A press release dated July 30, 2003 from the Indiana Department of Natural Resources (DNR) reads in part:
Homeowners considering repairs after recent flooding will be allowed to paint, patch and clean walls and replace carpets and other floor coverings under an emergency rule filed by the Indiana Department of Natural Resources today.For additional floodplain information, access this DNR page. And here is the "Local Floodplain Administrator's Guide."According to Indiana Code (I.C. 14-28-1-20), a homeowner may not reconstruct a residence in a floodway. For example, restoring structural elements such as walls, floors and foundations is not allowed, said John Goss, director of the department, which is required to regulate floodway activities. Record flooding in July has seriously damaged up to 200 homes that are located in the floodway in several northern Indiana communities. Communities have adopted floodplain ordinances and maps that identify which homes are located in a floodway. According to an Indiana law that has been in effect since 1945, reconstruction of a home damaged by flooding is prohibited when that home is located in a designated regulatory floodway.
DNR works with local communities to regulate the areas that are designated by local floodplain ordinances and maps. Some homes were constructed before these flood plain ordinances went into effect and are covered by the law prohibiting reconstruction.
The Department of Natural Resources is issuing a rule to clarify the types of repairs that will be allowed.
The DNR rule says: "reconstruction for purposes of IC 14-28-1-20, IC 14-28-1-24, and IC 14-28-1-25, means an activity that rehabilitates or restores the structural elements of the building, including, but not limited to, replacing walls, restoring the foundation, replacing floors, or conducting work on any elements necessary to support the structure. The term does not include activities such as painting, replacing floor coverings, replacing doors, replacing windows, or cleaning."
A number of papers today carry this story. See the Detroit News story here, the Boston Globe story here. Lyle Dennison's story in the Globe begins:
Six Muslim and Arab-American groups asked a federal court yesterday to strike down a key section of the USA Patriot Act, filing the first constitutional challenge to the sweeping new powers that Congress gave the Justice Department the month after the attacks of Sept. 11, 2001. The lawsuit filed in US District Court in Detroit challenges a provision of the counterterrorism law that increased the FBI's access to records and personal belongings, with the permission of a secret federal court in Washington. The groups, a mix of large national and smaller local organizations, charged the expanded powers violate the First Amendment guarantee of free speech, the Fourth Amendment ban on unreasonable searches, and the Fifth Amendment right to due process.The NY Times and Washington Post have stories here and here. The Post story begins:
The American Civil Liberties Union joined several Islamic and Arab American groups yesterday in filing a legal challenge to a key provision of the USA Patriot Act, which allows the government to seize business, library and computer records in terrorism investigations without publicly disclosing that it has done so.The ACLU lawsuit, filed in federal court in Detroit, argues that the law violates free-speech rights and constitutional protections against unreasonable searches and seizures. The plaintiffs, including a Michigan Islamic group and an Oregon mosque, also allege in the lawsuit that they have been targeted for investigation by the FBI because of their ethnic and religious characteristics.
"Ordinary Americans should not have to worry that the FBI is rifling through their medical records, seizing their personal papers, or forcing charities and advocacy groups to divulge membership lists," said Ann Beeson, the ACLU's lead attorney in the lawsuit.
The 41-page ACLU complaint is available here.
Verona, New York says "Don't do it the way we did [in 1993]," to anyone who asks about negotiating agreements with tribes looking to develop casinos. According to the story in today's NY Times, titled "1993 Deal for Indian Casino is Called a Model to Avoid:"
The Oneida Indian Nation of New York got state approval to open Turning Stone without agreeing to share its revenue with state and local governments, or to pay for improvements on non-Indian lands affected by casino traffic, or to comply with local environmental regulations or even to make its books open to the public. Most important to local governments, the nation was not pushed to settle its 250,000-acre land claim as a price for going into the gambling business; the claim has been upheld in federal courts.I suspect the tribes may have learned a thing or two themselves in the past ten years . . . For instance, the Times story does point out:All of those concessions are now part of the legal playbook for any county lawyer or state regulator working with tribes across the country these days. * * * Other governments around the country have learned the lessons of Oneida County and its towns: that the time to extract concessions from tribes is before the casino opens, when local concerns and objections can still influence state and federal licensing decisions.
The Oneida Indians saw further into the future than others here, and over a decade, they poured their profits back into their business. * * * In 2001, according to a bond prospectus circulated by the nation, the complex took in $232 million for the tribe's 1,000 members. With some of that money, the Oneida Nation has bought 16,000 acres in numerous parcels, including 12 of Oneida County's surviving 20 gasoline and convenience stores....
Wired News has a very interesting article today exploring in detail the rationale behind the Pentagon's "controversial plan to create a futures market to help predict terrorist strikes." As widely reported yesterday and this morning:
Senators expressed concerns when they discovered the PAM project, an effort to speculate on possible events in the Middle East -- like the overthrow of Jordan's monarchy or the assassination of Palestinian leader Yasser Arafat -- as if they were stocks. The higher the price, the theory goes, the more likely the incident. "The idea of a federal betting parlor on atrocities and terrorism is ridiculous and it's grotesque," fumed Wyden [Sen. Ron Wyden (D-Ore.)].Particularly intriguing to me was the information on the Iowa Electronic Markets, which speculates, apparently quite accurately, on election results. Several papers on the Iowa page discuss the question: "Can markets predict the future?"
That is one way of looking at this plan, conceived by Indiana-son John Poindexter. Other readings may be found in editorials today here in the Boston Globe:
SOME WISE old Republican owls in the Senate canceled the madness yesterday. But until Virginia's John Warner, chairman of the Armed Services Committee, persuaded his counterparts on the Senate Intelligence and Appropriations committees to join him in telling the Pentagon to pull the plug on a government-funded terrorist futures market, the Bush administration was actually planning to encourage speculators to bet on the next Sept. 11 atrocity.and here in the NY Times:There is really no polite way to describe this Pentagon program, labeled the Policy Analysis Market. It was a harebrained scheme, revealing a pathetic misunderstanding of the difference between terrorism and phenomena such as price fluctuations in the oil market. It could have also created incentives for terrorists, either to profit from their crimes or to propagate disinformation about where they might strike next.
The time has obviously come to send John Poindexter packing and to shut down the wacky espionage operation he runs at the Pentagon. The latest idea hatched by Mr. Poindexter's shop — an online futures trading market where speculators could bet on the probabilities of terrorist attacks, assassinations and coups — was canceled yesterday by embarrassed Pentagon officials. The next logical step is to fire Mr. Poindexter.Another take, along the lines of the Wired piece is found here, at CBS Market Watch. Headlined "Dead pool's sick, but not new: Investors have long bet on violence," the commentary explains:In testimony before Congress yesterday, Paul Wolfowitz, the deputy secretary of defense, disowned the futures project. The insensitivity of the idea boggles the mind. Quite apart from the tone-deafness of equating terrorist attacks with, say, corn futures, the plan would allow speculators — even terrorists — to profit from anonymous bets on future attacks. The project's theoretical underpinnings are equally absurd. Markets do not always operate perfectly in the larger world of stocks and bonds. The idea that they can reliably forecast the behavior of isolated terrorists is ridiculous.
International event junkies have long had several ways to make money on violence, terrorism and war, starting with the oil markets. Because such a great amount of the world's oil comes from the Middle East, any events there that threaten production can send prices into spasms, creating vast opportunities for investors both buying and selling.Finally, there is this presumably tongue-in-cheek piece from CounterPunch, which includes these quotes:
Once again, Adm. John Poindexter, the convicted felon of Iran-Contra scandal fame who brought us the Total Information Awareness--oops, make that the Terrorism Information Awareness project--is ahead of his time and in the news. And once again, he's coming in for heavy criticism. His first sin, back in the 1980s was trying to establish a secret fund to allow President Ronald Reagan to finance the Contra guerrillas in Nicaragua using drug money from Latin America and funds from sale of Stinger missiles to Iran. Then, more recently, it was trying to develop a supercomputer that could track every financial move of every person in America, or perhaps the world. Slapped down for that bold scheme, now the plucky admiral with the ultimate geeky surname has run afoul of liberal sensitivities with a plan to have the Pentagon operate an online futures market that would allow investors to place bets on the likelihood of terror attacks, assassinations and other man-made calamities. So what's all the fuss about?The article proposes that instead of criticizing Poindexter, why not expand on his ideas. For instance:
Why not put the vaunted predictive capacities of the American investment community to work helping government plan ahead in other areas of public concern? The Federal Elections Commission for example, could establish a futures market for federal elections. People could bet on the outcome of the 2004 presidential race and the race for control of the Senate and the House. If the system proves itself reliable over the course of one or two election cycles, perhaps costly national elections could be dispensed with altogether, and offices could be filled based upon investor predictions in the future.[Updated 7/31/03] The NY Times ran not one, but three stories today saying, in one way or another, that perhaps there was some good in the "markets in terrorism" idea it trashed yesterday. Economist Hal L. Varian, in the column "Economic Scene," said "It was a good idea, killed by terrible public relations," and mentions the Iowa Futures Market discussed here yesterday. Another column, titled "The Right and Wrong Stuff of Thinking Outside a Box," may be accessed here. Finally, from the Op-Ed page, this column, titled "All Bets are Off."
[Even more] A timely 89-page paper titled "Information Markets, Administrative Decisionmaking, and Predictive Cost-Benefit Analysis," by Michael Abramowicz, was made available online today by the author. The summary begins:
FutureMAP, a project of the Defense Advanced Research Projects Agency, was to involve experiments to determine whether information markets could improve Defense Department decisionmaking. Information markets are securities markets used to derive information from the prices of securities whose liquidation values are contingent on future events. The government intended to use such a market to assess the probabilities of potential political assassinations, and the indelicacy of this potential application contributed to a controversy leading to the cancellation of the program. In this Article, Professor Abramowicz assesses whether information markets in theory could be useful to administrative agencies, and it concludes that information markets could help discipline administrative agency predictions, but only if a number of technical hurdles such as the danger of manipulation can be overcome.Links thanks to this entry on The Volokh Conspiracy, an academic law blog.
Political junkies will enjoy a two-part article in Slate: Part I is titled "Why Congressmen Want to be Lobbyists." Access it here. The most coveted positions are Hilary Rosen's position at the Recording Industry Association of America (RIAA) - just filled yesterday, and Jack Valienti's job at the Motion Picture Association of America, not yet vacant, but the articles go on to explain how the Congressional positions have become more and more difficult over the years.
[W]hile the rest of us weren't looking, Washington's status ladder underwent an alarming change. Where once members of Congress—even its lower chamber—stood many rungs above Washington's pleaders-for-hire, today it is the lobbyist who stands many rungs above the lowly House member. (For now, at least, senators remain above both House members and lobbyists in the Washington hierarchy.)Part II is equally interesting; (access it here). And here is a quote from that story:Just a generation ago, the only two reasons even a low-ranking member might leave the House of Representatives were if he lost an election or if he retired. It was not a foregone conclusion that he would stay in Washington, but if he did, and he took a lobbying job, the appropriate feeling to have toward him was mild pity. Sure, he'd be paid more. But the best years of his life would be behind him. Inside his comfortable office, he'd gaze out the window and daydream about his glory days in government.
Today, it's different. House members actually leave Congress voluntarily, sometimes before serving out their terms, to become lobbyists. It isn't cause to feel sorry for them. It's usually just assumed they will stay in Washington, and as lobbyists, they will stand at the top of the heap. Today, members of Congress gaze out their windows and daydream about becoming lobbyists.
That two relatively young members of Congress facing no serious threat of electoral defeat would envy the life of a lobbyist represents a massive paradigm shift in Washington's status hierarchy. Having long ago reconciled themselves to being lobbyists' financial inferiors, House members now find themselves lobbyists' social inferiors. How could this perversion of the natural order come to pass? Blame it on three people: Richard Nixon, Newt Gingrich, and Ralph Nader.For a followup Slate story, check here.
For more on the RIAA aspects, see this Slashdot entry and commentary.
"In Indianapolis, Randall L. Tobias is a household name," is the lead in a NY Times feature today on Tobias, Hoosier native (Remington, Indiana) and former Eli Lilly head who has been nominated by President Bush "to oversee the spending of $15 billion to help people with AIDS in Africa and the Caribbean." The story gives a good look at Tobias, who does not back away from answering the hard questions.
For background, here are the "Remarks by the President in Announcement of the New Coordinator of U.S. Government Activities to Combat HIV/AIDS Globally" on July 2, 2003.
Many of you will recall that early in 2002 the United Nations appointed another Hoosier, James T. Morris (formerly head of the Indianapolis Water Company and generally Mr. Everything in Indiana), as Executive Director of the World Food Program (WFP), where he oversees the world's largest foodaid organisation, which last year fed 77 million people in 82 countries at a total cost of US $1.74 billion. A story posted today on allAfrica.com quotes Morris, who also serves as "the UN Secretary General's Special Envoy for Humanitarian Needs in Southern Africa, " stating that: "Because of the quick response from the international community, the UN and its NGO partners saved millions of lives threatened by starvation in southern Africa over the past year. But the crisis is not over and I urge donors to remember hundreds of thousands of families, many of them in Zimbabwe, who are still in grave danger."
First, for some kudos: I've received nice notes from Steve Lucas ("I wanted to drop a note to say 'great site'"), Andrew Warden ("a member of the Indiana bar currently doing a federal clerkship in Alabama and love reading it to catch up"), and this note ("Well done. Very informative. I will visit here often. Thanks for your efforts.") from a local manufacturer that includes a "confidentiality" footer on the end of the message.
My policy is to post messages from readers unless they indicate that they do not wish to be posted, identified, are confidential, etc.
Second, entries from The Indiana Law Blog have been mentioned recently in several other law blogs, including: How Appealing (here and here), Votelaw (here), The SW Virginia Law Blog (here on Wilkins and here, with a very nice mention: "Marcia Oddi's Indiana blog, for example, is chock full of interesting stuff, separate and apart from the Indiana law"), and Ethicalesq (here, with interesting commentary on the Wilkins rulings).
Thanks to all!
"Governor stalls execution; DNA will be tested: Darnell Williams had been scheduled to die Friday for 1986 murder of Gary couple," reads the Indianapolis Star headline this morning. Here is the story, and a quote:
In an unprecedented move, Gov. Frank O'Bannon on Monday issued a 60-day stay of execution for Death Row inmate Darnell Williams to allow for DNA testing. Williams, 36, was scheduled to die Friday in Michigan City for the 1986 murder of a Gary couple, but his lawyer says the DNA tests could show blood on his shorts was not from the victims.The Governor's statement is available here. For background, see the Indiana Law Blog entry here. (The Indiana Supreme Court's 3-2 opinion denying Williams' request for consideration of new evidence, issued Friday 7/25/03 according to a Star story, is not yet available online, but will be posted here when it becomes available.)The case has drawn national attention as Williams and death penalty opponents, including the New York City-based Innocence Project, have asked the state to allow the testing. O'Bannon issued a written statement Monday, saying he would grant a stay of execution to "permit all potentially relevant evidence to be discovered." It is the first time an Indiana governor has granted a stay to allow for DNA testing.
[More] The Star's editorial "Death Row reprieve in pursuit of justice."
In a decision dated 7/24/03 but released today on the Court's website, the Indiana Supreme Court has responded to the 7th Circuit's request:
We therefore certify to the Indiana Supreme Court, pursuant to 7th Cir. R. 52 and Ind. Code § 33-2-4-1, the following question, upon the answer to which the further proceedings in this appeal will depend:Review the 6/1/03 Indiana Law Blog entry for the background and links on this important election issue. Below is the link to last Thursday's 20-page opinion:Is the term “persons” in Ind. Code §§ 3-9-3-2.5(b)(1), (d) limited to candidates, authorized political committees or subcommittees of candidates, and the agents of such committees or subcommittees, or does it have a broader scope, and, if so, how much broader?
Brian Majors v. Marsha Abell (IndSCt 7/24/03)
Boehm, Justice
The Court stated "we answer the Seventh Circuit's question as follows":
The term “person” in Indiana Code section 3-9-3-2.5(b) and (d) is not limited to candidates, authorized political committees or subcommittees of candidates, and the agents of such committees or subcommittees. Rather, it includes any individual or organization.Earlier in the opinion, the Court noted:
The State argues for its less expansive reading on the ground that the statute, if applicable to political advertising by anyone, may fall under the plaintiffs’ First Amendment attack.After analysis, the Court stated:
For all of these reasons, we are not persuaded that Section 2.5 as written violates the First Amendment on its face, though one can conceive of some applications that might be invalid. As McIntyre and Talley make clear, to require identification of the source is to burden the core value of free speech. But in a candidate election, there is a powerful countervailing consideration in the State’s and the public’s interest in election integrity. That interest extends beyond controlling direct corruption to minimizing damage to the integrity of the dynamic and multifaceted marketplace of ideas that drives a candidate election.Read the Indianapolis Star coverage here.
There is no improving on that headline from a front-page story in the Sunday NY Times. The Times story is a good companion to The Indiana Law Blog entry of July 13 on the same topic. Some quotes from the Times story:
About one in six people in the nation, or roughly 50 million residents, lives in a community governed by a homeowners association, from co-op buildings in New York City to suburban subdivisions. Formed to take care of the small tasks that fall through the cracks of municipal government, like picking up garbage and repainting curbs, some homeowners associations are asserting far broader powers, backed by local courts. Cities and counties, which are reluctant to raise taxes to pay for services, have in many cases stepped aside, allowing associations to become de facto governments with increasing authority over daily life. * * *At issue are "the powers of homeowners associations to foreclose without due process."Homeowners associations collect dues, which finance a variety of things, including landscaping and playgrounds. The boards, composed of elected volunteers, dictate house paint colors, lawn-mowing schedules and parking policies for recreational vehicles. The boards can fine residents who break these rules and, in some cases, foreclose on homeowners who cannot afford the monthly dues.
Critics say that the boards, while elected, have few checks and balances, and often act in secret. They "are made up of good old boys who just want to go into a backroom and decide what's best for everybody," said Bob Finn, a retired judge from Nebraska who won a spot on the board at Sun City West, a resort community in Phoenix, by campaigning for open government. * * * For a homeowner with a serious complaint about the board, there is no third party to mediate other than the courts, an alternative that few can afford. With the courts as a first and last resort, a squabble easily escalates into a neighborhood battle.
"Indianapolis lawyer Michael A. Wilkins wants to take his free-speech case to the top," reports the Indianapolis Star in a brief item this morning in its "Behind Closed Doors" column. Access it here - it is the second story down.
You may recall the case, which received national attention. Ice Miller Attorney Wilkins was initially suspended from the practice of law for one month by the Indiana Supreme Court because of a footnote in a brief.
Here is coverage of the initial decision, from the National Law Journal. and here is the abstract to a Nov. 3, 2002 NY Times story:
Michael A Wilkins, lawyer in Indianapolis, is barred from Indiana courts for 30 days after State Supreme Court rules that footnote that appeared in brief he wrote criticizing decision of state court of appeals undermined public's confidence in administration of justice; decision is unusual, given tame language in footnote, which was not even written by Wilkins, severity of penalty and fact that one of justices who decided Wilkins's case, Robert D Rucker, was on appeals court when it made decision criticized in footnote (M) Michael A. Wilkins, a lawyer in Indianapolis, will not be welcome in the Indiana courts for 30 days starting in early December. The Indiana Supreme Court, in a 3-to-2 decision, disciplined Mr. Wilkins on Tuesday, ruling that a footnote, in a brief, that criticized a lower court undermined ''the public's confidence in the administration of justice.'' The decision is unusual, legal ethics experts said, given the tame language in the footnote, the severity of the penalty and the fact that one of the justices who decided Mr. Wilkins's case was involved in the case the footnote cited and possibly had a conflict of interest.On rehearing, as the Times reported Feb. 5, 2003, "The Supreme Court replaced its earlier 30-day suspension of the lawyer, Michael A. Wilkins, with a reprimand. A justice in the majority in the earlier ruling, Robert D. Rucker, did not participate in decision. The justice had served on the appeals court panel that Mr. Wilkins criticized."
Here is a link to the initial Supreme Court October 29, 2002 ruling, the January 3, 2003 motion for recusal and the Feb. 4, 2003 rehearing.
Finally, a petition for writ of certiori has been filed before the U.S. Supreme Court, the Docket Number is 02-1616 and the status may be accessed here. Although the docket indicates that briefs have been filed, I am unable to locate online copies.
[More] The National Law Journal article mentioned above contains this statement:
In 1997, Wilkins signed on as local counsel to Michigan Mutual Insurance Co. in a dispute with an Indiana bowling alley over insurance coverage. A three-judge panel of the court of appeals ruled against Michigan Mutual in 1999, with Rucker concurring. Michigan Mutual's lead counsel, Jeffrey R. Learned of the Southfield, Mich., firm Morrison, Mahoney & Miller, wrote a brief urging the Supreme Court to take review. In a footnote, Learned wrote that the court of appeals opinion "is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual's opponent] and then said whatever was necessary to reach that conclusion." The Supreme Court declined to review the case and struck the brief from the record, describing the footnote (in 1999) as "a scurrilous and intemperate attack on the integrity of the Court of Appeals."Here is the Indiana Supreme Court's March 5, 1999 Per Curiam ruling in that case, Michigan Mutual v. Sports, Inc.
Well, I just read a very interesting column by economist Virginia Postrel in a copy of the NY Times I hadn't gotten to yet. Unfortunately, it is from 7/17/03, so it has already passed into NY Times "pay-for-view" land, due to the Times' short-sighted (IMHO) archive policy. In my view, people reading blogs who run across interesting descriptions of NY Times stories are not likely to pay to read them. On the other hand, if they could access the stories through these blog links, the Times would receive the some commercial/advertiser benefits as they do for their currently-available stories. I believe blog-linked acccess is different from research-driven access, and that different economics apply. I'd really like to see a study.
Be that as it may, I can still describe Postrel's column, as I have the newspaper version (I am a Times subscriber) right here in front of me. Headlined "Economic Scene; A look at wine sales over the Internet shows the price of some regulations in the name of consumer protection," the article talks about exceptions to the rule that internet commerce has broken down many local monopolies, such as used book sales. Exceptions include those created by "state regulations passed long before anyone conceieved of electronic commerce." Wine sales is the exception Postrel focuses upon, citing a Federal Trade Commission report titled "Possible Anticompetitive Barriers to E-Commerce: Wine." You may access the 139-page FTC report here. The report begins with this introduction:
Heralded by many as the next industrial revolution, the Internet is transforming the nation’s economy. The Internet lets consumers purchase an unprecedented array of goods and services from the convenience of their homes. Local markets are becoming national and international as consumers can find and purchase thousands of goods from thousands of suppliers online, and have those goods delivered to their doors. The product choices range from contact lenses to cars and even caskets. Moreover, perhaps for the first time, consumers can also conveniently purchase a wide array of services from distant sources. For example, consumers can obtain legal and medical advice, realtor services, and education from out-of-state online suppliers. In many instances, these consumers may find lower prices and a greater variety of goods and services online than in bricks-and-mortar stores. Although the Internet can provide consumers with important benefits, online commerce may raise regulatory concerns. Many states have passed laws regulating e-commerce to promote other important public interest objectives, such as protecting consumers from deception and fraud by unscrupulous vendors. These actions, however, also may shield local merchants from out-of-state competition. For example, some states require that online vendors maintain a physical office in the state, while other states completely prohibit online sales or shipments of certain products, such as new cars direct from a manufacturer. Many states also require that outofstate suppliers obtain an in-state license before selling particular goods, like caskets or contact lenses, or services, like medical or legal advice. Some observers question whether the attendant higher prices and loss of variety might outweigh the consumer protection benefits. This dichotomy currently exists in the wine industry. [Emphasis added]Another FTC page mentioned in Postrel's column, providing access to a number of earlier papers, may be found here.
"Inmate's call for DNA test is denied: State Supreme Court also won't allow new evidence in case as execution date nears," is the headline this morning to this story in the Indianapolis Star that begins:
A federal judge [Judge Tinder] on Friday denied a request by Death Row inmate Darnell Williams for DNA testing that could clear him, less than a week before Williams is scheduled to die.Unfortunately, neither the Indiana Supreme Court's 3-2 opinion, nor U.S. District Judge John Tinder's ruling, are currently available online.Also on Friday, the state Supreme Court denied a request by Williams for consideration of new evidence in the case, and a judge involved in proceedings after his conviction wrote to the Indiana Parole Board urging that Williams be granted a reprieve.
[Update] Today's Star also has an editorial on the Williams case, headed "Test mental capacity before execution: Evidence of possible mental retardation should be throughly examined by a court." This editorial, from the Star's historically conservative editorial page, concludes:
Indiana does not execute the mentally retarded. Before the death penalty is carried out in this case, the governor and the courts must make sure Williams does not fall into that category.The Indiana Supreme Court rejected a motion in another death penalty case where mental retardation was an issue earlier this month. Access our Indiana Law Blog discussion here.
The Illinois Supreme Court yesterday ordered the State's comptroller to pay cost-of-living increases to all Illinois judges. According to a story yesterday in the Chicago Sun-Times:
Gov. Blagojevich had vetoed those cost-of-living increases, and Thursday he vetoed a bill to restore last year's cost-of-living adjustments for judges. * * * Hynes [the comptroller] could be held in contempt of court and thrown in jail if he defies the Supreme Court's order, say legal experts, stunned that the court issued an order on its own before any lawsuit was filed on the judicial salaries. The first lawsuits by judges are expected as early as today. * * * While it may seem a conflict of interest for justices to order the state to pay them more, legal experts said the federal courts likely would not take an appeal on state judicial salaries, so Hynes appears to have little choice but to follow the court's order. * * * The state Constitution prohibits legislators from "diminishing" a judge's salary. That prevents legislators from punishing judges for unpopular decisions. The court says withholding cost-of-living adjustments "diminishes" salary under the state Constitution. Some experts disagree.A follow-up story in this morning's Sun-Times reports that:
The power struggle among the state's three branches of government jumped a notch Friday as state Comptroller Dan Hynes defied an order from the state's highest court to pay $4,000 cost-of-living raises to state judges. * * * Hynes says it is the state Supreme Court that has overstepped its bounds by ordering him--a member of the executive branch--to override the governor's veto and raise the judges' pay. The third branch of government, the Legislature, could fix the problem if it overrides Blagojevich's veto in October, but that's not soon enough for the judges, who want their raises now.The Chicago Tribune has only a brief story today.
Meanwhile, in Mississippi, Mississippi Supreme Court Justice Oliver Diaz Jr. was indicted, along with four others:
A federal grand jury returned a 16-count indictment Friday against Diaz, his ex-wife, Jennifer Diaz, trial lawyer Paul Minor of Ocean Springs, and former judges Wes Teel and John Whitfield charging them with fraud and bribery. Minor is also charged with racketeering.This quote is from a story this morning in the Mississippi Clarion-Ledger. The story also reports "The investigation doesn't end with these charges, Worthington said. Authorities aren't discussing where it's headed, but subpoenas and the appearances of FBI agents have made it obvious the probe is aimed at huge jury verdicts in Jefferson County."Authorities say the five took part in a "scheme to deprive the state of Mississippi and its citizens of their right to honest services" and that the judges gave Minor an unfair advantage in return for him paying off or guaranteeing loans, making cash payments and in one case paying a judge's legal expenses.
Another Clarion-Ledger story, headlined "Merits, motive of case debated" does just that - access it here. And here is a timeline.
Another take, from The Charlotte Observer, observes that:
Minor, 55, a trial lawyer, made millions in several landmark cases, including one against big tobacco companies. His attorney, Jim Neal, said Minor is innocent. "He and his family ask everyone to remember that these are allegations only and not proof of anything." Minor is one of the most prominent trial lawyers in the nation and has been featured on "60 Minutes." He has played a leading role in class-action lawsuits against Ford and Firestone in fatal tire blowout cases. * * *And here is a story about Minor's attorney, Jim Neal, from The Sun Herald. The headline: "Ex-Watergate lawyer takes Minor's case: Nashville-based Neal will defend in probe of judges."Diaz was once considered one of the rising stars of Mississippi's Republican Party. He was appointed to the Supreme Court in March 2000 by Gov. Ronnie Musgrove to replace a justice who had died. He won election in November 2000 to an eight-year term. He served in the state House from 1988 to 1994.
[Update] Votelaw has links to the indictments, here.
A decision issued July 24, 2003 by the USCA for the 7th Circuit, JMS Development v. Bulk Petroleum, may give pause to those who engage in repeated delay in complying with a consent decree. Here:
Years passed, and by 2001, Bulk had neither begun to clean up the JMS property nor obtained administrative closure for that property, although by this time it was on its fourth set of attorneys and second set of environmental consultants (later it would engage a third set of environmental consultants).Bulk Petroleum operated a gas station on land adjacent to JMS Development's land. The operations of the gas station polluted both properties. JMS filed suit seeking relief for contamination under RCRA and Illiniois law. After extensive delays by Bulk Petroleum, the federal magistrate in 2001 "lamented" [the 7th Circuit's term] Bulk's "bad faith" and record of "abysmal noncompliance with the consent decree" and stated that the "parties are no closer to administrative closure than they were in September 1997." The magistrate recommended that JMS be authorized to clean up its own property at Bulk's expense, plus costs and attorney's fees for enforcing the consent decree. After further delays the parties filed cost-objections to the magistrate's report, JMS contending that it should be given authority to address the Bulk Petroleum property as well as its own. Judge Aspen (ND Ill, Eastern Div):
overruled the objections of Bulk and Dhaliwal to the Magistrate Judge’s report and recommendation, and sustained JMS’s objection. He sustained the proposed award of attorney’s fees and costs to JMS, finding the request to be adequately supported. The judge rejected the defendants’ request for more time to secure administrative closure of the JMS property:Bulk appealed this order to the 7th Circuit. The Court here ruled that "Because the district court's order is not final, see 28 USC 1291, we lack jurisdiction and therefore must dismiss the appeal."Defendants . . . are out of time. The record amply shows that they have not used their best efforts to achieve administrative closure of the JMS property. By repeatedly terminating their attorneys and their environmental consultants, it appears that Defendants are simply seeking to delay enforcement of the consent decree. Indeed, their request today for more time is just one more example of this unacceptable pattern of delay.The judge further determined that the goal of the consent decree—the clean-up and administrative closure of JMS’s property—would best be served at this point by authorizing JMS to clean up the [Bulk] property in addition to its own. Id. at *2. Judge Aspen also found it “prudent,” “[g]iven Defendants’ track record in this matter,” to require the defendants to front the anticipated cost of the clean-up. He remanded the matter to Magistrate Judge Keys to ascertain how much money should be placed in escrow and on what timetable and additionally to monitor the parties’ compliance with his directives.
That the defendants are responsible for the clean-up was, of course, settled in 1997 with the entry of the consent decree. But with the district court’s finding that Bulk and Dhaliwal had dragged their feet for too long in effectuating the clean-up came a shift in the burdens and rights assigned to the parties. The right and responsibility to decontaminate the two properties has been taken from the defendants and given to JMS. At this juncture, the sole burden that remains with the defendants is to pay for the clean-up. * * *We are mindful that, in the interim, the clean-up of the two properties presumably proceeds apace and that by the time the precise extent of the defendants’ monetary liability becomes clear, the remediation will be complete or nearly so. There will be little that this court could do at that point to alter the course or consequences of the clean-up. In authorizing JMS to clean up not only its own property but the [gas station’s], the district court has taken an unusual step, and not surprisingly, it is that step that is the focus of the defendants’ appeal. The record certainly makes clear that the court did not act precipitously or without reason. In any case, the relief that the court has ordered poses no irreparable harm to either Bulk or Dhaliwal, whose sole obligation is monetary. * * * Any missteps in the method or extent of the clean-up that affect its cost can be accounted for in the final amount that Bulk and Dhaliwal are ordered to pay, and that amount will, of course, be subject to appellate review.
Because the district court has not yet entered a final judgment, we DISMISS this appeal for lack of jurisdiction.
[Emphasis added]
A story in today's Washington Post titled "OMB to Drop Quotas For Outsourcing of Jobs," begins:
The Bush administration announced yesterday that it will no longer require federal agencies to meet government-wide quotas as part of the president's drive to open up more government work to private contractors. "They are completely gone," said Angela B. Styles, the Office of Management and Budget official in charge of President Bush's "competitive sourcing" initiative.Compare this our May 30, 2003 entry, also quoting the Post, announcing "an overhaul of the rules that determine whether federal work should remain in-house or be turned over to the private sector."The administration has said that 850,000 federal jobs -- out of a civilian federal workforce of 1.8 million -- are "commercial" in nature and could be performed by nongovernment workers. Bush says forcing many of those workers to compete with the private sector for their jobs promotes efficiency, even if the positions ultimately stay in-house. Bush had set an ultimate goal of opening 50 percent of those jobs, or 425,000, to competition from private contractors. Agencies were told to put the first 15 percent of such jobs up for competition by the end of September.
Fifth Third Bank v. Comark (IndCtApp 7/23/03)
Sharpnack, Judge
Another Court of Appeals opinion, Farm Credit Services v. Mitchell, issued 6/26/03, concerned the adequacy of the description of real estate under IC 26-1-9-110. Here the issue is IC 26-1-9-110 again, and the adequacy of the description of personal property. Here the security agreement and UCC financing statement mistakenly identified the collateral as "inventory" rather than "equipment."
Ind. Code § 26-1-9-110 provided that “any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.” The purpose of the description of the security interest is to minimize “the possibility of future dispute as to the terms of a security agreement and as to what property stands as collateral for the obligation secured.” Thus, we must determine whether the Comark security agreement contained a “description of the collateral” that “reasonably identifie[d] what is described.” I.C. §§ 26-1-9-203, -110. * * *“In interpreting a written contract the court will attempt to determine the intent of the parties at the time the contract was made as disclosed by the language used to express their rights and duties.” Although the parties mistakenly used the term “inventory” rather than “equipment,” the remainder of the language describing the collateral clearly indicates that the parties intended to use the computer products bearing the name or distributed by Comark or PC Wholesale as collateral. We conclude that the security agreement reasonably identified the collateral. The description of the security interest was adequate to fulfill its purpose of minimizing future disputes as to the terms of the security agreement and identifying the collateral. Consequently, Comark attached its security interest to the collateral. * * *
Similarly, here, the description of the collateral was sufficient to alert Fifth Third to the existence of a security agreement. Although it describes the collateral as inventory rather than equipment, the agreement specifically identified the collateral as computer products bearing the Comark name or purchased from Comark. The description in the financing statement was sufficient to put a searcher on notice that a security agreement existed and made it possible to identify the collateral. Consequently, Comark perfected its security interest in the collateral.
In summary, the trial court found that “Comark has a valid security interest in the collateral at issue . . . and has priority over any other claim against that collateral.” We agree. Because Comark attached and perfected its security interest, Comark had a security interest in Vertica, LLC’s computer equipment identified in the security agreement. No genuine issues of material fact exist, and Comark was entitled to judgment as a matter of law. Consequently, the trial court did not err by granting summary judgment to Comark. [citations omitted]
An article on Legal and Appellate Weblogs has just been published in the Journal of Appellate Practice and Procedure (paid subscription required). Fortunately, you may access the full text of the article here, at the website of one of the authors. Footnote 22 references The Indiana Law Blog.
The authors, Gary O’Connor and Stephanie Tai, run two excellent law blogs themselves, the Statuory Construction Zone is Mr. O'Connor's and Ms. Tai has just started a new blog that I am really excited about -- the Blawg Review -- which will be "reviewing the law reviews." In addition, she provides an excellent set of links to law review resources. Look here for her plans for the blog.
Rory Perry's Weblog today collects a number of recent articles on law blogs.
Appropos of the Indiana decision reported here earlier today, here is a story titled "Fax-advertising firm slapped with suit," with the subhead "California officials are suing a prominent fax-advertising firm, accusing the company of deluging consumers with unsolicited faxes and prerecorded phone messages." Read it in full here, from CNN.com. The story begins:
The lawsuit, filed Tuesday in U.S. District Court in San Diego, charges Fax.com with violating state and federal laws that prohibit faxing unsolicited advertisements and disseminating prerecorded messages by phone without the prior consent of consumers.Thanks to LA-Legal for the link. The Washington Times also had a story on this - access it here.Attorney General Bill Lockyer said the suit aims to collect at least $15 million from the company. "We're tired of these privacy invasions in California," Lockyer told a news conference. "And we're going to do the best we can to shut them down."
Another story today, from the San Jose Business Journal, begins:
A California appeals court ruled late Tuesday that Californians can go to court and sue anyone who sends them unwanted fax advertisements instead of having to rely on the Attorney General or a district or city attorney to file a suit on their behalf, says state Sen. Debra Bowen, D-Redondo Beach. She's the author of last year's measure that repealed California's weaker "opt-out" junk fax law and made it clear the stronger "opt-in" federal law applies in the state. The ruling allows people to sue for $500 per fax.
Core Funding Group v. James H. Young (IndCtApp 7/22/03)
May, Judge
Core is an investment banking firm that provides services to the legal community. Young is an attorney. Core sent to Young by facsimile an unsolicited advertisement for its services. Young brought this class action suit alleging the transmission violated the Telephone Consumer Protection Act (TCPA, 47 U.S.C. 227), which prohibits the use of a telephone facsimile machine to send an unsolicited advertisement to another telephone facsimile machine. Young’s complaint was properly served on Core’s registered agent.
Core appeals a $250,000 class action default judgment against it and in favor of James Young. Core asserts on appeal the TCPA does not permit class actions and the trial court should not have certified Young’s class. We find Core’s arguments regarding the class certification and the propriety of a class action are unavailable on appeal because the default judgment amounts to a confession of Young’s complaint, which complaint included allegations sufficient to establish the appropriateness of the class certification. We therefore affirm.
Farm Credit Services v. Mitchell (IndCtApp 6/26/03)
Kirsch, Judge
Farm Credit Services of Mid-America, FLCA (“FCS”) appealed from the probate court’s ruling in favor of the Norman B. Mitchell Estate (“the Estate”) that the security agreement and financing statement between FCS and the Estate failed to create an enforceable security interest in the crop collateral given the inadequacy of the description of the land concerned.
[O]n January 31, 2001, Norman Mitchell executed a promissory note with FCS promising to repay the amount of $25,550.00 to FCS. The terms of the promissory note granted FCS a security interest in the following specified collateral: “Collateral described as follows, including but not limited to collateral located in JOHNSON County, Indiana: All crops growing, grown or to be grown on real estate and all harvested crops and all processed crops, whether or not produced by Borrowers/Debtors.” The security agreement further contained the address for Mitchell. Mitchell also executed an accompanying financing statement which purported to grant FCS a security interest in the following described property: “All crops growing, grown or to be grown on real estate and all harvested crops and all processed crops, whether or not produced by Borrower(s)/Debtor(s).” Neither the financing statement or security agreement described the realty where the crops were grown by section, township, range, or by common street address.The Court of Appeals affirmed, holding:Mitchell died on September 12, 2001, while domiciled in Johnson County, Indiana. The Estate was opened by personal representatives and a court order dated October 23, 2001. Standing crops, but no realty, were identified as an asset of the Estate with a value of $45,000.00. The crops were harvested and sold for cash as stated in the personal representatives’ inventory.
On December 12, 2001, FCS filed a notice of claim in the amount of $23,158.08. On June 3, 2002, the personal representatives filed a petition to determine classification of FCS’s claim and requesting the probate court to make a determination as to the validity of the claim. The personal representatives contended that the security agreement and financing statement were insufficient to create lien rights or a security interest in Mitchell’s crops because the documents failed to described the real estate upon which the crops were grown as specifically required by the Uniform Commercial Code.
* * *
On July 31, 2002, the probate court * * * determined that FCS had an unsecured claim for failing to comply with the detailed description requirement [of IC 26-1-9-203]. FCS now appeals.
To obtain the benefits of Article 9 of the Uniform Commercial Code, the secured party must assure that the security interest has attached and is enforceable against the debtor. IC 26-1-9-203. FCS’s argument that the description “Johnson County” contained in the security agreement satisfies the requirement of “a description of the land concerned” fails. Although we are mindful that IC 26-1-9-110 states that “any description of . . . real estate is sufficient whether or not it is specific if it reasonably identifies what is described,” here, the description “Johnson County” does not reasonably describe the land upon which the crops were to be grown because it does not reasonably identify the land upon which the crops were grown. No street address or legal description was included in the description to provide reasonable identification. According to the Comment section of IC 26-1-9-110, “The test of sufficiency of a description is that the description do the job assigned to it – that is make possible the identification of the thing described.” Here, given the substantial amount of land used for growing crops in Johnson County, it is impossible for the description used in the security agreement to have sufficiently described the land upon which the crops were to be grown. Because of this failure, FCS did not hold an enforceable security interest in the crop collateral, and its claim must fail. We agree with the probate court’s determination that “IC 26-1-9-203 [requires] a more detailed description of the real property upon which crops are grown than was provided here. The trial court did not abuse its discretion in so holding.
Rhodes v. Wright Brothers' Farm (IndCtApp 6/26/03)
Baker, Judge
Representatives of the Estate of Dwaine Gurtz appeal the trial court's grant of summary judgment to Wright Brothers' Farm.
Specifically, the Estate contends that the Wrights were liable for the conditions on the Farm when Dwaine was struck and killed by a forklift. Concluding that the Wrights’ duty to maintain their property in a reasonably safe manner did not include providing exterior lighting or other alleged “safety features” proffered by the Estate, we affirm the trial court’s grant of summary judgment.This case is interesting in that it explains how Tyson Chicken works with its independent contractors. The Wright Farm here contracted with Tyson:
The contract specified Tyson’s responsibilities, which included owning the chickens, supplying their feed, and gathering them for processing. The contract also specifically detailed the Wrights’ duties, which included providing the facility, the labor, and the utilities used to raise the chickens. The relevant portion of the Farm consists of six chicken houses, with the area west of the first chicken house maintained by the Wrights as the driveway and loading area. Both the chicken houses and area surrounding the houses were built in accordance with Tyson regulations, which did not require exterior lighting.Here one of Tyson's truck drivers, Gurtz, was killed when a Tyson forklift with defective backup lights struck and killed him while backing up. The Estate claimed that the Wrights failed to illuminate the area around the chicken houses and maintain the forklift in a manner that would have protected Gurtz from the injuries that befell him. The Farm moved for summary judgment, claiming they were entitled to a judgment as a matter of law because illumination and maintenance of machinery were Tyson’s responsibilities and the Farm otherwise fulfilled their duty to maintain the Farm in a reasonably safe manner for business invitees. Following a hearing on the motion, summary judgment was entered for the Farm. The Estate appealed.When Tyson agents collect chickens, a specific procedure is followed in accordance with the contract. First, Tyson sends notice of their impending visit approximately three days before the chicken collection. Then, upon Tyson’s arrival, a representative of the Farm and the “catching foreman” walk through the house to remove the dead birds. This is the Wrights’ only responsibility during the catching procedure per the contract. Finally, the lights inside the chicken house are turned off, to avoid scaring the chickens, and the catching commences. The actual catching and loading process is Tyson’s responsibility as defined by the contract: "[Tyson] or its designee at its sole discretion shall have the right to schedule the broilers for processing. [Tyson] will notify the [Farm] of the scheduled time for pick-up as soon as practicable. [Tyson] shall catch, load and transport the broilers to a place designated by [Tyson] at no cost to the [Farm]."
The Court of Appeals said the sole issue is whether the Farms' duty to maintain reasonably safe conditions on the Farm for business invitees included providing exterior illumination and other “safety features.” It is undisputed, the Court said, that in his capacity as a Tyson employee, Gurtz was the Wrights’ business invitee:
The Wrights have a duty to maintain the Farm in a reasonably safe condition, yet that duty does not extend to obvious harm. The record shows that it was extremely dark on the morning of February 13, 2001, when the Tyson representatives met at the Farm. Under the contract, it was Tyson, and not the Wrights, that had all illumination responsibilities directly related to chicken catching. The very task of catching chickens is expedited by darkness so as not to “spook” the chickens, as both parties testified. Furthermore, the record indicates that it was Tyson who required the lights to be off during the catching. Consequently, the responsibility for any lighting deficiency should rest with Tyson. Moreover, we note that the accident took place at 3:00 a.m. under dark, foggy conditions. All those present on the Farm that morning knew that visibility was reduced. There were no complaints about lighting on any prior occasions and the Tyson crew manager, who bore the responsibility to maintain machinery used in the chicken catching process, knew of the forklift’s mechanical defects. Essentially, neither the Farm nor the Wrights had any responsibility for the forklift’s maintenance. * * *
[T]he contract ultimately defined the Wrights’ duties as chicken producers when they engaged with Tyson representatives. Under these circumstances, we must conclude that Tyson controlled the chicken catching procedure pursuant to the terms of the contract and the Wrights’ duty to maintain the property in a reasonably safe manner did not extend to providing exterior lighting or alternative safety measures. Thus, no breach of duty occurred and we find that summary judgment was appropriately entered for the Wrights. Judgment affirmed.
Gary & Lisa Crowe v. T.J. Boofter (IndCtApp 6/27/03)
Darden, Judge
The trial court granted sumary judgment to the surveyor, Boofter, in the Crowes' action alleging the negligent performance of a survey.
On September 15, 1997, Boofter performed a Surveyor Location Report ("SLR") at the request of the Crowes' title insurer in conjunction with the Crowes' purchase of property. The SLR contained the following disclaimer: This report is designed for use by a title insurance company with a residential loan policy. No corner markers were set and the location data shown is based on limited accuracy measurements. No liability is assumed by T.J. Boofter for any use of the data for construction of new improvements or fences. * * *In its decision the Court of Appeals states: "The Crowes raise a variety of bases for reversal of the summary judgment in favor of Boofter; however, the terms of the disclaimer as stated on the SLR and the acknowledgement signed by the Crowes are dispositive. The construction of written contract terms is a matter particularly suited for summary judgment."The Crowes relied upon the SLR performed by Boofter to position a pole barn they built on the property. The pole barn encroached approximately 20 feet onto a tract of land owned by Didelot Properties, L.L.C. In a letter dated May 22, 2000, Didelot informed the Crowes that [t]he members noticed your new pole barn and suspected that it encroached upon their real estate. Based upon this suspicion, Didelot Properties, L.L.C. employed David J. Ruckman Company, licensed surveyors, to do an accurate survey of their real estate. I am enclosing a copy of the survey, which shows your pole barn to be encroaching 16.8 feet on the west side and 19.5 feet on the east side of the building. * * *
On October 19, 2001, the Crowes filed their "Claim for Surveyor's Negligence" requesting compensation from Boofter because they were required to purchase a strip of land from Didelot. Boofter filed an answer asserting several defenses including issues with regard to the disclaimer on the SLR and expiration of the statute of limitations. Also, Boofter asserted that the complaint was "baseless, frivolous and without merit and should entitle" him to attorney's fees and costs.
Here, the SLR plainly and unambiguously states that it cannot be relied upon for placement of fences or improvements. The Crowes acknowledge that they did so. At the time the Crowes signed the acknowledgement and receipt for the SLR on September 30, 1997, they "accept[ed] the encroachments, easements, limitations and/or conditions" set out within the SLR, including that 1) "no corner markers were set and the location data shown is based on limited accuracy measurements"; and 2) none of the data within the SLR could be used "for construction of new improvements or fences." The exculpatory clause within the SLR, together with the Crowes' acknowledgement thereof, shielded Boofter from a claim that he negligently performed the SLR for purposes of locating the pole barn. Therefore, the trial court correctly ordered summary judgment for Boofter.Additionally, Boofter requests appellate attorney's fees. * * * Here, the Crowes' appeal did not rise to the level of frivolousness or apparent bad faith. Consequently, the request for an assessment of appellate attorney's fees is denied. The judgment of the trial court is affirmed.
AGT, INC. v. CITY OF LAFAYETTE REDEVELOPMENT COMMISSION (IndCtApp 7/21/03)
Friedlander, Judge
The City of Lafayette, Indiana, Redevelopment Commission (the City) commenced an eminent domain proceeding to condemn certain real estate owned by AGT, Inc. Following a jury trial upon the issue of the compensation owed Taylor [AGT], the trial court ordered the City to pay Taylor $215,332 in damages. On appeal, Taylor presents, pro se, the following restated issue for review: Did the trial court commit reversible error by overruling Taylor’s objection to the identification of three of the City’s expert witnesses as court-appointed appraisers and their subsequent testimony regarding the amount of damages assessed in the appraisers’ report?
In the instant case, the City clearly brought prejudicial evidence before the jury. Specifically, the jury was made aware of the fact that Geswein, Coffman, and Godby were the court-appointed appraisers in the case. While the actual appraisers’ report was not admitted into evidence, each of these witnesses testified regarding the amount of their joint appraisal and how they had arrived at that figure. This was error, to which Taylor made a timely and specific objection. While an admonishment or limiting instruction given by the trial court could perhaps have cured said error, such was not given, as the trial court did not believe there was any error to cure.We cannot agree with the City that said error was harmless, that is that “its probable impact, in light of all the evidence in the case, [was] sufficiently minor so as not to affect the substantial rights of the parties.” Ind. Appellate Rule 66(A). Here, the parties presented evidence supporting an award of damages ranging from $180,000 to over $500,000. Apparently relying on the testimony of the court-appointed appraisers and, specifically, City’s Exhibit II, the jury awarded Taylor $215,332. We find it possible that the jury found the court-appointed appraisers and their joint evaluation more credible precisely because of the appraisers’ prior official involvement in the case. Therefore, we conclude that Taylor’s substantial rights were affected, and he is entitled to a new trial. Judgment reversed and remanded.
Vaidik, J. concurs. Robb, J. dissents with separate opinion:
I respectfully dissent. Although I agree that the trial court improperly allowed Geswein to testify that he, Coffman, and Godby were court-appointed appraisers, I cannot agree that reversal is warranted in this case. * * * Even though the trial court improperly allowed evidence that three witnesses had been court-appointed to appraise Taylor’s property, I believe the error was cured by the above-quoted instruction to the jury. The jury’s verdict was within the scope of the evidence presented, and under these circumstances, I would not reverse and remand for a new trial. I would affirm the jury’s verdict, and accordingly, I dissent.
The Chicago Tribune reports today in a story headlined "Altheimer practices questioned: Partners now wonder about firm's management," that:
Last fall, Altheimer & Gray, a prestigious Chicago law firm, booked $6.3 million in fees that it had not yet collected, making its full-year profits look rosier than they actually were. A month ago the firm collapsed, stunning partners who had been assured as recently as May that it was financially sound. Now partners question that accounting maneuver, which allowed the firm to obtain financing to prevent further slashes in partner pay. Some are also asking broader questions about how the firm was managed, including about secret advances to top lawyers.Access the story here (registration may be required).
Altheimer & Gray's website remains accessible. Access it here (with an interminable introduction) or go directly to the main page here. Here is the firm's profile from the Chicago Bar Association.
An earlier take on the dissolution may be found in this 6/27/03 story from Crain's Chicago Business. Also, see The American Lawyer and The Lawyer, UK, which reported on 7/7/03:
Disintegrating Chicago firm Altheimer & Gray is buckling under nearly $30m (£18m) worth of debt - nearly a quarter of its total revenue for 2001. The Lawyer can reveal that this double-digit debt level at the firm, which for its last published financials in 2001 generated $117m (£70.2m) in revenue, was the final straw that pushed Altheimer to announce plans to dissolve nearly two weeks ago.It has also since emerged that Altheimer's partners will not be paid this month. LaSalle Bank agreed to provide interim financing, but only for its remaining employees, which at the last count numbered 700 staff. A group of up to 15 retired partners are considering their options, including potential legal action, after being told last Wednesday (2 July) that they would not be paid their pension benefits since the firm had no cash reserves left.
Barna Log Systems v. General Casualty Insurance (Ind.Ct.App. 7/17/03)
Sharpnac, Judge
"Barna Log" appealed the trial court's grant of summary judgment to insurers and the denial of Barna's motion. "The relevant facts designated by the parties follow. Barna Log is a seller/distributor of log home packages manufactured by Barna and Company. On July 23, 2000, Mark Grott and Barbara Grott (collectively 'the Grotts') signed a contract with Barna Log for the purchase of a log home package. Rosi, acting as an agent and representative of Barna Log, contracted with the Grotts for the sale of the log home package. Barna Log hired Jerry Myers to build the Grotts’ log home. On March 1, 2002, the Grotts filed a complaint against Barna Log, Barna and Company, Myers, and Rosi. The complaint included five counts, which provided, in pertinent part, that: [Count I]Barna Log breached its duty to Grott by negligently, carelessly, and intentionally recommending, providing, and hiring an incompetent and unqualified builder with little or no experience in constructing log homes."
The Insurers contend that the Grotts’ Complaint failed to allege facts that constitute either an “occurrence” or “property damage” under the CGL Policy. Insurers also maintain that the Grotts’ claims fall within exclusions contained in the CGL Policy. Insurers also allege that Rosi is not entitled to coverage for the same reasons that Barna Log is not entitled to coverage."For the foregoing reasons, we affirm the trial court’s judgment granting summary judgment to Insurers and denying Barna Log’s and Rosi’s motion for summary judgment."
The dissent begins:
I am unable to fully concur because of my inability to discern a workable principle of insurance coverage law as enunciated in the Indiana case law. More particularly, I am unable to interpret the varying and seemingly inconsistent use of terminology as used in the cases concerning commercial general liability insurance coverage and as discussed in the majority opinion.
Purepac Pharmaceutical v. Lollar (IndCtApp 7/17/03)
Vaidik, Judge
"Purepac Pharmaceutical Company (Purepac) appeals the trial court’s denial of its motion for summary judgment. Specifically, Purepac contends that Hirshel Lollar’s state law claim for failure to warn about the risk of liver damage from combining acetaminophen and alcohol is preempted by federal law governing the labeling of drugs. Because the Food and Drug Administration’s (FDA) regulations governing the labeling of drugs are minimum standards that do not preempt state law, we affirm the trial court’s denial of summary judgment."
The preemption doctrine is grounded in the Supremacy Clause of Article VI of the United States Constitution, which establishes federal law as the supreme law of the land. U.S. Const. art. VI, cl. 2; Rogers ex rel. Rogers v. Cosco, Inc., 737 N.E.2d 1158, 1163 (Ind. Ct. App. 2000), reh’g denied, trans. denied. However, courts do not lightly attribute to Congress or to a federal agency the intent to preempt state or local laws. Rogers, 737 N.E.2d at 1164. “The historic police powers of the states are not to be superseded by federal law unless that was the clear and manifest purpose of Congress.” Id. This presumption against preemption is even stronger when state regulation of matters related to health and safety is involved. Hillsborough County, Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 715 (1985). The intent of Congress may be “express”—expressly stated in the statute, or “implied”—implicitly stated in the statute’s structure and purpose. Rogers, 737 N.E.2d at 1164. We now address whether the FDCA either expressly or implicitly preempts Lollar’s state law failure to warn claim. * * *Although these cases involve pioneer drugs and NDAs and we could not find any cases involving generic drugs and ANDAs, the result is the same. We see no reason to provide greater protection against state law failure to warn claims to generic drugs than to pioneer drugs. The FDA’s requirement that a generic drug have the same labeling as the pioneer drug is a minimum standard. That is, the generic drug’s label must contain, at the very least, what the pioneer drug’s label contains. Here, Purepac used the same label on its acetaminophen plus codeine as the label on Tylenol 3, which the FDA required. Purepac therefore met the minimum standard. However, Purepac was free to strengthen its label by adding an alcohol warning. Accordingly, Lollar’s state law claim for failure to warn is not implicitly preempted by the FDCA. We therefore affirm the trial court’s denial of Purepac’s motion for summary judgment.
Today's Washington Post carried this short blurb:
Cyberspace law is all the rage these days, but technology moves so fast that it's keeping lawyers on their toes. The latest issue of Legal Affairs, the Yale Law School magazine, carries an ambitious package of reports on "iLaw" that explores how the law can get knotty when reality is virtual instead of, well, real. For example, Orin S. Kerr of George Washington University Law School notes how police investigating the mob can get a search warrant to look at some computer files. But when they raid the place, they find that the files are stored on a server out of state. Does their search warrant let them go to the server?That led me to Orin Kerr's article, "Seeing it Both Ways," in the July-August issue of legalaffairs, "the magazine at the intersection of law and life."
A note of the end of the article reads: "This article was adapted from "The Problem of Perspective in Internet Law," which appears in the February 2003 issue of the Georgetown Law Journal." It turns out that Kerr's full article may be downloaded from SSRN, via this link.
Back to legalaffairs -- the TOC also leads to an article titled "Censoring Science" by Lincoln Caplan, that might be read in conjunction with my July 10, 2003 entry on the right to know vs. homeland security.
Cultural anthropologists as nation-builders is the theme of an outstanding article today in the NY Times.
Ruth Benedict was asked by the U.S. government to write a report on Japan in 1945:
Enlarged and published as a book immediately after the war, in 1946, "The Chrysanthemum and the Sword" was an instant best seller and went on to become a classic of Japanese cultural studies.Here is another quote from this fine article:But most importantly, her government work ended up becoming the bible of American troops who undertook the occupation of Japan.
The choice to rely so heavily on cultural anthropologists in the rebuilding of a defeated enemy has particular resonance now as the United States struggles to rebuild a stable and viable Iraq, a country that, like Japan, is seen as both impossibly foreign and forbidding.
With considerable sensitivity, she managed both to stress the differences in Japanese society of which American policy makers needed to be aware and to debunk the stereotype of the Japanese as hopelessly rigid and incapable of change.Using the tools of anthropology, she pointed out that Japan, as a classic example of a society based on "honor" and "shame," was actually quite adaptable. If anything, she said, "guilt" cultures, like those of the United States and most Protestant countries, which believe in an absolute standard of good and evil, were in some ways harder to change. Shame cultures, by contrast, respond to externally imposed standards of honorable or shameful behavior: change the standards, she said, and the behavior will change.
Thus, Benedict argued, it was possible to change Japan by working within the norms of its traditional culture rather than by trying to destroy it.
[Updated] I've updated yesterday's entries because of several stories published in this morning's Indianapolis Star. This story, headed "New scrutiny for older drivers: State may rethink licensing," reports that "State law requires residents age 75 and older to renew their licenses every three years, instead of on a four-year cycle. 'That's the only difference between being 74 and 75 years old,' said Media Trent, spokeswoman for the Indiana Bureau of Motor Vehicles. A state task force decided against any additional requirements in 1999." Another story is titled "At 75, drivers begin to have more crashes."
The Star also provides links to a great chart comparing all the states' laws on this topic. Here it is from USA Today, and here it is in greater detail from the Insurance Institute.
[Yesterday] There have been a number of stories on the topic of elderly drivers recently, tied to the tragedy in California. "Crash Renews Debate on Older Drivers: 86-Year-Old Motorist Had Clean Record, Officials Say," is the headline to this story in the Washington Post. Some quotes:
"This is becoming a huge issue," said Susan Ferguson, senior vice president for research at the Insurance Institute for Highway Safety. "We know that the baby boomers are going to be in this age group in a few years. They've been driving all of their lives and won't want to give it up. The elderly are going to represent more of a problem on the road than they currently do."Indiana law: IC 9-24-2-3, does appear to offer the BMV some discretion in individual cases. For instance: "(a) The bureau may not issue a license or permit to the following individuals: (7) An individual when the bureau has good cause to believe that the operation of a motor vehicle on a public highway of Indiana by the individual would be inimical to public safety or welfare." Also relevant are the renewal requirements set out at IC 9-24-12-5. See particularly subsection (b), which allows for renewal by mail (I believe this change was made in 2001). IC 9-24-12-1 provides that a driver's license expires 4 years after date of issuance; however:In recent years, several states have passed laws requiring senior drivers to comply with licensing regulations that are more stringent than those imposed on most other motorists. Some forbid motorists older than 70 from renewing their driver's licenses by mail, or test their visual and mental competence every few years. Maryland, Virginia and the District do not have special renewal requirements for older drivers.
Groups representing senior citizens have denounced other proposals such as requiring the elderly to take regular road tests as discriminatory and blocked their passage. "Yes, things happen to people as they age, but they happen to different people at different times -- it's hard to pinpoint an age where someone should be subject to more driving limits," said Cheryl Matheis, director of state affairs for AARP, the nation's largest senior-citizen lobby.
National studies show that teenagers, and not the elderly, present the greatest risks to themselves and other motorists on the road. But that is partly because seniors drive less frequently and fewer miles than those in other age groups. When those factors are considered, their rate of accidents exceeds that of other age groups.
(b) An operator's license issued after December 31, 1996, to an applicant who is at least seventy-five (75) years of age expires at midnight of the birthday of the holder that occurs three (3) years following the date of issuance.USA Today published this editorial Thursday titled "Screen Older Drivers Better."
In an editorial today, the Detroit Free Press argues that "a blanket restriction based on age is no solution. It's just bias, and Michigan, where one of every seven drivers is 65 or older, has done well to steer clear of it." More:
Only Illinois and New Hampshire have taken the drastic step of requiring drivers older than 75 to pass a road test for license renewal. California tried and failed to mandate them two years ago, but it's unclear such a law would have made a difference in Wednesday's disaster.And here is a thoughtful discussion from the Washington Times. A quote:Perhaps more important, state governments can't possibly be the only ones asked to help put the brakes on bad drivers. The Michigan Secretary of State encourages relatives, doctors, neighbors and others close to a potential problem driver -- of any age -- to refer that person for license review.
Seventeen states require "in person" license renewals for older drivers, typically every four or five years. In the District, a doctor must attest to an elderly driver's physical and mental capability, and a reaction test may be required. Maryland has no special restrictions, but the law precludes age from being a basis for re-examination. Virginia has no special tests for older drivers.
Allen v. State of Indiana (Ind.S.Ct. 7/15/03)
This document is titled "An Order Concerning Successive Petition for Post-Conviction Relief in Capital Case." It is signed by Shepard, CJ. JJ Dickson and Sullivan concur. Boehm, J., dissents with opinion, in which Rucker, J. concurs.
As related by the Court, the Supreme Court has jurisdiction because Allen has been sentenced to death. The Court’s rules permit a person convicted of a crime in an Indiana state court to challenge the conviction and sentence collaterally in a post-conviction proceeding. (See Ind. Post-Conviction Rule 1.) Allen had already availed himself of that procedure. Post-Conviction Rule 1, Section 12 specifies the procedure for requesting a second, or “successive” collateral review.
We have considered the materials from Allen’s prior appeals, the materials submitted in connection with the successive petition, and applicable law.The dissent concludes with this statement:Atkins v. Virginia. [review Atkins here via Findlaw.com] The United States Supreme Court has declared that execution of a mentally retarded person is an “excessive” sanction that violates the Eighth Amendment to the United States Constitution. 536 U.S. at 321. Mentally retarded persons are regarded as less culpable, Atkins says, because they have
diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others . . . . [T]here is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan, and that in group settings they are followers rather than leaders.* * *The successive claim. Allen’s successive post-conviction petition alleges that he is a mentally retarded person whose execution is prohibited under Atkins and that he is entitled to litigate this claim in a state trial court. The State responds, in part, that Allen has already litigated whether he is mentally retarded and is not entitled to another opportunity.
Evidence of Allen’s mental capacity was considered by the trial court after we remanded the case, on direct appeal, for a written sentencing order. Our remand order directed the trial court to consider evidence of Allen’s mental capacity * * *.
However, the factual inquiry under either analysis is the same: is the person mentally retarded? In Allen’s case, the trial court’s sentencing order acknowledged the existence of some evidence that Allen was mentally retarded, but ultimately, found that he was not. When the trial court’s order stated that the evidence tended “to show . . . a very slight mitigating factor,” and that other evidence “erodes whatever weight the Court gives to this mitigating circumstance,” we conclude the trial court meant that Allen had not proved to the court’s satisfaction that Allen was actually mentally retarded. * * *
“The doctrine of res judicata prevents the repetitious litigation of that which is essentially the same dispute.” Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). We conclude that Allen has already litigated, and lost, his claim that he is mentally retarded. Therefore, the claim is res judicata and is not available to Allen in a successive post-conviction proceeding. See, e.g., Wrinkles v. State, 776 N.E.2d 905, 908 (Ind. 2002) (denying permission to file successive petition when claim is res judicata).
Having not established a reasonable possibility that he is entitled to post-conviction relief on this claim, Allen’s request for leave to file a successive post-conviction relief petition is DENIED.
As a result, even if we took the trial court to find no mental retardation, which I do not, we could not be confident that the trial court’s finding on this point meets Eighth Amendment standards. In short, both the sentencing judge and the factfinder in a pre-Atkins regime were confronted with different considerations in evaluating mental retardation as a mitigating circumstance as opposed to a complete bar to execution. Accordingly, their conclusions do not resolve the issues Allen now raises. See Johnson v. State, 102 S.W.3d 535 (Mo. 2003); State v. Grell, 66 P.2d 1234, 1240 (Ariz. 2003); State v. Lott, 779 N.E.2d 1001, 1015 (Ohio 2002). For that reason, I respectfully dissent from the denial of leave to permit Allen to litigate that issue in light of Atkins.
This might give you pause. A story in the Technology Section of the NY Times today titled "Picking Up the Pieces" talks about reassembling shredded documents. Easily:
Advanced scanning technology makes it possible to reconstruct documents previously thought safe from prying eyes, sometimes even pages that have been ripped into confetti-size pieces. And although a great deal of sensitive information is stored digitally these days, recent corporate scandals have shown that the paper shredder is still very much in use."People perceive it as an almost perfect device," said Jack Brassil, a researcher for Hewlett-Packard who has worked on making shredded documents traceable. If people put a document through a shredder, "they assume that it's fundamentally unrecoverable," he said. "And that's clearly not true." * * *
Modern image-processing technology has made the rebuilding job a lot easier. A Houston-based company, ChurchStreet Technology, already offers a reconstruction service for documents that have been conventionally strip-shredded into thin segments. The company's founder, Cody Ford, says that reports of document shredding in recent corporate scandals alerted him to a gap in the market. "Within three months of the Enron collapse at end of 2001, we had a service out to electronically reconstruct strip shreds," he said.
This story on this afternoon's Indianapolis Star website, headlined "Martinsville board votes against mine proposal," reports that the Martinsville Board of Zoning Appeals last evening turned down "Rockmakers' zoning exceptions to operate a mine in an area zoned for agriculture." However:
While neighbors of a proposed gravel pit celebrated a victory in the Martinsville Board of Zoning Appeals, the company that wants to open the mine planned today to appeal in court.The Indiana Law Blog also reported on this story June 11, 2003 - you can access the entry here. The Star article cited there unfortunately is no longer freely available, but the story from northwest Indiana can still be accessed."Most definitely, we will go further with this," said Van Furgeson, president of Rockmakers LLC based in Lebanon. "Our attorney is preparing an appeal. We'll take this as far as we have to to get it done." * * *
Rockmakers proposes a sand and gravel mining operation on a 352-acre farm owned by the David L. Ellis family. The site is about a mile south of Martinsville in a valley formed by the confluence of White River and Indian Creek. The Legendary Hills subdivision is on top of a hill overlooking the site. At least 60 of the 70 homeowners signed a petition in opposition to the mine.
"Judges accused of 'judicial plagiarism'" is the heading of a "breaking news" story from the Miami Herald (link thanks to Jurist). Here is the gist:
Lawyers Stanley and Susan Rosenblatt claim the judges' 68-page opinion contains 59 pages copied "almost verbatim" from the tobacco industry's appellate briefs. In May, the three-judge panel demolished the 700,000-member smokers' class and shredded their record punitive award, saying the landmark case should not have gone to trial in Miami. * * *Here is a shorter story, from Forbes."Judicial plagiarism, in whatever form it takes, is wrong," the Rosenblatts wrote in their motion, calling the three-judge panel's conduct "a due process violation." "The panel uncritically accepted the distorted version of the facts and misreading of the law by tobacco - a version that was found to be fraudulent and deceitful by the jury and trial court," the couple wrote. "The panel abdicated its role as a neutral searcher for truth, to the detriment of hundreds of thousands of Floridians."
Under codes of judicial conduct, there is nothing illegal about copying or slightly rewriting substantial passages from one side's arguments in appellate rulings. Nor does the practice ruin careers, as it does in literary circles, universities and newspapers. But appellate courts in Florida and elsewhere have frowned upon plagiarism as unethical in extreme situations where a trial judge has shown no independent thinking in resolving a dispute.
[Update] Here is some thoughtful commentary on this issue from the law blog, MyShingle.com.
Monar v. Hurt (Ind.Ct.App. 7/15/03)
Brook, Judge
In this case:
The facts most favorable to Monar as the non-moving party indicate that in approximately 1985, Monar and Hurt entered into an oral partnership to purchase, operate, and service amusement machines. Under the agreement, Monar and Hurt placed the machines in bars and taverns and equally split the partnership’s net profits. Monar and Hurt jointly owned, operated, and repaired all machines. The machines included billiard tables, pinball machines, jukeboxes, electronic poker machines, and video slot machines. The electronic poker machines and video slot machines awarded credits for winning plays. Successful players could then exchange their credits for cash. Hurt collected the revenues from these machines. Both Monar and Hurt acknowledge that their partnership activities involving these machines were illegal. * * *Monar argues that the partnership’s purpose, namely the operation of amusement machines for profit, was not against public policy and that he therefore may recover his share of converted profits and property from the partnership regardless of their nature. See Cont’l Basketball Ass’n v. Ellenstein Enter., 669 N.E.2d 134, 140 (Ind. 1996) (applying five-part test to determine whether private agreement was unenforceable as against public policy). In the instant case, however, the validity of the partnership’s purpose is not at issue. The dispositive issue is whether the partnership’s profits and property relating to the gambling devices are illegal:
It is a general rule that courts will not aid either party to an illegal agreement where a partnership is formed for the prosecution of an illegal business or for the conduct of a lawful business in an illegal manner and will not lend their aid to assist either party thereto in an action against the other. There can, accordingly, be no accounting demanded of an alleged partner for the profits which may be in his hands where a partnership is formed for an unlawful purpose or engages in an unlawful transaction. It is fundamental that no principle of law is more clearly established than that the law will not enforce an illegal transaction.Searles v. Haynes, 126 Ind. App. 626, 634, 129 N.E.2d 362, 366 (1955) (emphasis added; citations omitted). As both the ownership of and the profits from the electronic poker and video slot machines were illegal under Indiana Code Section 35-45-5-4, any accounting of the partnership may not include the value of or the profits from those machines.
Wernle, Ristine & Ayers v. Yund and The Kroger Company (Ind.S.Ct. 6/30/03)
Dickson, Justice
In this June decision, just posted today on the Court's site, the plaintiff, in a complaint "assailing the performance of Dr. Nash and his fees," refused to pay for, as "litigation expenses," the medical expert hired by her attorney, and the Worker's Comp Board agreed. The Court in a 4-1 decision upheld the Board's decision. Justice Boehm filed a 7-page opinion concurring in part and dissenting in part.
A Wired News story today titled "Supreme Court vs. The Supremes" has a wonderful lead:
At the beginning of his oral argument before the Supreme Court in the historic 1971 Roe v. Wade case, Jay Floyd, representing the state of Texas, opens with a good ol' boy remark:The story is about Northwestern's Oyez project that is making available online the complete body of the Court's oral argument transcripts:"It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word," said Floyd, referring to Sarah Weddington and Linda Coffee, counsel for Jane Roe.
Nobody laughed.
Floyd's sexist stumble is one memorable moment preserved in the audio file of a case that eventually secured a woman's constitutional right to an abortion.
The Supreme Court has recorded nearly all of its oral arguments since 1955, and Goldman hopes to archive all of them. So far, the Oyez project has converted 2,000 hours of oral arguments into digital form. A complete catalog will cover 4,000 more hours, he estimates.
This story, "Artifact removal at quarry leaves bad taste at land trust," from the Bloomington Herald-Times, got my attention.
At issue is an incident late last spring in which an unknown group visited the land trust's fossil-rich property known as Dishman Quarry in Orange County. Without permission to either study the site or remove artifacts, the group did both.When the steward who helps the land trust monitor the remote site saw a number of vehicles parked there, he ran the people off. But he didn't know that they'd already chipped away an unknown number of fossils and geological samples. He said he noticed that many of the vehicles bore the name of a Michigan university, but he didn't recall which one. * * *
[T]he way the spring incident came down left a bad taste in everyone's mouths. "It's an interesting commentary on the state of the world if, in fact, you have to teach people in college not to go onto other people's land and grab stuff. I mean, c'mon. We don't know if this was a summer class or something guided by a faculty member but either way, someone should have asked permission to visit the site and certainly asked if it was all right to remove items."
Amen.
If you had won the big Powerball prize last week, where would you have invested your winnings, given today's interest rates? Or, before you even got to that point -- would you pick the smaller "upfront" amount, or select the annuity paying the larger advertised jackpot amount, paid out over 20 years? As a very interesting story in the Washington Post points out today, low interest rates have impacted the conventional wisdom to take the money the money up front. Here are some quotes:
Market conditions have changed a lot of Powerball calculations, starting with the gap between the 30-year value of the jackpot and how much you can get up front. Thanks to low interest rates, the lump sum is a lot bigger than it used to be compared to the advertised annuity jackpot. * * *But putting aside the risks -- monetary or otherwise -- of getting all that money in one lump sum, today's low interest rates do indeed make it more attractive to take the cash instead of the long-term payout, financial maven Edelman agreed. Paying the taxes up front, he added, gets rid of that issue and means you don't have to worry about future changes in the tax laws. As Edelman pointed out in an excellent piece in The Outlook section of The Washington Post on July 6, Congress has made it all but impossible for investors to do tax planning. Under the latest tax legislation, some tax rates change every year -- they go down for a while, then suddenly go back up, a trick to hide their long-term impact on the budget.
Courts.net, developed to provide access to web sites maintained by courts nationwide, is a site well worth visiting. Particularly interesting to me was its page on The Best Court Sites.
Robert J. Ambrogi, whose name may be familiar because his monthly column is published in the ISBA publication, Res Gestae, provided the pointer to Courts.net via his blog, Lawsites. He also has put out a very nice summary of where you may be able to find the briefs submitted on various decisions.
Of course, briefs of cases argued before the US Supreme Court are available via Findlaw.com at no charge. This provides the opportunity to look through the dozens of amicus briefs submitted in Grutter v. Bollinger, for instance. And I discovered last month that the 7th Circuit's web site provides access to its briefs.
But there are a number of others. For instance, six state supreme courts provide access to briefs: Florida, Kentucky, Michigan, North Dakota, Texas, Wisconsin. The links are all in Ambrogi's article. (Indiana is not included - as far as I know the only way to access a brief here is to go to the clerk's office and pay $1.00 per page for a paper copy.)
Bd of Comm. of LaPorte County, et al. v. Town & Country Utilities, Inc. (Ind.Ct.App. 7/10/03)
Sharpnack, Judge
The issue here was the extent of the local government's zoning authority over a solid waste landfill's location within its jurisdiction. LaPorte County's Board of Commissioners had adopted, as a part of its master plan, Section 8-20, which required that a Petitioner seeking a variance or special exception to develop a sanitary landfill or solid waste facility:
First, provide to the board of zoning appeal written approval from the LaPorte solid waste district board regarding the need for the facility and that the proposed landfill would meet the criteria, and
Second, meet the variance or special exception requirements of Section 8-18 of the Master Plan.
Town & Country claimed that Section 8-20 was preempted by Indiana law and was improper local legislation:
Specifically, Town and Country had alleged in its complaint that, because the Indiana General Assembly delegated the responsibility of siting, construction, operation, closing, and monitoring of landfills in Indiana to the Indiana Department of Environmental Management (“IDEM”) and the Indiana Solid Waste Management Board (State Solid Waste Management Board”), the entire field of regulation and rulemaking on landfills was preempted. Accordingly, Town and Country contended that “[t]he enactment and subsequent enforcement of Section 8- 20 [was] in violation of the preemption over the entire field of regulation and control of the siting and construction of landfills in Indiana, which is vested with the [IDEM] and the [State Solid Waste Management Board.]”The trial court found that Section 8-20 was not a zoning ordinance because its enactment exceeded the scope of the Board of Comm's authority. The trial court also found that the Home Rule Act (IC 36-1-3-1) preempted the enactment of Section 8-20. The Court of Appeals reversed on both points:
It is clear that county solid waste management districts are an integral part of the overall state system for addressing, among other things, solid waste management and disposal. They are charged with assessing the needs of their respective districts and there is nothing that conflicts with the permitting function of IDEM in a county district determining if there is a need for a landfill in the district. One of the things that must be demonstrated to the Department is that there is a local or regional need for a proposed landfill. Ind. Code § 13-20-1-2. Consequently, it is not unreasonable for the zoning authority to require a needs assessment from the county solid waste management district before going further in its consideration of an application for a special exception to locate a landfill in its jurisdiction.Moreover, to the extent that Section 8-20 regulates the use of certain land as a landfill, it is authorized by a combination of zonings laws and the establishment of districts. Accordingly, the Home Rule Act does not preempt the Board of Commissioners’ ability to exercise its zoning power by adopting Section 8-20. Thus, the trial court erred by granting partial summary judgment to Town and Country and by denying partial summary judgment to the Board of Commissioners and the BZA on this issue.
Homeowners associations facing backlash: More states taking aim at restrictive covenants is the headline to this AP story in the business section of the Indianapolis Star. A quote:
In a country founded on private property rights, homeowners associations increasingly dictate the nation's home colors, landscaping, pet sizes and placement of satellite dishes. They also restrict many forms of political expression Americans take for granted.A quick look at Google News led to a number of recent stories on "homeowner associations." Among the, this story titled "Gov. Jeb Bush's promised veto of homeowner association bill puzzling," that explains:Experts call this accelerating trend one of the most stunning transformations in how Americans live, rent and buy homes; an estimated 50 million people live in areas governed by homeowners associations. Especially prevalent in the Sunbelt, homeowners associations -- with corporate-style rules that limit traditional town hall democracy and keep closed financial records -- govern 80 percent of the nation's new housing and neighborhoods, said a trade group.
Though it received near-unanimous support of the Florida Legislature, Gov. Jeb Bush sent word Tuesday that he will veto a bill designed to give homeowners association greater leverage to enforce deed restrictions. Bush informed [the bill sponsor], of his decision Tuesday morning, shocking those who have worked on the project for nearly a year. * * * Fasano [the sponsor] filed the bill on behalf of United Communities, a coalition of 24 subdivisions, 17 of which have non-mandatory associations. Unlike most gated communities such as Silverthorn and Timber Pines, these neighborhoods - with 60,000 lots between them -- do not impose mandatory dues on property owners. As a result, they lack the financial resources to maintain and beautify common areas such as clubhouses and medians. They also lack the means to enforce deed restrictions. Consequently, property values in these non-mandatory subdivisions suffer.And here is a story from The Gainsville Sun about neighborhood associations, a close relative of homeowner associations, but generally without the deed restrictions.Fasano's HB 1632 would have permitted communities with voluntary homeowner associations to create special taxing units. Revenues generated by the annual fees would be used to maintain subdivision common areas and enforce deed restrictions. The bill received unanimous support in the Florida House when it came to the floor in May and similar support in the Senate.
Anna Quindlan had a wonderful column yestersday on Justice Scalia; it makes very serous points, although at one point I laughed out loud and then kept laughing. I found it in the Salt Lake Tribune; it also may be syndicated elsewhere.
Article 7, section 10, clause 1 of the Wisconsin Constitution reads:
Judges: eligibility to office. (1) No justice of the supreme court or judge of any court of record shall hold any other office of public trust, except a judicial office, during the term for which elected. . . .In a very interesting 69-page majority opinion, the Supreme Court of Wisconsin held:
We therefore conclude that Article VII, Section 10(1) of the Wisconsin Constitution prohibits a circuit court judge or any judge or justice of a court of record in this state from holding a nonjudicial position of public trust during the entire term for which elected, regardless of whether he or she chooses to resign from the judicial position.The Milwaukee Journal Sentinel has this story on the ruling, that begins: "Wisconsin's constitution bars judges from holding another non-judicial public office for the entire length of their term, even if they resign from the bench, the state Supreme Court ruled Thursday." (via How Appealing)It is declared and adjudged that Article VII, Section 10 of the Wisconsin Constitution prohibits petitioner, a circuit judge, from holding a nonjudicial office of public trust during the full period of time for which he was originally elected and that, as such, petitioner is ineligible to run for Milwaukee County Executive or any other nonjudicial office of public trust until his term expires in August 2006.
And what about Indiana?
Judicial offices. In our Indiana 1851 Consitution, Article 7, Sec. 16 originally provided: "No person elected to any judicial office, shall, during the term for which he shall have been elected, be eligible to any office of trust or profit, under the State, other than a judicial office." This is quite similar to the Wisconsin provision. However, the subject of our Section 16 now is "prosecuting attorneys" -- it apparently was a part of the major revisions to the judicial article ratified in 1970. (Reusing the same section numbers for different topics is not a generally recommended drafting practice.)
Executive offices. Article 5, Sec. 24: "Neither the Governor nor Lieutenant Governor shall be eligible to any other office, during the term for which he shall have been elected." This language also tracks Wisconsin's. I am unaware of any issues that have arisen under this provision.
Legislative offices. Our Indiana legislative prohibition is somewhat similar to Wisconsin's, but has a different twist. And here is a little history: Governor Matthew Welsh appointed State Senator Eugene Bainbridge to head the newly created department of administration in 1961. In his 1981 memoir, View from the Statehouse, Welsh recalls (at p. 91):
When the attorney general ruled that because of the provisions of Article 4, section 30 of Indiana's Constitution he could not continue to serve,* Gene resigned and was subsequently reelected to the Senate.*Opinions of the Attorney General of Indiana, 1962, Opinion 60, pp. 334-36. The constitutional provision cited prohibits a state senator or representative from being appointed "to any civil office of profit, which shall have been created or the emoluments of which shall have been increased" during the term for which he was elected to the legislature. Although Gene had resigned from the General Assembly on April 1, 1961, he had been a member when the Department of Administration Act had passed.
Catch 22? A decision of the United States Court of Appeals for the DC circuit, Assassination Archives and Research Center v. CIA (7/8/03) seems to pose that situation.
The appellant, Assassination Archives and Research Center (AARC), brought suit under the Freedom of Information Act to compel disclosure by the Central Intelligence Agency (CIA or Agency) of a multi-volume compendium of information on "Cuban Personalities" (Compendium) prepared by the Agency in 1962. The CIA withheld disclosure of the entire Compendium on the grounds that the documents contained in it are classified SECRET and that disclosure is exempt under the National Security Act of 1947. The district court upheld the Agency's decision, granting summary judgment in its favor.AARC argues that the CIA failed to carry its burden to establish a FOIA exemption from disclosure and that, in any event, the Agency waived any exemption available under the Act because information regarding Cuban nationals had already been disclosed pursuant to the John F. Kennedy Assassination Records Collection Act (JFK Act). We reject AARC's arguments and instead affirm the district court. [citations omitted] * * *
[H]ere, it may be that some information disclosed pursuant to the JFK Act is included in the Compendium. [ftn 6] But AARC must show that information duplicates the contents of the Compendium and it has not met this burden.
Ftn. 6. We highlighted how specific the FOIA plaintiff's showing must be under Afshar in Davis v. Department of Justice, 968 F.2d 1276, 1279-80 (D.C. Cir. 1992). In that case, the Justice Department resisted disclosure of tape recordings made during a criminal investigation of a reputed mafioso. Id. at 1278. Although the government conceded waiver as to the tapes that were played at trial and agreed to release tapes for which the plaintiff could provide trial transcripts, we held that the plaintiff's reliance on newspaper stories that generally referred to the tapes did not meet the specificity requirement. Id. at 1280. We emphasized that the plaintiff had to show "the exact portions" of the tapes that were played. Id.
In Davis we also noted that as a practical matter waiver under Afshar yields the FOIA plaintiff little new information. Id. Indeed, if a plaintiff can establish that the specific records he seeks have become " 'freely available, there would be no reason to invoke the FOIA to obtain access to the information.' " Id. (quoting Dep't of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 764 (1989) (internal quotations omitted)). We suggested that, although the government "[was] willing to give Davis only exactly what he can find in hard copy," that meant that Davis would receive "merely the added value of voice inflection" if he established waiver. Id.
Home Builders Ass'n. v. U.S. Army Corp of Enginers (USCA 7th Cir. 7/10/03)
Wood, Circuit Judge
Those of you who practice environmental law will be nodding your heads as you read this opening paragraph:
Too many cooks can spoil the broth, as everyone knows. But that is only if no one pays any attention to what the other ones are doing. Patrons of fine French restaurants enjoy the cooperative efforts of a team of chefs de cuisine, who coordinate both expertise and timing to produce the final product. The same risk of unintended consequences, or worse, chaos, exists within our system of cooperative federalism, in which authorities at the federal, state, and local levels often have overlapping competence. One area where this risk can materialize is in the regulation of the nation’s waterways, where federal and local agencies exercise overlapping jurisdiction and operate concurrent permitting programs. This case is about an attempt to make the most of each participants’ efforts, through interagency coordination.The opinion explains that the attempt took the form of an Interagency Coordination Agreement (ICA) among the various agencies responsible for water regulation in Lake County, Illinois. The Chicago District of the U.S. Army Corps of Engineers (Corps), the Lake County Stormwater Management Commission (LCSMC), the Lake County Soil and Water Conservation District (LCSWCD), and the U.S. Department of Agriculture’s Natural Resources Conservation Service (NRCS) entered into this agreement in late 1999.
Their efforts were not greeted with enthusiasm by at least one group, the Home Builders Association of Greater Chicago (Home Builders), which immediately sued the Corps and a number of its officials for injunctive and declaratory relief on the grounds[1] that the ICA impermissibly extends the statutory and regulatory authority of the Corps under the Clean Water Act, 33 U.S.C. §§ 1251 et seq., and the Rivers and Harbors Act, 33 U.S.C. §§ 401 et seq.The district court dismissed the action on the ground that it was nonjusticiable, because Home Builders had not alleged a concrete injury stemming from a final agency action. Home Builders now appeals. We agree with the district court that this suit presents nonjusticiable questions, and we therefore affirm its judgment.
[2] In addition, Home Builders alleged that the ICA was adopted without sufficient notice and comment under the Administrative Procedures Act (APA), 5 U.S.C. §§ 701 et seq.
The opinion, starting on p. 13, contains an interesting discussion of ultra vires actions in the context of this kind of federal/state agreement:
Home Builders finally urges us to find that the Corps
is using the ICA as a means of improperly leveraging its regulatory authority beyond that given it by Congress. By this, it appears to be accusing the Corps of imposing requirements that go beyond the restrictions authorized by federal law. If that were true, it would be a serious point. But we are entitled to look at the ICA itself to see if it can be used in this way, [cite omitted] and our
review convinces us that it cannot.This would be a different case if Home Builders had tendered evidence that the Corps had rejected a federal permit application solely because the applicant had
not complied with a local agency’s requirements regarding non-navigable waters. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corp of Eng’rs, 531 U.S. 159, 171-72 (2001). Upholding such a condition would allow the Corps to graft onto the permitting process additional requirements that are not within its regulatory authority. But if Home Builders wished to make such an argument in this case, it would not need to refer to the ICA. It would be enough to allege, and show, that the Corps was acting ultra vires – that is, outside the authority conferred upon it by Congress.
Click here to read the Washington Post coverage, which begins:
Marianne L. Horinko, a senior Environmental Protection Agency official, yesterday became the second acting administrator of the agency in two weeks, as the White House continues its search for a permanent replacement for Christine Todd Whitman.Here is the AP coverage, as published in the LA Times.
Here is a scathing editorial on EPA's criminal investigations that turned up in my search results. It is from today's Sacramento Bee.
In a story we've been reporting on for a week now (access Monday's entry here), the Nevada Supreme Court ruled Thursday to resolve the budget crisis in Nevada. The Court invalidated the constitutional provision requiring a two-thirds vote for taxes. See the Las Vegas Review-Journal editorial here. The headline is: "EDITORIAL: Just a `procedural' requirement: Activist high court justices tell lawmakers it's OK to ignore constitution." And here is the Review-Journal's news coverage of the story, titled: "CONSTITUTIONAL RULING: Court paves way for new taxes - Justices: Need to fund schools takes priority."
Here is the AP coverage, from the Las Vegas Sun, plus a "reactions" piece. And a later Sun story begins: "A surprising and unprecedented ruling by the Nevada Supreme Court on Thursday opened the door for the Legislature to break its impasse and approve a tax plan to fund the state budget and provide aid to education in Nevada. 'This was a bold step by the court and a great victory for Nevada schoolchildren,' said Senate Minority Leader Dina Titus, D-Las Vegas." And another Sun story begins:
The unprecedented decision Thursday by the Nevada Supreme Court to throw out the constitutionally required supermajority vote on taxes has essentially provided political cover for every faction in the debate. Democrats see victory, as the decision lets the Legislature pass a tax plan with a simple majority vote. The Assembly Republicans see an immediate setback but believe the decision will energize their fiscally conservative political base and lead to future victory at the ballot. Special interests such as educators, gaming and unions believe the decision will help usher in the broad-based business tax they champion. And business leaders and tax activists, so angered by the ruling, believe the landmark decision could lead to an equally historic reversal -- not by a court, but through future citizen or legislative action.Here is the direct link to the Supreme Court of Nevada's 25-page opinion, dated 7/10/03. And here is a link to all the Documents Relating to GOVERNOR GUINN VS. NEVADA STATE LEGISLATURE Supreme Court of Nevada Docket No. 41679.
A law professor (Eugene Volokh, UCLA) has already posted his view of the decision. And here is a Montanna law professor weighing in.
[Update 7/13/03] More on law professor experts in this story from the Nevada Review-Journal titled "Experts discuss ramifications of ruling against two-thirds majority vote to raise taxes."
"Bankruptcy court banishes pair of lawyers: Trustee condemns father-daughter team for alleged misconduct; others help clients." That is the headline from this story in today's Indianapolis Star. The story begins:
A father-and-daughter attorney team -- barred from practicing in bankruptcy court for "egregious" conduct -- have left lingering troubles for former clients. Some of them may have lost homes in foreclosure as a result, federal officials said. "Certainly the concern exists that people did not get proper representation and, as a result, may have suffered consequences such as losing a home," said Kevin Dempsey, assistant trustee for U.S. Bankruptcy Court for the Southern District of Indiana.As part of a little-known settlement with the court last March, Indianapolis attorneys Lonnie E. Mullins and daughter Patti S. Murphy -- both Indianapolis attorneys -- agreed not to file any more cases in federal bankruptcy court in the Southern District of Indiana. They also were removed as counsel of record in dozens of pending Chapter 13 cases.
If you missed it, also take a look at this Star story from earlier this week, headlined: Bankruptcies set to break record: Filings in much of state may hit all-time high in '03.
Note: I've been unable to locate online a copy of the "little-known settlement with the court last March" referred to in the Star's story.
Wontorski v. Williamsburg Mobile Homes, Inc. (7/9/03)
In this Published Order Dismissing Appeal, by Brent E. Dickson, Acting Chief Justice of Indiana, the Court states:
In this case, the Court of Appeals held that a contractual forum-selection clause established preferred venue and that an action to foreclose a mechanic’s lien need not be brought in the county in which the real estate is located. See Wontorski v. Williamsburg Mobile Homes, Inc., 775 N.E.2d 691 (Ind. Ct. App. 2002). This Court granted Appellants’ petition to transfer by order dated March 14, 2003. Thus, the Court of Appeals’ opinion in this case has been vacated and shall be held for naught. See Appellate Rule 58(A). By “Notice of Settlement” filed June 30, 2003, the parties have notified the Court that they have settled this matter.Being duly advised, the Court now DISMISSES this appeal as moot.
For those unfamilar with the rules, Rule 58 of the Indiana Rules of Court: Rules Of Appellate Procedure is set out below:
Rule 58. Effect of Supreme Court Ruling on Petition to TransferA. Effect of Grant of Transfer. The opinion or not-for-publication memorandum decision of the Court of Appeals shall be final except where a Petition to Transfer has been granted by the Supreme Court. If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated except for:
(1) those opinions or portions thereof which are expressly adopted and incorporated by reference by the Supreme Court; or(2) those opinions or portions thereof that are summarily affirmed by the Supreme Court, which shall be considered as Court of Appeals’ authority.
Upon the grant of transfer, the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court.
B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court. No Petition for Rehearing may be filed from an order denying a Petition to Transfer.
C. Supreme Court Evenly Divided. When the Supreme Court is evenly divided upon the question of accepting or denying transfer, transfer shall be deemed denied. When the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.
"Sheriff put in contempt for jail crowding: Federal judge orders fines for when Marion County Jail exceeds 1,135-inmate limit." The Indianapolis Star this evening reports here that:
A federal judge found Sheriff Frank Anderson in contempt today for the dangerous and inhumane conditions in the Marion County Jail. U.S. District Court Judge Sarah Evans Barker set a 1,135-inmate cap on the jail, to be phased in over the next nine months, and will fine county taxpayers $40 a day for each inmate over the limit. The jail held 1,255 inmates today.Access Judge Barker's order here.Barker said blame does not fall entirely on Anderson's shoulders. "The failures … represent the cumulative results of derelictions of duty in every branch and at every level of county, city and state government," Barker said in her 20-page order. Barker made a surprise inspection of the jail on Monday.
"Appeals court rules against ex-trooper" is the headline of an AP story [now removed 7/11/03] that appears on the Indianapolis Star website this afternoon. Strangely, this story is soooo NOT news -- the decision was issued two weeks ago by the 7th Circuit, was reported here in the Star on June 28th, and was reported on the same day here on The Indiana Law Blog.
The Washington Post had a lengthy story Tuesday that really makes one think. It is titled "Dissertation Could Be Security Threat: Student's Maps Illustrate Concerns About Public Information." Here a few quotes from the beginning of athe article:
[S]ince the Sept. 11, 2001, attacks, [Sean] Gorman's work has become so compelling that companies want to seize it, government officials want to suppress it, and al Qaeda operatives -- if they could get their hands on it -- would find a terrorist treasure map. * * * [T]his George Mason University graduate student has mapped every business and industrial sector in the American economy, layering on top the fiber-optic network that connects them. * * * For this, Gorman has become part of an expanding field of researchers whose work is coming under scrutiny for national security reasons. His story illustrates new ripples in the old tension between an open society and a secure society. * * *This story recalls other recent stories about whether scientific journals should publish articles about anthrax and the like, and stories about the removal of post-Bhopal EPA databases of chemical plant information (intended to alert the surrounding communities of their existence) from the internet.Some argue that the critical targets should be publicized, because it would force the government and industry to protect them. "It's a tricky balance," said Michael Vatis, founder and first director of the National Infrastructure Protection Center. Vatis noted the dangerous time gap between exposing the weaknesses and patching them: "But I don't think security through obscurity is a winning strategy." Gorman compiled his mega-map using publicly available material he found on the Internet. None of it was classified. His interest in maps evolved from his childhood, he said, because he "grew up all over the place." * * *
The implications, however, in the post-Sept. 11 world, were enough to knock the wind out of John M. Derrick Jr., chairman of the board of Pepco Holdings Inc., which provides power to 1.8 million customers. When a reporter showed him sample pages of Gorman's findings, he exhaled sharply. "This is why CEOs of major power companies don't sleep well these days," Derrick said, flattening the pages with his fist. "Why in the world have we been so stupid as a country to have all this information in the public domain? Does that openness still make sense? It sure as hell doesn't to me." Recently, Derrick received an e-mail from an atlas company offering to sell him a color-coded map of the United States with all the electric power generation and transmission systems. He hit the reply button on his e-mail and typed: "With friends like you, we don't need any enemies in the world."
These are difficult issues. Some other pieces. Enviromental lawyers doing due diligence on property purchases review Sanborn Fire Insurance Maps from the 19th and early 20th century to see what might have been located on a piece of property in past years, where underground storage tanks and wells were located, etc. Our resources today are more sophisticated, charting the entire infrasturcture of a city, for instance. But the data still must be accessed for everyday tasks like digging holes for fence posts. And it will provide invaluable information to historians of the next century, if it is available.
I recalled reading once with astonishment about Russian maps. Perhaps apocryphal, perhaps not. Here is what I found to confirm it in a quick Google search:
From a page on Bookstores in Central Mensk, Belarus:
Maps: The most complete, yet very limited, source of maps about Belarus. (It appears that Belarus hasn't gotten over the Soviet siege mentality concerning maps. Many maps have, I'm told, intentional errors and many villages and other features are not shown.) Most notably, this store has the 1:200,000 scale maps (1 cm = 2 km), the most detailed available, other than the scale used for some tourist and city maps. These maps are dated 1984 and 1990 with the most recent printing as 1991. These maps are similar to what US backpackers refer to as "quad" maps that are used for backcountry hiking. Regrettably, these maps are only available in Russian, and not all sections are available (approximately 35 of them depict all of Belarus).And this quote uncovered by Google within a UFO update page (regardless, it still makes the point):
My second story is very well known. During the Soviet era, all maps on public sale in the Soviet Union had intentional errors, in order to fool spies and invading armies. Everybody in Russia knew this, and of course so did the CIA. The joke in Soviet Russia, in fact, was that only the CIA had accurate Russian maps.And, moving full circle, here is a story from today's (Thursday's) Washington Post about how MapQuest is "hitting the road" to upgrade its online maps.
In less than a decade, digital mapping has gone from specialty tool to mass-market service, chipping away at loyalties to the road atlases and AAA TripTiks that used to guide Americans on vacations, business trips and crosstown errands. Tens of millions of people use free Internet services such as MapQuest and Yahoo Maps every month. The satellite-based global positioning system is becoming standard in commercial trucking and is getting a foothold in passenger cars.Satellite images and vast databases of addresses and phone numbers make it possible. But the systems still need to rely on the low-tech help of people who drive around documenting every speed limit, cul-de-sac, turn restriction and traffic sign.
Cornell v. Hamilton (Ind.Ct.App. 7/8/03)
Kirsch, Judge
A story available here from the Indianapolis Star reports on an Indiana Court of Appeals ruling Tuesday relating to same sex couples:
The Indiana Court of Appeals dealt a blow to same sex couples here by upholding the state's funeral leave policy, even though some say it discriminates against gays and lesbians.This is an interesting, thoughtful opinion, well worth reading.Jana Cornell, who works for the Family and Social Services Administration, sued state officials in 1999 after she was denied paid time off when her domestic partner's father died. Marion Superior Court Judge Cynthia Ayers ruled against Cornell in 2002, prompting the appeal.
In the unanimous decision, the three-judge appeals panel ruled that since the state policy treated all unmarried persons alike, it passes constitutional muster. The judges wrote that it is irrelevant to the constitutional argument that Cornell cannot legally marry.
The court acknowledged, however, that families "are different today than they once were." The judges also said some of the state's arguments -- that the policy promotes marriage and encourages procreation -- are unpersuasive. "Many of the largest employers in this country and this state, including its two largest universities, now provide benefits to same-sex domestic partners."
This story in the Washington Post today reports that the Cato Institute has published its annual count of the number of pages in the Federal Register.
The libertarian think tank found that the Federal Register boasted 75,606 pages of federal regulations in 2002, up from a high of 74,528 pages in 2000, when President Bill Clinton was still in office. The surge is part of a decade-long rise in this crude index of federal regulatory activity, with the number of pages in the Federal Register increasing by 24 percent between 1993 and 2002."It is apparent that, in terms of page counts, regulation and agency activity are expanding," wrote Clyde Wayne Crews Jr., the Cato scholar who wrote "Ten Thousand Commandments: An Annual Snapshot of the Federal Regulatory State." "This is in spite of the takeover of Congress by presumably more deregulatory Republicans in 1995."
But page counts don't tell the whole story, noted Crews, the director of technology policy for Cato. The Federal Register also contains administrative notices, presidential statements and other materials, as well as the occasional blank page. What's more, the increase in pages may reflect the wordiness of rules, rather than their importance or fiscal impact. By another measure, the number of rules issued or under review by federal agencies, regulation is down. A total of 4,187 rules were in the federal pipeline in 2002, down from 4,509 rules the previous year and from a 10-year peak of 5,119 in 1994, the study found. The Environmental Protection Agency and the Transportation, Treasury, Agriculture and Interior departments accounted for half of all the regulations.
In a story last week, the Indianapolis Star reported that state Public Records Counselor Anne O'Connor had resigned: "Public's advocate resigns: O'Connor, who aided Hoosiers hindered in quest for open records, will take INDOT job."
Indiana's first and only public access counselor is resigning to accept a different job in state government. Anne Mullin O'Connor, who pushed open the sometimes balky doors of government across the state, is leaving to become deputy commissioner and chief legal counsel of the Indiana Department of Transportation.O'Connor has done a tremendous job, creating a new agency from scratch and giving it great credibility. A quick search of the web located a number of stories within just the last few weeks involving her rulings on matters of local interest. For instance, a recent story about whether citizens could pose questions to Center Grove school board candidates. "Anne Mullin O’Connor, Indiana’s public access counselor, said residents are allowed to attend public meetings but that the governing body decides when residents can speak." And this Ft. Wayne story: "Cedar Creek Township Board met illegally," state official says:Gov. Frank O'Bannon created the public access counselor's position in June 1998 by executive order and appointed O'Connor, then a chief counsel in the Indiana attorney general's office, to the job. In 1999, the Indiana General Assembly made the position a permanent part of state government, ratifying the need for someone to help the public when access to public records and meetings has been denied.
O'Connor, 39, said that since her first day on the job, she has fielded 8,400 inquiries from both the public and government officials across the state. * * * Indiana's lawmakers were angry in 2001 when O'Connor said their e-mails and letters from constituents were public records, subject to disclosure unless the correspondence involved matters specifically exempted by the state's open records law. Legislators weren't required to follow her opinion, and didn't. Nor, really, is anyone else.
But, she added, the opinions and advice she has issued in her five years of interpreting the state's laws have more often than not been heeded by government officials who would rather not end up in court with an unhappy citizen.
Indiana's public access counselor this week sided with three Leo-Cedarville residents who argued the Cedar Creek Township Advisory Board met illegally behind closed doors. In her non-binding opinion, Anne Mullin O'Connor ruled that the township advisory board did not properly announce that it was meeting in executive session and that based on its agenda the meeting should have been open to the public.And there is this story from Evansville:
The Evansville Courier Co. has filed a formal complaint with Indiana's Public Access Counselor, seeking a variety of public records from the Washington Court Redevelopment Corp. Officials filed the complaint last week after the agency, which provides housing assistance to low-income residents, denied an open-records request filed by an Evansville Courier & Press reporter. The request sought copies of financial records, a list of properties held by the corporation, names and addresses of all board members and dates and times of scheduled board meetings.And this column about the same Evansville issue:
Back during the Collier era, Crowe was among those who contended that Washington Court was operating in violation of the Indiana public records act. Now that he's executive director of the agency he sees things differently.The Indiana Public Access Counselor Website is a tremendous resource, a model for Indiana. Take a look. Check out the Public Access Handbook and the complete collection of Advisory Opinions, all available online to the citizens of Indiana.The public access counselor was created by Gov. Frank O'Bannon in 1998 after a study by Indiana newspapers showed widespread violation of public meetings and records laws. O'Connor's opinions do not have the force of law, but usually settle public access disputes short of a court battle.
Thanks to Anne Mullin O'Connor for charting the course for this agency.
[Update] Well, I finally had time to sit down and look at today's Indianapolis Star and found it has a very nice editorial tribute to Anne, titled "Access advocate passes bright torch." Access it here.
As reported here last Friday, the Nevada Governor has sued the Legislature for failure to pass the budget.
[Tuesday's updates]
Two more stories this morning. An AP story that appears in a number of papers, including the San Franscisco Chronicle, begins:
A historic petition from Republican Gov. Kenny Guinn to force Nevada lawmakers to raise taxes drew more than a dozen formal responses from lawyers for wide-ranging interests by a 7 p.m. Monday deadline set by the state Supreme Court.And check out this opinion piece from the Las Vegas Review-Journal:
After their latest plan self-destructed Monday, legislative leaders said they would continue their efforts to resolve an impasse on tax increases and avoid having the Supreme Court decide the issue for them.The deadlock remained as lawmakers and organizations filed briefs with the high court, meeting a Monday deadline for submission of documents related to Gov. Kenny Guinn's request for judicial intervention.
One minute after the fiscal year began July 1, Guinn filed a civil action asking the Supreme Court to order legislators to fund education and levy sufficient taxes to balance the budget. He named every legislator as a defendant. Justices have pledged to issue a prompt decision. * * *
In a brief filed Monday with the Supreme Court, [Attorney General Brian Sandoval] suggested the court order the Legislature to pass tax increases and the public schools budget by a firm deadline. If legislators fail to do so, Sandoval said the court should apply appropriate sanctions, including chapter 34 of the Nevada Revised Statues. * * *
However, Legislative Counsel Brenda Erdoes told the court in her brief, filed on behalf of the Legislature, that the separation of power doctrine prevents the Supreme Court from ordering the Legislature to do anything. She also said the doctrine of legislative immunity bars action against individual legislators for activities related to their legislative functions.
[Monday's entries]
KBVC-TV, Las Vegas, reports here this afternoon:
A team of lawyers in Carson City is working almost around the clock, trying to draft a response to governor Guinn's lawsuit against the legislature. The State Supreme Court has given lawmakers until 5pm Monday [today] to file their response. News 3's Anqunette Moon reports.Meanwhile, the AP is reporting this afternoon, in a story available here, that "Legislative leaders cancel vote:"The Legislative Council Bureau has most of it's staff working on this case. That's because it's very unusual to be given just a few days to file a brief. Normally, lawyers are given a few weeks. But nothing about this budget battle has been normal.
As the state Supreme Court waits for a response from the legislature, lawyers working for lawmakers say they are spending a lot of time doing research. Most of the research centers around the court's request that lawmakers explain why it takes a simple majority to pass a budget and a 2/3's majority to pass a tax plan to support the budget. But the Legislative Council Bureau is also looking at if the Supreme Court even has the authority to tell legislators what to do.
We are looking at all of the legal issues raised. "We are looking at the court's authority over the legislature. There are issues concerning the Nevada constitution and the passage of the budget and the requirement that we fund education."
Failure to line up a needed two-thirds' majority forced legislative leaders to cancel voting today on an $803 million tax package to balance a record $5 billion, two-year state budget and head off historic intervention by the Nevada Supreme Court.Nevada's constitution can be reviewed here. Here is the online Nevada Law Library. And here again is the link to the Supreme Court of Nevada.
"Europe's Constitution: All Hail the Bureaucracy," is an opinion piece talking about the missed opportunites in the draft document the European Union's constitutional convention has been develioping over the past 16 months, published in Saturday's NY Times.
The Declaration of Independence was just a one-page document explaining why 13 colonies felt the need to rebel, but it became a formidable influence and is still being celebrated. Imagine what Europeans might have created: a constitution drawing on centuries of political experience and informed by tragic wisdom borne of millenniums of wars; a document influenced by European philosophers like Hobbes and Rousseau, Hume and Kant, Machiavelli and Montesquieu, who addressed fundamental questions about government and human nature.Apparently that is not to be.
Perhaps, too, this draft will undergo revisions beginning in October, when it is to be reviewed by an intergovernmental conference, though Mr. Giscard d'Estaing has insisted that there is "no longer much room for changes."The drafts may be accessed here, at the European Convention site.But the document itself is marred by such sloppy language and incoherent thought that numerous complaints have already appeared in the international press. (The Economist suggested that the entire document be jettisoned.)
Check here for "The European Union at a Glance," a brief AP article in the Rocky Mount Telegram. Among the current issues listed is: "Debate raging over plans for EU constitution due to be approved early next year, critics say it takes too much power from national governments."
Here is an interesting European viewpoint from EurActiv.com. lamenting: "The media coverage on the Convention – A missed opportunity? The paper argues that the Convention has been a disappointment in terms of a wide and open debate on the future of Europe."Here is how the article begins:
With the end of the Convention, an increasing number of disappointed voices can be heard – at least among those who had hoped for a wide and open debate on the Future of Europe through the mass media. Once again, it is said, the elites took over and the great opportunity for a “wide debate on the future of Europe” (Declaration of Nice) has not been exploited. – Has this really been the case, and if so, what are the underlying reasons for this missed opportunity?Here is a site with more of the actual source documents from the European Convention.The media coverage on the Convention has been criticised concerning both its quantity and its quality. Concerning the quantity of coverage, it cannot be denied that tabloids and the great majority of regional papers have not carried stories on the debates within the Convention at all. One has to admit, however, that institutional debates have rarely moved the masses, at least not if clear-cut solutions are not on offer.
Unfortunately, this is the case with many of the proposals that were discussed in the Convention. Questions of “more qualified majority voting” or “a double-hat model for a future European foreign minister” demand serious prior explanation – and thus an extra effort from journalists and politicians which the majority of them were seemingly not willing to make.
On the other hand – especially given the lack of “European faces” who could have potentially transported such complex debates – many quality newspapers have done a rather good job in covering the Convention. In the first twelve months of this new forum, for example, there have been more than 200 articles in the Frankfurter Allgemeine Zeitung on the Convention and Convention-related matters. In case of Le Monde the number was even higher and even some British newspapers such as The Guardian and The Independent offered decent coverage of the main events in the Convention.
Rory Perry (he is the Clerk of the Supreme Court in West Virginia and is doing an absolutely first rate job, applying cutting edge technology to the benefit of both the members of the bar and the citizenry of his state), in his Rory Perry's Weblog, has identified a really interesting separation of powers controversy taking place in the State of Nevada: "The Nevada Supreme Court is presently considering an historic lawsuit filed by the governor against the legislature alleging that the legislature has failed to comply with its constitutional duty to enact a budget funding public education by July 1." Access Rory Perry's entry and Nevada links here.
Here is a NY Times story from Monday, July 2, surveying the looming budget crisis in a number of states, headlined "As California Borrows Time, Other States Adopt Short-Term Budgets." About Nevada, it says:
Gov. Kenny Guinn of Nevada went to court at 12:01 a.m. today to sue the State Assembly for failing to pass a budget by the Monday deadline. The Legislature in that historically tax-averse state is divided over how to finance public education for the next two years. The governor asked the State Supreme Court to circumvent the Legislature and raise as much as $1.65 billion to finance the state's fast-growing school districts.The most recent (7/3/03) story from the Reno Gazette Journal contains this:
The tax and budget dispute has now gone to the state Supreme Court, as a result of a historic bid by Gov. Kenny Guinn to get the high court to force lawmakers to act.Of particular interest to me was the Nevada Governor's Petition for Writ of Mandamus and this 7/01/03 Statement of Chief Justice Agosti from the Bench."Everyone is talking about getting a lawyer but that shouldn't be our focus," said [Senate Majority Leader Bill] Raggio."We need to talk seriously and hopefully some of these rigid positions (on taxes) can be worked through and we can reach an agreement."
The Supreme Court's involvement in what should be a legislative issue "has some real uncertainties involved and could cause irrevocable harm to separation of powers" between executive, judicial and legislative branches of government, Raggio added.
"Justice Dept. Takes Up a Little Church's Zoning Fight: An obscure battle on Maui is caught up in a constitutional fray," is the headline to this story in today's NY Times, datelined Pukalani, Hawaii.
This story involves the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA). The earlier Indiana Law Blog coverage of this law may be accessed here.
Briefly, according to the Times, a church on Maui applied to the Maui planning commission to build a sanctuary, and was turned down, citing traffic and safety concerns. The church sued. The US Justice Department's Civil Rights Division weighed in, accusing Maui County of religious discrimination and threatening a suit under the 2000 law (RLUIPA). More:
"It's hard to avoid the conclusion that Maui County is being strong-armed from the nation's capital," The Maui News said in a recent editorial. "The case is a local-rights fight worth fighting."The 1997 decision, Bourne v. Flores, is covered in our earlier entry and may be accessed there. The June 24, 2003 holding, Elsinore Christian Center v. City of Lake Elsinore, is accessible here.The county's defense against the church's suit may turn into a significant test of the 2000 statute, which among other things prohibits zoning regulations that impose a substantial burden on churches unless the local government can show a compelling reason for them.
The constitutionality of the law is much disputed. An earlier, broader version of it was struck down by the Supreme Court in 1997, in part on federalism grounds. And on June 24, a federal judge in Los Angeles issued the first decision holding the newer law's provisions on zoning unconstitutional. The judge, Stephen V. Wilson, said that in adopting the legislation, Congress had granted expanded First Amendment protection to churches, and so exceeded its constitutional authority.
Here is another, and different, take on this matter, from the National Law Journal, titled "Local zoning fights get DOJ attention: A 3-year-old federal law helps religious groups in zoning clashes." The NLJ coverage includes links to the original complaint and amended complaint filed by the church against the Maui Planning Commission in the federal U.S. district court for the District of Hawaii.
Here is a story from a town in New Jersey where a church has sued for denial of zoning to run a food pantry: "Church leaders met in December with neighbors concerned about the changed use of the building, which previously was a group home for the disabled. The food pantry and counseling - provided by a service that uses building space - were previously offered in other church buildings, the suit adds. They also are consistent with other "accessory uses" in church facilities such as Habitat for Humanity offices and Scout meetings, the church says."
A great read in this afternoon's Indianapolis Star online, headlined "Feds help to corral fleeing fugitives." "Corral" is the operative word here.
If you have some extra time or are good at multi-tasking, you may watch either or both of these panels on the 2002-2003 term of the Supreme Court with RealPlayer via C-Span:
Cato Inst. Panel on Recent Supreme Court Term
The Cato Institute hosts a panel discussion on the recently-completed 2002-2003 Supreme Court term.
7/2/2003: WASHINGTON, DC: 1 hr. 36 min
Constitution Society Panel Discussion on 2002 Supreme Court Term
Fmr. Solicitors General Drew Days & Walter Dellinger take part in an American Constitution Society panel on the recently-completed Supreme Court term.
7/1/2003: WASHINGTON, DC: 1 hr. 30 min.
An outstanding collection of Daubert-related materials is available at Daubert on the Web. Read the reviews, such as:
"The Supreme Court's 1993 decision, Daubert v. Merrell Dow Pharmaceuticals, forever changed the rules on the admissibility of expert scientific testimony. Now, this useful new Web site may change how legal professionals keep up with its progeny." -- Robert J. AmbrogiAnd now there is a Daubert on the Web Weblog, access it here. (Link via How Appealing).
There is more for you Daubert fans. This intriguing site, with the heading: "Daubert: The Most Influential Supreme Court Ruling You’ve Never Heard Of," starts out:
TEN YEARS AGO, on June 28, 1993, the United States Supreme Court issued an opinion relating to how federal judges should decide whether to allow expert testimony into the courtroom. Prior to this, most federal and state court judges had been relying upon two standards to decide if expert testimony was admissible: relevance (if the testimony addressed a fact at issue in the case and if it would be helpful to the jury); and a 1923 ruling known as Frye, which held that the methods used by the expert in forming his scientific conclusions must be generally accepted within the expert community.And there is this article, that refers to the above site.
Finally, there was a good article in the 6/27/03 Wall Street Journal titled "'Junk Science' Ban Also Keeps Jurors From Sound Evidence." However, I believe it is available to subscribers only.
[Update] See also this link, referring to "efforts to weaken Daubert." (Thanks to The Legal Reader)
"Somebody has to decide whether it is legal to redistrict without a new census requiring it." That is a quote from a story today in the Washington Post headed "GOP Redistricting: New Boundaries of Politics?" Datelined, Dennver, the story starts:
The bill was introduced on a Monday, passed on Wednesday and signed into law on Friday. There was minimal debate and no time for public comment. Still, Colorado statute SB-352 could be a political milestone: the first successful application of a new tactic being pushed by Republican leaders in Washington.And here is a story datelined Monday from the NY Times titled: "Across U.S., Redistricting as a Never-Ending Battle."It starts out:The Colorado law redraws the borders of all of the state's congressional districts -- just two years after the redistricting that followed the 2000 Census. The sole purpose, as leaders of the Republican-controlled legislature confirm, was to strengthen the party's majority in the state's congressional delegation.
A similar effort at re-redistricting failed in May in Texas, when Democratic legislators decamped to Oklahoma, making a quorum impossible in the state House of Representatives. But on Monday, Texas Republicans started to try again; Gov. Rick Perry (R) has called a special session to redraw that state's 2001 congressional map. The session is to run for 30 days, making it harder for Democrats to thwart action.
If Texas this time follows the Colorado model, Democrats have warned that they might retaliate, redrawing congressional district maps to strengthen their party in New Mexico and Oklahoma, where Democrats control both the legislature and the governor's office.
For most of the past century, redistricting has been a fairly predictable though often contentious ritual. Every 10 years, state legislators would use the new census data to redraw Congressional district lines, and the party in power would usually manage to draw maps that gave it an advantage.For comprehsensive coverage of redistricting stories, check the VoteLaw and ElectionLaw blogs regularly. VoteLaw has the advanage of a category on redistricting.Now, thanks to a determined effort by United States Representative Tom DeLay, the House majority leader, with the quiet support of the White House, that tradition may be crumbling, as legislatures draw new districts whenever they have a partisan advantage.
The ultimate strategy would be for the party in power to "fine tune" district lines after every election. If a candidate wins, but with too narrow a margin, adjust the district lines and check the results after the next election to see if any further adjustment is needed. All this is possible now, of course, because of the sophistication of computer districting software, along with refinements in census data and mapping programs.
As for the question posed at the beginning of this entry -- whether it is legal to redistrict without a new census requiring it -- the answer may vary from state to state. Indiana's Constitution provides, at Art. 4, Sec. 5
The General Assembly elected during the year in which a federal decennial census is taken shall fix by law the number of Senators and Representatives and apportion them among districts according to the number of inhabitants in each district, as revealed by that federal decennial census. The territory in each district shall be contiguous. (History: As amended March 14, 1881; November 6, 1984).This mandate could be read to preclude other Indiana General Assembies (i.e. those other nine meeting in non-census years) from also undertaking a reapportionment -- at least of state seats, and perhaps congressional as well.
In an opinion issued today, July 2, 2003 by Judge Posner of the U.S. Court of Appeals for the 7th Circuit, the Court reversed the District Court's decision that dismissed, on grounds of mootness, the Church of the American Knights of the Ku Klux Klan (the parties refer to it as “CAKKKK”) suit to enjoin the enforcement of provisions that the mayor of Gary, Indiana added by executive order to the City’s “parades and processions” ordinance. Access the 17-page decision in CHURCH OF THE AMERICAN KNIGHTS OF THE KU KLUX KLAN v. CITY OF GARY, INDIANA, here. A quote from page 5:
CAKKKK’s intention to demonstrate in the heart of downtown Gary, a city 84 percent of whose 103,000 residents are black, is provocative, to say the least. The Ku Klux Klan, like the burning cross that is its most dramatic and ominous sign, is a symbol of organized violence, physical as well as verbal, directed against blacks. During its heyday in the period of Reconstruction that followed the Civil War, the Klan was an outright terrorist organization dedicated to intimidating blacks and restoring white supremacy. The Klan subsided when its goal was achieved with the end of Reconstruction, but it has had periodic reawakenings, most recently during the civil rights struggles of the 1960s. (For a recent summary of this history, see Virginia v. Black, 123 S. Ct. 1536, 1544-45 (2003).) Lately the Klan has fallen on evil days, splintering into more than 100 often warring groups whose aggregate membership is estimated to be a meager 5,000 to 6,000. See the Southern Poverty Law Center’s database of hate groups, located at http://www.tolerance.org/maps/hate/index.html. One of these Klan groups may have only a single member! “Klan Group Plans Rally to Support Augusta Club,” N.Y. Times, Mar. 2, 2003, at 18. CAKKKK, however, has been among the most active of the splinters in recent years. See Dan Berry [no relation to CAKKKK’s Berry], “Shrunken and Splintered Klan Is Still a Potent Lure for the Disaffected,” N.Y. Times, Oct. 23, 1999, at B5; and another database of the Southern Poverty Law Center, located at http://www.splcenter.org/cgi-bin/goframe.pl?refname=/ intelligenceproject/ip-4i7.html; and see generally Worth H. Weller, Under the Hood: Unmasking the Modern Ku Klux Klan (1998).[Update 7/3/03] This story, "Gary loses KKK lawsuit: Fee required to pay for police overtime during parade found to be unconstitutional." appears in today's Indianapolis Star.
While doing the update, I ran across this important 2-part story in the nwitimes.com titled: "A struggled balance of hope and fear: Valparaiso's first black resident recalls the struggles and triumphs in her successful quest to create a better life for her children." For those of you not that familiar with northwest Indiana, Gary is in Lake County, at the tip of the NW corner, abutting Lake Michigan. The next county to the east of Lake County is Porter County. The county seat of Porter County is Valparaiso. Here is how the story begins:
More than 30 years ago, Barbara Frazier-Cotton, a single, black mother raising her six children in Chicago's public housing projects, brought her family to Valparaiso where they became the first to breach the city's color barrier.During a series of interviews spanning seven months, she spoke of the fear, and racism and, finally, acceptance she encountered during 10 years in the city. This is her story. It resonates today and is but one piece of the ongoing discussion about race relations in the region.
While Frazier-Cotton cracked the door for integration in Valparaiso, the opening remains narrow. According to the latest Census figures, there are fewer than 1,500 blacks living in all of Porter County, which has a total population of more than 145,000.
More recently, the Northwest Indiana Quality of Life Council issued its 95-page report on the region's Quality of Life Indicators, one of which was diversity. According to the report, race is considered Northwest Indiana's "Achilles heel." The region just narrowly avoided receiving the lowest possible rating because of the "tremendous challenge that we face with respect to diversity." In fact, if not for recent steps taken by a handful of area groups interested in fostering cultural diversity, the region would have received a failing grade.
"Air pollution battle heads to court: Family files lawsuit against Rubbertown chemical plant," is the heading for a story today in the Louisville Courier-Journal. The story begins:
The battle over Louisville's dirty air moved to U.S. District Court yesterday when three lawyers, including Kentucky's former environmental enforcement chief, filed a lawsuit on behalf of a West End family who claims pollution is a nuisance that has deprived them of full use and enjoyment of their home.Another story, from WAVE3.com, may be found here. Some quotes:Renee Murphy, her husband, Terry, and their children have experienced "noxious gases, fumes and odors" to such extent that they have suffered from headaches, nausea, insomnia and rashes, according to the lawsuit. The Murphys, who live at 3810 Algonquin Parkway, must keep their windows closed "to keep out the stench," which at times has kept visitors away, the suit says.
"I stopped work three years ago due to my acute migraines, " Renee Murphy said during an interview yesterday in the downtown office of Thomas E. Clay, her lead lawyer. The lawsuit names the Noveon chemical plant on Bells Lane as the defendant. It seeks a permanent injunction against nuisance emissions and $300,000 in damages. Clay called the lawsuit "the opening shot" in what he said would be vigorous legal battle aimed at reducing air pollution from the Rubbertown industrial area. Clay said he anticipates that other plants in western Louisville will be targeted by other residents filing suits.
Phillip Shepherd, another of the Murphys' lawyers, said the lawsuit was triggered in part by revelations about air quality that have come from a West Jefferson County Community Task Force air-sampling project.The task force and its key partner, the Louisville Metro Air Pollution Control District, have not yet released an official draft analysis of the air sampling, which occurred over 12 months in 2000 and 2001.
However, an analysis published May 12 by The Courier-Journal of the monitoring data identified 18 chemicals or compounds at concentrations in Louisville's air that were hundreds of times higher than what government officials consider safe.
The newspaper later obtained the draft risk assessment and reported on its findings May 22. That draft by a Virginia consulting firm identified 26 chemicals or compounds at excessive concentrations and identified cumulative health risks of cancer and other illnesses at air monitors in Louisville that were at or above what the U.S. Environmental Protection Agency had previously estimated for anywhere in the nation.
Here are the holdings in several decisions the Indiana Supreme Court handed down last week. The links are to the html versions on the Court's website.
Michael Georgos & Pangere Corporation v. Claude Jackson (Ind.S.Ct. 6/26/03)
Boehm, Justice
"We hold that an order directing the parties to consummate a mediation settlement agreement, without more, is not a final judgment, and that an attorney attending a mediation settlement conference may bind the client to a settlement agreement despite the client’s absence."
Monty R. Young v. Tri-Etch, Inc. (Ind.S.Ct. 6/26/03)
Sullivan, Justice
"A liquor store employee was abducted and brutally beaten to death by a late-night robber. The employee’s estate sued the store’s alarm service for damages. The store’s contract with the alarm service limited the time in which the store could sue the alarm company. We hold this time limit does not apply to the estate because the employee was not a party to the contract."
Courtney Smith v. Cincinnati Insurance Company (Ind.S.Ct. 6/27/03)
Rucker, Justice
"An underage driver crashed the car of her intoxicated friend while attempting to drive the friend home in the car purportedly with the friend’s permission. The question we address is whether the level of intoxication has a bearing on the ability of an intoxicated would-be driver to give permission to another to operate her car. We hold that it does not."
Donna Bushong and Gary Bushong v. David Williamson (Ind.S.Ct. 6/27/03)
Rucker, Justice
"This case presents the question of whether in a tort action against a public employee, a trial court may examine evidence outside of the complaint to determine whether the employee was acting within the scope of employment. We hold that it may."
NIPSCO v. Grace Sharp (Ind.S.Ct. 6/27/03)
Rucker, Justice (Shepard, C.J., and Dickson and Sullivan, JJ., concur)
"An employee of a trucking company was electrocuted when the bed of his dump truck contacted an electric power line. The employee’s estate sued the electric utility company responsible for the line alleging among other things that the company was grossly negligent. The case ultimately proceeded to trial and the jury returned a verdict in the estate’s favor. On review the Court of Appeals reversed on grounds that the company owed no duty to the employee and thus was entitled to judgment as a matter of law. * * * We affirm the jury verdict and the trial court’s judgment."
Boehm, Justice, dissenting
"I respectfully dissent. I do not find any evidence supporting a finding of gross negligence on NIPSCO’s part. Taking the evidence most favorable to the verdict as recited by the majority, the most that can be said is that NIPSCO maintained the power to the pumping station after its operator requested that and began steps to turn off the power to the rest of the area. The power line to the pumping station was twenty feet in the air. I cannot see any basis to conclude that NIPSCO intentionally disregarded any duty to anyone. At the very most it was negligent, and even that seems a stretch, given the obvious value under these stressed circumstances of keeping the power to the pumps."
Linda Greenhouse has an excellent analysis of this Supreme Court term; it is featured on the front page of this morning's NY Times and headlined: "In a mementous term, justices remake the law, and the court." The story carries over to fill the entire jump page. (Remember, NYT links turn to "pay-for-view" in just one week.) Citing the Court's affirmative action decisions in the University of Michigan cases, its gay rights decision in Lawrence v. Texas, and the Court's decsion earlier this term "opening states to lawsuits for violations of the federal Family and Medical Leave Act," Greenhouse states early in her story:
Each of the three cases "addressed a rather new but rather widely supported cultural development and gave it constitutional legitimacy," Professor Paul Gewirtz of Yale Law School said. To some extent the court was leading the country, and to some extent it was playing catch-up, but the most significant aspect of the term, Professor Gewirtz said in an interview, was the court's role in "consolidating cultural developments," legitimizing them and translating them into "binding legal principle."[Update] A great resource for this term is Cornell Law's Legal Information Institute (LII) Highlights of the Supreme Court’s 2002-2003 Term, summarizing and furnishing rich background on the important decisions of the past term (they count 24 cases in this category), including access to briefs, oral argument, commentary decisions of the lower courts. You may also access the 2001-2002 Term highlights.