongly on the side of civil rights. The Constitution, he stated, said that each House could determine its own rules, "and this constitutional right . . . may be exercised by a majority of the Senate at any time. When the membership of the Senate changes, as it does upon the election of each Congress, it is the Chair's opinion that there can be no question that the majority of the existing membership" can "determine the rules." Therefore, he said, any "Senate rule adopted in a previous Congress" which denied the right of a majority of a new Senate to adopt rules "is, in the opinion of the Chair, unconstitutional." [p. 858]
Under this approach, a majority may determine the rules at the beginning of a session. At the time they do so, they are operating "under normal parlimentary rules," rather than the Senate rules which permit unlimited debate. This would not appear to me to be the case during the course of a session, when a majority of the the Senate might attempt to amend its rules, but such an effort likely would become the subject of a filibuster.

In either case, a "point of order" -- a claim made by a Senator from the floor that a rule of the Senate is being violated -- likely would result. If the Chair sustains the point of order, the action in violation of the rule is not permitted. However, when the Chair rules on a point of order, any Senator may appeal the ruling, in which case the full Senate makes a final decision on the point of order by voting whether to sustain or reverse the ruling. In the current judicial confirmation battles, presumably the Senate majority and the Chair (presiding officer/vice president) are in accord. [Source: U.S. Senate glossary See also Rule XX.]

[Updated 5/12/03] Details on the adoption of the cloture rule in 1917 are available in a 2002 dissertation by Gregory Koger titled "Obstruction in the House and Senate: a Comparative Analysis of Institutional Choice." Access the dissertation here. Of particular interest is chapter 7, "Party Government and Cloture in the Senate, 1913-1919." Mr. Koger's summary: "This chapter explains institutional choice in the Democratic-controlled Senate from 1913-1919. During this period, (1) the Democrats had a strong party caucus; (2) the Senate adopted its first cloture rule in 1917, allowing a two-thirds majority to limit debate; and (3) senators had several opportunities to adopt simple majority cloture but rejected them. I found that strong party organization per se is not sufficient to achieve reform. The 1910s Democrats lacked strong incentives to suppress obstruction and were not especially unified on procedural votes. The 1917 cloture rule was adopted primarily for the act-contingent benefits of adopting cloture reform rather than for any significant change in outcomes or political gain."

Posted by Marcia Oddi at 10:02 PM

Law - The judicial nominations: Part 1. Filibuster

Today's Indianapolis Star has an editorial (access it here) headlined "Stop obstructing bench appointments." The Star demands that the U.S. Senate follow the constitutional requirement that "the U.S. Senate should offer 'advice and consent' to the president's judicial nominees. Not a deaf ear. Not a filibuster. Not politics. Not sabotage."

I hadn't planned to comment about the Washington proceedings in this Indiana Law Blog, but the Star's editorial gives me an opening to provide some background on legislative procedure. For an up-to-date overview of where we are right now, I recommend the article by David Savage in today's LA Times as a starting point.

Because I am most familiar with Indiana's General Assembly, I am going to talk a little about U.S. Senate procedures in comparison with Indiana Senate procedures. The legislative articles of the Constitutions of the United States and the State of Indiana give the respective bodies the authority to adopt rules:

[U.S., Art. 4, Sec. 10.] Each House, when assembled, shall choose its own officers, the President of the Senate excepted; judge the elections, qualifications, and returns of its own members; determine its rules of proceeding, and sit upon its own adjournment. * * *

[Ind., Art. 1, Sec. 5, cl. 2.] Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

The filibuster is not mentioned in either body's standing rules. The filibuster in the U.S. Senate derives from that body's tradition of unlimited debate. Its rules reflect that tradition. The Indiana Senate has no such tradition and its rules do not allow a filibuster. The U.S. Senate's standing rules place no limit on the amount of time a Senator may speak, once the Senator has been recognized. (Rule XIX) The Indiana Senate's standing rules limit a speaker to one-half hour. (Rule 12(e)) In addition, the Indiana Senate's Rule 15(a) includes the "Motion for the previous question." The U.S. Senate's rules do not include this motion. Robert A. Caro discusses the absence of the ability to move the previous question in his 2002 book on Lyndon Johnson's term as leader of the Senate, Master of the Senate:
A provision to make possible this most fundamental of legislative functions -- a provision for "moving" the "previous question," for a senator to make a motion demanding that a measure be brought to a vote without further debate or amendment * * * had been one of the first rules adopted by the Senate itself in 1789, but when the rules were modified, in 1806, it was omitted * * *. For many years after 1806 -- for 111 years, to be precise -- the only way a senator could be made to stop talking so that a vote could be taken on a proposed measure was if there was unanimous consent that he do so, an obvious impossibility. [p. 92]
Major differences also exist in the way the rules are regarded by the U.S. Senate and the Indiana Senate. As Caro relates in describing the source of the southern senators strength in the early to mid-20th century:
When southerners came to the Senate, they came to stay; they studied the Senate's rules and precedents with the concentration of men who knew they would be living with them for the rest of their lives. Forty "Standing Rules" had been adopted by the Senate in 1884, and amended and re-amended over the ensuing decades, and there were hundreds of pages of precedents establishing the rules' meaning.
[p. 91]
In contrast, the Indiana Senate adopts its standing rules anew at the beginning of each two-year term of the General Assembly. The "Standing Rules and Orders of the Senate" of this most recent General Assembly - the 113th - were adopted November 19, 2002. This was done pursuant to Rule 7, which provides:
The standing rules and orders of the Senate shall be an item of business in the first regular session of a term of the General Assembly. The Committee on Rules and Legislative Procedure shall develop the standing rules and orders to be presented to the Senate for adoption. The standing rules and orders, upon adoption, shall govern the Senate for the term of the General Assembly, unless amended or suspended.
Generally the rules of the last term are simply readopted, perhaps with minor modifications. However, in 1970 the newly elected president pro tempore of the Indiana Senate, who had run on the platform "to let the Senate run the Senate," rewrote the rules to remove from the lieutenant governor the power "to appoint committees, to assign bills to individual committees, and to name members of conference committees." [The Centennial History of the Indiana General Assembly, p. 642]

The U.S. Senate regards itself as a continuing body. Its Rule V provides: "The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules." And Rule XVII provides that the unfinished legsislative business of the Senate at the close of a session "shall be resumed and proceeded with in the same manner as if no adjournment of the Senate had taken place." In contrast, Indiana Senate Rule 6:

Every bill, resolution or other matter before the Senate on the Calendar or otherwise capable of being acted upon by the Senate shall at the adjournment sine die of any session of the General Assembly be deemed to have failed.
Why is this difference important? Because one of the arguments being made in Washington is that today's United States Senate is being governed by rules written long ago and the opportunity for the majority to change them is limited:
[T]he present Standing Rules do not reflect a fresh determination by the present majority of the Senate as to the best means for conducting the business of the Senate. In this way, the views of Senators long retired, even long deceased, restrain change in the Senate with a cold hand * * *. [An End to Nomination Filibusters], pp. 13-14

[Access The Judicial Nominations: Part 2. Cloture here.]

Posted by Marcia Oddi at 05:35 PM

Law - Judge Florence-Marie Cooper

Today's LA Times has a feature story on Florence-Marie Cooper, United States District Judge for the Central District of California. Some quotes:

When Beverly Hills attorney Shelly McMillan went to court a few years ago to represent a client in a job discrimination case, she noticed that the judge was exceptionally intelligent, hard-working and fair, discouraged rancor in her courtroom and had a crack staff. But there was one other quality that set judge Florence-Marie Cooper apart. She could type as fast as most lawyers could speak. "She would be typing on her computer while the witnesses were testifying, and she was faster than the court reporters," McMillan recalled. Those skills are the product of an unusually modest background that has not stopped Cooper from taking on some of society's most powerful institutions. Formerly a Los Angeles Superior Court judge and now on the federal bench, she delivered slaps this week to two quite different concerns: County-USC Medical Center and Disney's Winnie the Pooh. * * *
Cooper, 63, is in many ways a rarity as a U.S. District Court judge. To begin with, she never graduated from college. She became a lawyer in her mid-30s after working as a legal secretary -- the source, apparently, of her superior typing skills. According to a biographical sketch published by the Los Angeles Daily Journal, she was encouraged by a lawyer to enroll in Beverly (now Whittier) Law School in Los Angeles, which had a program for people without college degrees. She graduated as class valedictorian in 1975.

Posted by Marcia Oddi at 12:44 PM

Law - Double tax on jury awards

A Washington Post story this morning (access it here), titled "Panel Backs End to 'Double Taxation' on Jury Awards: Current Law Requires Plaintiffs in Some Cases to Pay IRS on Full Amounts, Including Legal Fees", leads with this:

Cynthia C. Spina, an Illinois police officer, secured a $1,525,000 settlement from her department last year after a long legal battle in which she alleged that she was a victim of sexual discrimination and harassment. But, through a quirk in the law , Spina's tax bill on the settlement could erase her gains and leave her owing $100,000 more. That's because she must pay income tax on the entire settlement, even though the court earmarked $1,150,000 of it for legal fees and costs. Spina's lawyer, Monica E. McFadden, said she has to pay taxes on her court-ordered fees, too. Thus, she argued, the taxation amounts to "double-dipping" by the Internal Revenue Service.
[Updated 5/14/03] The Boston Globe ran a story on this 5/13/03. A quote:
The current law requires successful plaintiffs in certain civil lawsuits, including sexual harassment and employment and housing discrimination, to pay taxes on attorneys fees as though they were income. The taxes are sometimes so high that the victim's tax bill is higher than the amount of damages awarded * * *. ''The real effect is, it makes it much more expensive to settle cases, because you have to account for the extra taxation,'' [Bill] Zavarello said. Because plaintiff's lawyers also have to pay taxes on the income, the policy is double taxation, Zavarello said. Trial lawyers, joined by business associations and antidiscrimination groups, have been trying to get the law changed for five years, and now stand their best chance with the provision that is in the Senate tax bill. They had been unsuccessful, in part, because Congress is wary of approving anything that appears to benefit trial lawyers, Zavarello and other lobbyists said.

Posted by Marcia Oddi at 07:02 AM

May 09, 2003

Law - Elections: voting machines

Back on 3/28/03 I published an entry relaying concerns about the new electronic voting terminals, particularly those that did not produce "a separate, paper receipt that a voter can confirm after voting and that can be recounted if problems are suspected." Today Wired has a story (access it here) about a "solution" being on the way:

Voting machines that print individual ballots -- an election accessory many computer scientists have clamored for -- are moving a step closer to widespread availability. In response to concerns raised by election officials and security-minded techies, one of the largest makers of touch-screen voting machines has introduced a prototype capable of producing paper ballots.
Here in Marion County, Indiana, we have always used the big, expensive mechanical voting machines that had to be trucked in to every polling place on election day and constantly malfunctioned. This year we changed over, NOT to electronic voting terminals, but to paper ballots that are then fed in to a computer. The Indianapolis Star calls this a transition "from lever to bubble". I voted in the May 6th primary (less than 10% of registered voters turned out here) and used the new system. Here is a quote from an Indianapolis Star 5/5/03 story describing the changeover:
The scanner technology, already used by 22 percent of Indiana voters, requires citizens to fill in bubbles on a paper ballot -- much like a lottery card -- and feed that ballot into a computer. The tallies are recorded in electronic storage cards, which are compiled at a central location when the polls close at 6 p.m. The paper ballots, which are stored inside the machine, can be collected and counted by hand if a vote is challenged. If a voter makes a mistake on the ballot -- for example, choosing two candidates for the same office -- the machine should reject the ballot and alert a poll worker.
Of course things can still go wrong, as the Star's story goes on to recount:
The same equipment malfunctioned during its first use in Hawaii's 1998 general election, a problem apparently caused by chunks of food stuck to one ballot that snarled the electronic readers. In suburban Detroit, several counties were delayed tabulating results for about a day because of problems with the software. Machine malfunctions were alleged in the Republican mayoral slating held in February, but an independent hand count found an identical tally to the one recorded by the scanners. [emphasis added]
Things can still go wrong, but the voting operation here seems to be much more transparent, both literally and figuratively, than in the past, when we used the big intimidating lever-operated voting machines.

Posted by Marcia Oddi at 03:51 PM

Law - NCAA Announces Michigan Penalties

The Indianapolis Star this morning (access the story here) reports, in a story headlined "Wolverines will sit again: NCAA bars Michigan from postseason play for another year:"

NCAA justice was on display again Thursday, and even the head of the committee that decided the punishment for Michigan's men's basketball team sounded conflicted. "I sympathize with the fact that the current coaching staff and the current student-athletes are paying for the sins that occurred long before they set foot in Ann Arbor," said Tom Yeager, commissioner of the Colonial Athletic Association. "If there's a fairer way . . . the committee and all of the NCAA would love to figure it out." * * * [The penalities] came after a booster told the federal government that he "loaned" four players, including Chris Webber, now with the Sacramento Kings, more than $600,000 from 1992 to 1998. * * * But nothing will happen to Steve Fisher, Michigan's coach at the time and the current coach at San Diego State. * * * The infractions committee, which included Indiana State athletic director Andrea Myers, could have used its power to hit Michigan's athletic department in the pocketbook. The Wolverines had voluntarily returned $450,000 in NCAA tournament revenue. It had $56 million in revenue during the past academic year. Instead, current coach Tommy Amaker and his players will suffer the consequences. * * * NCAA rules allow Michigan's only senior to transfer without penalty because of the sanctions, but not the other players, who would have to sit out a year before being eligible to play.
Here is the text of the questions and answers from Thursday's media teleconference with NCAA Infractions Committee Chair, Thomas E. Yeager, from TheInsiders.com, which bills itself as an "online sports network [that] features the best college recruiting, college team, professional and high school team insiders in the country."

The Detroit Free Press provides this page offering stories, charts and analysis of the penalties and what led up to them. Included is this story about the appeal Michigan intends to file with the NCAA:

How will the appeal work? "This is what's going to happen," U-M general counsel Marvin Krislov said Thursday. "We'll file a letter of appeal, probably today or tomorrow. They're going to acknowledge the letter of appeal. Then we'll have 30 days to file our brief. They'll have 30 days to file their brief. We'll have 14 days to file our brief. Then we'll have a hearing, probably in August and September. And we hope the decision will come fast."

The appeal will go to the NCAA infractions appeals committee, which is separate from the infractions committee that ruled this week. Nobody serves on both committees. The appeals committee sometimes scales back penalties, but Michigan is focusing solely on the postseason ban, the most severe penalty levied this week. That makes its chances of success less likely.

And there is this story from the Miami Herald. Headlined "It finally rained on Michigan, " the lead is: "ANN ARBOR, Mich. - The dark cloud that has hovered over Michigan's basketball program for over seven years finally produced rain."

Access the NCAA press release here.

Posted by Marcia Oddi at 10:14 AM

May 08, 2003

Indiana Constitution - History of the Indiana Constitution

The remarks of Justice Brent E. Dickson. Indiana Supreme Court, on "Indiana's Constitutional Past," are available here, on the Indiana Historical Bureau site.

The remarks include links to a number of other valuable online documents relating to Indiana's past, including Indiana's original 1816 Constitution, the Journal of the Convention of the Indiana Territory in 1816, and the Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Indiana, 1850.

Posted by Marcia Oddi at 10:36 AM

May 07, 2003

Law - Contract ratification doctrine

This from the 7th Federal Circuit today, in an opinion written by Judge Posner:

In any event, she ratified the transfer of the money from her bank account to Shook. For she accepted several partial payments on her loan after learning that her check had not been endorsed and that her contract with the bank had therefore been broken. No more is required for ratification under Illinois law. * * * If the other party to your contract breaks it, and instead of walking away from it you act as if it remains in force, it does remain in force. You cannot later repudiate it. That would be to play heads I win tails you lose, since you would take the benefit of the contract if it turned out well and walk away from it if it turned out badly, as may indeed have been the case here. * * *

Maybe if alerted the bank could have taken steps to recover her $250,000 before it vanished down a sinkhole. One function served by the doctrine of ratification is to induce the victim of a breach of contract to notify the other party of the breach promptly so that that party can mitigate its damages. * * * Had Mrs. Kaskel notified the bank that it had violated its contract with her by paying the proceeds of the check to Shook, the bank might have been able to recover the money before it was dissipated.

The name of the case is Dana Kaskel v. Northern Trust Company.

Posted by Marcia Oddi at 06:00 PM

Indiana Decisions - Gay and Lesbian Rights

In a story reported today in the Indianapolis Star (access the story here), the Superior Court of Marion County yesterday (5/7/03):

dismissed a lawsuit seeking to lift a ban on gay marriages in Indiana. The Indiana Civil Liberties Union said it will appeal Superior Court Judge S.K. Reid's ruling on the lawsuit, filed in August by three same-sex couples. "Same-sex couples in a committed relationship are no different than married couples," said ICLU attorney Ken Falk. "The time has come to recognize that." But Reid ruled that the state is justified in allowing only opposite-sex couples to marry. Such a law, she wrote, "promotes the state's interest in encouraging procreation to occur in a context where both biological parents are present to raise the child."
The case is Morrison v. O'Bannon. [I will try to obtain a copy of the opinion and, if successful, will post a link here.]

A Google News search located several related stories. The New Jersey Journal on Monday, 5/5/03, in a story headlined "Shocking results in gay marriage poll: County 55.6% in favor, most Catholics approve," leads with:

Legalizing gay marriages is favored by more than one-half of Hudson County residents, according to a poll conducted by New Jersey City University for The Jersey Journal. The pollsters said they were surprised by the results, which show 55.6 percent in favor of legalization and 34.2 percent opposed. The issue of legalization of gay marriage is currently in state Superior Court, and one Hudson County couple is among the seven suing for legalization.
Fox News reports that "Nebraska's one-of-a-kind ban on same-sex marriages was challenged Wednesday [4/30/03] in federal court by the American Civil Liberties Union (search) and three other groups." The story (access it here) continues:
The lawsuit says the ban, which was approved by voters in 2000 and added to the Nebraska Constitution the next year, violates the rights of gay and lesbian couples. "No other state constitutionally prohibits state and local government officials from recognizing same-sex relationships in any way, including as domestic partnerships," according to the lawsuit, which was filed in U.S. District Court in Lincoln. Thirty-four states have so-called "Defense of Marriage" laws, but Nebraska's ban is the only one that bans same-sex couples from enjoying many of the legal protections that heterosexual couples enjoy, the ACLU said.

Posted by Marcia Oddi at 04:43 PM

Law - Test of FCC Media Ownship Rules

"Journalism's Future May Start in Tampa," is the headline of an important story published today in the LA Times:

As the FCC reviews a 1975 rule that usually prevents companies from owning a newspaper and TV station in the same market, the Tribune-WFLA combination has emerged as a test of what may become the media industry's next wave of mergers. The FCC is expected to vote June 2 on this and other media ownership rules.

Posted by Marcia Oddi at 08:57 AM

Law - NY, Mississippi contemplate change in selection of judges

The NY Times today has a story titled "More Brooklyn Officials Calling for Changes in Selecting Judges." Access the story here. As the Times reports, this results from "the recent arraignment of a State Supreme Court judge on charges of bribery." (Access our coverage of the initial, 4/25/03 arraignment stories here; unfortunately, as more than a week has passed, the links to the NYT stories -- but not the Newsday story -- now lead to summaries and "pay for view" opportunities rather than directly to the stories quoted.) As reported in today's Times story:

Various changes have been suggested, including direct elections of judges without party intervention, having judges appointed by the governor, or placing the recommendations for judgeships in the hands of academics, bar associations and civic groups. Some of the suggested changes could be accomplished by a vote of the Democratic Party leadership in Brooklyn. Others, however, could be accomplished only by legislation passed in Albany. The calls for changes are becoming far more widespread and have expanded beyond the officials who are considered part of the borough's reform movement. "A year ago, many people embraced the idea of reform, but felt that it would never happen," said City Councilman David Yassky, a Democrat who was a professor at Brooklyn Law School before being elected to the Council in 2001. "But now, there are more people who feel the time has come and that something can be done now."
Allegations of corruption have also led to talk of reform in Mississippi. This story published Monday in The Clarion-Ledger, begins:
The Mississippi Supreme Court's chief justice says changes are needed to restore faith in the state's courts, which have been damaged by a string of allegations of judicial misconduct. Chief Justice Ed Pittman's plans for reform: Switch from elected to appointed judges in the higher courts, allow cameras in the courtrooms, impose stricter codes of conduct and establish a review system if a judge refuses to recuse himself when there is a potential conflict of interest. The majority of this court recognizes that we need to make some changes," Pittman said. "We are on the road to total recovery and absolute total neutral service to the people of this state."
Another Clarion-Ledger story details a "tradition of impropriety" in the history of Mississippi Supreme Court justices. (Access the story here.) For instance:
Retired state Supreme Court Justice Stokes Robertson of Jackson, now 90, who served on the court from 1966-82, said it's true a few judges over the history of the court have been known to imbibe. He recalled a story of one long ago chief justice who had gotten intoxicated: Confronted with his drinking, the justice replied that "the difference between him and an ordinary drunk was that in the morning, he would still be chief justice."
For much more on the New York court issues, the Village Voice has this story and this story. A quote:
Judicial appointments are one of the last strongholds of patronage in New York. Thanks to inter-party cooperation between Democrats and Republicans who divide the available judgeships between them and then cross-designate each other's candidates, the positions amount to virtual lifetime sinecures. In addition there are hundreds of clerks and law secretaries to be selected, posts with similar levels of job security and benefits. It is because of these basic political facts of life that no serious effort has ever been made to reform the way the state's top judges are selected.
And for more on Mississippi, recall our entry from 4/16/03 about a Mississippi county suing the state because it is too poor to provide defense counsel to indigents. Here is another story, dated 5/5/03, from the Atlanta Journal-Constitution:
In this endless flatland of rich soil and poor people, Robert Simon and Anthony Carr murdered an entire family and almost buried a county. * * * The two men ripped the heart out of this Mississippi Delta community one night in 1990 when they killed four members of the Parker family who had returned to their trailer from Bible study. Then, Simon and Carr, who ended up on death row, made Quitman County pay for their legal defense. Quitman County spent more to defend Simon and Carr than most people here earn in a decade. To help pay the legal bills, the county raised taxes three consecutive years and took out a $150,000 bank loan that took another three years to repay. * * *

In what could be a landmark lawsuit, Quitman County is asking a judge to order Mississippi to set up and fund a statewide public defender system. "If the Legislature doesn't take care of its business, it becomes the business of the court," Rob McDuff, a lawyer from Jackson, said in opening statements last week. "At so many critical times in this state and across the nation, courts have had to step in and enforce the law. We believe that this is now one of those critical times." * * * McDuff is assisted by four lawyers and two paralegals from the prestigious Washington law firm Arnold & Porter. Forty years ago, a member of that firm, Abe Fortas, represented indigent drifter Clarence Earl Gideon before the U.S. Supreme Court. Gideon, accused of breaking and entering, was left to defend himself in a Florida court after a judge refused to appoint a lawyer to represent him, saying the state had to do so only in capital cases. Gideon was convicted, and his appeal reached the U.S. Supreme Court.

Posted by Marcia Oddi at 08:03 AM

May 06, 2003

Indiana Decisions - Employing Suspended or Disbarred Attorney in Law Office

In the Matter of Anonymous (Ind.S.Ct. 5/5/03)
Per Curiam
The Court issued a private reprimand to an attorney who hired an attorney who had been suspended from the practice of law to work in her law office, first as a bookkeeper, then as a paralegal:

A suspended or disbarred attorney “shall not maintain a presence or occupy an office where the practice of law is conducted.” Ind. Admission and Discipline Rule 23, Section 26(b). An attorney whose license to practice law has been removed is prohibited from maintaining a presence or occupying an office where the practice of law is conducted so the public is not misled into believing that the attorney is still authorized to practice law. See, e.g., Matter of DeLoney, 689 N.E.2d 431 (Ind. 1997) (finding an attorney to be in contempt of this Court for performing various duties in a law office after being disbarred). Accordingly, the analogue to this rule is also clear, especially in light of express provisions delineating a supervising attorney’s obligations regarding legal assistants — an attorney may not employ a suspended or disbarred attorney in her law office.

The Indiana Rules of Court - Rules for Admission to the Bar and the Discipline of Attorneys may be accessed here.

Posted by Marcia Oddi at 11:11 AM

Environment - Confined Feeding, More

Air pollution from confined feeding operations is the topic of a story this morning in the NY Times titled "Proposal Would Ease Rules of Livestock Farm Pollution." Access it here. The lead:

The Environmental Protection Agency has been privately negotiating with large industrial livestock farms to offer them amnesty from the Clean Air Act and existing Superfund laws, people involved in the talks say. Instead of enforcing these environmental laws, the agency would monitor pollution levels at 30 or so large hog and chicken operations, under a plan circulated between agency officials and the industry. Environmental groups and former enforcement officials at the agency criticized the plan as too lenient, given that the agency already has the authority to order many farms to monitor air pollution. State and federal agencies have long regulated water pollution from industrial farms, which often house thousands, if not tens of thousands, of animals. But air pollution from these farms has become a contentious issue within the past few years as rural communities around the country have complained of overwhelming odors and fecal dust particles that emanate from them.
(Remember the NY Times now removes free access to the full-text of its stories after just one week.)

Another environmental law related story today, in the Washington Post, deals with the results of toxic runoff from a uranium mill in Colorado. Access the story here. The headline: "Mining Firm Wins a Ruling, but Loses a Town: As 12-Year-Old Colo. Case Over Toxic Runoff Is Sent Back to Trial Judge, Opposition to Waste Plan Grows."

CAÑON CITY, Colo. -- It looked at first like a classic story of the "Erin Brockovich" genre: A feisty young lawyer and her long-suffering clients took on the local uranium mill -- and won big. In a series of trials, local residents who say they were poisoned by toxic runoff won more than $40 million from Cotter Uranium Corp. But Hollywood-style happy endings are hard to come by in this hardscrabble canyon country. Last month, a federal appeals court in Denver threw out all the verdicts against Cotter. The court ordered the trial judge to start the cases over -- a dozen years after the litigation began.

Access the 4/24/03 opinion of the U.S. Court of Appeals, 10th Circuit, here, via Findlaw.com. The case is Dodge, et.al. v. Cotter Corporation.

Posted by Marcia Oddi at 07:43 AM

May 05, 2003

Law - Bill shielding the gun industry from liability likely to pass

Following up on my April 26 entry that Congress is considering legislation to protect gun makers from liability is a story in today's Washington Post titled "Gun Firms on Verge of Winning New Shield:"

The gun industry, demonstrating its resurgent influence over Washington politics, is on the cusp of convincing President Bush and Congress to protect it from pending and future lawsuits. Under pressure from the National Rifle Association and a lesser-known organization funded with $100 million from gun manufacturers, Bush and a majority of lawmakers are on record supporting significant new legal protections for companies that make and sell guns. The legislation would prevent victims of gun crimes from making civil claims against companies that manufactured, imported or sold the weapons. * * * In a bipartisan political retreat from gun control, more than two-thirds of House members recently voted for the gun bill; 52 senators have sponsored it, and, if it passes the Senate, Bush plans to sign it into law. Opponents are scrambling to persuade at least 41 senators to filibuster the bill, but odds are stacked against them. * * * [Dennis Henigen of the Brady Center to Prevent Gun Violence], a key leader in opposition to the liability bill, said the gun industry has benefited greatly from the timing of this debate and the fact that trial lawyers have been busy fighting limits on medical malpractice lawsuits and other tort measures. The House passed its version while the country was at war with Iraq. Henigen and other opponents, including an NRA activist turned gun control advocate, are hoping the Senate will pay more attention to the details. In addition to highlighting the Washington sniper cases, critics of the liability plan are digging up cases in hopes of proving the NRA isn't just trying to protect honest gunmakers from frivolous cases.

Posted by Marcia Oddi at 12:50 PM

Law - Yet Another Sports Law Story

Coaches' Lineup Could Include a Lawyer: Angry when their student-athlete's career languishes, parents sue the schools and instructors. Legal experts see a trend. That headline to this story in today's LA Times pretty much says it all.

Posted by Marcia Oddi at 12:36 PM

Privacy - New Homeland Security Privacy Head

As you may recall, several weeks ago it was announced that the new privacy head for the Department of Homeland Security would be Nuala O'Connor Kelly, formerly of DoubleClick. As reported today by Wired News:

O'Connor Kelly, a 34-year-old lawyer who describes herself as "truly a geek at heart," is best known in privacy-activist circles as part of the team that Internet advertising firm DoubleClick hauled in to clean house when the company was being besieged by complaints about its privacy policies -- or lack thereof. At DHS, she will be responsible for developing and enforcing privacy policies, and will oversee aspects of highly controversial programs such as the Computer Assisted Passenger Prescreening System II, known as CAPPS II, and the Pentagon's Total Information Awareness program. O'Connor Kelly declined requests to be interviewed for this story. Privacy proponents are divided over whether O'Connor Kelly will be a glorified public relations flack or a true privacy advocate. Whether she actually cleaned up DoubleClick or simply hid the garbage away from public view is still in contention.
Access the entire Wired story here. The Wired story also includes a link to the Women in Technology International (WITI) website's interview with O'Conner Kelly. It turns out that O'Conner Kelly has also served as Deputy Director of the Office of Policy and Strategic Planning at the Department of Commerce and has been an attorney with the law firms of Sidley & Austin and Venable, Baetjer, Howard & Civiletti.

[Updated 5/7/03] PCWorld today (5/7/03) has a related story: "Leaders of two much-criticized projects that privacy advocates fear will collect massive amounts of data on U.S. residents defended those projects before the U.S. Congress Tuesday, saying the projects will be much more limited in scope than opponents fear."

Posted by Marcia Oddi at 12:31 PM

May 04, 2003

Environment - Wilderness policy battle

What first caught my attention was this story in the Sunday New York Times headlined: "Bah, Wildnerness! Reopening a Frontier to Development." The gist of the Times story is that last Friday night (5/2/03):

With a single order, the Bush administration removed more than 200 million acres from further wilderness study * * * By declaring an end to wild land surveys, the administration ruled out protection of these areas as formal wilderness — which, by law, are supposed to be places people can visit but not stay. Now, these areas, managed by the Bureau of Land Management, could be opened to mining, drilling, logging or road-building. * * * If the Friday night declaration represents the beginning of a broad new land management policy, the Interior Department has not said so. * * * Instead, the change came about in a settlement of a 1996 lawsuit filed by the State of Utah against the Interior Department over a reinventory of three million acres conducted by Bruce Babbitt, the interior secretary at the time. Most of the lawsuit had been dismissed and sat dormant until the state amended its complaint in March. * * * The move follows a consistent pattern in the president's environmental policy: to change the way the land is managed, without changing the law. Whether the issue is allowing snowmobiles in Yellowstone National Park or logging in the Pacific Northwest, the course has been to settle lawsuits by opponents of wild land protection, opening up the areas to wide use, without going to Congress to rewrite the rules.
On the Times editorial page, the lead editorial, headed "The End of Wilderness," reads in part:
The new policy has still not caused much of a stir. Like most of the bad environmental news emanating from this administration, it emerged from the shadows late on a Friday evening. There was no formal announcement — just a few letters to interested senators from Gale Norton describing a legal settlement she had reached earlier that day with the state of Utah. But a close reading of that deal showed it to be a blockbuster — a fundamental reinterpretation of environmental law, and a reversal of four decades of federal wilderness policy.
A brief look-around on Google found that papers throughout the country, but mostly in the West, actually have been talking about these wilderness issues for several weeks, if not longer. A story published 4/27/03 in the Ashville, North Carolina Citizen-Times ("Voice of the Mountains") states its point of view succinctly in a story headed "White House busy gutting environmental rules while closing public out of say:"
The Bush administration is using back-room settlements to undermine protections for forests, wildlife and wilderness. The effect is to repeal the nation's environmental laws in secret. In recent months the administration has:
  • Acceded to the timber industry agenda for Northwest forests, an agenda that weakens protections for not only the forests but also wildlife such as the northern spotted owl and salmon.
  • Gutted the policies that led Utah and its counties to sue over wilderness designation in the southern part of the state.
  • Reversed a 2001 decision to ban snowmobiles in Yellowstone and Grand Teton national parks.
The device is what critics call "sue and settle." As Kristen Boyles of Earthjustice explains it, "The industry sues and then the current administration does a poor job of defending itself or comes to a sweetheart settlement."
There is more. A sample:

The Casper, Wyoming Star Tribune, in a 4/18/03 story headed "Norton reverses Clinton wilderness policy," began: "The Bush administration Friday tossed out a Clinton-era wilderness handbook used by Interior Department land managers to decide which areas deserve to be protected as wilderness. Interior Secretary Gale Norton also offered a legal opinion that wilderness areas proposed since 1993 are no longer valid, to the consternation of conservationists and applause of extractive industries."

The Fairbanks, Alaska News-Miner, in a 4/28/03 story: "'The courts may just be where the dispute is headed,' said Eleanor Huffines, head of The Wilderness Society's Alaska office. Unlike Babbitt's effort, Norton's agreement process bypasses any sort of public input, she said. 'The unfortunate thing is that the administration often claims to want to avoid litigation,' she said. Instead, its back-door deals are 'actually pushing people toward that as being the only option,' she said."

The Salt Lake Tribune, in a 4/25/03 story that begins: "WASHINGTON -- A coalition of land conservationists forecast a political, public and legal backlash over a pair of recent deals between Gov. Mike Leavitt and Interior Secretary Gale Norton that effectively erased wilderness consideration for millions of acres of scenic public lands in Utah. Representatives of wilderness advocacy groups said Thursday an agreement to give Utah counties legal title to thousands of miles of undeveloped roadways across federal ground, coupled with a lawsuit settlement that revokes protection of Bureau of Land Management "wilderness study areas" in Utah, pose the greatest threat to the Western public domain in decades."

The San Franscisco Chronicle, in an editorial dated 4/25/03: "WILDERNESS has lost a key battle. With one April 11 announcement, U.S. Interior Secretary Gale Norton has rolled back wilderness protection for 2.87 million acres of public land in the West, including 35,000 acres in California. The decision effectively limits wilderness lands forever to 23 million acres nationwide."

The Glenwood Spring, Colorado Post Independent, in a 4/28/03 story titled "Norton heeded senators in wilderness decision: Allard, Campbell called for suspension of reviews:"

Colorado politicians’ handprints are all over a new policy suspending reviews of additional lands for possible wilderness designation within the U.S. Bureau of Land Management, including on the Roan Plateau. Colorado’s two U.S. senators signed a letter calling for the policy, which caps the amount of BLM land eligible for wilderness nationwide at 22.8 million acres. The letter was sent to U.S. Interior Secretary Gale Norton, a former Colorado attorney general. The Interior Department, which oversees the BLM, announced the policy April 11, as a means of settling a lawsuit in Utah over the BLM’s wilderness inventory process. * * *
Jones [of the Wilderness Society] and others argue that the 1976 Federal Land Policy and Management Act (FLPMA) requires the BLM to maintain “on a continuing basis” an inventory of public lands, giving priority to areas of critical environmental concern. Allard, Campbell and 12 other U.S. senators read the same law entirely differently. In an April 9 letter to Norton, they asked that the BLM suspend any new wilderness reviews other than those specifically directed by Congress. They argue that BLM has no authority to consider wilderness study areas beyond those proposed in 1991 under an initial inventory of lands required under FLPMA.
The senators also argue that the Wilderness Act of 1964 envisioned a system of 60 million acres, but already 107 million acres of wilderness have been created — more acreage altogether than California.
“Further wilderness review serves no beneficial purpose and frustrates current efforts to identify and open key areas on public lands for energy production, resolve access problems or the legitimate use of public lands for other than wilderness purposes, including recreation uses,” the senators wrote.

Posted by Marcia Oddi at 06:44 PM

Environment - The Nature Conservancy

The Washington Post begins today a 3-part series on the Nature Conservancy. Access the index page to all articles here. The lead from today's main story may give a sense of the direction the series:

The Arlington-based Nature Conservancy has blossomed into the world's richest environmental group, amassing $3 billion in assets by pledging to save precious places. Known for its advertisements decorated with forests, streams and the soothing voice of actor Paul Newman, the 52-year-old charity preserves millions of acres across the nation.

Yet the Conservancy has logged forests, engineered a $64 million deal paving the way for opulent houses on fragile grasslands and drilled for natural gas under the last breeding ground of an endangered bird species.

The nonprofit Conservancy has traveled far beyond its humble beginnings, when it relied on small donors and acquired a few small plots at a time. Its governing board and advisory council now include executives and directors from one or more oil companies, chemical producers, auto manufacturers, mining concerns, logging operations and coal-burning electric utilities.

The Post also makes available a scanned pdf copy of the letter it received from the Nature Conservancy expressing concerns about the upcoming series.

Posted by Marcia Oddi at 07:20 AM

May 03, 2003

Law - College Coaches' Conduct Clauses

The alleged conduct of the Alabama football coach and the Iowa State basketball coach are in the papers again today, as are discussions of their contracts. In a story headlined "For Coaches, Higher Profile Comes With Fine Print," the NY Times today reports (access the story here) on "a relatively recent addition to the common coaching contract: the morals or code-of-conduct clause."

Almost every university participating in major sports now routinely includes a passage defining unacceptable behavior in its coaching contracts. In effect, it holds a coach of a large private or state university team — who may be the institution's highest-paid employee — more accountable than a biology professor, who is generally bound to less specific guidelines delineated in a simple employee handbook. * * *
At Alabama, the new football coach, Mike Price, is being questioned by university administrators about his actions during a trip to Florida for a public golf event. Price reportedly has not yet signed a contract to coach at Alabama, but it includes this passage, provided by university officials, explaining what he can be fired for: "Participating in any conduct, committing any act, or becoming involved in any situation, occurrence, or activity that brings Employee into public disrepute, contempt, scandal, or ridicule or that reflects unfavorably upon the reputation or the high moral or ethical standards of the University of Alabama."

Contrast that with the opening section of the university's staff handbook, which under the heading "Standards of Behavior," reads: "Employees should perform their work and conduct themselves in such a manner that reflects professionalism, is respectful toward others and brings credit to the University." In the case of anything deemed to be poor performance or misconduct, employees are subject to a restrained system of progressively stricter disciplinary action.

Further details about "moral turpitude" clauses are provided in this story from the Seattle Times, headlined "Price case is a benchmark for coaches:"
[If] Mike Price lose[s] his job at Alabama today before losing a single game, it could become a precedent-setting case that will have coaches and their lawyers scouring over contracts even more than they already do. At Washington and Washington State, for instance, contracts for all coaches have clauses listing possible reasons for termination, including "moral turpitude." Rick Neuheisel's contract at UW states specifically that he can be fired for "any serious act of misconduct by employee, including but not limited to, an act of dishonesty, theft or misappropriation of university property, moral turpitude, insubordination or actions injuring, abusing or endangering others." A UW spokesman said such language is common in all coaches' contracts and has been for quite some time. Such clauses have also been commonplace at WSU for years. WSU athletic director Jim Sterk said the standard contract includes a clause that coaches can be fired for "conduct seriously prejudicial to the best interests of the university or its athletics program." Though that phrase may sound somewhat vague, Sterk said he thinks every coach understands it. "Coaches know they are held to higher standards," Sterk said. "No one's ever asked me what that means."

And the contract for Price's predecessor at Alabama, Dennis Franchione, stated that he could be fired for "participating in any conduct, committing any act, or becoming involved in any situation, occurrence or activity that brings (the) employee into public disrepute, contempt, scandal or ridicule or that reflects unfavorably upon the reputation of the high moral or ethical standards of the University of Alabama."

The Tuscaloosa News this morning has a story written by their business editor headed "Contracts for UA coaches include clause about conduct." Access it here.

I have located only one sample college coaching contract online, drafted for Idaho state colleges. It does not contain an explicit moral turpitude or code of conduct clause (which if I recall correctly was also the case with the Indiana University/Bob Knight contract). You may take a look at it here - the employment contract starts at page 23.

[Updated 5/5//03] This story from today's Washington Post is not law related, but it is related to the stories above and is well worth reading -- it is about Larry Mackey, "The former men's basketball coach at Cleveland State, Mackey once took a trip very similar to the ones that led to Saturday's firing of Mike Price as football coach at Alabama and that has Iowa State basketball coach Larry Eustachy holding on for his professional life." Access it here.

Posted by Marcia Oddi at 01:05 PM

Law - Right to Know v. Right to Privacy

David Savage has a fascinating story this morning in the LA Times headed: "High Court Weighs Survivors' Privacy: A request for close-ups of the body of Vincent Foster, a former Clinton aide, pits the public's right to know against family's wishes." Access it here.

On Friday, the Supreme Court reviewed a series of appeals, all triggered by Favish's efforts to further explore the circumstances of Foster's death. Foster's widow and his sister have moved to block the release of the photos. They called Favish a conspiracy theorist whose pursuit of the pictures is ghoulish. U.S. Solicitor General Theodore B. Olson also moved to block Favish, saying there is no public interest in a sixth investigation of Foster's death. Since the assassination of President Kennedy, the government has faced claims that its failure to release certain photos or other information is is evidence of an official cover-up. Similar questions have arisen more recently in connection with the Sept. 11 attacks. However, judges have been divided on when the privacy right outweighs the value in public disclosure. ***
The privacy issue is not a new one. The government refused to release autopsy photos of President Kennedy. It also blocked the release of audio recordings of the last words of the crew of the space shuttle Challenger. Lawyers say they also expect a new round of litigation over the last words of those who died on Sept. 11 at the World Trade Center and on Flight 93. Hamilton cites these examples and argues the Supreme Court should rule clearly on the privacy rights of survivors.
Check the Supreme Court docket on the Favish case here. Access the 9th Circuit opinion in Favish v. Office of Independent Counsel here, via Findlaw.

There have also been other suits on this issue. One that comes immediately to mind is the lawsuit for the release of race car driver Dale Earnhardt's autopsy photos. Here is a Sports Illustrated story. You may recall that the Florida legislature passed a statute, called the "Family Protection Act," to limit public access to these autopsy photos.

[Updated 5/5/03] The Washington Post has a story this morning headed "High Court Takes Case on Vincent Foster." Access it here.

Posted by Marcia Oddi at 08:37 AM

May 02, 2003

Indiana Decisions - Access to records

In a 47-page opinion issued today, May 2, 2003, the Indiana Court of Appeals has ruled in the case of The Indianapolis Star v. The Trustees of Indiana University. (Access the decision here.) As you basketball fans will recall, this case involved the Star's efforts to access records held or produced by the I.U. Board of Trustees as a result of their investigation of player Neil Reed's charges against Coach Bob Knight.

[Updated 5/3/03] The Indianapolis Star (yes, the same) this morning reports, in a story titled "Open records ruling may shed light on Knight firing:"

The public may learn more details about the downfall of basketball coaching legend Bob Knight after the state Court of Appeals ruled that IU must turn over some records on disciplinary actions against him and on his firing. But Friday's unanimous, 47-page decision is no slam dunk for public access.

The judges ruled that records compiled by the Indiana University Police Department, which investigated allegations that Knight had inappropriate physical contact with IU freshman Kent Harvey, should remain secret. And the judges left a road map that could lead to shielding all remaining information from the public -- if the university can successfully argue that the documents are protected by attorney-client privilege. That's possible because two IU trustees -- who are also attorneys -- conducted the internal investigation for the university. The court is leaving that for a Morgan County special judge to decide.

Later in the story (access the entire Star story here):
Information that is opinion, or speculative, can be blacked out, the court said. So can educational information about students that is confidential under federal law. The rest -- the public portions -- must be disclosed by IU. "This is significant. The court says that you can't just say it's an educational record or it's deliberative, and walk away," said Anne Mullin O'Connor, the state's public access counselor.
The Louisville Courier-Journal has an AP story here, titled "Paper wins right to pursue records on Bob Knight firing."

Posted by Marcia Oddi at 03:40 PM

Law - Judge Richard A. Posner

Many of us are impressed by the productivity of Judge Richard A. Posner, of the U.S. Court of Appeals, 7th Circuit. How does he do it all? I was excited to discover that Judge Posner found time, in January of 2002, to keep a diary for a week at the behest of Slate. Access the diary here. For a sample, here (from the Wednesday entry) is some of Posner's thinking "on civil liberties and public safety in the era of international terrorism":

The notion of law as resource rather than as diktat has a larger than merely pedagogical significance, one that was at the heart of my evening talk. Most laypersons and many lawyers think that the law is a Procrustean bed to which life must be fitted. The opposing view, which I like to think of as that of the sophisticated insider, is that law is an instrument for promoting social welfare and so seeks to strike a sensible balance between competing interests. The theme of my talk was simple: What we call "civil liberties" is a body of rules mainly created by courts out of general language in the Constitution. The rules strike a balance between personal liberty and public safety. When the relative weights of these interests change, the judges, who created the rules in the first place, change them. As concerns with public safety mount, the scope of civil liberties contracts, and as those concerns recede, civil liberties once again expand. That is how it is, and how, in my opinion, it should be.

The outlook that generates this understanding of law is pragmatism—not in any fancy philosophical sense but in the everyday sense in which American culture might be described as pragmatic. Applied to law, it asks judges to weigh consequences rather than to steer by abstractions such as "property," "liberty," "rights," "justice," "fairness," and "equality." The judge who thinks he can reason his way to what is "just" and "fair," a self-appointed moral virtuoso, is unlikely to think seriously about the practical consequences of his decisions. May we be spared those judges, as well as the ones who shirk responsibility for their decisions by imagining themselves a mere transmission belt for conclusions reached hundreds of years ago by the all-knowing framers of the Constitution. The judge is a responsible official, not an oracle; and his responsibility is to use the resources of text, history, and precedent to help him reach practical results that are responsive to the needs of the present day.

Posted by Marcia Oddi at 12:32 PM

May 01, 2003

Law - Adopting copyrighted trade standards as law

The Washington Post business section has a brief story this morning (access the story here) titled "Accounting standards copyrighted." The accounting standards of the American Institute of Certified Public Accountants (AICPA), a trade group, have been copyrighted since 1941:

The Public Company Accounting Oversight Board, created by Congress last year, announced last month that it would write professional and ethics standards for auditors. ... Accounting board members said last month that they would adopt the AICPA guidelines temporarily to give them time to develop their own standards. But that plan hit a snag because the AICPA has held a copyright on the standards ... .
The story concludes with a statement that the "board and the AICPA plan more meetings on the copyright problem."

Of interest here may be the June 7, 2002 en banc decision of the US Court of Appeal for the 5th Circuit in Veeck v. Southern Building Code Congress.

Peter Veeck individually operates "Regional Web,"a non-commercial website that provides information about north Texas. Sometime in 1997, Veeck decided to post on Regional Web the local building codes of Anna and Savoy, two small towns in north Texas that had adopted the 1994 edition of the Standard Building Code written by appellee, Southern Building Code Congress International, Inc. ("SBCCI"). Veeck made a few attempts to inspect several towns' copies of the Building Code, but he was not able to locate them easily. Eventually, Veeck purchased the 1994 model building codes directly from SBCCI; he paid $72.00 and received a copy of the codes on disk. Although the software licensing agreement and copyright notice indicated that the codes could not be copied and distributed, Veeck cut and pasted their text onto his Regional Web. Veeck's website did not specify that the codes were written by SBCCI. Instead, he identified them, correctly, as the building codes of Anna and Savoy, Texas. * * *
As the organizational author of original works, SBCCI indisputably holds a copyright in its model building codes. See 17 U.S.C. § 102(a). Copyright law permits an author exclusively to make or condone derivative works and to regulate the copying and distribution of both the original and derivative works. 17 U.S.C. § 106. The question before us is whether Peter Veeck infringed SBCCI's copyright on its model codes when he posted them only as what they became -- building codes of Anna and Savoy, Texas -- on his regional website. Put otherwise, does SBCCI retain the right wholly to exclude others from copying the model codes after and only to the extent to which they are adopted as "the law" of various jurisdictions?
The answer to this narrow issue seems compelled by three sources: the Supreme Court's holding that "the law" is not copyrightable; alternatively, the Copyright Act's exclusion from its scope of "ideas" or "facts"; and the balance of caselaw.
Access the entire decision, including the dissents, here. Writing for the majority, Edith H. Jones, Circuit Judge ruled:
The issue in this en banc case is the extent to which a private organization may assert copyright protection for its model codes, after the models have been adopted by a legislative body and become "the law". Specifically, may a code-writing organization prevent a website operator from posting the text of a model code where the code is identified simply as the building code of a city that enacted the model code as law? Our short answer is that as law, the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status. * * *
For the reasons discussed above, we REVERSE the district court's judgment against Peter Veeck, and REMAND with instructions to dismiss SBCCI's claims.
Veeck has been appealed to the U.S. Supreme Court and has been granted cert. Check the docket here [thanks for the docket help from SCOTUS.blog].

Contruction Weblinks had a story on Veeck here last February.

[More]

Posted by Marcia Oddi at 08:56 AM

Indiana Decisions - 1995 abortion law changes now operative

In a page one story titled "Abortion law kicks in after 8-year battle: Counseling will require extra trip to clinic," today's Indianapolis Star reports (access the story here):

Beginning today, Indiana women seeking appointments for abortions will be told they must make two trips, at least 18 hours apart, to end a pregnancy under a state law whose full enforcement has been eight years coming. In the first visit, they will be read state-mandated information about the abortion process and alternatives to it. In the second, they'll have the procedure. That's what Indiana lawmakers envisioned in 1995 when they approved the state's informed-consent law, but legal challenges -- including a rebuffed appeal to the U.S. Supreme Court -- have allowed women to receive the counseling by phone. Marion Superior Court Judge Gerald Zore changed that Wednesday when he denied abortion providers' request to block the law while it was being hashed out in local courts, where providers took the case after the Supreme Court declined to hear it in February.
The story also reports that although "Zore's ruling will be appealed, probably next week ... the clinics will not ask the Indiana Court of Appeals for another temporary restraining order, meaning the law will be in effect for the foreseeable future."

Posted by Marcia Oddi at 06:27 AM