Among the rulings issued 8/29/03 by the Indiana Court of Appeals are the following five:
United States v. Estate of Breidenbaugh (IndCtApp 8/29/03)
Bailey, Judge
The issue here was whether the trial court erred by disallowing the IRS’s tax claim as being time-barred under both state and federal statutes of limitations. Reversed and remanded:
Indiana Code Section 29-1-7-7(e) is not applicable to the Claim because it precludes the IRS from exercising its right to enforce the assessment against Breidenbaugh’s Estate. In addition, the Claim is not time-barred by the ten-year federal statute of limitations, pursuant to 26 U.S.C. § 6502(a), because the IRS timely filed the Claim, which commenced a proceeding in court. Moreover, even if the filing of the Claim did not commence a proceeding in court, the applicable ten-year statute of limitations was suspended for approximately seventeen months by operation of 26 U.S.C. § 6503(b), because the trial court controlled or retained custody of all of the Estate’s assets for approximately seventeen months after Breidenbaugh’s death. Accordingly, we reverse the trial court’s order disallowing the Claim as untimely.Gordon Dempsey v. George Carter (IndCtApp 8/29/03)
Dempsey defaulted under the terms of a Land Contract The Court found: "the Land Contract’s terms to be clear and the parties’ intentions apparent. See INB Banking Co., 598 N.E.2d at 582. We further find that Dempsey was given sufficient time to cure his default, yet failed to make any payments on the Land Contract. Consequently, the evidence presented by the Carters that Dempsey defaulted under the terms of the Land Contract is uncontroverted and the trial court properly granted summary judgment in the Carters’ favor."
On cross-appeal, the Carters argued that the trial court erred in granting summary judgment for foreclosure rather than forfeiture:
In [Skendzel v. Marshall, 301 N.E.2d 641 (Ind. 1973)], our supreme court held that in all but a few specific instances, the proper relief to be granted a vendor upon the vendee’s material breach of a land sale contract was not a forfeiture but a judgment of foreclosure pursuant to Trial Rule 69(C) and the mortgage foreclosure statute, Ind. Code § 32-8-16-1. Our supreme court outlined the limited situations in which forfeiture would be justified:Mark Kennedy v. Hene Meat Company, Inc. (IndCtApp 8/29/03)This is not to suggest that a forfeiture is an inappropriate remedy for the breach of all land contracts.…Forfeiture would also be appropriate where the vendee has paid a minimal amount on the contract at the time of default and seeks to retain possession while the vendor is paying taxes, insurance and other upkeep in order to preserve the premises….However, a court of equity must always approach forfeitures with great caution, being forever aware of the possibility of inequitable dispossession of property and exorbitant monetary loss. We are persuaded that forfeiture may only be appropriate under circumstances in which it is found to be consonant with notions of fairness and justice under the law.Here, the Carters maintain that forfeiture is appropriate under the Skendzel exception because Dempsey had paid a minimal amount on the Land Contract at the time of default, and because Dempsey retained possession thereafter while the Carters paid taxes on the Real Estate. Conversely, Dempsey argues that pursuant to paragraph 15 of the Land Contract, he has paid $25,000.00 in principal payments and that, as a matter of contract, forfeiture is no longer available to the Carters. We agree.
The facts involve liability under a Lease Guaranty: JSV, Inc. (“JSV”) signed a lease to rent a portion of a building in Indianapolis from Hene. Kennedy signed the lease on behalf of JSV as one of that corporation’s officers. In addition, Kennedy signed a document simply denominated “GUARANTY.” The document indicated that it was “an absolute and unconditional guaranty” of the lease’s performance by JSV and that the guaranty would not be affected by any modifications or alterations of the lease. Kennedy’s printed name and signature on the document are not followed by any corporate officer designation. When JSV stopped paying rent to Hene, Hene sued both JSV under the lease and Kennedy under the guaranty.
We conclude that the guaranty Kennedy executed was unambiguously a personal guaranty, notwithstanding the fact that the word “personal” does not appear in the document. It is axiomatic under Indiana law that a guaranty agreement must consist of three parties: the obligor, the obligee, and the surety or guarantor. Here, Hene as landlord under the lease was the obligee and JSV as the tenant was the obligor; the disputed issue is the identity of the guarantor. Kennedy claims he signed both the lease and the guaranty as an officer of JSV. However, there would have been no point in Hene’s obtaining Kennedy’s guaranty of the lease if he was doing so only in his official capacity as an officer of JSV. Such an action would have been equivalent to JSV guaranteeing JSV’s performance of the lease and to JSV being both the obligor under the lease and the guarantor under the guaranty. As we have previously held in a factually similar case, such a result would be paradoxical and untenable. In Kordick, we concluded that where a corporate officer executed a guaranty with respect to credit extended to the corporation, the guaranty was a personal one and the officer personally was the guarantor despite the fact that the officer placed his corporate title after his signature on the guaranty. We further concluded that this was apparent as a matter of law and summary judgment on the issue was appropriate. In this case, the guaranty is even more clearly a personal one than was the case in Kordick because Kennedy’s signature thereon is not followed by any corporate officer designation. The trial court did not err in concluding that the guaranty Kennedy executed was a personal one as a matter of law and in granting summary judgment against Kennedy personally. [citations omitted]The Court also discusses the responsibilities of the pro se litigant:
Kennedy, who proceeded pro se below and now on appeal, posits in his brief that the trial rules “are so complex and so hard to figure out and so hard to comply with that a substantial compliance” with the rules ought to suffice. We disagree that the thirty-day deadline for filing a summary judgment response, which is clearly set out in Rule 56, is overly complex. Also, if that deadline was difficult to comply with, Kennedy could have moved for an extension of time to file a response. Finally, “[a] litigant who chooses to proceed pro se will be held to the same established rules of procedure as trained legal counsel.” Wright v. Elston, 701 N.E.2d 1227, 1231 (Ind. Ct. App. 1998), trans. denied (1999). Kennedy’s failure to file a timely summary judgment response as required by Rule 56 cannot be excused by the fact that he was proceeding pro se.Story Bed & Breakfast, LLP v. Brown County Area Plan Commission (IndCtApp 8/29/03)
Planning and zoning. See our earlier entry on Story. In this rehearing, the Court ruled:
Story holds that, for the purposes of this case, Indiana Code chapter 36-7-4’s failure to define “condition” and “commitment” in a meaningful fashion renders objective statutory interpretation of the two terms an impossible enterprise. For this reason and this reason alone, we reverted to common law tenets applicable, which require reasonable notice before a land use restraint may be enforced against a subsequent bona fide purchaser of real property (“BFP”). The policy reasons set forth in the opinion were discussed solely for the purpose of determining what form of notice is reasonable under common law—not for the purpose of determining that common law should be applied in the first place.CSL Community Association v. Jennings Northwest Regional Utilities (8/29/03)
* * * * * If the general assembly clearly determines that PUD [Planned Unit Development ] land use restrictions should be maintained in the minutes of plan commission meetings rather than with the county recorder, we will enforce such a determination, within the property rights guaranteed by our state and federal constitutions. However, absent such direction, we will not require BFPs to perform a potentially exhaustive search through the minutes of plan commission meetings for a land use restriction that may or may not exist. To do so would unnecessarily increase the cost of land transactions by requiring a more lengthy, yet considerably less certain, check of records and create additional liability exposure for title companies, when all of these problems can be avoided by the simple and efficient act of recording PUD land use restrictions. Subject to this clarification, our earlier opinion is affirmed.
CSL Community Association, Inc., (collectively “CSL”) appealed the trial court’s decision in its suit against Jennings Northwest Regional Utilities (“JNRU”), a regional sewer district, contending that the trial court erred in concluding that JNRU’s rates were non-discriminatory and non-confiscatory pursuant to IC 13-26-11 et seq. and reasonable under the common law. The Court of Appeals affirmed. To summarize, the Court said that regional districts operating utilities are governed by a statutory scheme that dictates, among other items, how they must set the rates they charge their customers. The statute grants broad discretion to regional districts to set rates by enacting ordinances. IC 13-26-11-9 describes in detail what constitutes “just and equitable” charges. The statute further specifies that rates and charges too low to meet the described financial requirements are unlawful. IC 13-26-11-9(b). Here, the evidence at trial supports the trial court’s conclusions that the increased rates were necessary to pay JNRU’s current operating expense and service its debt resulting from its expansion project. CSL argues that the rates are inequitable because they are not based on the cost of providing service to its members’ homes. However, unlike investor-owned utilities, which are subject to a different statutory rate requirement scheme and regulation of their rates by the Indiana Utility Regulatory Commission, the statute governing regional districts does not require rates to be based on cost of service. Rather, IC 13-26-11-2 provides that the rates or charges for a sewage works provided by a regional district may be determined based on “[a] combination of . . . factors that the board determines is necessary to establish just and equitable rates or charges.” JNRU’s rates meet this test. Nonetheless, CSL maintains that JNRU’s rates violate its common law right to reasonable rates for sewer service. We believe that the statutory scheme governing rate setting by regional districts operating utilities has subsumed the common law in this area. Because the legislature has supplied the procedure for rate setting by regional sewer districts, no common law right arises to service at a specified rate. Finally:
We recognize that a significant financial burden has been imposed on CSL homeowners and that JNRU’s expansion plans may have been ill-advised. However, the uncontroverted evidence shows that JNRU has actually expended approximately $6 million on Phase I at this point in time, and that JNRU, as a quasi-public entity, has no means of generating revenue besides the rates it charges its customers. Further, the credit markets are no longer available to JNRU as a result of its default on its BANs, so raising funds by borrowing in the open market is no longer an option. Were we to hold that JNRU’s rates were unfair, the likely result would be that JNRU’s BAN-holders would force JNRU into receivership, and the costs to its customers would only increase. In any event, the trial court’s findings are amply supported by the evidence, and those findings support its conclusions.
"Ruling could cost state $137 million: Nursing homes laud decision that would undo payment cuts," is the headline to this story in today's Indianapolis Star, which notes that "State officials plan to appeal to the Indiana Supreme Court."
For a list of links to prior Indiana Law Blog coverage of the D&M Healthcare decision, see the Categories listing to your right.
"White House Proposes Reviews for Studies on New Regulations," heads a story today in the NYTimes. The lead:
The White House budget office plans to require government agencies starting next year to employ panels of independent experts to review the quality of scientific analyses used in developing regulations. In a bulletin that is scheduled to be sent to agencies today and released for public comment, the Office of Management and Budget will propose a standardized process that requires all agencies each year to list planned scientific studies and describe how each will be reviewed.Here is a copy of the 14-page OMB bulletin and here is a copy of the OMB news release.
[Update 8/30/03] Here is the story in this morning's Washington Post. A quote:
All regulatory agencies would be covered by the proposed executive order, but the Department of Agriculture and the Army Corps of Engineers would be among those especially affected, said John Graham, administrator of the OMB's Office of Information and Regulatory Affairs.The proposal would require agencies to systematically seek outside opinions when evaluating scientific findings or disagreements, a process called peer review. Although such independent appraisals are widely respected in science, critics said the process could quickly get murky when applied to such issues as global warming, pesticide use and ergonomic safety, in which the risks and benefits of regulations would be complex, expensive and politically charged.
There have been several interesting recent reports about courts ruling against state laws that prevent the consumer from ordering wine online from a winery in another state. These reports are not in the regular newspapers, but in specialized wine publications.
This story, posted on the Wine Spectator yesterday, reports:
In yet another in a series of recent legal victories for wine consumers, a federal appeals court has paved the way for Michigan residents to begin ordering wines from out-of-state producers. The 6th Circuit Court of Appeals ruled that Michigan's ban on direct-to-consumer wine shipments is unconstitutional, overturning a lower court's ruling in 2001 that upheld the state's liquor laws. Current Michigan regulations allow local wineries to ship to consumers' homes, but make it a misdemeanor for out-of-state wineries to send their products directly to Michigan residents. Those laws have "the effect of benefiting the in-state wineries and burdening those from out of state," wrote the court.The story is accompanied by a number of links to related information.
* * * * * Earlier this summer, the 5th Circuit Court of Appeals overturned Texas' similar ban on interstate wine shipments. This week, the state decided not to ask the U.S. Supreme Court to take the case, and Texas opened its market to direct shipping.
* * * * * This year, the number of states that allow interstate direct shipping with reach 26, with Texas following Virginia and North Carolina in opening up their borders in response to court rulings. In addition, the South Carolina legislature recently passed a law allowing direct shipping. The Coalition for Free Trade is still working on pending cases in Florida and in New York, where oral arguments in appeals court are scheduled for next week. Consumers recently filed lawsuits in New Jersey and Ohio; those are being handled by the Michigan plaintiff's lawyers, Epstein and Tanford.
The Wine Speculator published a comprehensive article on interstate shipping of wine, titled "Tide Turns in Direct Shipping Battle: Wine lovers across the nation are winning hard-fought battles to secure the right to buy the wines they want," on October 21, 2002. Access it here. Page 2 of the story reports that Indiana was in the forefront of this battle:
Wine lovers initially received encouraging news when a U.S. District Court judge ruled that Indiana's direct-shipping ban was unconstitutional. But that ruling was later overturned by an appeals court, and in 2001, the U.S. Supreme Court declined to hear the case.However, the story continues:
After the appeals court decision, CFT and the lawyers retooled their pending cases and refined their strategy. "The biggest thing the industry learned from the first suit was that the absence of winery plaintiffs made a big difference in the judge's analysis," said Genesen. "He indicated that no functional discrimination was proven. No sellers were complaining that they had tried to get wine in and couldn't."Here is a report on the Michigan and Texas decisions from another wine publication, the Wine Lovers Page. Here is an opinion piece by Tony Mauro that appeared in USAToday last December 15, 2002.In subsequent lawsuits, wineries have joined consumers as plaintiffs, and lawyers have used the argument of eco- nomic harm to out-of-state firms, resulting in more success. Although U.S. District Court judges upheld shipping bans in Florida and Michigan in 2001, this year saw back-to-back decisions in which federal courts overturned the bans in Virginia and North Carolina, calling them protectionist because the states allowed for in-state shipments.
Access the 7/28/03 6th Circuit Court of Appeals ruling on the Michigan ban here. I note with interest that counsel for appellants was James A. Tanford, INDIANA UNIVERSITY SCHOOL OF LAW, Bloomington, Indiana.
It turns out that Professor Tanford has a web page on wine shipment cases. Access it here - caution, it may be somewhat slow-loading.
Access the 9/13/00 7th Circuit opinion, Bridenbaugh v. Freeman-Wilson, here.
[Update 8/31/03] Memory is imperfect. The Indiana Law Blog was cleaning off her kitchen table and discovered: (1) A clipping from the 7/17/03 NYTimes which formed the basis of a 7/26/03 entry referencing interstate barriers to wine commerce. Access it here. (2) Last Sunday's NYTimes business section, unread. Now read, the section includes a story titled "The Wine Wars: Bork and Starr Face Off Over States' Rights and Free Trade."
Unfortunately, because the story is now a week old, it has already passed into NY Times "pay-for-view" land, due to the Times' short-sighted (IMHO) archive policy. Some quotes:
The courtroom battle over direct shipping could end up in the Supreme Court. Several challenges to the shipping laws have already gone to federal appeals courts -- and resulted in contradictory decisions. The Court of Appeals for the Seventh Circuit in Chicago determined in 2001 that Indiana's laws prohibiting direct shipping were constitutional. But other appellate courts decided this year that laws in North Carolina and Texas were not.And, as reported above, the Sixth Circuit this week joined the list, invalidating Michigan's law. The NYTimes twist on the story:
Because the issue pits two traditionally conservative causes -- free trade and states' rights -- against each other, it is also a big deal for a Who's Who of conservative scholars, litigators and lobbyists.
"EPA Won't Regulate Greenhouse Gases: Environmental groups' bid for the agency to cut new-vehicle emissions is denied. California may sue, saying the decision threatens state efforts." So reads the headline to this story in this morning's LA Times. More:
In California, an air-quality official also promised to sue the EPA, saying the federal agency's decision threatened state efforts to control greenhouse gases. Under a law signed last year by Gov. Gray Davis, California became the first state to regulate greenhouse gas emissions from vehicle tailpipes. The law requires automakers to reduce emissions as much as possible according to rules the California Air Resources Board is scheduled to release in 2005. The rules would take effect in 2009.Here is the Washington Post story, and here is the NY Times report, which presents the legal basis for the EPA decision:Catherine Witherspoon, the board's executive officer, said her agency would sue the EPA to force it to identify carbon dioxide as an air pollutant. "The EPA not only rejected the petition but made a decision that could limit individual states trying to regulate greenhouse gas pollutants," Witherspoon said. "We fundamentally disagree. We have to stand up and litigate for ourselves over whether greenhouse gases are pollutants."
Illinois, Massachusetts, New Hampshire and North Carolina are also considering laws or regulations to require industries — mainly power plants — to reduce carbon dioxide emissions.
The general counsel grounded his reasoning on a 2000 Supreme Court decision, Food and Drug Administration v. Brown & Williamson Tobacco, that said the F.D.A. could not try to regulate tobacco as a "drug" and cigarettes as a "device." "The Supreme Court said where there is a major public policy decision to be made, an agency can't just go out and use a broadly worded statute to deal with that," Mr. Holmstead said. Mr. Fabricant, the general counsel, wrote, "It is clear that an administrative agency properly awaits Congressional direction on a fundamental policy issue such as global climate change, instead of searching for an existing statute that was not designed or enacted to deal with that issue."To review the EPA ruling for yourself, access the general counsel's memo, and the notice of denial of petition for rulemaking.Environmental groups contested the environmental agency's representation of the Supreme Court decision, saying the case cannot be applied to carbon dioxide. They argue that Congress had taken a stand on tobacco regulation, whereas it has not taken clear stances on carbon dioxide regulation. In the F.D.A. decision, Justice Sandra Day O'Connor wrote, "If Congress has not specifically addressed the question, a reviewing court must respect the agency's construction of the statute so long as it is permissible." The decision went on to say that Congress had specifically spoken on this issue, noting that Congress had directly addressed the problem of tobacco and health through legislation six times since 1965.
More on NSR. Updating our report from 8/27/03 on the EPA's New Source Review changes is this EPA page, which includes the text of the 176-page final rule, currently pending publication in the Federal Register.
Still more on NSR. Today's NYTimes has this story, headed "States to Fight Relaxation of Power-Plant Pollution Standards."
[Update 8/31/03] The Sunday LA Times has an interesting story on the impact of the Bush admiistration's air policies on the pollution control industry:
The Bush administration on Wednesday announced a relaxation of the Clean Air Act's requirement that older facilities install modern pollution-control devices when they modify their plants in ways that significantly increase emissions. The new policy was the second step of the administration's reform of the "new source review" portion of the Clean Air Act, and it had been in the making for two years. The prospect of this reform had already weakened the market for pollution-control equipment, experts said.Industry representatives, state officials and environmentalists agree that under the new rule, coal-fired power plants, the nation's biggest polluters by far, will rarely if ever trigger this requirement to install pollution-control devices. "It looks like we will have a lot of lean years here," said David Foerter, executive director of the Institute of Clean Air Companies, which represents 80 firms that produce pollution-control devices.
Grott v. Jim Barna Log Systems (IndCtApp 8/28/03)
Najam, Judge
The issue was: "whether the trial court erred when it gave effect to a forum-selection clause in the parties’ purchase agreement." The Court here affirmed.
The Grotts maintain that the trial court has personal jurisdiction over Jim Barna Midwest and Rosi. Thus, they contend that the trial court erred when it granted Jim Barna Midwest and Rosi’s motion to dismiss. In essence, the Grotts assert that the forum-selection clause in the purchase agreement was not freely negotiated and is unjust and unreasonable. They also assert that the clause does not apply to Rosi. We cannot agree.
* * * * * In sum, the trial court properly granted Jim Barna Midwest and Rosi’s motion to dismiss. The forum-selection clause clearly stipulates that any disputes that arise between the parties must be litigated in Tennessee. The provision was freely negotiated, and enforcement of the clause will not deprive the Grotts of their day in court. Therefore, the provision is neither unjust nor unreasonable, and it is not the result of overreaching by a stronger party. And because Rosi was a transaction participant under the purchase agreement, the forum-selection clause governs the Grotts’ claims against him.
The Indiana Department of Revenue (DOR) has issued an interesting Letter of Findings (LOF) re the operator of a solid waste landfill's claim that the DOR estopped from assessing the solid waste disposal fee against the landfill operator:
The taxpayer [argues] that the taxpayer relied on the alleged oral statements of a Department of Revenue employee (hereinafter John Doe) and therefore, per the taxpayer, the “Department should be estopped from recovering the assessments * * *If interested, you may access this LOF here, on pp. 11-14.With regard to (A) above, the taxpayer states that it was erroneously instructed on how to fill out the SW-100 by John Doe. The taxpayer describes the timeline of events as follows. In January 1995 a letter (dated January 20, 1995, from John Doe, Special Tax Division of the Department of Revenue, and addressed to the City of X Sanitary Landfill) was received by the taxpayer. The letter stated that all solid waste final disposal facilities in Indiana had to file a SW-100 form by the tenth of each month. The letter noted that no SW-100 for November 1994 had been received by the Department. * * *
[I]t is worth noting that the alleged conversations between the office manager and John Doe were oral. That fact is salient because the Department’s regulations state in part:
Oral opinions or advice will not be binding upon the department. However, taxpayers may inquire as to whether or not the department will make a ruling or determination based on the facts presented by the taxpayer. If the taxpayer wishes a ruling by the department, the formal request must be in writing. A taxpayer may also orally receive technical assistance from the department in preparation of returns. However this advice is advisory only and is not binding in the latter examination of returns. 45 IAC 15-3-2(e).The Department’s position is that since the alleged advice was oral (via telephone), the Department is not bound under 45 IAC 15-3-2(e). The taxpayer did not avail itself of the proper procedures for a binding opinion. That said, even if the Department accepted the taxpayer’s facts arguendo, the taxpayer does not meet the elements of estoppel. In West Pub. Co. v. Indiana Dept. of Revenue, 524 N.E.2d 1329 (Ind.Tax 1988), [the court listed the necessary elements for estoppel].
A story published in the Warsaw, Indiana Times-Union today reports that:
David Van Dyke, 53, Warsaw, filed a guilty plea with the U.S. District Court, South Bend, Monday on three of the 37-count federal indictment against him. Van Dyke is the former Warsaw wastewater treatment plant operator who was on trial in U.S. District Court in South Bend last week, facing multiple Clean Water Act violations. He is accused of filing false reports to hide the illegal discharge of tons of solids and sludge and large quantities of diesel fuel in Walnut Creek.Here is a story published last Friday, during the course of the trial. A story published by the Times-Union November 1, 2002 reported:
Federal and state investigators converged upon the Warsaw wastewater treatment facility Thursday, arriving soon after the work day began, presenting an all-encompassing search warrant. Officials from the U.S. Environmental Protection Agency went through “various” records, according to public works superintendent Lacy Francis Jr. Indiana Department of Natural Resources Conservation officers guarded the entrance of the building. * * * The Times-Union received copies of IDEM’s notice of violation, dated Oct. 29, via fax. The document charges the wastewater treatment plant with violation of 11 environmental statutes, rules and provisions.Here is the Notice of Violation (NOV) issued by IDEM, dated Oct. 29, 2002. Here is a story about the indictment. Thanks to Marty Lucus for senting me the recent Times-Union links. And thanks to the Times-Union for maintaining their past stories online for a reasonable period of time. Marty runs a good web log called the Kankakee River Log, feauring northern Indiana environmental issues.
[Update 8/28/03] A story headed "Sewage Spill During Blackout Exposes a Lingering Problem" in today's NYTimes reporting on how the lack of backup generators has led to massive spills in New York:
Minutes after New York City lost its power on Aug. 14, streams of raw sewage began to flow into surrounding waterways. By the time electricity was restored, 490 million gallons had spilled — 145 million gallons from the city's largest pumping station, on the Lower East Side — causing beaches to close and posing health and environmental hazards.This was not the first time. The blackout of 1977 caused a sewage overflow of 828 million gallons, which spilled from eight treatment plants and the same sprawling station on the Lower East Side, the 13th Street Pump Station on Avenue D between East 12th and 13th Streets.
The Wall Street Journal (subscription required) is reporting in its afternoon online update that the acting EPA commissioner has signed a new rule that exempts "thousands of older power plants, refineries and factories from having to install costly clean-air controls when they modernize with equipment that improves efficiency but increases pollution." For background see the Indiana Law Blog entry from 8/23/03 here. The Kansas City Star is reporting the AP story here.
[Update 8/28/03] Here is coverage from the Washington Post, here from the Washington Times, and here from the NYTimes.
[More] Here is the NYTimes editorial for 8/28/03.
Among the decisions issued yesterday by the Indiana Court of Appeals were these three:
Kristin R. Lashbrooks v. Maria H. Schultz (8/26/03 Ind.Ct.App.)
Brook, CJ - concerns the sudden emergency doctrine and the trial court's instructions to the jury thereon.
Aaron Baker v. Fenneman & Brown Properties, LLC and Southern Bells of Indiana, Inc., all d/b/a Taco Bell (8/26/03 Ind.Ct.App.)
May, J - "Baker raises one issue, which we restate as whether Taco Bell has a duty to assist a customer who falls to the floor and loses consciousness when the customer’s fall was not due to any fault of Taco Bell."
Young v. Thompson (8/26/03 Ind.Ct.App.)
Baker, J - "Appellants-plaintiffs Beverly, Robert, Michael, Walter, Eric, and Michelle Young (collectively, the Young Children) appeal the trial court’s grant of summary judgment in favor of appellees-defendants Robert C. Thompson, Jr. and Rhoda Young. They contend that there is a genuine issue of material fact regarding whether they reasonably relied on defendants’ statement that there were five months within which to begin a will contest. They also argue that there is a genuine issue of material fact about whether the defendants’ statement proximately caused their injuries. Because the Young Children met with ten attorneys before the window for filing a will contest expired, we hold as a matter of law that they did not reasonably rely on the defendants’ statements and affirm the trial court’s grant of summary judgment."
In the Matter of the Estate of: Samuel J. Dellinger, Sr., Deceased v. 1st Source Bank (8/26/03 IndSCt)
Boehm, Justice
An indication of the interest in this case is that while a single firm is listed for the appellant, the column listing the amicus curiae filings for the appellee continues for two pages. The ruling:
We hold that a single signature of each of two witnesses in the presence of each other and of the testator may serve to witness a will and also to self-prove it. That is what occurred here. Accordingly, we affirm the trial court’s holding that the will in this case was properly admitted to probate.The Court takes note of the recent action of the General Assembly to clarify the requirements at issue: "Finally we note that the General Assembly recently enacted legislation amending the statute at issue to explain more clearly the methods for properly witnessing wills." More:
If the statute as it currently reads had been in effect when Dellinger’s will was executed, there would be no question that the will was properly witnessed. We think that the 2003 amendments were simply the most recent in a long line of changes to the statute that were meant to eliminate the need for live witness testimony to prove the validity of a will signed by the testator and witnesses in the presence of each other.The Court also states that although it believes the question of whether the will was self proving is moot here because it was properly proved at trial:
because amici curiae suggest the importance of resolving this issue, we address it. We hold that Dellinger’s will was properly made self-proving under subsection (d) of the statute, quoted above. A will is self-proving under this section because, by signing this clause and claiming that all of the above facts are true, the testator and witnesses assert that the circumstances surrounding the execution of the will were proper. This allows the will to be admitted to probate without the testimony of any of the subscribing witnesses. By signing the fifth page bearing the quoted language, the witnesses asserted all of the facts required by statute. Accordingly, the will is self-proving.Conclusion: "The will was validly attested and made self-proving pursuant to Indiana Code section 29-1-5-3(a). The judgment of the trial court rejecting Conrad’s Motion to Contest is affirmed."
Note that the Court of Appeals had reversed the trial court. The Supreme Court here affirms the decision of the trial court. For background and a look at the Court of Appeals decisions in this case, access this May 11, 2003 entry from The Indiana Law Blog.
Edward Niksich v. Zettie Cotton (8/25/03 Ind.Ct.App.)
Kirsch, Judge
An issue here was "whether Ind. Trial Rule 12(B)(6) applies to small claims actions." The court ruled:
Because the Small Claims Rules specify when a small claims court can dismiss a plaintiff’s claim, T.R. 12(B), which allows the court to dismiss a plaintiff’s claim for a number of reasons, including that invoked here, failure to state a claim upon which relief can be granted, does not apply in small claims cases. * * *In a footnote that Court notes:Furthermore, we note the difficulty were we to reach the opposite result. In contrast to the Trial Rules, which require the plaintiff to include in his or her complaint “a short and plain statement of the claim showing that the pleader is entitled to relief,” T.R. 8, the Small Claims Rules require a plaintiff only to include in his or her notice of claim “[a] brief statement of the nature and amount of the claim . . . .” S.C.R. 2(B)(4). The policy of small claims pleading is not to be bound by statutory provisions or rules of pleading. Allowing defendants to bring T.R. 12(B)(6) motions challenging the sufficiency of the complaint is incompatible with the lower burden of pleading in small claims cases. [citations omitted]
In so holding, we note that in at least one case, E & L Rental Equipment, Inc. v. Gifford, 744 N.E.2d 1007 (Ind. Ct. App. 2001), another panel of this court held that a small claims case should have been dismissed pursuant to T.R. 12(B)(6) because the plaintiff was not a real party in interest. To the extent that this case can be interpreted as endorsing the use of T.R. 12(B)(6) in small claims cases for any reason other than to implement T.R. 17(A), we disagree.
Part IV-B. Wrap-up and Conclusions.
[Note: For links to earlier entries, select "D&M Healthcare" from the Categories list in the right-hand column.]
Indiana follows the Enrolled Bill Rule (Enrolled Act Doctrine) – doesn’t that mean that the Court can’t look into internal legislative procedures, such as when a bill was returned by the Governor?
Indeed, the Indiana Supreme Court has consistently ruled that, except in cases of fraud, one can't go to the journals to discredit a bill signed by the Speaker and President. However, it also has made clear that the Governor’s actions with regard to his exercise of Article 5, section 14, are a different matter.
What follows is a quotation from Taxpayers Lobby v. Orr, 262 Ind 92 (1974). The claim in this case was that a tax bill had been enacted without the General Assembly following procedural requirements set out in the Constitution regarding the reading of bills, voting thereon, and the duration of legislative session. (This may have been the case where the Senate President, then Lieutenant Governor Orr, held the voting machine open for several hours until enough Senators voted in favor of the measure at issue.) The Court here cites to the pocket veto case from 1968, State v. Indiana Revenue Board that, as we noted earlier in these entires, led to the revision of Article 5, section 14.
ISSUE III. Several issues are here grouped under the central theme of unconstitutionality by reason of improper legislative procedures. With respect to this theme, we are confronted at the threshold by the "Enrolled Act Rule." The act in question bears the signatures of the presiding officers of the General Assembly, and the courts of this state have consistently held for over one hundred years that those signatures conclusively establish the due passage of an act. Our courts do not go behind or receive evidence going behind an enrolled act in order to determine if the General Assembly did, in fact, comply with the constitutional procedural requirements. * * *You made a big deal a few days back about there being “no receipts.” Does that matter?Plaintiffs have cited a number of cases from other jurisdictions in avoidance of the "Enrolled Act Rule." Such cases are not persuasive with us. They are from jurisdictions following the "Journal Entry Rule," which holds that the courts may properly look to legislative journals to determine if constitutional procedural requirements were met. In Evans, Auditor of State v. Browne, supra, we expressly rejected that rule as an "essentially mischievous doctrine."
Plaintiffs have also cited two Indiana cases in avoidance of the "Enrolled Act Rule," namely State ex rel. Mass Transportation Authority, etc. v. Indiana Revenue Board et al. (1969), 144 Ind. App. 63, 242 N.E.2d 642 and State v. Clark (1966), 247 Ind. 490, 217 N.E.2d 588. Neither case, however, will support their position. [State v. Indiana Revenue Board] rejected the theory that a "pocket veto" by the Governor was a constitutionally permissible veto, notwithstanding that the practice was one of long standing. However, although the Court in that case delved into the legislative activities or circumstances transpiring prior to affixing the authenticating signatures, the case actually was concerned with what transpired or did not transpire thereafter. In no sense can it be considered an erosion of the "Enrolled Act Rule." [emphasis added]
The case of State v. Clark, supra, contains some unfortunate dicta indicating that a positive showing from the records of the General Assembly might refute the certification by the presiding officers. We repudiate this statement as suggestive of a doctrine that this Court cannot follow.
Yes. First off, I may have been wrong about some of that. The Governor’s office maintains a log of when it receives bills, the deadline for action, and date acted on. I now understand that the Governor’s office may require the House and Senate staff to sign for the delivery of the vetoed enrolled acts delivered during a session and also during the interim. So the Governor’s office may have a comprehensive set of logs accounting for every bill presented to it going back to 1973. But as far as I know, these logs are not readily available.
At times in the past, the Governor’s office has maintained a blackboard outside the Governor’s office during the session showing some of this information. None of it appears on the Governor’s website. For the past few years the Governor has posted the text of the veto messages on his website. But these messages are not helpful in determining when a vetoed bill was returned to the house of origin. They all end with the phrase “I am herewith returning ...” My understanding is that in the past the vetoed bills have been physically returned within a few days of the announcement of the veto. This past session, however, they have not been returned at all – the Governor has retained them for delivery “on the first day” because of the issues raised in this lawsuit. However, the veto messages for these retained bills read the same – “I am herewith returning ...” For example, here is the link to the veto message for HEA 1866, vetoed in 2001, and for HEA 1798, vetoed in 2003.
As for the House and Senate, the Journals of the two houses (these are required in the Constitution) do not specify the dates of return of the vetoed bills. In fact, with a few exceptions, the vetoed bills are not referenced at all unless a vetoed bill is taken up for a vote to sustain or override. In that case, a journal entry for that day shows both the Governor’s veto message and the vote on override. The journals for the past few years are accessible online; the journals for every General Assembly have been published and are available through the Public Bill Room and in many libraries.
A situation such as is posed now by D&M Healthcare shows how important complete records are and how essential it is that this information be maintained so that it may be accessed in the future. A rough survey indicates that under the Court of Appeal's ruling, close to 150 bills* that were vetoed after adjournment potentially have become law because of the Governor's failure to strictly comply with the Constitution's requirements over the past 30 years. Unless the parties stipulate the facts with regard to these bills, the logs will become very important in proving that any particular vetoed bill was not returned on the "first day."
(*My estimated count includes vetoes which were sustained by the General Assembly. If a vetoed bill became law because of the failure by the Governor to deliver on the "first day," a vote thereafter to sustain the veto would be meaningless.)
Are there any other issues you haven’t covered?
Yes. First, to review the basics, the Court of Appeals in D&M Healthcare found that Article 5, section (a)(2)(D) was not ambiguous: “We decline FSSA’s invitation to so interpret the mandatory language of this clear and unambiguous provision of our constitution.”
Quoting an earlier opinion’s statement that “when a statute or amendment to a constitution is clear, then no extrinsic evidence may be admitted as to legislative intent,” the Court of Appeals declares: “FSSA directs us to no ambiguity in this constitutional provision and we find none.” The Court concludes:
It has long been established that the words used in a constitution “should be taken in their literal signification, unless, by giving them such signification, the meaning of the instrument is rendered doubtful, or it is made to lead to possible oppression or injustice, or to contradictions or absurd results.” May v. Rice, 91 Ind. 546, 555 (1883). We find no oppression, injustice, contradiction or absurdity in the requirement that the governor return a vetoed bill on the first day of the next session, and accordingly hold House Bill 1866 became law notwithstanding the governor’s veto pursuant to the plain andA flowchart prepared of Article 5, section 14 demonstrates precisely what the Court has determined (access the chart here). For a bill vetoed after final adjournment, as was stipulated to be the case in D&M Healthcare, the Governor clearly is required to return the bill to the house of origin on the first day that the General Assembly is in session after such adjournment, or the vetoed bill becomes law.
unambiguous language of Art. V § 14.
However, the chart also conclusively shows that the language of Article 5, section 14 does not adequately cover the situation where a bill is vetoed while the General Assembly is in session and is returned by the Governor to the house of origin within 7 days of presentment, as required by section 14 (a)(2)(A), but after the General Assembly has adjourned.
Under the requirements of section 14 (a)(2)(A), if the Governor does not return the vetoed bill within 7 days, it becomes law. But in the situation contemplated here, the General Assembly has adjourned. We have discussed at length the logic of the requirement of section 14 (a)(2)(D) that a bill vetoed after adjournment be retained by the Governor for delivery on the first day that the General Assembly is in session after the adjournment. But that logic fails if the same section 14, at (a)(2)(A), requires that a bill vetoed while the General Assembly is in session be returned to the General Assembly within 7 days of presentment, whether the General Assembly is still in session at that point or has adjourned and gone home. And that, failing such return, the veto becomes law, presumably on the 8th day. Several dozen bills may fall into this category.
The Indiana Supreme Court has posted its oral arguments schedule for September, 2003. Access it here. Access the Courts in the Classroom list of Supreme and Appellate Court arguments available live and on-demand online for September 2003 here.
The $12 billion appeal bond case talked about a number of times in The Indiana Law Blog, most recently here, is just one of many plaintiffs' cases filed in the Madison County, Illinois courts. The St Louis Post-Dispatch reported here last Thursday on the popularity of these courts with plaintiffs' attorneys. The story begins:
Lawyers hoping to capitalize on Madison County's reputation as a "plaintiff's paradise" will be looking closely at a ruling issued Thursday by the Illinois Supreme Court.In a case involving a 1997 collision in Macoupin County between a truck of Union Pacific Railroad and a tractor of a private individual, the justices overturned lower court rulings that the case be heard in Madison County. The Supreme Court said a judge must consider more than just where a plaintiff would like the case heard. Judges must also weigh other factors, such as where the event that led to the suit occurred and where the parties live or work. * * *
The Madison County Courthouse has garnered nationwide attention for what critics call its reputation as a "plaintiff's paradise." The U.S. Chamber of Commerce and other organizations sent representatives to the courthouse in June to unveil the "Madison County Manifesto," which calls on local judges to tamp down on what the groups perceive as lawsuit abuse.
The story also provides a link to the Illinois Supreme Court opinion - it may be accessed here.
An AP story from the same day is here.
Part IV-A. Wrap-up and Conclusions.
Who knew? There are more issues upon which to reflect than I had anticipated.... I do think a Q&A format might help here.
(Note: These reflections are nothing more than my take on the issues; I direct you, if necessary, to my disclaimer).
Tip. I've set up a new Category for D&M Healthcare-related entries - this link (also always available under "Categories" in the right-hand column) will lead you to a list of links to all the related entries.
Where a bill is vetoed after final adjournment, when is the “first day that the General Assembly is in session”?
Generally, this will be the organization day in November.
In the year 2001, for instance, the first regular session of the 112th General Assembly adjourned on April 29, 2001. On November 20, 2001 the second regular session of the 112th General Assembly commenced with organization day. It then reconvened on January 7, 2002.
But if there had been a special session called during the interim, beginning perhaps on August 1, 2001, that would be "the first day the General Assembly is in session" after adjournment of the first regular session of the 112th General Assembly. (And any bills vetoed by the Governor after adjournment of the special session also would be returnable on the November 20, 2001 organization day.)
In addition, the “first day” may be the technical session day, established by law in 1995 at IC 2-2.1-1, as a one day session that may take place about 30 days after the regular session adjourns sine die, to take care of bill conflicts, technical errors, and vetoed bills. This law provides that before the regular session adjourns the General Assembly may pass a concurrent resolution setting a day for the technical corrections session. If a technical session day is held, it would fill the requirements as "the first day the General Assembly is in session" after adjournment. Thus the Governor would be obligated to deliver any vetoed bills to the respective houses on that day.
{NEW PARA.} In any case, whether the "first day" turns out to be the technical session day, the first day of a special session called during the interim, or (if neither a technical session or special session is scheduled) the organization day in November, under Sec. 14(a)(2)(C), the vetoed bill must be reconsidered and voted upon "before the final adjournment of the next regular session of the General Assembly that follows the regular or special session in which the bill was originally passed." So any bills vetoed after the General Assembly adjourned on April 29, 2001, as in the example above, or after a special session occuring in the interim, would have to be acted upon before the final adjournment of the regular session of the General Assembly convening (after its organization day on November 20, 2001) on January 7, 2002.
[Note that, although probably unnecessary, the technical section language at subsection (f) provides that “the first regular technical session is not considered a regular session if the General Assembly does not consider or act upon vetoes of bills enacted during the first regular session under this section.” In other words, the vetoes may still be considered for override in the regular session.]
When does a vetoed bill become law if it is not returned on the requisite “first day” pursuant to the Court of Appeal decision?
I'd make a case that the vetoed bill becomes law on the day following the “first day.” This would parallel section (a)(3), where if the Governor neither signs nor vetoes a bill within 7 days of presentment, it “becomes a law on the 8th day.”
If the purposes underlying the constitutional requirement – that the General Assembly be given an opportunity to override the Governor’s veto – are not thwarted by the early return, then what is the problem here? Shouldn’t the Constitution be liberally construed?
The Court of Appeals said the problem is that the Constitution is to be taken at its word. The Court ruled that the requirement at issue is clear, there is no ambiguity in section 14(a)(2)(D) regarding when the Governor is to return a bill vetoed after final adjournment, and he did not comply. The vetoed bill is to be returned on the “first day ...” or it becomes law despite the veto.
To validate an early delivery when the General Assembly was not in session, the Court would have to find that, despite the plain words of the requirement, the return was “constructive compliance” by the Governor and thus did not obviate his veto.
{NEW PARA.} The Court in D&M Healthcare quoted from Hendricks v. State, 245 Ind. 43 (1964), where Justice Arterburn, writing for the majority, said: "The veto power is a restriction upon the legislative branch of government and is in derogation of the general plan of government for the separation of powers. This power, therefore, must be strictly construed." Justice Achor, in a concurring opinion, stated that the Governor's veto power "is merely a limitation on the power fundamentally vested in the Legislature. Such limitation should therefore be exercised only as it is expressed in clear and unambiguous terms within the constitutional provision, itself." I take this to mean the Governor is not to be granted any leeway in meeting the constitutional directive.
Remember too, the requirement is in Article 5 – Governor, and is an obligation on the Governor, rather than upon the General Assembly. This could be important to keep in mind in the event the General Assembly sought to resolve the issue by enacting a law delegating the authority to staff to receive vetoes from the Governor during the interim between legislative sessions. Regardless of the new law, the Constitution still would require that the Governor return the vetoes "on the first day ...".
This also raises again an issue I touched on several days ago. The legislative authority of the State is vested in the General Assembly. The Constitution sets out in detail the process to be followed by the legislature when making a law. Can any of these constitutionally-prescribed law-making functions be performed while the General Assembly is not assembled in session (meaning that period between the time it convenes and adjourns sine die)?
Doesn’t the fact that the Governor and General Assembly have been handling vetoes this way for over 30 years count for anything?
No. To put it simply, neither the Governor nor the General Assembly can amend the Constitution by practice. A very good example of that is the pocket veto case I discussed some days ago, here. The Court of Appeals stated in 1968: "We judicially know that for years the executive branch of our state government has illegally and unlawfully pocket-vetoed various bills which have been enacted by the legislature." [my emphasis]
I was delighted to locate in my library a copy of the 1968 publication: "Legislative Procedure in the General Assembly of the State of Indiana." This handbook sets out the procedures that were in operation at the time the pocket veto was effectively challenged. The most interesting thing about it, viewed in hindsight, is that it shows how the legislature not only accepted the Governor's use of the pocket veto, but was complicit in the process.
Recall that the original version of Article 5, section 14 provided that "no bill shall be presented to the Governor within two days next previous to final adjournment of the General Assembly." As a result, the handbook sets out two sets of procedures, "Required actions" for bills presented to the Governor in the first 59 days, and "Discretionary actions" for bills presented to him during the last two days of the session. The end run around the Constitution occurred in the last two days where the General Assembly presented bills to the Governor in spite of the prohibition, and the Governor "at his discretion" accepted those presented during the last two days. (I've scanned pp. 42-46 of this document, it may be accessed here.)
Coming next. Part IV-B, THE conclusion.
As reported in a story published yesterday in the NYTimes:
After more than two years of internal deliberation and intense pressure from industry, the Bush administration has settled on a regulation that would allow thousands of older power plants, oil refineries and industrial units to make extensive upgrades without having to install new anti-pollution devices, according to those involved in the deliberations.The story reports that the change "would constitute a sweeping and cost-saving victory for industries, exempting thousands of indus trial plants and refineries from part of the Clean Air Act" and that it could be signed by the acting EPA administrator as early as next week. More:
The current rule requires plant owners to install pollution-control devices if they undertake anything more than "routine maintenance" on their plants. Industries have long argued that the standard is too vague and hinders substantial investment in cleaner, more efficient equipment.This morning's NYTimes has an editorial titled "Fouling the Air," that begins: "In defiance of Congress, the courts and the requirements of public health, the administration is on the verge of effectively repealing a key section of the Clean Air Act."The new rule says that as much as 20 percent of the cost of replacing a plant's essential production equipment — a boiler, generator or turbine — could be spent and the owner would still be exempt from installing any pollution controls, according to people involved in the deliberations.
Together, such equipment can cost hundreds of millions of dollars, sometimes more than $1 billion, to replace. A utility or factory could thus make tens of millions of dollars worth of improvements without being required to install pollution controls.
The Washington Post reports the story here this morning. Some quotes:
The decision marks an important, cost-saving victory for the utility industry, which has vigorously lobbied the administration for the past 21/2 years to relax the Clean Air Act enforcement program.Here is the NRDC press release, referenced in the NYT story. And here is a link to the Indiana Law Blog's 8/903 entry on the Ohio Edison decision interpreting the meaning of the term "modification" under the CAA.That program, known as New Source Review, generated dozens of state and federal lawsuits against 51 aging power plants during the Clinton administration, and forced some of them to agree to install hundreds of millions of dollars of pollution-control equipment.
Earlier this month, a federal judge ruled that FirstEnergy's Ohio Edison Co. violated the law by upgrading seven coal-fired power plants without installing pollution equipment -- the first time a judge has ruled against a utility in those cases.
Industry advocates have complained that the current enforcement system is confusing, and has discouraged investment and expansion at a time of increased demand for expanded and reliable sources of power. Industry and EPA officials said yesterday the new rule would encourage plant improvements, provide greater regulatory certainty and reduce dangerous emissions.
Schultz v. Wolfe (IndCtApp 8/22/03)
Sharpnack, Judge
This 12-page opinion has a good discussion of change of judge issues:
Lynette Schultz appeals the trial court’s denial of her motion for change of judge in a post-dissolution proceeding. Schultz raises one issue, which we restate as whether the trial court properly vacated its prior order granting Schultz’s motion for change of judge and resumed jurisdiction of the case after finding that the striking of the judges had not been timely completed as required under Indiana Trial Rule 79. We affirm.Brook, C. J. concurs Baker, J. concurs with separate concurring opinion, which begins:
While I agree that my colleagues have correctly recounted the present state of the law in this instance, I write separately to express my views regarding the pitfalls that are inherent as the result of today’s decision. In the circumstances presented here, Schultz maintains that she did not receive the order appointing the panel until April 17, 2002. Her act of striking one of the judges on the thirteenth day before the period was to expire, in effect, afforded Wolfe no time to respond and strike one of the panel members before the original court resumed jurisdiction. Such a result is troubling because the provisions of T.R. 79 effectively invite a certain amount of justice by ambush and perpetuate a rule that simply encourages a race to the courthouse in some instances.
Looking at the very helpful Northwestern University docket for the 2003-04 term, 39 cases have been accepted so far, and three of them involve environmental issues. Here are the summaries of these cases, as presented on the NWU site:
South Florida Water Management District v. Miccosukee Tribe of Indians, et al.
Question(s) presented: Whether the South Florida Water Management District's longstanding practice of pumping accumulated water from a water collection canal to a water conservation area within the Florida Everglades constitutes an addition of a pollutant from a point source for purposes of Section 402 the Clean Water Act, 33 U.S.C. 1342, where the water contains a pollutant but the pumping station source itself adds no pollutants to the water being pumped? [Access more information here].
Alaska Dept. of Environmental Conservation v. Environmental Protection Agency, et al.
Question(s) presented: Whether Sections 113(a)(5) and 167 of the Clean Air Act, 42 U.S.C. 7413(a)(5) and 7477, authorize the Environmental Protection Agency to issue administrative orders to prevent construction of a major emitting facility where a state permitting authority is prepared to grant the facility operator a "prevention-of-significant-deterioration" air quality permit based on an arbitrary and capricious application of the statutory requirement that such sources of air pollution be subject to the best available control technology? [Access more information here.]
Engine Manufacturers Assn. & Western States Petroleum Assn. v. South Coast Air Quality Management District, et al.
Question(s) presented: Whether local government regulations prohibiting the purchase of new motor vehicles with specified emission characteristics--which are otherwise approved for sale by state and federal regulators--are preempted by the Clean Air Act, 42 U.S.C. § 7401 et seq. [Access more information here.]
You may recognize her name as the New York sex crimes prosecutor who prosecuted the "preppie murderer" Robert Chambers, among others. Or you may be a fan of her "detective novels about a sex crimes prosecutor named Alexandra Cooper, a 'younger, thinner, and blonder' version of herself, as she put it." Whatever, don't miss this feature on Linda Fairstein in LegalAffairs.
[Access Part I and links to earlier entries here.]
[Access Part II here.]
Part III. More on the question of whether the General Assembly may "act" when it is not in session.
Until the early 1990's, enrolled bills always had been signed by the Speaker and President, and delivered to the Governor, while the General Assembly was still in session, presumably under the thinking that the legislature could not act after it had adjourned sine die. Joint Rule 4 still requires:
4. (a) Every bill or joint resolution reported to have been duly enrolled shall be signed first by the Speaker of the House of Representatives, who shall send the same to the Senate; then by the President of the Senate, after which it shall be presented by the Secretary of the Senate or the Clerk of the House of Representatives to the Governor for his signature.Some of you may remember those days. There was always a lot of last minute pressure and clock watching; there were concerns that bills would not arrive back from the printer in time to get them signed and to the Governor before the midnight adjournment; multiple drafts of the enrolled bill were prepared so that no matter what was decided by a conference committee, there would be a bill ready to "take downstairs." But this is not the case any more.
(b) Except as provided in this rule, all bills and joint resolutions shall be signed by the Speaker of the House of Representatives and the President of the Senate, in their houses respectively, when in session.
(c) During a recess period, the Speaker and the President of the Senate may sign bills and resolutions in their respective offices. A list of the bills and resolutions signed during any recess shall be read immediately upon the reconvening of each house.
In the early 90s, as reported in the Indianapolis Star at the time, an enrolled bill was discovered still at the printers (printing was done offsite back then) the day after the General Assembly had adjourned sine die. So the bill was dead. Or was it? Eventually the Speaker and President signed the bill anyway and it was presented to the Governor, who accepted it.
Subsequently the General Assembly passed a law, IC 2-2.1-1-12, providing:
IC 2-2.1-1-12Taking into account that most bills are passed in the last few days of a legislative session, and that this is even more the case for controversial bills that may be vetoed, most of the bills vetoed by a Governor since this law was passed may have been signed by the Speaker and President and delivered to the Governor after the General Assembly has adjourned and gone home.
Bills or resolutions; signatures; time for presentation to governor
Sec. 12. (a) This section applies only to those bills or joint resolutions which pass during the two days before the sine die adjournment of a regular or special session of the general assembly. This section does not apply to bills passed during a regular technical session.
(b) The presiding officers of the house of representatives and the senate shall sign each bill or joint resolution passed under Article 4, Section 25 of the Constitution of the State of Indiana as soon as practicable, but not later than seven (7) calendar days after sine die adjournment of the session of the general assembly at which the bill was passed.
(c) A bill that has been signed under subsection (b) must be presented to the governor as soon as practicable, but not later than seven (7) calendar days after sine die adjournment of the session of the general assembly at which the bill was passed.
As added by P.L.3-1991, SEC.1. Amended by P.L.4-1995, SEC.8.
The language of IC 2-2.1-1-12 make no pretence that the legislature is still assembled in session; the Speaker and President are authorized by this law to sign within 7 days after sine die adjournment. Although Art. 5, sec. 14 of the Constitution makes no reference to the Speaker and President, the Legislative Article, Art. 4, at section 25 does provide:
A majority of all the members elected to each House, shall be necessary to pass every bill or joint resolution; and all bills and joint resolutions so passed, shall be signed by the Presiding Officers of the respective Houses.Coming next. Part IV, which will wrap this all up.
[Access Part I and links to earlier entries here.]
Part II. Can delivery be asserted when there is no documentary evidence?
After both houses of the General Assembly have passed a bill, it is ordered to enrollment, signed by the Speaker of the House and President of the Senate, and then presented to the Governor for his action: "Every bill which shall have passed the General Assembly shall be presented to the Governor." Art. 5, Sec. 14.
The enrolled bills are logged in by the Governor's office as they are received. It is my understanding that the Governor's enrolled bill log shows "date received," "deadline for action," "date acted on."
But when a vetoed bill is "returned" by the Governor's office to an adjourned General Assembly, as appears to have been the practice in recent years, it is my understanding that no written record is made -- whether by receipt book or log or other notation -- and the vetoed enrolled bill may simply be stored in a file drawer in the house or senate chambers. Thus, the carefully constructed chain of "jacketed originals" and "engrossed amendments" and "enrollments" and "presentment" may end here. (This may be of particular significance since Indiana adheres to the "enrolled bill doctrine" - more on that later.)
Even after the General Assembly reconvenes, no entry normally is made in the House or Senate Journal for the first day of that session reporting the fact that the Governor has delivered vetoed bills back to the house of origin, either: (1) during the interim, or (2) "on the first day that the General Asembly is in session after such adjournment" as is required by the Constitution.
Instead, the journal entries for vetoed bills are normally not recorded at all until the day the House or Senate brings the vetoed bill to the floor for a vote to sustain or override the veto. On that day the journal entry will include both the Governor's veto message and the vote of the house of origin.
In an earlier posting I said my first thought after reading the D&H Healthcare opinion was to look at the list of bills vetoed by the Governor in 2001 and then to check the dates, which I expected to find in the journals, to see which vetoes were returned during the interim.
But there are no dates, because they are no receipts.
Although the date when a veto is announced by the Governor is available, and each veto message concludes with "I hereby veto House [or Senate] Enrolled Act ___ and return it to the House of Representatives [or Senate] for further action," the return of the vetoed enrolled bill to the chambers of the adjourned House or Senate is an very informal, and unrecorded, process. This may explain why the trial court's decision in the case was based upon stipulated facts.
Coming next. Part III - More on the question of whether the General Assembly may "act" when it is not in session.
Van Vactor Farms, Inc. v. Marshall Co. Plan Comm. (IndCtApp 8/20/03)
Kirsch, Judge
Affirmed. Here Van Vector Farms appealed the trial court's denial by the Marshall County Plan Commission of its application for preliminary plat approval for a proposed subdivision. The issues raised were:
I. Whether the Marshall County Subdivision Control Ordinance provisions relied upon by the Commission to deny the preliminary plat approval were sufficiently specific and concrete and not extrinsic to the ordinance so as to provide Van Vactor fair notice of what would be required for the parcel of land to be subdivided.The court ruled for the Commission on each point and affirmed. However, the Court concluded its opinion with this admonition to the Commission:
II. Whether the evidence was sufficient to support the Commission’s determination.
III. Whether the Commission’s decision was illegal, arbitrary and capricious.
Although we conclude that Van Vactor has not established that the Commission’s comments satisfied this heightened burden, we chastise the Commission for its comment about “sifting the sand.” We remind the Commission that approval of a plat that meets the requirements of the applicable ordinance constitutes a ministerial as opposed to a discretionary act. Thus, if the proposal meets the concrete standards of the ordinance, then “‘the approval or disapproval of the plat on the basis of the controlling standards is a ministerial act.’” We strongly admonish the Commission to remember its role in such cases. In the future, the Commission should avoid such comments and more accurately characterize the portions of the ordinance upon which it relies in its review of subdivision proposals. Failure to remember its ministerial role opens the Commission’s decision to criticism and creates the
appearance of impropriety. Having said this, however, we conclude that the Commission did not act arbitrarily or capriciously in denying the proposed subdivision plat. [citations omitted]
Poulard v. Lauth, et al. (IndCtApp 8/20/03)
May, Judge
In this interesting case Poulard, president of the Michiana Shores Town Council, acting pro se, brought an action against the News-Dispatch, a newspaper, and Lauth, who made statements to the newspaper.
All defendants moved for summary judgment pursuant to Ind. Code § 34-7-7-5 (the “anti-SLAPP” statute) and their motions were granted on May 22, 2001. In its judgment, the trial court noted that defendants who prevail on an anti-SLAPP motion to dismiss are entitled to attorney’s fees and costs, and it stated that “All issues pertaining to the recovery of attorney fees by the respective defendants is [sic] hereby reserved for ruling” subject to the defendants’ request for a hearing on the fees, their filing of affidavits in support, and notice to Poulard.In a footnote, the Court of Appeals states:
SLAPP is an acronym for “strategic lawsuit against public participation.” Ketchum v. Moses, 17 P.3d 735, 737 (Cal. 2001), reh’g denied. The “anti-SLAPP” statutes, of which Indiana’s is typical, are intended to reduce the number of lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The statute protects, inter alia, direct petitioning of the government and petition-related statements and writings, whether or not the statement is made in connection with a public issue. Id. The special motion to strike provided for by the Indiana statute -- the so-called “anti-SLAPP” motion -- is subject to statutory fee shifting as follows: “A prevailing defendant on a motion to dismiss made under this chapter is entitled to recover reasonable attorney’s fees and costs.” Ind. Code § 34-7-7-7. The statute provides that such a motion to dismiss is to be handled by the trial court as a summary judgment motion. Id. § 34-7-7-9.The newspaper did file for attorney's fees and Poulard, still pro se, filed a notice of appeal. A few days before the hearing, as the opinion relates:
counsel for Poulard appeared for the first time and filed Poulard’s objection and response to the newspaper’s motion. Poulard argued for the first time in that response that the anti-SLAPP statute “was not intended to immunize the media from suits for defamation,” and that if it does apply to Poulard, it is unconstitutional.The trial court ultimately awarded attorney's fees to the newspaper, but not to Lauth. Poulard and Lauth appealed. The Court of Appeals concluded:
Poulard’s arguments that the anti-SLAPP statute does not apply to his lawsuit were waived on appeal because he failed to raise them prior to grant of summary judgment on the merits for the newspaper and Lauth. We accordingly affirm the award of attorney’s fees to the newspaper. The trial court abused its discretion in declining to award attorney’s fees to Lauth, and we accordingly remand for a determination of the amount of attorney’s fees to which Lauth is entitled. The trial court properly sanctioned Lauth for failure to comply with discovery, and we affirm that order. Affirmed in part, reversed in part, and remanded.
Northern Indiana Commuter v. Chicago Southshore & South Bend RR (IndCtApp 8/20/03)
Kirsch, Judge
In Bopp v. Brames, 677 N.E.2d 629 (Ind. Ct. App. 1997), we noted that the purpose of arbitration is to afford parties the opportunity to reach a final disposition of differences in an easier, more expeditious manner than by litigation. Unfortunately, as this case demonstrates, arbitration is not always easier or more expeditious. Northern Indiana Commuter Transportation District (“NICTD”) appeals from the trial court’s decision in its case against Chicago South Shore and South Bend Railroad (“South Shore”) that referred this matter back to the original panel of arbitrators who first arbitrated this case in 1994. NICTD contends that the trial court should have allowed the parties to assemble a new panel of arbitrators, while South Shore maintains that the trial court was correct to require the former panel of arbitrators to hear the case. The parties also disagree about the propriety of requiring the trial court to confirm other portions of the arbitration award. We reverse and remand.
Lake Central School Corp. v. Hawk Development (IndCtApp 8/20/03)
BAKER, Judge
In an interlocutory appeal the Court was:
asked to hold that Lake Central School Corporation was required to file a lis pendens notice in order to extinguish any rights in the condemned property held by a subsequent purchaser (Fetsch Townhomes) and encumbrancers (Bank Calumet and Fifth Third Bank). The Eminent Domain Act does not require the filing of a lis pendens, and, despite some dicta, no Indiana appellate opinion has held that a condemnor must file a lis pendens in order to cut off the property rights of subsequent purchasers and encumbrancers. Although filing a lis pendens would relieve subsequent purchasers and encumbrancers of significant costs with little burden to a condemnor, such a decision should be left to the judgment of the General Assembly. Therefore, we reverse the trial court’s grant of summary judgment in favor of the appellees and remand for entry of summary judgment in favor of Lake Central.Again, in its conclusion, the Court states:
Though the filing of a lis pendens notice would lift a heavy burden from subsequent purchasers and encumbrancers with little corresponding effect on the condemnor, such a change in the Eminent Domain Act is left to the judgment of the General Assembly. This court may not substitute its judgment for that of the legislature. None of our cases have held that a condemnor must file a lis pendens to give notice, and federal constitutional law has not been shown to require a lis pendens in order to extinguish the rights of subsequent purchasers. For these reasons, the trial court erred in granting the appellees summary judgment and in denying Lake Central summary judgment. Reversed and remanded for entry of summary judgment in favor of Lake Central.DARDEN, J., concurs.
Implicit in the majority’s opinion is the assumption that because the Lis Pendens Act of 1877 pre-dated passage of the Eminent Domain Act of 1905, the provision of the latter, which stated that the filing of the condemnation complaint constituted notice to all subsequent purchasers and other interest holders, created an exception to the notice requirements of the Lis Pendens Act. I disagree. * * *And in a footnote:I would hold that in order to cut off the rights and interests of good faith subsequent acquirers, a condemnor must not only file the complaint but must also file a lis pendens notice. Accordingly, I would apply the requirement of lis pendens notice not only prospectively but to this case as well and would affirm the judgment of the trial court.
The majority acknowledges the wisdom and validity of a lis pendens requirement in cases such as before us but concludes that such is better left to the enactment of amendatory legislation by the General Assembly. I, however, am of the view that this court may and should do so in the exercise of our duty to reconcile arguably inconsistent statutes and to achieve common sense and order to the process. To be sure, I also am of the view that it would be wise for the General Assembly to augment my proposed holding by filling the interstices with legislation.
An important decision today by the U.S. 7th Circuit in the case of CIVIL LIBERTIES FOR URBAN BELIEVERS, CHRIST CENTER, CHRISTIAN COVENANT OUTREACH CHURCH, et al., v. CITY OF CHICAGO, involving the federal Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 UNITED STATES CODE § 2000cc et seq., and the United States Constitution. Access the decision here.
The 25-page decision is written by Judge Bauer, Judge Evans concurring. Judge Posner has a 10-page dissent. The majority concluded:
Drawing all factual inferences in Appellants’ favor, we nonetheless conclude that their statutory and constitutional claims challenging the Chicago Zoning Ordinance are without merit. We therefore AFFIRM the district court’s order granting the City of Chicago’s motion for summary judgment.Judge Posner's dissent begins:
This is a difficult case, but I have come to the conclusion that the restrictions that Chicago’s zoning ordinance places on churches (a term that I use broadly to include any religion’s place of worship) violate the equal protection clause of the Fourteenth Amendment. I do not address the other grounds on which the plaintiffs attack the restrictions. The discussion of those grounds occupies most of the majority opinion, which devotes little space to what seems to me to be the strongest ground of the appeal.For earlier Indiana Law Blog coverage of the RLUIPA, check here and here.
In an opinion filed August 18, the Supreme Court of South Carolina ruled its grandparent visitation law unconstitutional, citing the 2000 U.S. Supreme Court ruling in Troxel v. Granville. News coverage of the South Carolina ruling is available here, via The State.com and here via AP. And see this story, titled "Michigan court case mimics one in S.C," from MyrtleBeachOnline.com.
Access the Indiana Law Blog's coverage of recent Indiana decisions on grandparent visitation and on Michigan's ruling striking down that state's grandparent visitation statute here and here. Newspaper commentary on the Williams case is here, from the Grant County Chronicle-Tribune.
Two articles of interest this morning in the Washington Post. First, an article headlined "Selling the Public on More Lines: Despite Needs, Many People Don't Want Cables, Towers Near Them ," highlights the problems of building new transmission lines (which appear to be similar to those of siting new landfills):
The lines, which cost about $1 million per mile, already crisscross the country. But there are not nearly enough of them to handle the thousands of interstate transactions requested each day to move the cheapest possible electricity to consumers, energy experts say. While energy demand has doubled in the past 25 years, investment in high-voltage transmission lines has fallen by 45 percent, according to the Edison Electric Institute.Second, a column by Robert Samuelson titled "The Deregulation Mirage" makes a number of interesting points, including this one about electricity deregulation in California:"It's all technically feasible. Technology is not the obstacle. It is the political will to push things through and deal with local issues," said Eric Hirst, an electric industry consultant. Today, the country has about 157,000 miles of high-voltage transmission lines, but needs 20 percent more over the next decade, he said.
Whatever the sins of Enron and others in California, politicians and regulators committed the greatest blunders. Here's a short list: (a) Approval was slow for new plants, creating an electricity shortage; (b) as wholesale electricity rates rose, state regulators insulated consumers from the increases (this worsened the shortage, because low rates stimulated demand); and (c) the state's major utilities, forced to buy electricity from independent power producers, couldn't sign long-term contracts and had to pay rising daily prices. Absent all the errors, the crisis wouldn't have occurred.
Part I. Can the General Assembly act when it is not assembled in session?
Until 1935 the Lieutenant Governor didn't have a State House day job. The Lt G's only job under the Constitution was (and is) to preside over the Senate when it is in session, and to wait around in case the Governor should keel over. So until 1935 when Governor McNutt had some legislation enacted making the office a fulltime job, the Lt G remained at home when the legislature did. And that was most of the time, as the GA met only once every two years, for a few months in the dead of winter, when it was easiest for many of them to leave the farm.
This helps explain why the 1851 Constitution provided that if the Governor vetoed a bill after the legislature had adjourned, he should file it with the Secretary of State, who was to "lay the same before the General Assembly at its next session."
Recall, it was the failure of the Governor to file with the S of S bills vetoed after the GA had adjourned, but instead "placing them in his pocket" and thereby depriving the GA of any opportunity to override, that led to the constitutional amendment ratified in 1972 which is at the heart of the current dispute.
The revised Article 5, section 14 provides:
(D) In the event of a veto after final adjournment of a session of the General Assembly such bill shall be returned by the Governor to the House is which it originated on the first day that the General Assembly is in session after such adjournment . . . . If such bill is not so returned , it shall be a law notwithstanding such veto.When the General Assembly is assembled, it has the power to legislate, which is its role under the Constitution, which provides that the executive power is vested in a Governor, the judicial power is vested in a Supreme Court, and the legislative authority is vested in a General Assembly. But who can the Governor return the vetoed bills to when the GA has adjourned? Although we now have annual sessions, and individual legislators and their staffs ever-present in the State House, the Constitution does not recognize any of these individuals as standing in the place of the General Assembly.
Recall that the question was raised in the 1970 Report cited in the Appellate Court's decision: What if the Secretary of State failed to deliver a vetoed bill to the General Assembly? Would the legislation die? How could the General Assembly compel return of the bill? This concern about the possible insertion of intermediaries, even a statewide elected official such as the S of S, into the lawmaking process, was one of "unresolved concerns" the amendment was intended to resolve.
But in the D&M Healthcare case the argument is set forth that the Governor informally returning the vetoed bill to unidentified persons while the General Assembly is out of session satisfies the requirements of Article 5, section 14.
And did I mention receipts? That is for Part II, coming maybe tomorrow.
Here are the links to The Indiana Law Blog's postings on this ruling to date: 8/13/03 (includes a nicely formatted PDF version of the opinion itself), 8/14/03a (discusses some related opinions) 8/14/03b (includes links to all Governor O'Bannon's 2001 veto messages), 8/16/03 (comments on the Star editorial).
I'm also posting a copy of the relevant pages of the 1970 Report of the Constitutional Revision Commission referenced in the opinion, and the text of the 1851 and current versions of Article 5, section 14.
"Set of Rules Too Complex to be Followed Properly, or not Complex Enough," is the headline to the print version of a story this morning in the NY Times. Some quotes:
The man leading the investigation into last week's blackout has come to one firm conclusion: either the rules for power transactions on the electrical grid were broken, or they were inadequate, even though they are hundreds of pages of detailed specifications covering seemingly every contingency. * * *For a resource on the 2003 blackout, try the Northeasten / Midwest Electricity Blackout Resource Center page, sponsored by the Reason Public Policy Institute. A related blog (also listed in our blog-list) is The Knowlege Problem, Commentary on Economics, Information and Human Action.Many of those rules - how much power can move in a line, when systems need to be shut down in an emergency - were drawn up long before deregulation opened the sluice gates and enabled the present transfer of billions of watts of energy around the country daily in wholesale transactions across hundreds or thousands of miles. As detailed as those rules are, according to many people in the industry, they are no match for the overwhelming scale and complexity of the grid that lost power over vast stretches of the Northeast and Canada last week.
Ben Carreras, a physicist at Oak Ridge National Laboratory who models the grid on computers, said that using the rules to control the behavior of the grid was sometimes like using a naturalists' handbook to tame a tiger.
The Indiana Law Blog was unavailable much of yesterday, reportedly because of "server problems." I hope this was a one time event.
"Verdict on lawyer ads is don't mislead" is the headline today to an editorial in the Indianapolis Star about the Indiana Supreme Court reprimand stating that Keller & Keller's ads "violated rules of professional conduct because they imply clients will get favorable results based on the firm's reputation with insurance companies."
Check the Indiana Law Blog's initial August 8 coverage of this reprimand (including a link to the Court's order) and our earlier (8/13/03) followup.
"The regulations are the result of the 1996 federal Health Insurance Portability and Accountability Act (HIPAA). They are designed to give patients more power to limit access to confidential information, including keeping personal health data out of the hands of marketers." So reports a front-page story this morning in the Washington Post, titled "Patient Privacy Rules Bring Wide Confusion: New Directives Often Misunderstood."A quote:
"With any new regulation, you don't know what's going to happen with it until it goes through the courts. The government says one thing but then it gets interpreted differently by the courts," said Taylor, an emergency room physician at Banner Good Samaritan Medical Center in Phoenix. Taylor said he has encountered several instances in which a patient died and relatives called from out of state to find out what happened, and staff members were uncertain whether they could tell them. "Here I am, an emergency room physician, and I can't answer that question. I don't know if the question has been addressed, or if it has been addressed, whether it's been litigated yet," Taylor said.Earlier Post stories on HIPAA may be accessed here (4/22/03) and here (4/28/03). For the official word on HIPAA, check this HHS page and this HHS page.
Linda Greenhouse reports today in the NYT Travel Section on her recent visit to the new American Constitution Center on Independence Mall in Philadelphia. Greenhouse is the multple-Pulitizer-winning NYT Supreme Court reporter. The Constitution Center, as you may recall, opened recently with a bang, as a beam fell and nearly wiped out Justice Sandra Day O'Connor and a number of others. Greenhouse mentions the event in her report, but adds other interesting information:
There was no sign of that mishap when I visited a week later with my daughter, Hannah, who agreed to accompany me as a teenage "tester." If Hannah, who was busy counting down the precious summer days until the start of her freshman year at Indiana University, found the visit enjoyable, then I could be confident in proclaiming the National Constitution Center a success.Good choice! Greenhouse continues:
One exhibit I couldn't pass up offered the chance to take the presidential oath of office. A video camera projects each oath-taker's image onto a realistic backdrop. A kindly video chief justice led me through my lines as Hannah tried to pretend she had never seen me before.
"Ladies of the Club: Women in the U.S. Senate have traveled a path from oddities to insiders," is the title of an article today in the magazine section of the Washington Post, prompted by a photo display at the Smithsonian.
Margaret Chase Smith, the elegant Maine Yankee, was the first woman to attain any real clout in the Senate. After the death of her congressman husband launched her career, Smith won four straight Senate elections starting in 1948 and retired as ranking minority member of the Armed Services Committee.The U.S. Senate itself has a webpage listing all the women who have served in the Senate over the years, with links to their biographies. It reports "To date, thirty-three women have served in the United States Senate, with fourteen serving at this time."But for Smith, and later Nancy Kassebaum of Kansas, and Hawkins, and Mikulski, there was always the problem of being the only one, or one of only two -- the exceptions that proved the rule. And that rule was: Senators are men.
You look at these pictures and that feels like ancient history. This transformation has occurred over less than a dozen years. But in psychic terms, we may be closer to the time when we have 40 or 50 or 60 women senators than we are to the era when Rebecca Felton was Senator for a Day.
Take a good long gander at the photographs. This is what the Senate looks like now. Someday, only an old crank will be able to say why these pictures were once so interesting.
And here is a neat article on the exhibit that looks to have been originally published in the Dallas Morning News. A sample:
In the exhibit, there's a shot of Dianne Feinstein, the California Democrat. She's on the phone, seated behind an imposing desk in an imposing office. But it's the foreground that dominates and defines the image: close-ups of two young aides, male, leaning into each other, whispering, their deference as apparent as her intensity. It's a fly-on-the wall glimpse into the backrooms off the corridors of power. The twist is that their boss is a woman, representing the most populous state in the union.What about the states? Maine's Senate has a special page on women in the Maine Senate. A quote:
Until 1976 women legislators were assigned matters such as: collecting money for flowers and gifts; selling tickets to the annual Spring Dance; and choosing a color for the 2-year license plate for legislators. Today you will see women as Committee Chair persons and Majority and Minority Floor Leaders.And what about Indiana? No special page was located. However, according to this list, currently thirteen of Indiana's fifty state senators are women.
An article today by Tony Mauro in Law.com talks about the increasing popular concept of the state solicitor general:
There is a new road to professional advancement -- and face time at the U.S. Supreme Court -- for former high court law clerks. Instead of heading to D.C. law firms with appellate specialties, more and more highly prized former clerks are heading out of town to state governments to take lower-paying positions as state solicitors general. * * *The article mentions the Illinois, Ohio and New York offices. Here are links to biographical information on recent Illinois, Ohio and New York solicitors general.Private law firms and the U.S. solicitor general's office are no longer viewed as the only springboards to top-notch appellate experiences. And the states, with increasing clout and legal savvy, are taking advantage of the new talent knocking on their doors.
Fully 29 states now have their own SGs, up from eight only 15 years ago. California recently joined the list with its first SG, Manuel Medeiros. "Every year we add a few, it seems," says Missouri's SG, James Layton, author of a recent law review article on the rise of state SGs.
States have long had appellate section chiefs who specialized in state and federal appeals, he notes. But by moving to the solicitor general title and model, states are trying to increase the professionalism and quality of the work. "It gives the attorney general a sort of a legal scholar on staff, typically someone who did not work in his or her campaign, someone who might think differently from the other lawyers," Layton says. More and more often, that in-house "scholar" has Supreme Court experience under his or her belt.
(Thanks to The Legal Reader for the initial link.)
In an editorial published Saturday 8/16/03 in the Indianapolis Star, the Supreme Court is urged, in effect, to "let it go this time with a warning."
Nobody wants to see new laws on the books simply because a procedure was violated. The Supreme Court should help the state avoid that mess but still send a clear message that compliance is expected in the future.Interesting approach . . .
(The Indiana Law Blog may be publishing more on the vetoed bills issues during the course of the next week or so.)
This story, headlined "Borrowed Sermons Roil Downtown Congregation: Ethics Questioned in Uncredited Use of Other Pastors' Text," appears on the front page of today's Washington Post. The tale begins:
The parish nurse began to unravel the unusual pattern one Sunday in June when she went on the Internet and entered the title of that day's scheduled sermon at National City Christian Church. The Rev. Alvin O'Neal Jackson, a charismatic preacher and leader of the denomination, had chosen his subject and titled it "Sorry Mr. President, I Don't Dance." But the search engine Google revealed that a sermon with the same title had been delivered months earlier by the Rev. Thomas K. Tewell, pastor of Fifth Avenue Presbyterian Church in New York City. The nurse, Kathy McGregor, then went to the landmark church on Thomas Circle NW for the Sunday service, printout in hand.According to the report, "Jackson proceeded to quote most of Tewell's sermon." More:
Over the next few weeks, others in the flagship congregation of the 800,000-member Christian Church (Disciples of Christ) joined McGregor's search. The trail of "borrowed" sermons now stretches back at least a year and a half. Jackson used Tewell's work in a 12-week series he preached last fall that was boxed and sold for $50. He has also borrowed from the Rev. John Buchanan, pastor of Fourth Presbyterian Church of Chicago, including a sermon Jackson used on Easter Sunday last year.[Update 8/31/03] The Washington Post today has an interesting commentary on this issue from a "clergy member of the Baltimore-Washington conference of the United Methodist Church for 44 years." Among his obsevations:
But some preachers -- rather famous ones at that -- have indeed used other preachers' material. The late Rev. Clovis Chappell was at one time pastor of the Mount Vernon Place United Methodist Church in Washington. He was an outstanding preacher, and had a book or two of his sermons published. When he was called to a church in Texas to succeed a minister who had been elected bishop, a startling thing happened. He was summoned to appear before the pastoral relations committee of the church and accused of preaching his predecessor's sermons . When Chappell saw that his denials were getting him nowhere, he pulled a book of his published sermons from his shelf and showed the committee members the sermons -- in print -- that they had accused him of stealing. The previous minister had been dearly loved, so much so that one of the committee members is reported to have said, "He preached them better."
The $12-plus billion appeals bond set by an Illinois trial court (Madison County Circuit Court) is in the news again. After much turmoil (see our last report, from April 15, here) the amount was halved by the trial court, only to have an Illinois court order the trial court to reconsider, as reported here by the AP:
Byron later reduced the amount by nearly half after Philip Morris argued that paying the bonds would drive it out of business and force it to default on a $206 billion, 25-year nationwide tobacco settlement.And as reported here in the NY Times this morning:The plaintiffs' lawyer, Stephen Tillery, appealed that reduction, arguing Byron didn't have the discretion to reduce an appeal bond required by Illinois Supreme Court rules. On July 14, a state appeals court agreed, ordering Byron to reconsider his decision reducing the bond.
The ruling by Judge Nicholas Byron of Madison County Circuit Court was not unexpected because it followed an appellate court decision in July that held that Judge Byron had erred when he had earlier cut the size of the appeal bond in half and allowed it to be secured with a note rather than cash.Recall that this story is important to Indiana because of Philip Morris' claims that being forced to pay the $12-plus billion appeals bond would force it into bankruptcy and end payments to 46 states under the national tobacco settlement. That issue was particular pressing in April when the question here was whether the company would be able to pay the $52 million due to us on April 15. That annual deadline was in fact met.Yesterday's ruling now gives Philip Morris, the nation's biggest cigarette maker, 60 days to pay. But Philip Morris has already moved to stay the order while it makes an appeal to the Illinois Supreme Court.
John Mulderig, a lawyer for Philip Morris' parent company, the Altria Group, said that the company would seek to have the Illinois Supreme Court uphold the judge's earlier order, which both cut the amount of the appeal bond in half and allowed the company to secure it with a note rather than cash.
Earlier this week we explored the question: Indiana Law - If real drug checkpoints are unconstitutional, what about phony checkpoints? Now there is an answer -- for Colorado, from a Colorado Court of Appeals ruling yesterday. Here is the AP report:
Colorado police can set up fake checkpoints in hopes of sniffing out illegal drugs, an appeals court ruled in a case where camouflage-clad officers spied on fans during a bluegrass festival in 2000. Thursday's ruling, which reversed an earlier finding, was based on a federal appeals court decision last year in a similar case in Oklahoma. * * *In the Oklahoma case, Mack Flynn saw checkpoint warning signs in Muskogee County, quickly got off the interstate and dropped a large sack by the roadside. The 10th Circuit agreed with his lawyers that checkpoints are illegal but ultimately ruled against him because there really weren't any checkpoints. "The posting of signs to create a ruse does not constitute illegal police activity," that court said.
Here is the 8/14/03 Colorado decision, People v. Stephen Corbin Roth. And here is the 10th Circuit opinion, USA v. Mack Flynn (10/25/02).
A related Illinois case, Illinois v. Lidster, has been granted cert for the 2003-04 US Supreme Court term. You can find a link to it here (and maybe bookmark this neat service Duke University is providing on cert grants). Here is the link to the 10/18/02 opinion of the Illinois Supreme Court in Lidster.
Finally, here is the blog TalkLeft's take on this issue, which pointed me to several of these links.
Governor O'Bannon yesterday pardoned two convicted felons who were barred from assuming office in April by rulings from the Madison County Superior Court. Here is the Governor's press release. Here is a link to the story in this morning's Indianapolis Star, which begins:
Gov. Frank O'Bannon granted pardons Thursday to two convicted felons who were barred from taking public office because of their criminal pasts. O'Bannon's action expunges the felony criminal records of Republican Thomas Jackson and Democrat Buddy E. Patterson and makes them eligible for future elections. Jackson and Patterson won seats on the Madison County Council in last year's general election, but two judges ruled in April that they were ineligible to serve.The original Indiana Law Blog entry for this story, from April 11, 2003, may be accessed here. (The two newspaper stories mentioned in the entry are no longer freely accessible online, but the link to the statute at issue is still good. I'm still looking to obtain copies of the Madison County Superior Court rulings.)Indiana law forbids convicted felons from holding office. However, the courts had never addressed how to replace felons who were elected. Attorneys for Patterson and Jackson have argued that a pardon would make them eligible for the council. Madison Superior Court Judges Dennis Carroll and Jack Brinkman rejected those arguments, saying pardons are not retroactive.
Spaulding v. Williams (IndCtApp 8/14/03)
Najam, Judge
This is the second grandparents' visitation decision the Court of Appeals has issued within a two week period and it is interesting that they appear as ships passing in a fog-bound night. In re the Visitation of C.H. (access the Indiana Law Blog entry here) was written by Judge Kirsch. Judges May and Mathias concurred. Today's opinion, written by Judge Najam with Judges Brook and Bailey concurring, makes no mention of the July 31, 2003 decision. Both decisions look at the Indiana statute and the recent U.S. Supreme Court opinion on grandparent visitation, but rely on completely different Indiana cases in their reasoning in these two fairly fact-specific cases.
Here is a list of the bills vetoed by the Governor in 2001 after the General Assembly had adjourned, with links to the veto message for each bill. Each message concludes with this sentence: "I hereby veto House [or Senate] Enrolled Act ___ and return it to the House of Representatives [or Senate] for further action."
Vetoed on May 11th, 2001:
SEA 308 (Medicaid payments for emergency room services)
SEA 337 (Airport area construction)
SEA 373 (Department of correction ombudsman)
SEA 471 (Health)
HEA 1866 (Medicaid changes)
HEA 2001 (DOC ombudsman)
Vetoed on May 10th, 2001:
HEA 1083 (Open door law and public records, allows exemption of legislative records)
Vetoed on May 3rd, 2001:
HEA 1207 (Mandatory testing of prisoners)
HEA 1599 (Personal needs allowance)
HEA 1856 (Public officer salaries, including legislators and judges)
HEA 1908 (Commuter transportation district board)
(Thanks to Ed Feigenbaum of Indiana Legislative Impact for the link to the veto messages.)
The Star's lead on its story: "A sweeping appeals court ruling Wednesday on Gov. Frank O'Bannon's veto powers could mean scores of long-forgotten bills vetoed years ago would become law, say his top aides," brings to mind both: (1) a long-ago decision, the case of Langdon v. Applegate in 1854, and (2) a much more recent case (from only 34 years ago) undoing the "pocket veto."
Langdon v. Applegate. In this 1853 decision the Indiana Supreme Court held that most of the acts passed in the 1853 session of the General Assembly that purported to amend provisions in the Revision of 1852 were invalid because of failure to comply with the Court's interpretation of the 1851 Constitution's procedural requirements on drafting amendments. For the next 13 years, bills were drafted so as to comply with the requirements of Landgon. Then, in 1867, the Court reversed its 1853 ruling. The result was that the "nonconforming" 1853 amendments were once again deemed to be effective and in force.
To facilitate the Court's 1867 ruling, the General Assembly had several months earlier repealed all these 1853 amendatory acts. Unfortunately, it did not repeal them retroactively. And here is the parallel to yesterday's decision: The result was that several dozen statutes that had been considered dead for 13 years suddenly appeared to have been completely valid during that entire period.
And the problems did not end there, but they are far too complex to detail here. A complete analysis is available in my 1971 article on the Indiana Code (see pp. 54-67 of the article), available here.
State v. Indiana Revenue Board (144 Ind. App. 63, 242 N.E.2d 642 (1968), trans. denied 251 Ind. 607, 244 N.E.2d 111 (1969)). This is the "pocket veto" decision. It concerned a duly enacted bill presented to the Governor on the last day of the 1967 session:
The Governor did not approve the bill by signing it and sending it to the office of the secretary of state, nor did he send it to the secretary of state unsigned, nor did he return it with his objections thereto, as provided in Article 5, Section 14 of the Constitution of Indiana. * * * It is agreed by all concerned that the bill is still in the Governor's office. * * *After declaring that the act at issue had not been vetoed through the Governor's informal efforts, but was in fact law, the Court of Appeals concluded:We judicially know that for years the executive branch of our state government has illegally and unlawfully pocket-vetoed various bills which have been enacted by the legislature. For example, the legislative journals show that in the year 1965, there were 19 house and 10 senate bills pocket vetoed; that in 1967, there were 14 house and 19 senate bills pocket vetoed. There is no authority, either from the Constitution, or from a Supreme Court decision interpreting the Constitution, which gives the Governor the power to pocket veto legislation which has been enacted by the General Assembly.
We are of the expressed view that what we have stated heretofore should have no retrospective effect. To do so, would produce an uncertainty concerning the fundamental law as it has existed in the past. Such uncertainty would no doubt result in utter chaos and confusion as to the validity and effect of past legislation. As a result, we believe that the holding of the case at bar should be applicable to the 95th session of the General Assembly and all sessions thereafter.It was the issues raised in the pocket veto decision that led to the constitutional revisions to Article 4, Section 14 which are at the center of the D&M Healthcare case.
D&M Healthcare, Inc. et al. v. Frank O'Bannon, et al. (IndCtApp 8/13/03)
May, Judge
In an opinion with potentially far-reaching ramifications just issued, the Court of Appeals has ruled that failure of the Governor to follow the precise requirements of Article 4, Sec. 14(a)(2) of the Indiana Constitution, as to the return of a bill he has vetoed to the General Assembly, means that the bill shall become law notwithstanding his veto.
Specifically, it means that House Bill 1866 of the 2001 session, which provides that the Indiana Family and Social Services Administration (FSSA) may not act to reduce Medicaid reimbursement to nursing homes without statutory authority, is law, although the Governor vetoed it and returned it to the House on May 11, 2001, nearly two weeks after the House had adjourned.
My first thought was -- what other bills fall into this same category? A quick search of the 2001 Enrolled Act Summary shows that in addition to HEA 1866, these additional bills were vetoed by the Governor on May 11th, 2001:
SEA 308 (Medicaid payments for emergency room services)Vetoed on May 10th:
SEA 337 (Airport area construction)
SEA 373 (Department of correction)
SEA 471 (Health)
HEA 1083 (Open door law and public records, allows exemption of legislative records)Vetoed on May 3:
HEA 1207 (Mandatory testing of prisoners)The next question is, were all these "vetos" returned by the Governor during the interim, as was HEA 1866? The answer should be in the dated veto messages ("I am herewith returning, etc.") of the Governor to the house of origin of each vetoed bill.
HEA 1599 (Personal needs allowance)
HEA 1856 (Public officer salaries, including legislators and judges)
HEA 1908 (Commuter transportation district board)
HEA 2001 (DOC ombudsman)
Normally, those messages are published in the Journals of the House and Senate and I would check them, but they do not appear to be available online. But one might assume for now that if the Govenor vetoed one bill (HEA 1866) after the legislature had adjourned and returned it immediately to its house of origin, that is what he did with all the bills listed above -- all of which were vetoed after the General Assembly had adjourned and gone home. All these bills, therefore, as a result of today's Court of Appeals decision, may be law.
Will this case be transferred to our Supreme Court? A request for transfer may be granted, under Appellate Rule 57H, at the discretion of the Supreme Court:
Considerations Governing the Grant of Transfer. The grant of transfer is a matter of judicial discretion. The following provisions articulate the principal considerations governing the Supreme Court’s decision whether to grant transfer.Here we go. The Indianapolis Star just posted (7:00 PM) an online story about this decision. The headline: "Court ruling could affect vetoes dating to the '70s: O'Bannon aide says the overturning of a 2001 veto that led to nursing home reimbursement cuts could open the door for additional challenges."(1) Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.(2) Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.
(3) Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.
(4) Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.
(5) Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.
(6) Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.
[Update 8/14/03] Here is Thursday morning's Star story - it looks to be the same as the above, but includes a nice sidebar.
Backgrounding the Indiana Law Blog entry from last Friday, titled “Keller & Keller? Let’s settle this one,” is this AP story from back on July 25, 2001 about a similar ad campaign in North Carolina. The lead:
RALEIGH, N.C. — A federal judge has upheld a decision by the N.C. State Bar prohibiting two North Carolina law firms from airing television dramatizations to advertise their firms.The North Carolina link is from the archives of the First Amendment Center.
The ads, which have been pulled from the air, stirred debate in the legal community over freedom of speech and the boundaries of truth in advertising.
Unfortunately, the 45-page July 19, 2001 opinion of U.S. District Judge William L. Osteen Sr. (Middle District, N.Car.) does not appear to be freely accessible online. This new information was brought to my attention via an entry this morning in ethicalEsq?.
In this story today in the Washington Post, the paper reports:
White House officials wrestled for months over how to replace Whitman, the former New Jersey governor. The administration had signaled strong interest in Idaho Gov. Dirk Kempthorne (R), and today's announcement surprised even some officials close to Bush's inner circle.Earlier Post stories (see here) had targeted Idaho Gov. Dirk Kempthorne as the probable choice. More:
Leavitt's confirmation would put the administration's conservation policy firmly in the hands of westerners suspicious of federal power. Gale A. Norton, from Colorado, already heads the Interior Department. Leavitt can be expected to pursue an aggressive effort to shift environmental regulation to the states. As governor, the 52-year-old Leavitt has long championed the notion of devolution of powers from the federal to state and local governments. He has criticized both Republican and Democratic lawmakers for keeping power in Washington.Here is the NY Times coverage, and here is the LA Times coverage, headlined "Bush Names Utah Gov. to Run EPA: Environmentalists call Mike Leavitt a 'dramatic lurch rightward' from former chief Christie Whitman. Industry praises the nomination."
And there are several interesting takes from Utah. This column from the Salt Lake Tribune "Leavitt simply must look moderate on the environment. It's vital to his image in the new job. He's been polishing the image for months. We just didn't know it till now." Here is a quote from an editorial from the same paper:
But President Bush chose wisely when he nominated Utah's three-term governor. Leavitt is a genuine Republican moderate, a policy wonk, a proven manager who weighs conflicting arguments carefully. He is a savvy politician who knows tactics and plays rough when he has to. But he prides himself on seeing the big picture, the big idea. He relishes an intellectual challenge, he's articulate and he's smart.Finally, looking ahead, the Salt Lake Trib reports here "2004 governor's race is suddenly wide-open ."
In short, Mike Leavitt has the right stuff for national office and a place in the Cabinet. His environmental record is mixed. His strongest pro-environment stand has been his no-holds-barred effort to prevent electric utilities from parking their spent nuclear fuel at the Skull Valley Goshute Reservation. That was an easy political call, but no environmentalist can fault the vigor of his opposition.
"Actual drug checkpoints aren't allowed in Indiana as a result of a U.S. Supreme Court decision three years ago. The Indiana Civil Liberties Union is having its legal staff examine the idea behind phony checkpoints." That statement appears in a story reported this afternoon on the Indianapolis Star' online site. But first, the background. Here is the Star story from last Thursday, August 7, that begins:
Police acknowledge some motorists traveling south today on I-65 at the Marion County line will try to avoid an advertised drug checkpoint -- in fact, that's what they are hoping for. The checkpoint, touted with an electronic billboard and signs, is a ruse.On Friday, the Star story was headlined "Checkpoints phony, but arrests real: Ruse targets drugs, raises legal questions." The lead:But Marion County sheriff's deputies and other officers, in marked and unmarked cars, are waiting for drivers to make illegal U-turns or commit other traffic violations in a two-mile stretch between 71st and 86th streets, giving police "probable cause" to make a traffic stop and search the motorist's vehicle. Cars that travel past the signs will find squad cars, but no checkpoint.
Police have begun pretending to use illegal checkpoints in an effort to flush out people carrying drugs, a tactic that is drawing attention from the state's top civil liberties group. A fake checkpoint went up Wednesday and Thursday on southbound I-65 near the Marion County line on the Northwestside, netting at least one driver who police said had marijuana.Now this afternoon's story, which begins:
Marion County Sheriff Frank Anderson has halted any more phony checkpoints on interstate highways until he reviews their effectiveness. Anderson met today with sheriff's Maj. Scott Robinett, the covert operations commander who organized a two-day campaign last week on the Northwestside. * * * The president of the Waunakee, Wis.- based National Motorists Association, Jim Baxter, said in an e-mail that he worries about the "very real possibility" of creating a situation where someone is likely to cause a serious crash, potentially involving scores of motorists, trying to avoid the fake checkpoints. "The law against making U-turns in the median is there for a reason," Baxter said. "Is it really prudent to set up a situation encouraging illegal U-turns on high-speed highways?"Here is contemporaneous coverage from cnn.com of the 2000 City of Indianapolis v. Edmond decision, and here is the link to the U.S. Supreme Court opinion itself.
Howard Bashman of How Appealing points to this story in today's Philadelphia Inquirer titled "Seeking an End to DNA Time Limits," which reports:
A growing number of states have moved to suspend time limits on sex crimes where DNA evidence is present, and similar legislation is pending in New Jersey. * * *The story caught my eye because the U.S. Supreme Court ruled in June of this year that, as stated in a USA Today story found here, "the government cannot retroactively erase statutes of limitations, a defeat for prosecutors trying to pursue priests accused of long-ago sex abuse." But the Philly story does get to that:Statutes of limitations were established to guard against prosecutions of old crimes that relied on faded memories and deteriorating evidence. But DNA matching has brought a new scientific clarity to criminal justice. Experts agree that the odds are infinitesimal that a match made with the latest DNA testing would be in error.
In June, the U.S. Supreme Court ruled that a state cannot retroactively eliminate statutes of limitations, striking down a California law that allowed prosecutors to try a decades-old molestation case.The Supreme Court decision is Stogner v. California, reported here by LexisOne.
Note: "Redux" -- adj : brought back; "the Victorian era redux"; "`Rabbit Redux' by John Updike"
The Indiana Commission on Judicial Qualifications today (to quote from its press release):
issued a Public Admonition of Judge Veronica M. Roby, Elwood City Court, for a violation of the Code of Judicial Conduct, the rules of ethics for judges. Instead of proceeding to formal disciplinary charges, the Commission and the judge [Judge Roby] agreed the Commission's investigation of her conduct would be resolved with the Commission's Admonition. * * *The Commission concluded that the judge violated the rule which prohibits judges from using the power of the judicial office to advance their own interests or the interests of others. In early 2002, Judge Roby began dating a defendant who was facing criminal charges in her court. She states she asked a court employee to show in the court file that the judge removed herself from the man's case; however, that process was not accomplished. When the deputy prosecutor appeared in court for the man's hearing on the charges, Judge Roby talked to him about the case and, according to him, asked him to dismiss the charges against the man, which he did. The deputy prosecutor states the judge did not inform him of her relationship with the defendant. * * *
The Commission also admonished Judge Roby because her brother was hired into the court's probation department in January 2002. Although, in some cases, judges may hire relatives or friends with prior Commission approval, the Commission concluded that Judge Roby again abused her judicial power to advance her own and her brother's interests and that she violated the rule requiring judges to avoid nepotism. The Commission's conclusion was based not only on the close degree of the relationship – brother and sister – but also because Judge Roby's brother resides with her. Therefore, his court salary benefited her financially, which the Commission determined was unethical.
Updating the Indiana Law Blog entry from Friday is a story today in the Louisville Courier Journal, reporting:
Most counties in this area, including Clark, Floyd, Harrison, Scott and Washington, are among the 31 counties that have not supplied names to the Indiana Sheriffs Association, which is responsible for posting the information on its Web site. * * * The sheriff of each county is responsible for getting the information to the association. But some sheriffs whom The Courier-Journal spoke with were confused about whether or how they should send the information, and where it should go.Apparently at least some of the counties were under the impression that a stay — issued by the state Supreme Court to block posting of the information while the law was being challenged — was still in effect.
(Link via The Virtual Chase.)
A number of stories this week have marked the 25th anniversary of Love Canal, the polluted Niagra Falls neighborhood that led to the adoption of the Superfund (CERCLA) law. This AP story, headlined "Love Canal Resettled; Restoration Is Suspect," appears in the LA Times (whose editors seem to think that every sentence should constitute a separate paragraph) -- here is a quote:
"The entire area is probably one of the most tested pieces of property on this planet," said Mike Basile, spokesman for the U.S. Environmental Protection Agency. "It's probably one of the safest places to live."This coverage from Newsweek, titled "Love Canal’s Long Shadow 25 Years Later:"But Lois Gibbs, a longtime critic and one of the original residents, views the resettlement and construction of a park next to the containment site an "outrageous" attempt by industry to prove that toxic waste can be controlled.
The case also changed the way the nation viewed toxic waste, sparking the creation of the Superfund law, which forced polluters to pay for cleanups and made them more cautious about handling waste. With more than half the 1,500 sites on the Superfund National Priorities List already cleaned up, most Americans assume the toxic-waste crisis is behind them. “We can rest assured that there aren’t any more Love Canals out there,” says Marianne Horinko, acting administrator of the Environmental Protection Agency. But environmentalists caution that many of the remaining Superfund sites face delays and funding cuts; this year the EPA will finish only about 40 sites, compared with 87 in the late 1990s.Newsweek also has this timeline titled "Dates in Love Canal history." And NPR had this story (audio) July 31, 2003, where "NPR's Alex Chadwick talks to NPR's Ira Flatow about the 25th anniversary of one of the country's most notorious toxic waste debacles, Love Canal."
American Chemistry Council v. EPA (8/8/03 USCA DC Cir)
The DC Circuit yesterday denied a petition for review of the EPA RCRA "mixed with or derived from" rule:
The American Chemistry Council (ACC) petitions for review of a rule promulgated by the Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §§ 6901- 6992(k), treating as a "hazardous waste" any substance that is either mixed with or derived from a listed hazardous waste. The effect is to render such mixtures and derivatives subject to the stringent standards for the management of hazardous waste. We reject the ACC's argument that the EPA lacked authority for the rule under the RCRA and hence we deny the petition for review. * * *We think the Congress wanted the EPA, in deciding which substances to regulate as "hazardous" under the RCRA, to err on the side of caution, see 42 U.S.C. § 6901(b)(6); the Final Rule is a reasonable exercise of such caution. There- fore, we cannot say the rule is an unreasonable interpretation of the agency's statutory mandate comprehensively to regulate hazardous waste.
United States v. Ohio Edison Company (8/8/03 USDC SD Ohio)
In an important decision yesterday regarding coal-fired plants, a federal district court in Ohio ruled on this question:
The issues presented in this lawsuit turn on an interpretation of the term “modification.” Congress provided in the Clean Air Act that any modification of a plant triggered application ofthe Act and later amendments. As described in Section I(C), infra, the Administrator of the EPA has refined, by regulation, the definition of modification to include only activities which involve both a physical change to a unit and a resulting significant increase in emissions. Excluded from the definition of modification are projects involving only “routine maintenance, repair or replacement.” 40 C.F.R. § 52.21(b)(2)(iii)(a).In its 109-page opinion, the court ruled that "the eleven projects at issue in this case were major modifications sufficient to trigger application of the Clean Air and subsequent amendments" and concluded:
"It is undisputed that the Defendant failed to obtain PSD permits for the activities at issue. For each of the activities, the Court finds the Defendants liable under the CAA. Pursuant to the Court’s previous Order, the appropriate civil penalties and injunctive relief will be determined following a remedy phase trial, which will commence in March 2004.This decision may have enormous implications for midwestern power plants. The Washington Post has coverage today that begins:
An Ohio court ruling could cloud the future for scores of old coal-fired power plants that have underpinned the economy and undermined air quality in the eastern United States, according to both sides in the court dispute. On Thursday, U.S. District Judge Edmund A. Sargus Jr. in Columbus ruled that FirstEnergy Corp.'s Ohio Edison Co. had violated federal clean-air legislation in upgrading seven aging power generators without adequately improving pollution controls. Another trial to determine fines is scheduled for next year.This story in the Cleveland Plain Dealer reports:The decision is the first in a series of lawsuits brought by federal and state officials and citizens' organizations against operators of 51 power plants accused of similar violations of the 1970 Clean Air Act. Several of the power companies have settled with regulators.
The EPA and three states have filed similar cases against power companies including American Electric Power, Cinergy, Southern Co. and Duke Energy. Frank O'Donnell, executive director of the Clean Air Trust environmental group, called yesterday's ruling "a slam dunk victory" that should encourage the other companies to settle their cases instead of going to trial. * * * Spokesmen for Cincinnati-based Cinergy, and Columbus-based American Electric Power, said it's too early to tell how yesterday's decision would affect their cases. "We'd have to see what the details of this finding are, and see what is similar to our case," said Cinergy spokeswoman Kathy Meinke, whose company reached a tentative settlement with the government in December 2000 but put it on hold when the business-friendly Bush administration took office. The case against American Electric Power's 11 coal-fired plants is scheduled to go to trial before Sargus after January 2005. Even though the case will be heard by the same judge, AEP spokesman Pat Hemlepp stressed that "the facts included in these cases can vary widely from plant to plant, and company to company."
In the Matter of James R. Keller & In the Matter of S. Jack Keller (Ind.S.Ct. 8/8/03)
Per Curiam
You've seen the ads on television. As described in the opinion:
The respondents purchased four television advertisements from a national marketing firm. Each advertisement consists of a standard presentation customized to name the law firm purchasing the advertisement. The first advertisement, known as the “Strategy Session,” depicts a conference room where actors portraying insurance adjusters are discussing a claim. An older man, the “senior adjuster,” asks a younger man, the “junior adjuster,” how the claim should be handled. The junior adjuster describes the claim as “…a large claim, serious auto accident” and suggests they try to deny and delay to see if the claimant will “crack.” The senior adjuster then asks which lawyer represents the victim, whereupon the junior adjuster responds: “Keller & Keller.” A metallic sound effect follows and the senior adjuster, now looking concerned, states: “Keller & Keller? Let’s settle this one.”The Court's conclusion: "By authorizing advertisements for their law firm that suggested insurance companies would settle claims merely because their firm represented the claimants, the respondents violated the Rules of Professional Conduct for Attorneys at Law. For this and another advertising violation, we find today that the respondents should be publicly reprimanded."
Here is the AP coverage just posted on the Indianapolis Star site. A quote:
In the disciplinary proceedings, the attorneys contended their ads were protected by the commercial speech doctrine recognized by federal courts under the First Amendment, and also were shielded by the Indiana Constitution. But the state justices disagreed, citing a U.S. Supreme Court ruling that said the government may ban commercial messages "more likely to deceive the public than to inform it."They also said the ad campaign, which was purchased from a national marketing firm, had been the subject of litigation in North Carolina. A federal court there found one of the commercials created "an unjustified expectation" of settlements based on the firm's reputation and insurance industry's fear.
Three other disciplinary actions were issued today: In the Matter of Richie Douglas Hailey, In the Matter of Scott I. Richardson, and In the Matter of Robert E. Stochel.
"Sex-offender list failing to inform," read the headline to this front-page story in the Indianapolis Star, which continues:
Indiana's effort to put the names and photos of convicted sex offenders online remains far from complete more than a month after a court approved the postings. In the Indianapolis metro area alone, scores of rapists, molesters and other convicts are not registered. The statewide registry includes about 5,000 names so far. But an unknown number of convicts' names remain unposted because of software challenges and fact-checking at the county level and the failure of many offenders to tell authorities their whereabouts. "You could have one living next door to you right now, and if you wanted to pull a picture up, you are not going to find a picture, even though the Supreme Court ruled they have to post those," ... .The Indiana registry is accessible here. The Alaska registry, commended in the story, may be accessed here. Michigan's here, and Illinois' here. Note that the latter two are run by their state police. Chicago has its own online database, which is well worth a look.
The Indiana Law Blog entry on Indiana's Supreme Court 6/26/03 decision, Doe v. O'Connor, may be accessed here.
The Indianapolis Star's online site is reporting here that:
Bagel and pastry maker Harlan Bakeries faces a potential fine of more than $384,000 in connection with two releases of refrigeration chemicals from its Avon plant. The company is appealing. The U.S. Environmental Protection Agency's regional office in Chicago has filed an administrative complaint against Harlan for allegedly failing to make timely reports of the releases of anhydrous ammonia nearly five years ago.An EPA Region 5 news release from July 31 may be accessed here.
In another environmental story today, the Louisville Courier-Journal reports here that: "The U.S. Environmental Protection Agency will attempt to determine whether accidental releases of industrial pollutants from Rubbertown plants are creating high concentrations of dangerous chemicals in Louisville-area air." This follows on our Indiana Law Blog entry of July 1 headed "Federal suit filed in Louisville over Rubbertown industrial area air pollution, claiming nuisance."
I listened to the thousands of starlings that roost in the trees in my neighborhood this morning as they took off in a giant whoosh, and I looked at the droppings and feathers on the sidewalks and recalled my neighbors' unsuccessful efforts to drive the urban pests away by setting off firecrackers and using water cannons, and I thought -- how lucky we are! Why? Because I read this story (complete with photos) on the front page of the NY Times yesterday, titled "Beady-Eyed Stinkers Feast on Urban Fringes," that begins:
RADFORD, Va., Aug. 1 — The day the vultures arrived here was a moment made for Hitchcock. No one can say why they came. No one really saw them arrive. They were just there one morning last November, sitting in pine trees near the center of town. Hundreds of them. Black, beady-eyed and slightly menacing. Smelly, too. Roadkill smelly.And they remained there for five months. Odds are they will return at the same time next year, just as our neighborhood starlings do, year after year."It would take your breath away," said Thomas K. Adams, a local farmer whose girlfriend lived across the street from the vulture roost. "A barnyard smelled clean by comparison. They smelled like, well, dead animals."
[Update] Coincidentially, just after posting this a story on starlings was broadcast on NPR's new noontime show, "Day to Day." Here is the audio link to the story, "Killing Season for Starlings in U.S. Northwest." (Simply click on the link at the top of the page.)
"Insurer says it won't pay for lawsuit: The Gourlays' discrimination suit might hit the civic association much harder if a judge decides the group's insurance policy doesn't cover it." So reads the headline from this story published in the St. Petersburg Times earlier this week. Here is the lead:
Last October, a Port Richey neighborhood association alleged in a lawsuit that Steven and Corinna Gourlay violated deed restrictions by taking in foster children. That move could prove financially devastating for the association. The Gourlays countersued in federal court, saying the Forest Lake Estates Civic Association and a board member of the neighborhood group violated fair housing laws by discriminating against foster children.(This link is from a good new blog, Abstract Appeal, which covers Florida law and the 11th Circuit.)
Voices for Choice v. Illinois Bell Telephone (USCA 7th Circuit 8/6/03)
Posner, Circuit Judge, in chambers.
Judge Poser begins by stating that "the status of the movants impel me to state publicly my reasons for denying the motions" for leave to file amicus curiae briefs.
SBC’s brief on appeal argues that the Federal Telecommunications Act does not deprive the state legislature of the power to adopt standards for rate-setting, that the district court’s ruling is contrary to the general principles governing preemption, that anyway the standards adopted by the legislature for fill and depreciation are consistent with federal pricing rules, and that the district court improperly substituted its own view for that of the Illinois legislature in concluding that the public interest would not be served by the leasing rates that the Illinois statute would permit. The brief is long (58 pages) and comprehensive, despite which there are these two motions for leave to file amicus curiae briefs. The first, submitted jointly by Michael J. Madigan, Speaker of the Illinois House of Representatives, and Emil Jones, Jr., President of the Illinois Senate, claims that their proposed amicus curiae brief “presents the opportunity for the Court to consider certain issues from the viewpoint of state officials who play an instrumental role in establishing telecommunications policy for the States.” The brief argues that the Federal Telecommunications Act preserves the legislature’s plenary authority to set rate-making policy and that the district court failed to consider all the pertinent evidence in the record in concluding that the Illinois statute conflicts with the federal statute. The second brief is submitted by the Communications Workers of America, which represents more than half a million workers in the telecommunications industry, including employees of SBC. The union asserts that the Illinois statute was intended to remedy problems attributable to artificiallylow lease rates, including employee layoffs and decreased services to customers, that the legislature can adopt standards for rate setting without violating the Federal Telecommunications Act, and that the district court was mistaken to think that rates are to be set only in adjudicative proceedings before the Illinois Commerce Commission.Noting that "This court has held that whether to allow the filing of an amicus curiae brief is a matter of judicial grace,” Judge Posner states that the judges of this court "will not grant rote permission to file such a brief, and in particular they will deny permission to file an amicus brief that essentially duplicates a party’s brief."
An appeal should therefore not resemble a congressionalJudge Poser provides guidelines for a court to follow in deciding whether to permit the filing of an amicus brief (which it may prove wise for attorneys in this Circuit to review):
hearing. The fact that powerful public officials or business or labor organizations support or oppose an appeal is a datum that is irrelevant to judicial decision making, except in a few cases, of which this not one, in which the position of a nonparty has legal significance. And even in those cases the position can usually be conveyed by a letter or affidavit more concisely and authoritatively than by a brief. * * * The “viewpoint of state officials” to which the Madigan-Jones brief refers does not appear to be any different from that of SBC. Naturally the legislative leaders wish to preserve the prerogatives of state legislatures against federal constitutional challenge, but SBC has the same goal and has briefed the issue more than adequately. For the reasons explained, the motions for leave to file amicus curiae briefs are denied
[The criterion should be] whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs. The criterion is more likely to be satisfied in a case in which a party is inadequately represented; or in which the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or in which the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide.Howard Bashman of How Appealing also has taken note of this opinion, here.
Thayer v. OrRico (IndCtApp 8/6/03)
Mathias, Judge
Thayer was employed at Lafayette Clinic, Inc. at which Dr. Michael OrRico, a psychologist, maintained his professional practice. "During her employment at the Clinic, Thayer sought advice concerning problems she was having with her children and her marriage from her fellow co-workers and OrRico. * * * Thayer never made appointments with OrRico, she was never billed for his services, and OrRico did not keep any records of their discussions."
It is undisputed in this case that Thayer sought and received advice from OrRico concerning problems in her marriage * * *. Whether this was merely friendly advice or constituted treatment by OrRico to Thayer for her domestic problems and depression is a factual determination that a jury must make. We therefore conclude that the designated evidence establishes a genuine issue of material fact as to whether OrRico and Thayer had a therapist-patient relationship, and the trial court erred when it granted OrRico’s motion for partial summary judgment. Reversed.
Advantage Home Health Care v. Indiana State Dept. of Health (IndCtApp 8/6/03)
Baker, Judge
The issue in this case was whether the Indiana State Dept. of Health's (ISDH’s) “Statement of Deficiencies” and the accompanying “Letter of Correction” lodged against Advantage constituted orders under the Administrative Orders and Procedures Act (AOPA) and were therefore subject to administrative review under the statute.
We are called upon today to determine whether certain directives issued by our State Department of Health to a health care agency constituted an “order” within the meaning of the Administrative Orders and Procedures Act (AOPA), thereby affording that institution a right to review under the AOPA. Appellant-defendant Advantage Home Health Care, Inc. (Advantage), a home health care agency located in Muncie, appeals the trial court’s grant of summary judgment in favor of the Indiana State Department of Health and the Indiana State Health Commissioner (collectively, the ISDH), claiming entitlement to a hearing under the AOPA after a number of violations were found by the ISDH. Specifically, Advantage asserts that the administrative review process was triggered in these circumstances because the statutory definition of an “order” under the AOPA was satisfied. Concluding that a “Statement of Deficiencies” issued by the ISDH against Advantage along with a “Letter of Correction” effectively established Advantage’s rights and obligations as to its continued operation in the State and were orders under the AOPA, we reverse the trial court’s judgment and remand with instructions that the ISDH permit a review of its decision in accordance with the AOPA.Darden, J., concurs. Sullivan, J., concurs with opinion.
Although the Statement of Deficiencies, in and of itself, may only be a statement of factual findings concerning the precise deficiencies perceived by the ISDH surveyor, it is a prerequisite to the issuance of a Letter of Correction. It is the latter, rather than the Statement of Deficiencies itself, which constitutes, at least in part, an order. * * * The argument presented by ISDH that the appropriate recourse for Advantage is to refuse to submit the Plan of Correction is disingenuous at best. ISDH would have the agency await a revocation of the health care license and only then obtain review pursuant to AOPA. Such an illogical imposition with its attendant consequences cannot be what our General Assembly or our concept of due process contemplates.
Environmental Information Solutions will publish an 800-page volume of the 2003 Indiana Environmental Statutes, provided there is enough interest. Check here (third item) for information.
The word is that Mary Davidsen, Noblesville, has been appointed by Governor O'Bannon as the new chief ALJ at the OEA. There is no official announcement yet, but when one is available it will be posted here. Access earlier Indiana Law Blog entries about this opening here, here and here. [Update] Here is the Governor's press release announcing the appointment.
In related news, the Office of Environmental Adjudication is being moved from the ISTA Building on Market Street to the 10th floor of the Indiana Government Center North.
Kesler v. Marshall (IndCtApp 8/5/03)
Kirsch, Judge
The facts here are as follows:
On November 24, 1990, Kesler and Marshall entered into a purchase agreement under which Kesler agreed to purchase real property from Marshall. The parties executed a standard form purchase agreement to which they added a number of conditions. Kesler was to pay one hundred dollars earnest money, pay a down payment, and execute a promissory note and mortgage in favor of Marshall for the balance of the purchase price. The agreement was also subject to Marshall’s performance of certain conditions precedent, including “to provide, in writing, that the property can be used for any manor [sic] under M-1 zoning regulations, prior to closing.”The Court of Appeals here reversed, stating: "We find the following issue dispositive: whether the trial court’s finding that Kesler breached the contract was clearly erroneous."Marshall provided Kesler with his personal assurances that the property could be used for M-1 uses and a letter from Dennis Harney, the Director of the Planning and Development Department of the city of Elkhart, which purported to fulfill this requirement. Kesler refused to proceed to closing on the transaction. Nearly six years later, Marshall brought suit demanding that Kesler specifically perform the contract and seeking monetary damages for lost profits and reimbursement for expenses he incurred in connection with the property in the intervening years. After a bench trial, the court ordered Kesler to perform the contract and awarded Marshall $91,896.63 in incidental damages.
[N]one of the court’s findings support the conclusion that monetary damages would be insufficient to fully compensate Marshall. Rather, Marshall could have kept Kesler’s earnest money and terminated the contract, or resold the property and held Kesler liable for the difference between the actual sale price and the price under the contract. In either case, Marshall would have been fully compensated by damages for Kesler’s failure to perform. Further, the traditional rationale underlying the grant of specific performance in real estate transactions, i.e., that each piece of property is unique, does not apply here to the party seeking specific performance, Marshall, because he is not obtaining the property in the transaction, but rather only money. Under these circumstances, the trial court abused its discretion in ordering Kesler to specifically perform the contract.
City of Indianapolis v. Cary Campbell (IndCtApp 8/5/03)
Darden, Judge
The Court here upholds the trial court's ruling that the City Code did not forbid distribution of the Renter's Gazette, as modified and published in 2002, to apartments in the City:
The City of Indianapolis ("the City") appeals the trial court's order declaring that for the purposes of Section 361-504 of the Revised Code of the Consolidated City of Indianapolis and Marion County ("the Code"), which forbids placing handbills on certain premises, the Renter's Gazette published and distributed by Cary Campbell and Cary Campbell Realty Alliance, Inc. ("Realty") is a "newspaper" and, therefore, not subject to the prohibition. We affirm.
Louisville & Indiana RR v. Indiana Gas (IndCtApp 8/4/03)
Baker, Judge
The Railroad brought action in trespass, licence rent, quantum meruit, and quantum valebant when Indiana Gas (IGC) ran its gas lines, without authorization, under the parcels of land claimed by the Railroad to be held in fee simple. The trial court granted partial summary judgment to IGC, finding that the Railroad held only easements. The Court of Appeals reversed and remanded, holding:
[W]e conclude that the 1849 Act was a curative act that retroactively granted the Railroad the power to hold property in fee simple. Additionally, the record shows that Wales and Irwin transferred the parcels in fee simple to the Railroad, thus enabling the Railroad to maintain a claim for trespass. Finally, we find that the trial court ered in dismissing the Railroad's equaitable claims on the basis that the Railroad had failed to exhaust its administrative remedies.Sullivan, J. concurs. Darden, J. dissents with opinion.
In my view, the decision in Hefty v. All Other Members of the Cetrtified Settlement Class (Ind. 1997), its predecessors and progeny, and a fair reading of the deeds at issue dictate that the Railroad was granted easements and not fee simple in the parcels. * * * Here, in my opinion, both deeds convey only a "right of way" for nominal consideration.
"Polluting School 21? IDEM fines Citizens Gas coke plant for dangerous air emissions" is the headline to this story in the Indianapolis Eye. (The NUVO story mentioned in the article may be this one or this one. )
However, this action, presumably in an agreed order, does not yet show up on IDEM's enforcement database. A search for "Citizens Gas" identified 3 notice of violations (NOVs) for the Indianapolis site, 9522, 10611, and 10862. (Although the database indicates that Agreed Orders (AOs) were entered into in each case, none of the three AOs appear to be available online.) A fourth NOV, 12852, concerning opacity, issued 5/30/03, remains unresolved according to the database. In addition, no IDEM news release has been located re this $120,000 settlement. Perhaps I am missing something?
"Thinking Outside the U.S." is the headline of this story today in the Washington Post, written by Charles Lane. He reports:
[T]he court's own decision-making is beginning to reflect the influence of international legal norms, as well as rulings by courts in foreign countries. The trend peaked in the two most important cases of the recently completed term -- the court's rulings permitting race-conscious admissions in higher education and abolishing state prohibitions on private, consensual homosexual conduct. In both cases, justices invoked legal principles that were not made exclusively in the United States. * * *Another story, from the AP (accessible here from the Kansas City Star), quotes Justice Ginsburg:The court's consideration of these international perspectives was a breakthrough for the "transnational" legal perspective, which, advocates say, recognizes that the United States -- historically an innovator in constitutional adjudication -- now has much to learn from the rapidly developing constitutional traditions of other democracies.
And in 2002, the court said that executing mentally retarded people is unconstitutionally cruel. That ruling noted that the practice was opposed internationally. "Our island or lone ranger mentality is beginning to change," Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention. Justices "are becoming more open to comparative and international law perspectives," said Ginsburg, who has supported a more global view of judicial decision making.The internet certainly facilitates an international outlook. See, for example, the site GlobalCourts, providing a comprehensive guide to supreme court decisions around the world. And see these outstanding resource guides from LLRX.com on international law and on comparative and foreign law.
As a followup to our entry yesterday on the NCAA and the major problems facing its new president, Myles Brand, are these stories about sanctions slapped on Rick Majerus and his Utah program. From this article the Boston Globe last Thursday, 7/31/03:
Anybody who's seen Rick Majerus knows the Utah basketball coach loves to eat. * * * Heck, Majerus' autobiography is titled, ''My Life on a Napkin.'' So it seems strange the NCAA would be surprised to learn Majerus eats out a lot. And more surprising still that it slapped Utah with three years' probation largely because Majerus isn't any better at keeping track of his meals than he is at counting calories. For that, the NCAA Committee on Infractions took away three basketball scholarships over the next three years, but let the Utes continue to play in postseaon tournaments, bowl games and on TV. And it didn't touch Majerus. So nobody is denying the sanctions could have been worse. But here's what Majerus was guilty of: eating. More specifically, eating about 20 ''impermissible'' meals with his ballplayers during the last 14 years.More here in a point-counterpoint from the Salt Lake Tribune. See also this AP story. More from the Atlanta Journal Constitution, and this from the Rocky Mountain News, titled "Guest View: Majerus just winked at NCAA rules."
Meanwhile, in soapbox racing, the champ was stripped of his crown last week, according to this story in the Akron Beacon Journal, and this followup story the next day. [Thanks to "The Daily Fix" (W.St.J.) for the soapbox links.]
Myles Brand, president of the NCAA (and the former president of Indiana University who fired Bob Knight, for those who may have just emerged from a long hibernation), is the the subject today of a feature story in the sports section of the NY Times, headlined "Leadership, the NCAA and Mirages." Some quotes:
There is no way to escape the cloud hovering over the college sports enterprise he heads. If he drives south, he crosses through Southeastern Conference territory, where the colleges still haven't found a way to hire a black head football coach. Brand can drive to Texas, where one basketball player is dead and a former teammate is accused of killing him. Brand can drive to Utah, where the Utes have been put on three years' probation, or he can travel to the state of Washington, where a football coach was fired for gambling. * * * "There is the perception that things are getting worse, not better," Brand said yesterday as he drove through Ohio, where Ohio State is trying to ward off a potential scandal regarding its star running back, Maurice Clarett.
In re the Visitation of C.H. (IndCtApp 7/31/03)
Kirsch, Judge
The Harrises appeal the trial court's denial of their petition for grandparent visitation. The trial court denied on the basis that the presumption that fit parents act in the best interests of their children had not been rebutted. The court here affirmed.
IC 31-17-5-1 gives grandparents the right to seek visitation of a grandchild if the child’s parent is deceased, the marriage of the child’s parents has been dissolved in Indiana, or the child was born out of wedlock and the father has established paternity. IC 31-17-5-2(a) provides that a trial court “may” grant visitation rights to grandparents “if the court determines that visitation rights are in the best interests of the child.” The use of the permissive “may” in a statute clearly indicates that a trial court is not required, but may do so within its discretion. * * *The Michigan Ruling. Coincidentally, the Michigan Supreme Court yesterday "struck down" that state's grandparent visitation law, as reported in this story in the Detroit Free Press:Here, the Harrises contend that the trial court erred in citing and relying on Troxel v. Granville, 530 U.S. 57, 68 (2000). In that case, the United States Supreme Court considered a state court decision granting grandparents visitation where their son, the children’s biological father, had died, and the children’s mother had remarried. The Court observed that the grandparents did not allege, and no court had found, that the mother was an unfit parent. The Court explained that “there is a presumption that fit parents act in the best interests of their children.” It further noted that there was no allegation that the mother ever sought to eliminate visitation entirely. Rather, the mother and the grandparents simply disagreed as to how frequently the visitation should occur.
Ultimately, the Court held that the visitation order was an unconstitutional infringement on the mother’s fundamental right to make decisions concerning the care, custody, and control of her two daughters and failed to accord the mother’s determination any material weight. The Court characterized the case as “involv[ing] nothing more than a simple disagreement between the Washington Superior Court and [the mother] concerning her children’s best interests.”
We acknowledge that Troxel involved the interpretation and application of a Washington visitation statute that is broader than Indiana’s. Nonetheless, we do not believe the trial court utilized an incorrect standard or abused its discretion in employing a similar analysis here.
Grandparent visitation statutes are a legislative recognition that a child’s best interest is often served by developing and maintaining contact with his or her grandparents. Swartz v. Swartz (Ind. Ct. App. 1999) Grandparents, however, do not have the legal rights or obligations of parents. Id. Moreover, parents generally have the right to raise their children as they see fit. Id.
In Swartz, we held that the trial court abused its discretion in awarding visitation to the child’s grandparents. In so holding, we explained that the child’s mother never denied the grandparents access to the child, and all of the parties had a good relationship. We explained, “While we agree that the Act applies in such cases, we note that the interest at stake is different. Here, the Grandparents are not pursuing the right to have a relationship with C.S., but the right to have the type of visitation they want. In essence, they were not satisfied with the terms of the visitation dictated by Mother, C.S.’s parent.” We then reviewed the extent of visitation awarded in the trial court’s order and determined that it was an abuse of discretion.Here, the trial court pointed out that neither Dove nor Bobby Harris, Jr. was an unfit parent. Moreover, with the exception of the two-week period during which the family quarreled, the Harrises have had substantial access to C.H. At the hearing, Dove acknowledged the importance to C.H. of her relationship with the Harrises and expressed no hesitation at allowing the Harrises to see C.H. Like the grandparents in Swartz, the Harrises have not been denied the opportunity to have a relationship with C.H. They instead seek to have a relationship on their terms, without regard to the wishes of C.H.’s parents.
In Daugherty v. Ritter (Ind. Ct. App. 1995), we explained:
“The ultimate question is whether visitation in the face of family discord is in the child’s best interest. That question can only be answered by looking at the totality of the circumstances presented. While the relationship may, in any given case, be sufficient to make grandparent visitation in the child’s best interest, notwithstanding the dissension between the parent and grandparent, it may not be sufficient to overcome the effects of the discord on the child in another. That difficult determination is left to the wisdom and the discretion of the trial court.”In this case, the trial court acted within its discretion in declining to order visitation between C.H. and the Harrises under the circumstances.
Grandparents do not have the right to visit a grandchild if a parent does not want them to, the Michigan Supreme Court ruled Thursday. The court's 6-1 ruling strikes down the state's grandparent visitation law and throws into uncertainty hundreds, or possibly thousands, of grandparent visitation orders in Michigan. In his majority opinion, Justice Clifford Taylor wrote that Michigan's law, enacted some two decades ago, is defective because it fails to give deference "to the decisions fit parents make for their children."Here is the report from the Detroit News. [Howard Bashman has this report this morning in How Appealing.]
The 7/31/03 Michigan opinion, DeRose v. DeRose, is available here. The Michigan statute at issue, MCL 722.27b, is available here.