The Fort Wayne News-Sentinel had an editorial yesterday on the Indiana Supreme Court's ruling in Twin Eagle.
Interesting on two counts, general bankruptcy law, and federalism issues, is the Supreme Court's decision to hear No. 02-1606-TN Student Assistance v. Hood. According to a Reuters story today:
At issue is whether the Constitution's bankruptcy clause, which gives Congress the authority to establish uniform laws on bankruptcies, also gives it the power to revoke state sovereign immunity in bankruptcy lawsuits.Thanks to How Appealing for the heads up on this story. For links to the pertinent docs, check here at SCOTUSblog.The case involved a bankruptcy filing by Pamela Hood in federal court in Tennessee. She then filed for a hardship discharge of her student loans, and named the Tennessee Student Assistance Corporation, a state agency, as a defendant. She owed the state $4,169. The state agency moved to dismiss the complaint on the grounds of sovereign immunity.
The bankruptcy court, a bankruptcy appellate panel and a U.S. appeals court all rejected the request to dismiss the lawsuit and ruled Congress acted under a valid grant of congressional authority when it revoked state immunity. Tennessee appealed to the Supreme Court. It said the case presented an important issue and that federal appeals courts have split on the issue. Forty-seven states supported Tennessee's appeal. Tennessee Attorney General Paul Summers said in the appeal that states would be subjected "to the indignity of suits without their consent" and warned that "the economic costs to states could be overwhelming."
I have a new-found interest in keeping up with bankruptcy law issues, having just completed editing a 560-page book, the "2003 Indiana Bankruptcy Law Handbook," for the Indiana State Bar Association's section on bankruptcy and creditors' rights. Copies are available to ISBA members through the ISBA.
[Update 10/1/03] Here is the NY Times report this morning on the Court's decision to review, titled "Justices to Rule on Immunity of States in Bankruptcy Suits." Some quotes:
States are often brought into federal court in bankruptcy proceedings, not because they themselves are bankrupt but because they are creditors. Most of the 1.5 million people who file for bankruptcy every year owe debts to an agency of state government and seek relief from the obligation to repay those debts, so the case has a highly practical dimension as well as implications for the Supreme Court's continuing reexamination of the balance of power between the federal government and the states.The underlying dispute in the new case, an effort by a woman who filed for bankruptcy to be freed of the obligation to repay her student loans, is fairly typical of the ways that states find themselves embroiled in bankruptcy proceedings. Under federal law, student loans that are guaranteed by governmental agencies, as many are, are not treated as ordinary debts that can be wiped away in bankruptcy proceedings. Instead, the law requires proof that repaying the loan would produce "an undue hardship."
Byrd v. EBB Farms (9/26/03 IndCtApp)
Riley, Judge
The Byrds filed a complaint in Union County, Indiana, against E.B.B., Caldwell, and Schuck. In their complaint, the Byrds alleged that they owned a tree farm, which is adjacent to farmland owned by E.B.B., managed by Caldwell, and farmed by Schuck. The Byrds alleged that in the spring of 2000, Schuck, at the direction and with the concurrence of Caldwell, sprayed herbicide on E.B.B. farmland, known as E.B.B. – 3. The complaint further argued that the herbicide was sprayed at a time when the wind velocity was great; therefore, the excess herbicide was blown onto the Byrds’ tree farm and damaged most of their nursery stock. The issue here was whether the trial court erred in determining that the business relationship between E.B.B., Caldwell and Schuck was one of farming on shares, which is a landlord-tenant relationship, as opposed to a joint venture or partnership. The Court affirmed the trial court’s grant of summary judgment in favor of E.B.B. and Caldwell.
Leo Meyer v. Marine Builders, Inc. (9/29/03 IndCtApp)
Bailey, Judge
Some pertinent facts in this dispute:
As described in the Warranty Deeds, the Vogts’ Property includes a parcel of real estate that is also included in the Meyers’ Property description. In particular, the Warranty Deeds for both the Vogts’ and the Meyers’ Properties, as executed and recorded, purport to convey the same parcel of land located in parts of Lots 25 and 26. On March 26, 2002, after discovering that the two warranty deeds include a parcel of the same property, MBI filed an Amended Verified Complaint requesting that the trial court quiet title in its name and revise the legal description of the property represented by the Warranty Deed between MBI and Knauss.
Wyrick v. Gentry (9/26/03 IndCtAp)
Riley, Judge
The case deals with the Dellinger decision and the revisions the 2003 General Assembly enacted to "cure defective language in the prior statute." As the Court notes:
... the instant case is one of a limited number of wills that could be probated between the time of the first Dellinger opinion and July 1, 2003, when the amendments to I.C. § 29-1-5-3 and section 3.1 became effective.
O'Bannon V. Schindler (9/26/03 IndCtApp)
Hoffmann, Special Judge
Defendants-Appellants, various officials of the executive branch of the State of Indiana (collectively, “the State”), appeal the trial court’s grant of the preliminary injunction requested by a class consisting of current and former patients of Muscatatuck State Development Center. We affirm in part and reverse in part.Here is the link to the Indianapolis Star/AP report on this ruling, which begins:The State raises five issues for our review, which we consolidate and restate as:
I. Whether the trial court’s grant of an injunction is supported by its findings of fact and conclusions of law.II. Whether the portion of the injunction relating to staffing Muscatatuck State Development Center violates the Indiana Constitution’s separation of powers clause.
III. Whether the portion of the injunction requiring Muscatatuck State Development Center to allow transferred or discharged residents to return to the Center is appropriate.
IV. Whether the portion of the injunction purporting to prevent “pressuring” of parents and guardians is appropriate.
A judge had grounds to prevent the state from transferring more disabled residents from the Muscatatuck State Developmental Center without consent of their relatives or guardians, the Indiana Court of Appeals ruled Friday. The court said the injunction issued by Special Judge William Vance in April 2002 was warranted because alternative facilities at the time "were incapable of giving appropriate treatment" to many Muscatatuck residents. The injunction stemmed from a lawsuit filed by several parents or guardians who have fought the state's efforts to close the state center in Jennings County, about 70 miles southeast of Indianapolis.Vance agreed with claims that their loved ones are profoundly retarded and have other severe medical or behavioral problems that require the care and staffing levels provided at Muscatatuck or a similarly staffed facility. The appeals court also affirmed the judge's order that former residents be allowed to return to Muscatatuck.
But the ruling said the judge went too far in barring the state from reducing staffing levels at Muscatatuck, and state officials must be allowed to talk to family members about transfers to alternative settings. "It is clear that the state is in the process of closing MSDC and that it will be necessary at some point to transfer class members (remaining residents) to appropriate alternative facilities," the ruling said.
Last Sunday the Indiana Law Blog reported on a suit filed in federal district court here September 10 that accuses the government and Prudential Life of breach of contract for refusing to pay a $10,000 claim plaintiff filed after his son, Joshua, was stillborn on April 14, 2002.
This evening National Public Radio reported on a bill pending in New Jersey to allow parents to be issued a birth certificate for a stillborn child. Access the NPR audio here.
WNBC.com reports at this link [caution, very slow loading]:
Parents of stillborn children have complained that while state law requires the babies to be buried, there are no official records that the infants were ever born. "This is one of those small changes that the Legislature and the governor can do that can make people's lives a little better," bill sponsor Sen. Thomas H. Kean Jr., R-Union, told The Record of Bergen County for Thursday's editions. [see below] * * *And here is a link to the Record of Bergen County's Sept. 25th story, which was the source of the NPR report.Ten states have laws that require certificates to be issued for stillbirths, according to the Mothers in Sympathy and Support Foundation, a non-profit advocacy group. Another 13 states, including New Jersey, have bills on the matter pending.
In two states, the issue has become caught up in abortion politics. In California a bill was withdrawn after the National Organization for Women and a gynecologists' group spoke out against it. They claimed stillbirth records could lead to the requirement that late-term abortions be reported, which would be an invasion of privacy. New Jersey groups on both sides of the abortion debate said they have not taken a position on the bill.
None of the stories mention the life insurance issue posed by the Indiana suit.
Indiana Department of Environmental Management v. Twin Eagle LLC (9/23/03 IndSCt)
Boehm, Justice
Dickson and Rucker, JJ., concur.
Sullivan, J., concurs in result with separate opinion in which Shepard, C.J., joins.
[The Indiana Law Blog posted a brief entry on this important ruling last week, but no detailed analysis. You are also referred to the May 26, 2003 background entry, which links to the trial court opinion, the US SCt's "SWANCC" decision, IDEM's "interim regulatory policy," the bill passed by the 2003 General Assembly, and the Governor's veto message thereon.]
On page 3 of the opinion, the Court presents the regulatory framework:
Until recently, IDEM considered all waters of the state that were regulated through the federal Clean Water Act Section 404 program to be “waters of the United States” subject to the CWA. As a result, the federal Section 404 program regulated all dredged and fill material in all waters. For that reason, IDEM enacted no regulations of its own governing the discharge of dredged and fill material. In 2001, however, the United States Supreme Court held, in Solid Waste Agency of N. Cook County v. United States Army Corps of Eng’rs, 531 U.S. 159 (2001) (“SWANCC”), that waters are “waters of the United States” for purposes of the CWA only if they are either navigable or tributaries of or wetlands adjacent to navigable waterways. Id. at 171, 174.2 As a practical matter, construction projects affecting many ponds and wetlands were no longer subject to federal regulation, and the federal Section 404 program was no longer available to grant permits that would bring the projects into compliance with state law. IDEM attempted to fill the resulting gap in the state’s regulation of dredged and fill materials by a series of memoranda stating its intention, until new rules were approved, to regulate waters of the state no longer subject to federal jurisdiction through an “interim regulatory process” whereby it would apply its state NPDES permitting process to applications for permits for dredged and fill material.According to the opinion, Twin Eagle plans to construct a residential housing develop near Fort Wayne on 460 acres. About 22 acres of the property consist of ponds and wetlands. A wetland deliniation was performed and 15 of the acres were determined to be wetlands that, under SWANCC, are not subject to the Clean Water Act requirements:
On July 26, 2001, Twin Eagle sought a declaratory judgment to prevent IDEM from enforcing state environmental laws against the project. IDEM responded with a motion to dismiss for lack of subject matter jurisdiction, citing a lack of case or controversy and the failure of Twin Eagle to exhaust administrative remedies. Both parties filed motions for summary judgment. The trial court granted Twin Eagle’s motion * * * * We granted IDEM’s petition to transfer under Appellate Rule 56(A) and now reverse the court’s grant of summary judgment to Twin Eagle.
After I read this decision last week, my first thought was "Be careful what you wish for." As Justice Sullivan relates in his separate opinion concurring in the result, "In this case, IDEM asks us not to reach the merits on the ground that Twin Eagle has not exhausted its administrative remedies. Indeed, IDEM has not even determined whether the waters on Twin Eagle’s property are subject to regulation." The Court rejected IDEM's arguments and proceeded on the merits. As a result, however, Twin Eagle's "victory" turned out:
to be Pyrrhic because the Court resolves the merits in IDEM’s favor. Given this result, Twin Eagle might well second-guess its decision to litigate first. If Twin Eagle had successfully persuaded IDEM not to regulate (or if IDEM had decided not to prosecute had Twin Eagle proceeded without applying for a permit), Twin Eagle would not have received the unwelcome news the Court delivers to it today. One can envision a wide range of other compromises between IDEM and Twin Eagle more favorable to Twin Eagle than today’s decision.In the main opinion, the Court cited three issues:Our decisions are replete with reasons supporting the doctrine of exhaustion of remedies. [citations omitted] The result of today’s case illustrates one not often given – the doctrine’s benefit to the party (arguably) subject to a regulatory agency’s jurisdiction. Running the administrative gauntlet first provides such a party a much greater range of options and compromises than does litigation alone.
(1) does IDEM have the authority to regulate “waters of the state” previously regulated by the Section 404 program; (2) if IDEM is so authorized, can it properly exercise that authority through the NPDES permitting process; (3) if IDEM does have the authority to prohibit a discharge without an NPDES permit as to some waters, does that authority extend to discharges into private ponds and isolated wetlands in general and these waters in particular.The Court ruled:
For the reasons explained below, we resolve these abstract issues of law in favor of IDEM’s ability to apply the interim process to waters of the state no longer subject to federal regulation. Assuming any waters on Twin Eagle’s land are indeed “private ponds” and “isolated wetlands,” as explained below, if a discharge from a pond threatens to cause pollution of other waters, IDEM may regulate even a private pond. I.C. § 13-11-2-265 (2002). Twin Eagle may be correct that the particular waters at issue are not subject to regulation, but the proper forum to address this fact sensitive issue is through the administrative process. We therefore defer to the administrative process to determine whether potentially dispositive factual circumstances exist here. [my emphasis]The Court rejected Twin Eagle's contention that IDEM could reglate only "water subject to federal law" -- i.e. those subject to the CWA. In other words, IDEM is not precluded from regulating waters of the State that are not "waters of the United States."
Thus, when SWANCC curbed previously expansive views of the reach of the CWA, IDEM’s scope of authority did not shrink. To the contrary, as the Supreme Court expressly noted, SWANCC had no effect whatever on the scope of waters subject to state regulation. SWANCC, 531 U.S. at 174. In short, Twin Eagle would have been required to get state water approval through the water certification process before SWANCC, albeit pursuant to a federal, not a state, law. The contraction of federal authority did nothing to limit state power.As to whether the General Assembly has given the IDEM authority over the waters at issue, and particularly a private pond, the Court said that under the definition at IC 13-11-2-265, this was a fact issue for administraitve determination in the first instance. As to "wetlands," the court said:
[W]etlands by their very nature vary in the amount of water they contain at a given time, and their boundaries can change depending on the season and the weather. But their outer boundaries are ascertainable, so the mere difficulty in determining what constitutes a wetland does not remove it from IDEM’s jurisdiction. Nor do the characteristics of wetlands automatically remove them from of “waters of the state” if the statutory definition of “waters,” includes “the accumulations of water . . . or . . . a part of the accumulations.” I.C. § 13-11-2-265 . So defined, at least some wetlands can be waters of the state.As to 2002 law, Public Law 183:
which states that a state agency may not “adopt or amend an administrative rule . . . that concerns the definition of ‘wetlands’ or ‘isolated wetlands’ . . . .” 2002 Ind. Acts 183 Sec. 2. In the absence of any general definition of “isolated wetland,” it remains for case-by-case determination whether a particular site does or does not include “waters of the state” within the general regulatory power of IDEM under I.C. § 13-18-4- 4, - 5 (1998). Whether the wetlands on Twin Eagle’s project meet that definition is again a question for the administrative process to resolve. Twin Eagle has at least two options if it believes its project will not affect regulated waters. It can apply for an NPDES permit, and challenge the finding if it believes it to be erroneous. Or, if Twin Eagle is sufficiently confident that its project will not violate the Act, it may proceed and risk an enforcement action by IDEM. This may leave a somewhat unsatisfactory legal framework, but we see no alternative to individualized determinations of IDEM’s jurisdiction given the statutory prohibition against rulemaking.Finally, as to whether the administrative process used by IDEM was an illegal rulemaking, as had been held by the trial court, the Court here stated:
The validity of the interim regulatory process turns on whether it constituted a new rule when IDEM applied the NPDES permit process to waters of the state previously, but no longer, subject to the federal Section 404 program. IDEM does not assert that it followed rulemaking procedures in announcing the “interim process.” Rather it contends that requiring state NPDES permits for dredge and fill after SWANCC is not a new rule at all and is therefore not subject to the statutory requirements for adopting new rules. * * *The Court concludes:We conclude that Twin Eagle’s claim that a new rulemaking procedure was required turns on an incorrect view of Indiana’s regulatory framework. Indiana Administrative Code title 327 rule 5-2-2 requires an NPDES permit to be issued for “[a]ny discharge of pollutants into waters of the state,” subject to certain exceptions. The exception relevant here is found at 327 I.A.C. 5-2-4, which provides an exemption from the permitting process for:
(2) Discharges of dredged or fill material into waters of the state and regulated under Section 404 of the CWA, except where the commissioner determines, on a case-by-case basis that such a discharge threatens to violate state water quality standards concerning toxic pollutants. [327 I.A.C. 5-2-4 (2)].The effect of withdrawal of the federal program from these waters is to remove Twin Eagle’s from those “regulated under Section 404 of the CWA.” Thus, by its terms, this regulation no longer provides an exception and leaves Twin Eagle subject to the general prohibition against discharge without an NPDES permit. The interim process is simply the application of a preexisting process to transactions that were previously thought to be exempt, but are no longer exempt because they no longer meet the federal requirements for the exemption. * * *The effect of SWANCC was thus to remove Twin Eagle’s project from eligibility for the exception provided by Indiana Administrative Code title 327 rule 5-2-4(2). As such, no rulemaking is involved by applying the previously existing NPDES process to the no longer exempt discharge.
The trial court had subject matter jurisdiction over the declaratory judgment action. IDEM is within its statutory authority to require NPDES permits for the discharge of fill material into waters of the state previously regulated under the Section 404 program. Private ponds, when the discharges from these ponds cause or threaten to cause water pollution, and some isolated wetlands are waters of the state. We leave it to the regulatory process to determine in the first instance whether permits are required and, if so, should be issued in this case. We remand to the trial court with directions to enter a declaratory judgment consistent with this opinion.For a brief overview of this ruling, check this summary prepared by Bose McKinney & Evans, and this report, sent to me by Marty Lucas of the Kankakee River Log.
A dispute over the layout of the ballots for the upcoming November election may have statewide implications, according to a front-page story today in the Indianapolis Star. Some quotes:
Dozens of Indiana communities -- including South Bend, Terre Haute and Kokomo -- plan to use the same ballot design in the Nov. 4 election that is being challenged in court by Marion County Democrats.The change is said to be part of the move from the lever-type voting machine, where each party had its own row of levers, to the new electronic technology.Last week, a Marion Superior Court judge temporarily blocked county election officials from using the controversial ballot. If the court sides with Democrats, it could force election officials statewide to reprint ballots this year or face an election fiasco. * * *
Four Democratic City-County Council members seeking re-election set off a political and legal brawl Tuesday when they sued the Marion County Election Board, which is controlled by Republicans, challenging the ballot's design. They argued that its layout is illegal because it groups candidates by office sought, such as mayor, rather than by party affiliation -- making it harder for voters to choose all candidates from the same party.
The Star's story has a good illustration constrasting the 2002 general election sample ballot, with its horizontal by-party organization (i.e. each party's candidates are grouped across by row, and down by office, such as "sheriff"), with the 2003 sample ballot, which "groups candidates by office sought, such as mayor, rather than by party affiliation." But the illustration is not available online. This short story from WTHR (Ch. 13) has a small illustration that gives the general idea, but does not show how the entire ballot-page will be laid out.
The lead today in a front page story in the Washington Post reports:
A new White House study concludes that environmental regulations are well worth the costs they impose on industry and consumers, resulting in significant public health improvements and other benefits to society. The findings overturn a previous report that officials now say was defective.The 234-page report, titled "Informing Regulatory Decisions: 2003 Report to Congress on the Costs and Benefits of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities," is available here. Here are quite remarkable quotes from chapter 1 of the Report, pp. 7-8:The report, issued this month by the Office of Management and Budget, concludes that the health and social benefits of enforcing tough new clean-air regulations during the past decade were five to seven times greater in economic terms than were the costs of complying with the rules. The value of reductions in hospitalization and emergency room visits, premature deaths and lost workdays resulting from improved air quality were estimated between $120 billion and $193 billion from October 1992 to September 2002.
By comparison, industry, states and municipalities spent an estimated $23 billion to $26 billion to retrofit plants and facilities and make other changes to comply with new clean-air standards, which are designed to sharply reduce sulfur dioxide, fine-particle emissions and other health-threatening pollutants.
The report provides the most comprehensive federal study ever of the cost and benefits of regulatory decision-making. It has pleasantly surprised some environmentalists who doubted the Bush administration would champion the benefits of government regulations, and fueled arguments that the White House should continue pushing clean-air standards rather than trying to weaken some.
In last year’s report, the aggregate costs of regulations fell within the range of the estimated benefits – albeit at the lower end of the range. The aggregate benefits reported in Table 2, however, are roughly three to five times the aggregate costs and are substantially larger than the aggregate benefits reported in our 2002 report. There are two reasons for this. First, the additional rules cover a 10-year period that included EPA’s rule implementing the sulfur dioxide limits of the acid rain provisions in the 1990 Amendments to the Clean Air Act. This rule adds nearly $80 billion per year to the aggregate benefit estimate. Second, in reviewing our estimates, we inadvertently subtracted incorrect cost estimates for EPA’s rules establishing National Ambient Air Quality Standards for ozone and particulate matter (PM). This correction reduces the aggregate cost of the rules covered over the 10-year period by roughly $20 billion per year.[Update 9/29/03] The following brief story, which appears to criticize the Washington Post analysis, appeared in today's NY Times. The Times say: "[T]he change was mainly due to accounting technicalities."It is important to note that of the 107 rules reviewed by OMB over the last ten years, four EPA rules – two rules limiting particulate matter and NOx emissions from heavy duty highway engines, the Tier 2 rule limiting the emissions from light duty vehicles, and the Acid Rain rule cited above -- account for a substantial fraction of the aggregate benefits reported in Table 2. These four EPA rules have estimated benefits of $101 to $119 billion per year and costs of $8 to $8.8 billion per year.9 The aggregate benefits and costs for the other 103 rules are $41 to $107 billion and $29 to $34 billion, respectively.
Table 3 provides additional information on aggregate benefits and costs for select agency programs. The reader should not assume that the low (high) end of the benefits estimate corresponds to the low (high) end of the cost estimate. Thus, for example, it is possible that the net benefits of EPA’s water rules taken together could range from negative $2 billion to positive $5.7 billion per year.
Based on the information released in previous reports, the total costs and benefits of all Federal rules now in effect (major and non-major, including those adopted more than 10 years ago) could easily be a factor of ten or more larger than the sum of the costs and benefits reported in Table 2. More research is necessary to provide a stronger analytic foundation for comprehensive estimates of total costs and benefits by agency and program.
(1) The oral argument in D&M Healthcare, Inc. v. Indiana Family and Social Services Administration will be viewable live online, on Thursday, October 2 at 1:30 p.m., and also will be archived for later viewing, as are most if not all of the Indiana Supreme Court oral arguments. Here is the webcast page.
(2) I was unable to obtain a copy of Appellant's brief yesterday before the Clerk's office closed, so comments, if any, will have to wait until early next week.
(3) An insightful reader of yesterday's posting on the administration's brief has noted agreement with my statement that "the house of origin cannot receive vetoed bills during the interim, nor can it authorize agents to perform its law-making duties during this period, including the receipt of vetoes from the Governor." The reader notes that the fact that the Constitution, at Art. 4, Sec. 25, specifically directs the Speaker of the House and the Presiding Officer of the Senate to sign the enrolled bills prior to presentation to the Governor reinforces my point that neither house may delegate steps in the lawmaking process to individuals, whether members or not, absent constitutional authorization, as here:
Sec. 25. 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.(4) I also have found, upon rereading the pages from the 1968 publication "Legislative Procedure in the General Assembly of the State of Indiana" that I posted earlier, what I believe to be an explanation for why the Constitution now requires the vetoed enrolled acts to be returned by the Governor to the house of origin on the first day the General Assembly is in session.(Earlier discussion of this provision may be found here.)
Until the 1972 amendment to Art. 5, sec. 14, the section read as follows:
Section 14. Every bill which shall have passed the General Assembly, shall be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it shall have originated; which House shall enter the objections, at large, upon its journals, and proceed to reconsider the bill. If, after such reconsideration, a majority of all the members elected to that House shall agree to pass the bill, it shall be sent, with the Governor's objections, to the other House, by which it shall likewise be reconsidered; and, if approved by a majority of all the members elected to that House, it shall be a law. If any bill shall not be returned by the Governor within three days, Sundays excepted, after it shall have been presented to him, it shall be a law, without his signature, unless the general adjournment shall prevent its return; in which case it shall be a law, unless the Governor, within five days next after such adjournment, shall file such bill, with his objections thereto, in the office of Secretary of State; who shall lay the same before the General Assembly at its next session, in like manner as if it had been returned by the Governor. But no bill shall be presented to the governor, within two days next previous to the final adjournment of the General Assembly.Under the former language, if the Governor voted a bill after the General Assembly had adjourned sine die, he was to file with the Secretary of State, who was to retain custody of the vetoed bill until the next session of the General Assembly. The following quotes are from p. 45 of the 1968 handbook, describing procedures under the prior version of Art. 5, sec. 14:
When the Governor vetoes a bill prior to the adjournment of the General Assembly which passed the bill, he is required to return the bill, together with his objections thereto, known as a veto message, to the house in which it originated. Upon receipt of such bill and the Governor's objections thereto, the house to which the bill is returned is required to enter the Governor's objections at large upon its journal and then procedd to reconsider the bill. * * *The 1972 amendment eliminated the Secretary of State as a middleman who maintained custody of the vetoed bills until the General Assembly returned. Instead, it now requires that the Governor deliver the vetoes to the General Assembly as soon as it reconvenes. Specifically, Sec. 14(a)(2)(E) reads:When the Governor vetoes a bill after the adjournment of the General Assembly, he is required to file the bill, together with his objections, in the office of the Secretary of State, and the Secretary of State is required to lay the bill before the General Assembly at its next session, special or regular, in like manner as if it had been returned by the Governor.
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 in which it originated on the first day that the General Assembly is in session after such adjournment, which House shall proceed in the same manner as with a bill vetoed before adjournment. The bill must be reconsidered and voted upon within the time set out in clause (C). If such bill is not so returned, it shall be a law notwithstanding such veto.(5) Finally, another reader sent the following question this morning:
I have a question about your post covering the Governor's brief. In it, you say:Sure, I'd be happy to. And thanks for the note!"Once more, the brief here confuses the pronouncement of the veto message, required within 7 days or the bill will become law, with the vetoed bill itself, which is to be returned to the house of origin on the first day of the General Assembly's next meeting."
However, the way I read the veto provisions in the Constitution, there is no requirement that the Governor pronounce anything about the veto (much less within 7 days). Rather, the Constitution requires only that the Governor veto the bill within 7 days. Care to elaborate?
The reader is correct; there is no requirement that the Governor announce that he has vetoed the bill. Sec. 14 states in part:
(a) Every bill which shall have passed the General Assembly shall be presented to the Governor. The Governor shall have seven days after the day of presentment to act upon such bill as follows:There is also no requirement that Governor announce that he has signed a bill, or that he has allowed it become law without his signature.(1) He may sign it, in which event it shall become a law.(b) Every bill presented to the Governor which is signed by him or on which he fails to act within said seven days after presentment shall be filed with the Secretary of State within ten days of presentment. The failure to so file shall not prevent such a bill from becoming a law. * * *(2) He may veto it: * * *
(3) He may refuse to sign or veto such bill in which event it shall become a law without his signature on the eighth day after presentment to the Governor.
In theory a Governor could veto a bill in secret within the requisite 7 days, and, if the General Assembly had adjourned, the Governor could tell no one, and leave us all guessing. After 10 days had passed and the Governor had not filed the bill with the Secretary of State, as subsection (b) requires that he do, we might deduce that the Governor had vetoed the bill. But we wouldn't know for sure until the first day that the General Assembly convened in session.
However, governors in my memory have as a matter of course issued press releases and otherwise posted or proclaimed their actions on bills (on a bulletin board outside their office or, more recently, on the internet) as their actions have taken place.
These announcements generally include the text of the veto message and are dated and issued on the day the signing or override takes place. The veto pronouncements may conclude with the statement: "I am hereby returning ...".
But one cannot thereby conclude, as was done by both sides in D&M, that the pronouncement corresponds to the date the vetoed bill itself is physically returned to the house of origin. As noted in a prior posting, this year's veto announcements did not deviate from the standard recitation used in prior years. But because of this suit, the bills the Governor vetoed in 2003 remain in the custody of the Governor. My understanding is that they are to be returned to the house of origin on the "first day" the General Assembly meets.
This press release was made available by the Indiana Supreme Court late this afternoon.
The Indiana Commission on Judicial Qualifications filed today judicial disciplinary charges against Judge Joan Kouros of the Lake Superior Court, Criminal Division 3. The document includes 78 separate counts detailing cases in which Judge Kouros failed to process important paperwork, usually sentencing orders. Several cases referred to in the charges included delays of over a year between sentencing and the processing of the sentencing orders. The charges included reference to Vernon Dallas, who filed a lawsuit against the judge in 2001 because her delay prevented his transfer from the Lake County Jail to the Department of Corrections. The Commission’s charges made reference to the impact on the Lake County Jail of having inmates stationed there who could have been transported to the DOC if their sentencing Orders had been processed, and cited several jail incidents involving inmates whose sentencing orders were delayed. The Commission alleged that Judge Kouros was cautioned by the Commission in early 1992 about delays, and that the problem continued despite the Commission’s warning. As the Commission’s charges stated, on January 17, 2003, the Indiana Supreme Court issued an Order requiring Judge Kouros to process cases under specific time schedules set out by the Court, which the Commission alleges Judge Kouros failed to heed in several instances. One charge of misconduct involved a criminal case in which Judge Kouros suspended the sentence of the defendant, but failed to issue an Order for his release. In that case, then Senior Judge Clarence Murray stepped in and released the man from jail. The Commission also alleged that, on March 4, 2003, Judge Kouros falsely certified to the Supreme Court that she was in compliance with each of its standards and that, in February, 2001, she advised the Supreme Court she had implemented a transcription system in her court to prevent future delays, but that, in fact, she did not do so until February, 2003.Judge Kouros may file an Answer to the Charges within 20 days. Then, the Supreme Court will appoint a panel of three judges to preside over an evidentiary hearing and report their findings to the Supreme Court. Judge Kouros is represented by Kevin P. McGoff, (317) 848-2300, and by Stanley Jablonski, (219) 736-7101.
Having now had an opportunity to review the Governor's brief in the State's request to transfer the D&M Healthcare case to the Indiana Supreme Court, thereby vacating the Court of Appeals decision, there are several points to discuss.
1. Both parties apparently stipulated that the vetoed bill was delivered back to the House of origin on May 11, 2001, the same day the veto message was issued, although nothing in any of the documents I've seen supports that assumption.
Page 1 of the Governor's brief on the petition to transfer, discussing the vetoed bill at issue, HEA 1866, contains this statement:
[D&M Healthcare] acknowledged that the bill [HEA 1866] was presented to the Governor on May 4, 2001, after adjournment of the 2001 general session, and that his veto seven days later was timely. (App. 12) [D&M Healthcare] also acknowledged that the House received the returned bill on May 11, 2001 and on March 14, 2002 voted 85-1 to sustain it. (App. 13) Nevertheless, [D&M Healthcare] contended that the Governor's veto was ineffective under [Article 5, section 14] because the Governor did not wait until the first day of the next session to return it. (App. 13-15)In reviewing the Attorney General's brief (here) , I made the point that the date of the veto message shows nothing about when the vetoed bill was physically returned to the General Assembly. The veto message and the bill itself are two separate documents. The Governor dates his veto message and pronounces his veto to establish that he has acted within seven days of presentment, as required by the Constitution. I also said that in my view:
It is unlikely that the physical return of the vetoed bill to the house of origin has often (or ever) taken place simultaneously with the issuance of the veto message. The physical return may occur days or months later. The date of the physical return of the vetoed enrolled act may be established only by the receipt from the deliveree or by logs maintained by the Governor, not by the date on the veto message. And of course, as is the issue in the case at bar, the Constitution itself specifically requires that the vetoed bill be returned on the "first day that the General Assembly is in session" following the adjournment.Unfortunately, as shown on the first page of the State brief, it appears that both parties stipulated here that "the House received the returned veto on May 11, 2001" -- which is the date on the veto message. There is no mention of receipts or logs to establish precisely when HEA 1816 itself was physically returned to the House.
2. The Governor’s argument does not acknowledge that the Indiana Constitution contains both substantive and procedural provisions and that different requirements may apply.
On page 4, the brief claims that the Court of Appeals' opinion "fails to recognize that a constitution is construed liberally, more broadly than a statute, because its powers and restraints are unlimited and it must serve its intended purpose over a longer period of time," and cites State v. Nixon (Ind. 1979). Interestingly, Nixon is the case where the Court threw out the Pari-Mutual Betting Law as being a "lottery" in contravention of then-Art.15, sec. 8, which prohibited lotteries.
The Indiana Constitution contains both substantive and procedural requirements. Many of the procedural requirements deal with legislation. I would consider Art. 5, sec. 14, detailing the process that a Governor must follow in acting upon a bill presented to him, to be a procedural provision. One might well argue that the Court historically has applied a different standard to these procedural provisions and that "close enough" is not good enough when considering the Governor's constitutional role in the law-making process.
However, the State's brief, on page 5, asserts that "if the Constitution requires a return on the first day of the next session, the Governor's return accomplished that objective." And on page 6: "The Governor's physical return on May 11th [again confusing the date on the veto message with physical return of the bill] accomplished the objectives and purposes of [Art. 4, sec. 14].
3. The Governor’s argument confuses a “deadline” and a “date certain” .
Page 2 of the State brief makes this reference to the Court of Appeals opinion:
The Court believed that the drafters of the 1972 Amendment to the adjournment clause veto “intended to establish a date certain for the return of vetoed bills” and not a deadline for gubernatorial action.On pages 7-13 the brief argues that the constitutional requirement: “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 in which it originated on the first day that the General Assembly is in session after such adjournment" only creates, in the words of the brief, "a deadline for returning a gubernatorial veto, not a date certain for that action." In other words, the State argues that any return on or before that date is adequate, and that the Court of Appeals position is wrong.
This claim is made in spite of language in the same section that clearly shows that when the drafters wanted to create a deadline, rather than a date certain, they knew precisely how to do so. Here is an example of a deadline appearing in the same section, at (a)(2)(A):
In the event of a veto while the General Assembly is in session, he shall return such bill, with his objections, within seven days of presentment, to the House in which it originated.4. The fact that the Governor and General Assembly have been handling vetoes this way for years may not count for anything.
Starting on page 13, the Governor’s brief argues:
The Opinion also contravenes precedent by failing to defer to the Governor and General Assembly's longstanding interpretation of the adjournment veto clause. The Governor has been returning vetoed bills to the General Assembly after adjournment for over twenty years.Ironically, in the case that was the impetus for the amendments to this section of the Constitution to make it read the way it does today, State v. Indiana Revenue Board (1968), the "pocket veto" decision, the Court of Appeals (trans. den. 1969) said the following (see also this ILB entry from 8/14/03):
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.In other words, the courts have already ruled that years of practices in violation of constitutionally required procedures does not make them valid – to hold otherwise would imply that the Constitution’s requirements may be amended by noncompliance.
[In this regard, see also the ILB entry from 8/24/03 where the question answered is "Doesn't the fact the Governor and General Assembly have been handling vetoes this way for over 30 years count for anything?" and the answer is "No." See particularly the 1968 Legislative Procedures Manual linked to the entry.]
5. The argument that compliance with the constitutionally-established procedure creates uncertainty and that a return “during the interim” will alleviate that fails upon examination.
On page 3, the brief makes this statement:
That procedure [of returning bills to the house of veto immediately after veto] gave the General Assembly and the public immediate notice of which bills would become law, unlike the Court of Appeals' interpretation, which creates doubt about which bills have become laws. The result is to create an unworkable scheme whereby a bill's status will not be ascertainable until after its effective date.Again on pages 6-7, as on page 3, the State's brief asserts:
The Governor informed the House and the public of his reasons for vetoing House Bill 1866. The General Assembly, governmental officials, and the public have a compelling need to know if the bill was vetoed. Under the Opinion, the Governor could simply hold the vetoed bills and make no public statement for five months.Finally, on pages 15 and 16 the brief argues that "the Court of Appeals' construction creates uncertainty for bills pending veto returns." As stated on page 16: "The public and General Assembly will not be able to rely on the Governor's post-session veto of proposed legislation until the return occurs, several months after the fact."
Once more, the brief here confuses the pronouncement of the veto message, required within 7 days or the bill will become law, with the vetoed bill itself, which is to be returned to the house of origin on the first day of the General Assembly's next meeting.
Let's look at this. The Governor vetoes a bill after final adjournment and proclaims his veto message. Then there are three alternatives:
Alternative (a). He never returns it. He has thus prevented the General Assembly from exercising its opportunity to override the veto. But the Constitution covers this. It says he must return the bill to the house of origin on the first day that the General Assembly is in session. If he fails to do so, the under Sec. 14(a)(2)(D) it becomes law. Presumably it becomes law upon the passing of the "date certain" for return, the first day that the General Assembly is in session.
Alternative (b). He returns it, to an adjourned legislative body, sometime during the period between the issuance of his veto message and the reconvening of the General Assembly. The brief argues that this gives certainly, although it does not comply with the constitutional requirement, presumably because the vetoed bill is now back in the “custody” of the General Assembly. But several questions occur.
First, who knows it? Who knows that the bill has been returned? Where are the public logs and receipts? If the public doesn't know of the return, how can it rely on it once the return has occurred?
Second, and even more basic, does the bill really pass from the custody of the Governor to the General Assembly if it is returned while the General Assembly is not in session?
Under the Constitution, the Governor is, to put it simplistically, the Governor all-year-around. He holds the executive power of the state and may authorize his agents to carry out his duties. The General Assembly, on the other hand, can meet only at those times designated by the Constitution and by law. When it is adjourned sine die, the General Assembly cannot self-convene (except in an instance when both the office of Governor and Lieutenant Governor have become vacant). And, as the General Assembly has no legislative authority when it is not in session, it cannot act to make laws, or perform any of the constitutionally-detailed procedural steps in the law-making process. This being the case, the house of origin cannot receive vetoed bills during the interim, nor can it authorize agents to perform its law-making duties during this period, including the receipt of vetoes from the Governor.
So the question here is, can a vetoed bill in fact be "returned" until the first day the General Assembly reconvenes? My answer would be "no" and I would add that this is the rationale of, and the justification for, the provision in the Constitution of a “date certain” for return -- the Governor is to safeguard the vetoed bill in his custody until the first day the General Assembly reconvenes and can receive the vetoed bill into its own custody.
Alternative (c). The Governor returns the vetoed bill, as required by the Constitution, on the first day that the General Assembly is in session. Yes, at this point we, the public, know for sure that the Governor intended for his veto to stick, because now he has fully complied with the Constitution and the vetoed bill is back in the hands of the General Assembly (remember, if it was not returned, then, as discussed in alternative “a”, it becomes law, presumably on the day following this day certain).
But, of course, uncertainty remains, because we, the public, don't know yet whether the veto will be overridden. The General Assembly may, at some point, in the words of the Constitution, “before the final adjournment of the next regular session of the General Assembly that follows the regular or special session in which the bill originally passed,” override the veto and the bill will then become law after all.
[Note: As to when an Act passed over a Governor’s veto will “take effect,” as distinguished from when it will “become law,” see IC 1-1-3.1. Chapter 3.1. is titled “Effectiveness of Acts Passed Over the Governor's Veto.”]
In re: Thomas O. Oakley (9/25/03 US CA 7th Circuit)
Posner, Circuit Judge
The question presented by this appeal is whether U.S. currency is “tangible” or “intangible” personal property within the meaning of an Indiana statute that places some of the property of a bankrupt or other judgment debtor beyond the reach of his creditors. The statute exempts $4000 worth of tangible property, but only $100 of intangible property, Ind. Code §§ 34-55-10-2(b)(2), (3), which is why it makes a difference how currency is classified. The statute is applicable to this bankruptcy case because the Bankruptcy Code allows a state to substitute its own system of debtor exemptions for the Code’s, and Indiana has taken up this option. Ind. Code § 34-55-10-1. * * * To our surprise, the question whether cash is intangible property for purposes of debtor exemption statutes has not been discussed in any reported appellate opinion that we can find. * * *Because money in whatever form—whether cash or an invisible, a disembodied, financial asset—is a medium of exchange rather than a useful good (with the irrelevant exception of money that has become a collector’s item), it is what creditors want to levy on. Clothes, furniture, and other personal possessions are useful goods that are indispensable (up to a point—but remember that the exemption for tangible property is modest) to the debtor but of little value to creditors, who would have to convert them to money to recover their loan and would incur heavy transaction costs, relative to the value of the goods, in the process. So no more than $100 of Oakley’s $2700 in U.S. currency was entitled to be exempted from the bankrupt estate; the trustee is entitled to the rest. Even Oakley’s entitlement to the $100 is uncertain. It depends on whether he has any other intangible property that he wants to exempt—and it happens that his schedule of exemptions includes $200 for a security deposit and $100 for a savings account. Both claims are to exempt intangible property, yet as far as we can determine the trustee objected to neither even though their sum exceeds $100. The matter can be straightened out in the bankruptcy court.
REVERSED.
Beverly Brazauskas v. Fort Wayne-South Bend Diocese, Inc. (9/25/03 IndSCt)
Shepard, Chief Justice
Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs in part and dissents in part with separate opinion.
The Court's introduction:
Appellant Beverly Brazauskas sued Father Jose Martelli and the Fort Wayne-South Bend Catholic Diocese for blacklisting and tortious interference with a business relationship. She claims that after Father Martelli terminated her employment at Sacred Heart Church, he and Bishop John D’Arcy of the Diocese prevented her from obtaining a position at the University of Notre Dame by truthfully informing University President Father Edward Malloy that Brazauskas was suing them over this termination decision.We conclude that even if this scenario occurred as she describes, her suit fails under the First Amendment’s Free Exercise Clause.
Mary Neal v. In the Matter of Termination of Parent-Child Relationship (9/25/03 IndSCt)
Rucker, Justice
This decision begins:
"This opinion resolves the question of whether a parent may initially consent to the termination of her parental rights and later appear in open court and change her mind. We hold that she may."The court finds that IC 31-35-1-6(a) ("this statute specifically requires that consent to terminate must be given 'in open court'") and IC 31-35-1-12 ("It is this statute to which DFC points in arguing that when a parent appears in open court as provided under Section 6 and indicates that she does not consent to termination, the court need only conduct a hearing to determine whether the initial written consent was entered knowingly and voluntarily.") are in irreconcilable conflict, and concludes:
DFC’s insistence that a parent is forever bound by an out of court written consent appears to rest on a State interest of finality and predictability in the voluntary termination of parental rights. As DFC explains “the process of coming to open court after a consent to terminate parental rights, serves only the purpose of challenging a consent executed under coercion or duress, and not a simple change of heart.”Shepard, C.J., and Dickson, J., concur.We acknowledge that the State’s interests are powerful. However, we are faced here with two statutes that are in irreconcilable conflict. Absent a clear legislative directive that the State’s interests outweigh the interests of parents, we must conclude that the Legislature intended that Section 6 prevail over Section 12. See Stanley v. Illinois, 405 U.S. 645, 651 (1972) (declaring that the essential and basic constitutional rights of parents to the care, custody and control of their children warrant protection “absent a powerful countervailing interest.”). We therefore agree with the holding of the Court of Appeals: “[A] parent’s written consent to the voluntary termination of her parental rights is invalid unless she appears in open court to acknowledge her consent to the termination, or unless all three of the exceptions set out in Indiana Code Section 31-35-1-6(a) are satisfied.” Neal, 768 N.E.2d at 490. Because Neal appeared in open court but did not consent to termination, the trial court erred in entering an order for the voluntary termination of Neal’s parental rights.
Conclusion. We reverse the judgment of the trial court. This cause is remanded for further proceedings.
The dissent states in part:
I believe that the State’s proffered interpretation of the Legislative intent is equally plausible and the doctrines of stare decisis and legislative acquiescence warrant affirming the trial court’s decision here, a decision that reflects established practice in Indiana juvenile courts. * * *Indiana law is clear that a parent’s consent to the termination of his or her parental rights must be voluntary and a parent who contends that a consent given was not voluntary has a statutory right to a hearing on that issue. The statute – if not the Constitution – mandates that this right is entitled to vigorous protection. But stare decisis and legislative acquiescence have long since established that a parent cannot set aside his or her consent unless it was obtained by fraud or duress or unless the parent is incompetent.
The Indiana Supreme Court issued the following release this afternoon:
The Hon. Sanford M. Brook, Chief Judge of the Indiana Court of Appeals, announced today that he will step down from the bench to take on his newest professional challenge with a position for a prestigious private judging firm in Colorado.His resignation will become effective around the beginning of February 2004.
Judge Brook, of South Bend, was appointed to the Court of Appeals in October of 1998 and was elected Chief Judge of the 15-member Court of Appeals in 2002.
Judge Brook will be working with The Judicial Arbiter Group (JAG) JAG is one of the oldest, most successful private judicial services in the country. JAG consists entirely of former State and Federal Court Trial and Appellate Judges.
Before he was appointed to the intermediate level Court of Appeals, Judge Brook was a judge of the St. Joseph Superior Court from 1987 to 1998 and served as Chief Judge of that Court from 1995 to 1997.
He received his bachelor’s degree in 1971 and his law degree in 1974, both from Indiana University in Bloomington. He worked in private practice and was deputy city attorney of South Bend and a deputy prosecutor for the St. Joseph County Prosecutor’s office. He has also served as Adjunct Associate Professor of Law at Notre Dame Law School and as Adjunct Professor of Law at Indiana University School of Law - Bloomington. He is the former chair of the Indiana Supreme Court Ethics Committee and is a member of American, Indiana State, and St. Joseph County Bar Associations; the Indiana Judges Association, N.I.T.A. Advocates Association and the American Judicature Society.
For more information on JAG, visit their website at www.jaGinc.com.
The Indiana Judicial Nominating Commission will solicit candidates from Indiana’s Third District, which includes the northern third of Indiana. The Commission will then send the names of three candidates to Governor Joseph E. Kernan, who will make the final selection.
The Supreme Court has posted three other important or interesting opinions today, one dealing with (these are links to the opinions) abortion and medicaid, one with dog bites, and one dealing with breach of duty.
[Update 9/25/03] Today's Indianapolis Star has stories on two of these decisions:
"Court expands medical coverage for abortion: In 3-2 vote, Indiana justices rule that women with serious health risks may use Medicaid for procedure." is the headline to this story that begins:
The Indiana Supreme Court expanded taxpayer-funded abortion coverage for poor women in a divided ruling Wednesday. Voting 3-2, the court said poor women are entitled to abortions paid for by Indiana's Medicaid program if their pregnancies are creating serious health risks. In the past, Medicaid paid for an abortion only if it was necessary to save the mother's life, or if the pregnancy was caused by rape or incest.Another story, headlined "State court puts bite on dog owners: If a pooch nips the mailman or a police officer, its master is liable, justices rule," reports:The new exception covers pregnant women at "serious risk of substantial and irreversible impairment," Justice Frank Sullivan wrote for the majority. The justices, however, stopped short of saying the state has to pay for all medically necessary abortions, even if ordered by a doctor. Despite the court's limited ruling, abortion rights groups hailed Wednesday's decision as a victory for women who are served by the state-federal health program for Indiana's poor and disabled.
The Indiana Supreme Court declared Wednesday for the first time that dog owners are more liable if their pooches bite mail carriers than if they bite regular folk. It doesn't matter if it is the first time the dog had ever bitten someone. And it doesn't matter if the owner takes precautions to keep the dog away from the mail carrier.Readers of the Indiana Log Blog may recall an entry here the end of May of this year reporting on another Supreme Court opinion that ruled that "every good dog gets one bite." That decision, Poznanski v. Horvath (Ind SCt 5/30/03), is distinguished in the new ruling.In the 4-1 decision, the Supreme Court invoked a 1951 law that offers mail carriers and other public servants, such as police officers, greater protection from dogs while they are on the job.
For everyone else, the courts use the "one free bite" rule. That means an owner usually isn't held liable until he knows his pet is dangerous because the dog has bitten someone, or has shown aggression.
More later.
During the oral arguments before the U.S. 9th Circuit Monday, on the California recall case, Judge Alex Kozinski asked whether the lower court judge had gotten the law right, or was he saying "close enough." I am reminded of that when looking at the issue in D&M Healthcare. The Constitution requires that a bill vetoed after the General Assembly has adjourned sine die be returned "on the first day that the General Assembly is in session after such adjournment" or it becomes law despite the veto. The vetoed bill at issue in D&M Healthcare was returned to the Indiana House while the General Assembly was still adjourned. The Court of Appeals said this was not "close enough" to meet the requirements of the Constitution. [For access to all the Indiana Law Blog prior entries and documents on D&M Healthcare, click the link under "Categories" in the column to your right.]
The Indiana Supreme Court will hear oral arguments on the petition to transfer next Thursday, October 2 at 1:30 p.m. The briefs of the appellees were filed last week. The reply brief of appellant D&M Healthcare is not due until COB on next Monday, September 29. The Court has stated that it may rule on the transfer petition prior to argument. If it denies transfer, the argument will be cancelled.
Both the counsel representing the Governor and the Indiana Family and Social Services Administration, and the Attorney General of Indiana have filed briefs on the transfer request.
The Attorney General's brief argues that "even if this Court affirms, it should grant transfer to make the decision prospective only" because of the "wide-ranging consequences of the Court of Appeals' decision." The bulk of the brief then details the subject matter of many of the bills vetoed post-adjournment since 1981.
The Attorney General's brief assumes that because, since 1981, the Appendices of the House and Senate Journals have contained a section titled "Messages Received After Adjournment" that includes the text of the veto messages, this means that "at least since 1981 Indiana governors have returned vetoed bills at the time of the veto."
That may be a leap. The point missed is that the veto message and the vetoed bill itself are two different entities, with two different roles.
The Governor has only seven days to act after receipt ("presentment") of an enrolled act, whether the General Assembly is in session or has already adjourned sine die. If the Governor approves a bill, he so indicates by signing the last page (the signature page) of the actual Enrolled Act that has been presented to him. The Governor also issues a message announcing his action. Here is such a message, dated May 1, 2003.
If the Governor vetoes a bill, he also issues a message, detailing his objections. Here is a veto message from May 1, 2003.
The Governor's public proclamation of the veto is important because of the requirement that the Governor act within seven days of presentment. After adjournment sine die, it is by public pronouncement of the veto message that the Governor establishes his "timely veto."
Is unlikely that the physical return of the vetoed bill to the house of origin has often (or ever) taken place simultaneously with the issuance of the veto message. The physical return may occur days or months later. The date of the physical return of the vetoed enrolled act may be established only by the receipt from the deliveree or by logs maintained by the Governor, not by the date on the veto message. And of course, as is the issue in the case at bar, the Constitution itself specifically requires that the vetoed bill be returned on the "first day that the General Assembly is in session" following the adjournment.
So we are talking about three dates - the date the bill is actually vetoed by the Governor, the date on the veto message, and the date the bill itself is physically returned to the house of origin. In sum, the date on the veto message shows nothing about when the vetoed bill was physically returned to the General Assembly. The Journal Appendices show nothing in this regard, certainly NOT that "at least since 1981 Indiana governors have returned vetoed bills at the time of the veto."
The Journals of the 2003 session of the Indiana General Assembly, as since 1981, will include Appendices containing the veto messages from the 2003 session. However, we know for a fact that this year, as a result of this pending litigation, the Governor's office retains the vetoed bills and is waiting to return them until the "first day the General Assembly is in session."
Sadly, that "first day" now may be the day of the Special Session called to confirm the new Lieutenant Governor.
[More] I do think, however, that the Attorney General's recommendation that, even if the Supreme Court agrees with the Court of Appeals, it take transfer to clarify that the ruling is prospective only, is a good one. See the Indiana Law Blog entry of August 14, 2003, here, for similar points. In addition, recall that Justice Dickson, in his dissent in Pence v. State (IndSCt 1995), regarding another provision of the Indiana Constitution, Art. 4, Sec. 19, urged prospective enforcement of the one subject matter requirement, stating:
Due to our prior reluctance to enforce the single-subject-per-act requirement and our resulting implied invitation to the General Assembly to accord minimal attention to the single-subject requirement in our Constitution, we should continue to extend considerable deference to provisions enacted prior to today. To invalidate the presently challenged statutory provisions, presumably enacted in reliance upon this Court's precedent, would thus be inappropriate.__________I would find that the plaintiffs have standing to seek judicial determination of the questions presented but would uphold the challenged legislation as congruous with prior decisions interpreting the single-subject-per-act requirement of the Indiana Constitution, which should henceforth be fully enforced.
NOTE: Although Article 5, section 14(a)(2)(A) requires that when a bill is vetoed while the General Assembly is in session, the Governor return the bill to the house of origin along with "his objections", oddly, "with his objections" is only required in the provisions dealing with a veto while the General Assembly is still in session, not for bills vetoed after the General Assembly has adjourned.
[Note: Next up will be discussion of the administration's arguments.]
Peter Dvorak v. City of Bloomington (9/23/03 IndSCt)
Dickson, Judge
[More later, meanwhile, the case is now available via the link above.]
This case, from Bloomington, was decided yesterday, according to the press. It is not yet available online. Please check back.
Meanwhile, access coverage from the Indianapolis Star here, and the Muncie Star Press here.
Twin Eagle LLC v. Indiana Department of Environmental Management (9/23/03 IndSCt)
Boehm, Justice
Dickson and Rucker, JJ., concur.
Sullivan, J., concurs in result with separate opinion in which Shepard, C.J., joins.
[More on the decision later - meanwhile, it is now available via the link above.]
The Indianapolis Star and the Muncie Star Press are both reporting this morning that the Indiana Supreme Court has issued a ruling in this case. The opinion unfortunately has not yet been made available on line. Check back. The Star Press reports here:
The Supreme Court ruled Tuesday that private ponds and isolated wetlands can be waters of the state, and that placing dredge and fill material in those water bodies can constitute pollution.The Indianapolis Star story, available here, reports:The court ruled that IDEM's statutory authority to regulate water can be traced back to 1935, when the Legislature authorized the Indiana Department of Commerce and Industry to regulate waters.
The state also has a long history of regulating waters through the Water Pollution Control Board, created in 1943 through its predecessor, the Stream Pollution Control Board, the court wrote.
Developers and farmers will need permission from the state before filling in some of Indiana's smallest wetlands, under a ruling issued Tuesday by the Indiana Supreme Court.Access the earlier Indiana Law Blog coverage, including a link to the Marion Superior Court ruling, here.In a case seen as a big victory both for the state and environmentalists, the court ruled that the Indiana Department of Environmental Management has the authority to regulate wetlands that are isolated from lakes and streams.
That authority had been challenged in a lawsuit brought by a Fort Wayne housing developer, who contended the state lost its power to regulate such wetlands when the U.S. Supreme Court ruled in 2001 that federal jurisdiction over isolated wetlands didn't exist. Since the state was regulating wetlands under the federal Clean Water Act, its authority also was gone, the suit claimed. The ruling reverses a lower-court decision in favor of the developer.* * *
Wetlands provide breeding areas for waterfowl, offer habitat for plants and animals, and help filter groundwater and control flooding.
But developers argued that it makes little economic or environmental sense to preserve smaller wetlands -- some less than an acre -- which often stand in the way of millions of dollars in housing and business development.
How Appealing reports a fascinating story this evening. The federal district court judge who has presided over the Everglades cleanup case for more than a decade has been ousted at the behest of the sugar industry. The lead (and more) from the Sun-Sentinel:
Big Sugar on Tuesday won its bid to oust the Miami federal judge overseeing the cleanup of the Florida Everglades.The Miami Herald reports:United States Sugar Corp.'s request that U.S. District Judge William M. Hoeveler be disqualified from further work in the controversial case was granted by the chief judge for the U.S. District Court in South Florida, William J. Zloch. * * *
The company contends Hoeveler demonstrated bias by criticizing, in the news media and in two court orders, new state legislation that could delay the cleanup by a decade.
Hoeveler had maintained he would adhere to the pollution-level standards and cleanup timetable established in the settlement, regardless of what effect the new state legislation would have.
In its motion to disqualify the judge, the industry said Hoeveler had overstepped his authority with his public criticism of the bill and questioned whether he could make fair and impartial rulings in the case. Hoeveler's comments about the bill and Gov. Jeb Bush's support of it had been quoted by several newspapers, including The Herald. * * *Access the 9/23/03 Order of Disqualification from this page. For another take on the removal, see this story from EarthJustice. Also interesting is a story from Friday's Miami Herald, headed "Dade Bar releases poll results for federal judges." In that poll;[Chief Judge William J.] Zloch also cited an order in which Hoeveler wrote that the "Court does not yet have cause to attempt to apply the legislation, and I sincerely hope I am never obliged to do so, for the bill is clearly defective in many respects ... While I am deeply troubled by the content of the bill, I am dismayed by the process that led to its passage. The bill was moved quickly through the legislative process, reportedly at the behest of more than forty lobbyists for the sugar industry."
Judges Jose A. Gonzalez Jr., William M. Hoeveler and Alan S. Gold led the pack, with more than 95 percent of the surveyed lawyers saying they were exceptionally qualified or qualified.
Kelly Bedle v. Susan Kowars (9/23/03 IndCtApp)
Baker, Judge
Judge Baker summed up the case as follows:
In this case, we are presented with a classic choice of law question. If Indiana law prevails, the cause must proceed to trial. If Ohio law applies, the trial court correctly dismissed the complaint.Sharpnack, J., concurs.
Appellant-plaintiff Kelly Bedle appeals the trial court’s judgment granting appellee-defendant Susan Kowars’s motion to dismiss her claim for breach of contract against Kowars regarding an alleged agreement they had with each other to split gambling winnings from the Argosy Casino (the Casino) in Lawrenceburg. Specifically, Bedle argues that the trial court erred in dismissing the complaint because an enforceable contract was created and Kowars breached the agreement because she subsequently refused to split the winnings with her. Concluding that Ohio law controls in this instance that prohibits such gambling agreements, we affirm the dismissal of the complaint.
Here are the beginning and conclusion of Brook's opinion:
In my view, Bedle’s arguments are based on the faulty premise that the trial court dismissed her complaint because her contract with Kowars is unenforceable under both Indiana and Ohio law. Nothing could be further from the truth. Kowars sought to dismiss Bedle’s complaint on the grounds of lack of subject-matter jurisdiction and failure to state a claim upon which relief can be granted, as well as on the alternative ground of forum non conveniens. * * *Clearly, the trial court did not dismiss Bedle’s complaint on the basis that the contract was unenforceable under both Indiana and Ohio law. Given that Bedle does not challenge the stated basis of the order, I would find her arguments waived and affirm the trial court’s dismissal of her complaint.
Last we heard, on June 19, 2003, "Troubled hog farm has a new owner: Iowa buyer of Pohlmann operation, which has own problems, vows to be a good neighbor."
Today's Lafayette Journal and Courier reports:
A Montgomery County hog farmer with a history of allowing manure to pollute Hoosier waters will no longer be allowed to operate in the state, according to a settlement reached Monday between the state and Klaus Pohlmann.The Indianapolis Star also has a story today, which leads with:Pohlmann, owner of the Montgomery County-based Pohlmann Farms, also will set aside at least 106 acres of his more than 1,750-acre farm as protected areas. John Goss, director of the Indiana Department of Natural Resources, said establishment of a 3-mile long perpetual conservation easement along Little Sugar Creek and other waterways will lessen future threats to the creek. * * *
"IDEM has been working for years ... to force Mr. Pohlmann to manage his property well," IDEM commissioner Lori Kaplan said. "Those remedies ... did not work in this case, so we sought court action. This agreement settles that litigation in a manner that will allow us to place attention where it is needed most -- to restoring and maintaining the health of Little Sugar Creek."The operations will be sold to Iowa-based Natural Pork Producers II, owned by Iowa businessman Gary Weihs. That company already has applied for a National Pollutant Discharge Elimination System permit from IDEM. After IDEM reviews the application, it will hold a public comment period before Natural Pork is allowed to run a confined feeding operation.
Indiana's most notorious hog farmer is banned from operating in the state and will pay $74,000 in civil penalties under a settlement reached Monday in a lawsuit over water pollution violations.For earlier confined feeding entries, check here.
[Updated Monday afternoon, see below] According to a story in the Indianapolis Star this morning, the Indiana Supreme Court has granted transfer in the D&M Healthcare case. This is the Court of Appeals decision holding that "vetoed" bills not returned to the General Assembly in strict compliance with the terms of the Indiana Constitution are not effectively vetoed. The Indiana Law Blog has had a number of entries on this case; check the "Categories" list in the right column for digests and links to all past entries and materials. That Star reports that last week:
[T]he Indiana Supreme Court notified attorneys it intends to put this legal challenge on the fast track. That means a ruling on the governor's veto power could come within weeks or months, not years. Oral arguments will be scheduled for Oct. 1 or Oct. 2.However, none of this information shows up as yet on the Clerk's Docket.
A kind reader has faxed me copies of the briefs of Bingham McHale and the Indiana Attorney General (note, these links are to the offices, not, unfortunately, to the briefs), both representing Appllees/Defendants Below, both asking the Supreme Court to grant transfer and to reverse the Court of Appeals decision of August 13, 2003.
[Update] The Docket now includes the following:
****TRANSMITTED ON TRANSFER 09/15/03****** RS
9/22/03 ISSUED THE ENCLOSED ORDER:
9/22/03 ORDER:
TWO PETITIONS SEEKING TRANSFER OF JURISDICTION WERE FILED BY THE APPELLEES. THE APPELLANTS ARE GRANTED LEAVE TO FILE A SINGLE OVERSIZED RESPONSE BRIEF, NOT TO EXCEED 6300 WORDS, EXCLUSIVE OF THE ITEMS LISTED IN APPELLATE RULE 44(C). THE BRIEF MUST BE FILED BY PERSONAL DELIVERY TO THE CLERK'S OFFICE AND SERVED PERSONALLY ON COUNSEL FOR THE APPELLEES BEFORE 5:00 P.M. ON SEPTEMBER 26, 2003.ANY REPLY BRIEFS BY THE APPELLEES MUST BE FILED BY PERSONAL DELIVERY TO THE CLERK'S OFFICE AND SERVED PERSONALLY ON COUNSEL FOR THE APPELLANTS BEFORE 5:00 P.M. ON SEPTEMBER 29, 2003.
THIS MATTER IS SET FOR ORAL ARGUMENT AT 1:30 P.M. ON OCTOBER 2, 2003 IN THE SUPREME COURT COURTROOM, ROOM 317, STATEHOUSE, 200 WEST WASHINGTON STREET, INDIANAPOLIS, INDIANA. SIXTY MINUTES ARE ALLOCATED FOR THE ARGUMENT, THIRTY MINUTES PER SIDE. SUBSTANTIVELY ALIGNED COUNSEL MAY DIVIDE THEIR TIME AS THEY DEEM APPROPRIATE.
THE COURT ANTICIPATES THAT IT MAY ISSUE AN ORDER ON THE PENDING PETITIONS TO TRANSFER PRIOR TO THE ARGUMENT. IF TRANSFER IS GRANTED PRIOR TO THE ARGUMENT, THE APPELLANTS WILL ARGUE FIRST AND BE GIVEN THE OPPORTUNITY TO CLOSE WITH REBUTTAL. IF TRANSFER IS DENIED PRIOR TO THE ARGUMENT, THEN THE ORAL ARGUMENT IS CANCELLED. IF THERE HAS BEEN NO RULING ON THE PENDING PETITIONS AT THE TIME OF ARGUMENT, THEN THE APPELLEES (THE PETITIONERS ON TRANSFER) WILL ARGUE FIRST AND BE GIVEN THE OPPORTUNITY TO CLOS WITH REBUTTAL.
RANDALL T. SHEPARD, CHIEF JUSTICE MS
9/22/03 ****** ABOVE ENTRY MAILED ******
[I expect to report more later after I have reviewed the briefs.]
The Sunday NY Times had a good article on Governor O'Bannon and the impact of his death on Indiana.
A suit filed in federal district court here September 10 "accuses the government and Prudential [Life] of breach of contract for refusing to pay a $10,000 claim Warnock filed after his son, Joshua, was stillborn on April 14, 2002." The story was first reported by AP and appeared in NewsDay.com on Friday, September 19. More from the AP story:
A Kokomo man has filed a federal lawsuit seeking to force the government and Prudential Life Insurance Co. to pay a claim for his stillborn son. * * * Prudential informed the Warnocks that it would not pay the claim because their stillborn son did not fall under the definition of a dependent child.The Indianapolis Star has a story today, reporting that:"They did deny the claim and the reason for denying the claim was because it wasn't a dependent child because it was stillborn," said Charleyne Gabriel, one of the couple's attorneys. She said she was not aware of any federal court rulings on the issue of whether parents of stillborn children are entitled to life insurance claims.
The couple's attorneys are seeking class-action status for the lawsuit, which would allow other couples in the military's insurance program and whose stillborn babies were in gestation for at least 20 weeks to join the litigation. The class would include people who had stillborn babies after August 1993. Gabriel said Indiana's statute of limitations for enforcement of written contracts such as an insurance policy is 10 years.
The outcome of the case could set a precedent that would require insurance companies to provide death benefits to parents of thousands of stillborn babies, attorneys and industry observers say. * * * Prudential has told the Warnocks it will not pay the claim because "the child was (never) alive," said Charleyne Gabriel, the couple's attorney.Warnock [the plaintiff] said the company has offered to settle the dispute for $5,000, but he refused. The suit alleges that he should receive a death benefit because the policy covers any "naturally born or legally adopted" children in his family.
However, life insurance policies generally do not cover children until they are at least two months old, agents said. "I've never heard of a policy that covers a child before it is even born," said Stanley Hopp, director of the Society of Insurance Research in Marietta, Ga. "This is a new one on me." * * * Federal courts have never ruled whether the parents of stillborn children are entitled to life insurance claims, Gabriel said. Other couples have inquired about the benefit but were denied, she said.
Law professor Eugene Volokh (UCLA) has an interesting discussion on the recent changes to EPA's NSR rules on his well-regarded law blog, The Volokh Conspirary. I came in on the tail-end of the debate with another UCLA prof, Mark Kleiman.
The primary problem with Kleiman’s claim is that that the NSR reforms do not, in any way, change the ambient air quality standards for particulate pollution (recently tightened in light of the health studies he cites), nor do the NSR reforms change the deadlines for meeting such standards. In other words (as I noted below), the legal obligations of states to meet the air quality standards remain the same. Also unchanged are the states' legal authority to demand whatever emission reductions from stationary sources are necessary to achieve said standards and the provisions that prevent upwind jurisdictions from preventing attainment in downwind jurisdictions. In other words, NSR reform is largely irrelevant to particulate levels in nonattainment areas – and is therefore unlikely to have any health impact. (I would note that when I confronted the head environmental official from a state suing the EPA over the NSR reforms, he conceded the point.)For a lot more information, see this earlier Volokh entry, and the links referenced.Second, I have already noted how, in many cases, the NSR reforms will actually lead to a net reduction in emissions from energy production. Indeed, I noted how this is the case at the facility at which Bush gave the speech that set off this exchange. Kleiman has no response.
Third, Kleiman confuses the NSR reforms with the Bush legislative proposal to reform the Clean Air Act and adopt a tradable emission permit regime (so-called "Clear Skies,” not "Clean Skies"). These two are wholly separable. (Indeed, if the "Clear Skies" proposal is adopted, it will completely supplant NSR for power plants.) Under "Clear Skies," if adopted by Congress, SOx and NOx emissions will decline by 70 percent under progressively tightening permit limits. Under current law, if fully enforced on schedule through the NOx SIP Call process, these emissions are expected to decline by 75 to 80 percent over the same time period. The problem is that this regulatory process has never remained on schedule, irrespective of which party has been in power, due to extensive litigation by industry groups and environmentalists. The reductions under "Clear Skies" are more certain, because they will be set legislatively, and will thus be less subject to legal challenge in court. Thus, the worst that can be said of "Clear Skies" – which, I reiterate, is not the same as NSR reform – is that it will reduce emissions marginally less than emissions might otherwise be reduced if everything stays on a schedule that has never been met before. In all likelihood, the rates of reduction will be comparable.
Finally, Kleiman notes that liberals and Democrats tend to push for more stringent environmental controls than conservatives and Republicans. This is generally true. I would also note, however, the interesting fact that every major piece of environmental legislation, save one (CERCLA), was signed into law by a Republican President. Whether this speaks well of Republicans depends on what one thinks of the various environmental laws.
The Gary Post Tribune has a story today (unfortunately the PT's stories are only available for one day) headlined "Lake County grand jury gets primer on vote fraud." . . .
A quote:
A Lake County grand jury spent four hours Friday getting a clear outline of voter fraud. That group will be asked to begin returning criminal charges against dozens of residents targeted in a countywide voter fraud investigation.The Gary story states that "Five Democratic candidates won nomination only as a result of absentee ballots — Robert Pastrick for East Chicago mayor, Deborah Riga for Schererville town judge, New Chicago Town Council nominees David Hall and Kelly Vickery, and Hammond City Council 3rd District nominee Anthony Higgs." As noted in our earlier reports, the Schererville and East Chicago elections have been challenged, both are to be reviewed by the Court of Appeals. The alledged violations involve absentee ballots:Officials representing the Indiana State Police, Indiana Secretary of State and Lake County prosecutor appeared before the grand jury Friday. State police are doing the investigative work, while prosecutors are presenting evidence.
Dale Simmons, an election attorney with the Secretary of State’s office, provided background on voter fraud, ballot rules and voting practices. Lake County Prosecutor Bernard Carter presented a large chart to show the makeup of an absentee ballot and how to vote absentee.
The grand jury, scheduled to meet weekly through March, will examine dozens of cases to determine if voter fraud charges are warranted.
The accused violations include improper handling of a ballot, illegal possession of a ballot, soliciting votes for cash and both registering and voting in the names of non-residents. Others are accused of violating the law by voting in a place other than their residence.
On a different topic, but still dealing with elections, is the controversy in California about the upcoming recall election. For those of you who have not been following this, the election has been challenged in the U.S. Court of Appeals for the 9th Circuit. "The argument is simply that the use of punch card votes---with their concededly much higher error rates--- in some counties but not others in a statewide election violates the equal protection clause. This is a straightforward application of Bush v. Gore." This quote is from Professor Rick Hasen's Election Law blog. If you are interested in election law issues, this blog is a daily "must read."
Here is a copy of the 66-page 9/15/03 ruling of the three-judge panel. Here is the original federal district court for the CD Cal ruling that had refused to postpone the recall.
Another Professor, Erwin Chemerinsky, had an opinion piece on this ruling in the LA Times on September 16, 2003. Some quotes:
The U.S. 9th Circuit Court of Appeals on Monday [9/15/03] correctly ordered a delay of the California recall election because there is a great likelihood that such inequity would happen Oct. 7.A review of the ruling of the three-judge panel has been granted and the 9th Circuit will be sitting en banc this coming Monday, September 22, 2003. Eleven members of the 9th Circuit were selected at random to sit en banc. Of course there is a story here, and you can read on report of it in the LA Times, here. Here are photos and bios of the 11 judges of the en banc panel.The court found that the punch-card voting system in place in six counties would cause some ballots to not be counted — ballots that would have been tallied if the voting were done using machines like the ones in place everywhere else in California.
The 9th Circuit based its ruling on decades of Supreme Court decisions that ensure the right of every adult American to have an equal chance to vote and to have his or her vote counted.
The debacle in Florida brought to public attention the problems with punch-card voting machines. We know they fail to count 2 1/2 times more ballots than the other machines that are used in California, optical scanning and touch-screen machines.
Experts estimate that 40,000 votes would not be counted with punch-card machines that otherwise would be tallied in the recall. This, many believe, would be larger than the likely margin of victory in the election.
Additionally, minority voters would be disproportionately affected, because the counties using punch-card machines have a larger percentage of racial minorities than counties using more advanced technology.
Howard Bashman of How Appealing has been covering the recall delay, and points to this story from Sunday's NY Times. A quote:
The Southwest Voter Registration Education Project, one of the parties that brought the California lawsuit, contends that minorities are disenfranchised by the use of punch-card machines in the six counties where they are still in use. According to the group's suit, 81 percent of African-American voters and 67 percent of Latino voters live in counties that still use the obsolete machines. Only 59 percent of white voters in California live in those counties.The en banc hearing will take place at 1 p.m. Pacific time Monday, September 22 and will be carried live on C-SPAN. I believe that is 3 p.m. Indianapolis time. When I have more specifics, I'll post them here.These machines fail to register a vote at more than twice the rate of other voting devices, the suit contends, thus disproportionately robbing minorities of the right to have their votes counted.
A question, of course, is "Could this same argument be made in Indiana, insofar as our voting machines are concerned?" I, for one, have no idea.
[Update] This comprehensive story in the Sunday Imperial Valley Press says that the machines at issue are the:
"Votomatic" or "Pollstar" punch-card balloting machines . . . These machines are the same ones responsible for the "hanging chad" controversy surrounding the 2000 presidential election in Florida.[More] Here on the 9th Circuit website are the briefs for the en banc review, along with other documents. Howard Bashman has posted an excellent preview of the event here.
[Updated 9/23/03] I watched the 9th Circuit arguments yesterday on C-Span -- they were a lot of fun. Today the Court ruled that the election should proceed as planned. For extensive coverage see How Appealing; as well as the Legal Theory Blog here and the Election Law Blog here.
The Wall Street Journal (paid subscription required) has a front page story today reporting:
The Federal Emergency Management Agency is about to launch an extensive nationwide effort to redraw the maps that predict where floods are likely to occur, a move that will have major financial implications for homeowners, property developers and the government-run flood-insurance program.Yes indeed. More from the WSJ story, which if you practice any real estate law you may want to run out and buy:
New flood maps can create deep puddles for homeowners and real-estate developers. Landowners have a strong financial interest to keep the map lines off their property since being in a flood zone increases construction and insurance costs. Zoning ordinances often restrict development on land that falls in a mapped flood zone or require mitigation techniques such as keeping building heights two feet above where floods are common.The WSJ story links to the web site of the North Carolina Floodplain Mapping Program. North Carolina has been designated by FEMA "as the first Cooperating Technical State (CTS). As a CTS, the State will assume primary ownership and responsibility of the Flood Insurance Rate Maps (FIRMs) for all North Carolina communities as part of the National Flood Insurance Program (NFIP). This project will include conducting flood hazard analyses and producing updated, digital FIRMs (DFIRMs)." Many details about the program, as being implemented in North Carolina, may be found here. Another current story that mentions the mapping project may be found here in the Virginian-Pilot.For property owners, being in a flood zone on the map can mean having to buy into the FEMA-run National Flood Insurance Program, the sole underwriter of such insurance. Homeowners with federally regulated mortgages are required to have flood coverage.
"As a result of Hurricane Floyd and the devastating impact of severe inland flooding, FEMA has received authorization to spend up to $15 million from the Disaster Relief Fund to modernize and update our flood maps nationwide after future disasters," Allbaugh said. "This is a significant step forward in identifying our flood hazards nationwide."Interestingly, a much earlier, June 10, 2003 story in the Kansas City Business Journal also reports on federal money for mapping. The lead:
Missouri and Kansas each will receive $30,000 from the U.S. Department of Homeland Security as part of $1.7 million the department will give each state and U.S. territory to update flood maps. * * * Congress has approved $150 million for fiscal 2003 to start the remapping process. In the second phase of financing, states will have two years to create plans for managing more money to modernize maps and maintain flood hazard information. Financing for the second phase has not been determined.And here is a similar story from Wisconsin, dated June 29, 2003. Some quotes:
A multi-million dollar effort is under way to redraw the floodplain maps across Wisconsin using modern techniques that produce better maps. The maps are more detailed and more accurate than maps of the past.And what about Indiana? A quick search revealed only this September 2, 2003 story from the Pharos-Tribune in Logansport (and nothing about remapping), reporting that Gary Scagnoli, "the zoning administrator for both Logansport and Cass County, says there are potentially hundreds of Cass County residents located in low-lying areas bordering streams where they should have flood insurance." More:For homeowners, the new maps can mean big savings or big expenses. “Maps that are inaccurate cause people to purchase flood insurance when it’s not necessary,” Riedau said. “Or perhaps even worse, if the maps are wrong the other way, not get the insurance when they should.”
Boundary changes. A new floodplain map recently was completed in Winnebago County — the first in the statewide project. It was a joint effort between the county, state Department of Natural Resources and Federal Emergency Management Agency. In the new map, the floodplain boundaries changed, affecting 3,700 buildings.
Like many other counties, Winnebago for years had been using maps that were not very detailed or accurate. They indicated that about 5,700 buildings were in the floodplain. But when the new map was completed the boundaries changed. The map indicates that 2,400 buildings were inappropriately identified as being in the floodplain. And another 1,300 buildings that had not been identified in the zone should have been.
Lenders require flood insurance on homes built in areas where there is a 1 percent chance of flooding each year. After the Winnebago remapping, the boundary change did not mean that Lueck could drop his flood insurance. But his home nearly moved out of the floodplain. Now only about 3 feet of the home remains in the zone. * * *
Owner’s responsibility. In Winnebago County, the new map was adopted in March, but officials say there are people who probably still are unaware that the floodplain boundaries have moved.
Kathryn Larson, an employee with the Winnebago County Planning Department, said that although a public hearing was held in December 2001, many people might not find out about the change until they sell their property or refinance a mortgage. She said the county has no plans to notify homeowners individually.
But Scagnoli says many home buyers don't know the home they are buying is in a flood plain because it is not recorded on a deed.Note that an Indiana Law Blog entry from July 31, 2003 reported on the IDNR rule prohibiting reconstruction in a floodway."I think it ought to be on a disclosure statement when they purchase a home," he says.
Scagnoli has flood plain maps of the city and county at his office in the City Building. On the maps, specific areas of the city and county where flooding is likely to occur sporadically are depicted on color maps, which also are available online.
"Any time you're in a Zone A, that Zone A includes two parts. It's got a floodway and the 100-year flood. Any time you are within the Zone A and you try to finance a home, you are required to have flood insurance. A lending institution will require flood insurance. Some people found this out after they had their houses paid for and they went to refinance their homes."
Residents who live in areas designated Zone B are just outside Zone A areas, and Zone B denotes 500-year flood levels, or the extreme areas that may be impacted by flooding. In those areas, residents are not required to have flood insurance, but lending institutions make it optional for home buyers, Scagnoli says.
"Any time you're within a floodway and you have damage, the Department of Natural Resources says you may not reconstruct or restore structural elements of a building," he says. That means no walls, floors or foundations may be rebuilt. Carports can be rebuilt.
A 4-page opinion illuminating the operation of the supersession clause of the Federal Rules enabling act was issued today by 7th Circuit Judge Flaum (argued Sept. 4, 2003 and decided Sept. 19, 2003) in a gas pipeline condemnation case, Northern Border Pipeline Company v. 64.111 Acres of Land in Will County, Illinois.
Federal law permits a natural-gas pipeline to condemn private land in order to assemble a transportation corridor, if the owner and the pipeline cannot agree on a price for the acquisition. See 15 U.S.C. §717f. Northern Border Pipeline Co * * * filed a complaint seeking the condemnation of 16 tracts of land in Will County, Illinois. The owners wanted a jury (or perhaps 16 juries) to determine “just compensation” for these takings. They observed that §717f(h) requires federal courts in gas-pipeline-condemnation cases to follow state practice, and that Illinois affords owners jury trials in condemnation proceedings. But the [district] court concluded that Fed. R. Civ. P. 71A(h) supersedes §717f(h) and permits it to choose among a bench trial, a jury trial, and valuation by a commission.The Court of Appeals affirmed:
When concluding that Rule 71A(h), which was adopted
in 1951, supersedes §717f(h), which was enacted in 1938,
the district judge relied not only on the language of Rule
71A but also on the dictum in Kirby Forest Industries, Inc.
v. United States, 467 U.S. 1, 4 n.2 (1984), that Rule 71A
creates a nationally uniform practice, and the holding
of Southern Natural Gas Co. v. Land in Cullman County,
197 F.3d 1368 (11th Cir. 1999), that Rule 71A(h) displaces
the conformity clause of the Natural Gas Act, in particular. * * *The Rules of Civil Procedure, which are established by the Supreme Court under the Rules Enabling Act, cannot “repeal” any statute; the Constitution does not give the Judicial Branch any power to repeal laws enacted by the Legislative Branch. But Congress may itself decide that procedural rules in statutes should be treated as fallbacks, to apply only when rules are silent. And it has done just this, providing in what has come to be called the supersession clause of the Rules Enabling Act that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.” 28 U.S.C. §2072(b). Any doubts about the force and validity of the supersession clause were laid to rest in Henderson v. United States, 517 U.S. 654 (1996). Thus Rule 71A(h) prevails: its nationally uniform approach conflicts with the conformity-to-state-practice approach of §717f(h), and under §2072(b) the statutory rule “shall be of no further force or effect”.
An interesting paper posted on the Federation of Defense and Corporate Counsel (FDCC) website, explores this issue. The introduction:
Whether mold is a pollutant presents a question of considerable and pressing interest both to insurers and insureds who must deal with general policy forms that lack a mold exclusion but otherwise exclude pollution. Similarly, it poses coverage issues when insurers or insureds must deal with carriers who have incorporated specific pollution coverage without reference to mold losses. The frequency and cost of claims involving species of molds such as stachybotrys chartarum have become so high that insurers with both types of contracts need some certainty on this issue. Unfortunately, common parlance points in one direction while published opinions interpreting the pollution exclusion seem to suggest another. This anomaly creates tremendous uncertainty about the relationship between mold and pollution coverage and pollution exclusions.Thanks to the Insurance Defense Blog for the lead and also for a link to the EPA's mold page and a link to MoldUpdate.com.To date, only two opinions, have evaluated the question whether mold is a pollutant. Both were decided in federal court at the district court level but both reached different conclusions. Thus, there is scant guidance from the courts on this issue.
This story today in the Munster NW Indiana Times, begins:
There were too many East Chicago sidewalk scandal defendants for them all to sit at the same table with their lawyers Wednesday, so the lawyers sat behind them in the jury box.And news also on the contested East Chicago mayorial race.The attorneys kidded about how unusual it was to see a courtroom from that perspective.
Perhaps that temporary vantage point can help them defend their clients against federal charges the city officials used public money to beautify private homes, businesses and churches in exchange for votes and political support in 1999.
A man who claims he would have won East Chicago's Democratic mayoral primary if not for election fraud has taken his case to the Indiana Court of Appeals. George Pabey's request for a special election was filed Monday, one week after the state Supreme Court denied his request to intervene.The NWI Times carried a story on the filing earlier this week. Some quotes:LaPorte Superior Court Judge Steven King last month ruled that longtime Mayor Robert Pastrick's victory would stand even without 155 absentee ballots King threw out as invalid. He said a special election would be in the public interest, but he lacked the power to order one.
"Our argument is that the statute doesn't require a vote-by-vote tally," Kotzan said Tuesday. "The court just needs to find deliberate acts of fraud that make it impossible to determine a winner."In a related story, the NWI Times editorialized yesterday on cooperation between state and county officials to address the county's problems, including this statement: "It's official. Attorney General Steve Carter said his office will help Lake County Prosecutor Bernard Carter in his investigation of vote fraud in the county. This is good news."King found a pattern of illegal activities surrounding absentee ballots, which provided Pastrick a 278-vote margin despite losing by 199 votes at the polls. While King did not grant a new election, he criticized the absentee-voting process as full of vote tampering and buying, illegal possession of completed ballots by campaign workers and voting by people living outside the city. * * *
Kotzan's brief said King wanted to order a special election but thought such a move was the appeals court's role. "If this court fails to act, there may very well be a perception of the citizens of East Chicago and elsewhere that fraud and corruption does pay, cannot be overcome," the document concludes. "Not only may this seriously diminish faith in the free political process, it may cause others to lose faith in the very courts which seek to protect them."
Reader Lane Ralph send along a story from yesterday's Kokomo Tribune about the City's noise pollution issue - a low level hum - "a mysterious low-frequency noise heard by dozens of local residents and blamed for their health problems." According to the story, a meeting on the problem is set for tonight:
The meeting represents the culmination of almost a year's worth of study by Acentech [their Cambridge-based consultants] and more than three years of investigation by the Kokomo Tribune into the matter. Stories about the so-called Kokomo hum have appeared in newspapers and on TV and radio stations around the world. Dozens of individuals from several countries have inquired about the phenomenon.The story goes on to talk about where the low-level sound is coming from in Kokomo's case, a similar problem in Portage (NW Indiana), and how the problem may be much larger than just the issues facing these two cities.More than 100 local residents who claim to be affected by the noise hope this meeting will hold some answers for them. Many of them have dealt with health problems such as nausea, fatigue and headaches for more than four years now.
Unfortunately the Kokomo paper has a complex registration process that precludes a simple link to this quite-interesting story, so if you want to read it, go here and sign up.
Pathfinder Communications Corporation v. Dave Macy (IndCtApp 9/17/03)
Mathias, Judge
The Court's introduction to this opinion summarizes the case:
Pathfinder Communications Corporation (“WOWO”) filed a motion for preliminary injunction and a complaint requesting a temporary restraining order, preliminary and permanent injunctions, and damages against its former employee, Dave Macy (“Macy”), in Allen Superior Court alleging that Macy violated a covenant not to compete by obtaining employment at a competing radio station. After a hearing was held on WOWO’s motion for preliminary injunction, the trial court found that WOWO did not have a legitimate protectible interest in Macy or his radio program “Macy in the Morning,” and that the covenant not to compete was unenforceable because it was overbroad. The trial court therefore denied WOWO’s motion for preliminary injunction. WOWO appeals raising three issues, which we restate as:Access the Fort Wayne Journal Gazette coverage here.Whether WOWO has a legitimate protectible interest in Macy, its former on-air personality;
Whether the covenant not to compete is overbroad; and,
Whether the trial court abused its discretion when it denied WOWO’s motion for a preliminary injunction.
Concluding that WOWO does have a legitimate protectible interest in Macy, that the covenant not to compete is rendered reasonable by “blue penciling” or striking its overbroad language, but that the trial court properly denied WOWO’s request for injunctive relief, we affirm in part and reverse in part.
A fascinating story in the Washington Post this morning reports on a joint meeting yesterday of the U.S. Senate's Committee on Rules and Administration and the Committee on the Judiciary. The topic: "Ensuring the Continuity of the United States Government: The Presidency."
Also available are all the statements from yesterday's hearing. Access them here.
The incapacitating stroke and then death of Governor O'Bannon has led to increased interest in Indiana's succession provisions. I had planned last weekend to write more on HJR 8, the proposed constitutional amendment that would provide for an order of succession in the event both the executive offices of Governor and Lt. Governor should become vacant. Watch for that later this week.
Reuters is reporting this afternoon:
The Illinois Supreme Court on Tuesday slashed almost in half the $12 billion bond cigarette maker Philip Morris USA must post to appeal a multibillion-dollar verdict against it, in a major victory for the largest U.S. tobacco company.We have had a number of earlier entries on this topic - for the most recent check here. The AP story can be found here in the San Francisco Chronicle.The state high court also reversed its own earlier ruling and agreed to bypass the state appellate court and hear the appeal of a judge's $10.1 billion verdict against Philip Morris, which he found to have tricked smokers into thinking "light" cigarettes were safer than regular cigarettes.
Dennis Murray, Sr. v. Conseco, Inc. (Ind.S.Ct. 9/16/03)
Boehm, Justice
The Court summarizes its decision thusly:
This case deals with the provisions of the Indiana Business Corporation law governing the removal of directors. Conseco, Inc. is an Indiana corporation organized under the Business Corporation Law. Conseco’s articles of incorporation have no provisions regarding removal of directors. Dennis Murray, Sr. was elected to the Board by the shareholders as a whole, and not by a separate “voting group.” Under those circumstances, we affirm the trial court’s ruling that the Board of Directors was within its authority when it removed Murray as a director of the corporation.
The Indiana Supreme Court has just issued the following statement:
STATEMENT BY THE COURT ON THE PASSING OF GOVERNOR O’BANNONWith profound sadness and anguish my colleagues on the Supreme Court and I offer our most sincere expressions of sorrow at the passing of our great friend, Governor Frank O’Bannon. Judy, the children, and all of the people touched by this wise and good man will be in our thoughts. We also would like to convey our sincere and heartfelt support to Governor Joe Kernan, Maggie, and his family as they move on to the challenges ahead of them.
Hon. Randall T. Shepard
Chief Justice of Indiana
Updating the lengthy Indiana Law Blog entry of 8/29/03 on interstate wine shipping is this article today in the NY Times. A quote:
New York, which after California has the largest contingent of wine drinkers in the country, is awaiting a decision from the United States Court of Appeals for the Second Circuit in Manhattan, in a case that will determine the validity of a state law barring the importation of out-of-state wine directly to consumers. (The decision is expected before the end of the year.)Interestingly, the Times piece is inaccurate in at least one regard. It says twice in the piece that the Michigan challenge is pending before the 6th Circuit. Its second such reference is here:
The Second Circuit case is one of three similar suits currently being argued in federal court; the others are in Florida and Michigan. The flurry of cases, as well as a 2001 ruling by a federal appeals court upholding Indiana's right to ban direct shipments of wine, make it likely, lawyers say, that the question will have be settled by the Supreme Court.However, as noted in our earlier entry, the 6th Circuit ruled in this matter on 8/28/03, holding Michigan's ban on direct-to-consumer wine shipments unconstitutional. Here is the direct link to the decision.At issue are two competing constitutional provisions: the 21st Amendment, which gives states the right to regulate the sale and delivery of "intoxicating liquors" that cross their borders, and the commerce clause, which gives Congress the right to regulate business between states, and which bars states from enacting laws that unduly interfere with interstate commerce.
Earlier this month I recomended a book I was reading, and promised more recommendations. Here goes.
Two topics that were not taught in my law school when I was a student were "Law and Economics" and "Legal Theory." Perhaps that is why both intrigue me.
Re legal theory, I read Professor Lawrence Solum's Legal Theory Blog regularly, hoping to learn. Here is one of Solum's pieces, titled "The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?" that I found approachable and enjoyable.
(See also Parts II and III.)
But I often wish I had a better background to follow Solum and other blogging professors of his ilk. Imagine my delight, therefore, when I found a "Larry Solum Reading List" on Amazon! The list is labeled "Top Ten Contemporary Jurisprudence Books." Recognizing my limitations, I immediately ordered #11, A Companion to Philosophy of Law and Legal Theory, by Dennis Patterson, based on Solum's recommendation: "Not in the top ten, but an essential reference work."
Perhaps because of interest expressed by his readers, Solum has now started a weekly feature called "Legal Theory Bookworm." His first recommendation, posted last weekend, was "a classic work of legal theory," H.L.A. Hart's, The Concept of Law. Hart's book is also #1 on Solum' Amazon list.
But there is more. Today Solum announced that he is "experimenting with some weekend features for Legal Theory Blog.
This week I am trying out the Legal Theory Lexicon, which will provide a very short introduction to a term, concept, or distinction that is important to contemporary legal legal theory. This series is intended mostly for law students, and especially for first year law students with an interest in legal theory.Check it out here. Finally, if you've read this far, you may be interested in reading "Twenty Questions for Lawrence Solum," published last month on Crescat Sententia.
Governor Frank O'Bannon died late this morning. Although we all knew he was very ill, I think we all expected him to recover -- this is a real blow. He was a good and gentle man.
I don't think any of us have the heart today to continue to parse the Indiana Constitution.
[Updated] Lieutenant Governor Kernan was administered the oath of office at 6:00 p.m. by Justice Theodore Boehm.
Under Art. 5, Sec. 10(b) Governor Kernan will be required to call the General Assembly into special session and to submit to the members his nomination for Lieutenant Governor. The nominee must be confirmed by a majority vote of both houses.
The Indiana House is Democrat and the Senate is Republican. However, Senator Bob Garton, President Pro Tempore of the Senate, said in an interview with Jim Shella of WISH TV on the 6 o'clock news that the Senate will approve whomever Governor Kernan nominates: "The Governor has the right to pick his own Lieutenant Governor."
[Updated 9/14/03] Today's Indianapolis Star has extensive coverage this morning of Governor O'Bannon's life and passing. This story deals with the selection of a new Lt. Governor. An excerpt:
Even though the Senate is dominated by Republicans and the House is narrowly controlled by Democrats, legislators in both parties predict a smooth confirmation.Senate President Pro Tempore Robert D. Garton, R-Columbus, said he spoke with Kernan not long before the oath of office ceremony. He said he assured Kernan, a Democrat, that he will work with him to ensure his choice gets a majority of votes in the Senate.
"Whoever he selects should be lieutenant governor."
If not today, this weekend, look for entries on:
1. More on proposed HJR 8, the proposed constitutional amendment that would provide for an order of succession in the event both the executive offices of Governor and Lt. Governor should become vacant.
2. Thoughts on whether IC 6-3.5-7-22.5 may be unconstitutional special legislation, as I understand was postulated in a recent communication by the AG.
In an Indiana Law Blog entry last week, we reported on the 9th Circuit decision to apply the U.S. Supreme Court decision in Apprendi v. New Jersey retroactively. In an earlier entry, we reported on the potential Indiana impact of Apprendi and related rulings: "For the second time in two years, a Marion Superior Court judge [Judge Grant Hawkins] found Indiana's death penalty law unconstitutional, throwing out the death penalty in two cases."
This article, "Dead Wrong or Right On? Should The Supreme Court Uphold the Ninth Circuit's Reversal of 122 Death Sentences Imposed by Judges, Not Juries?" appearing today in Findlaw.com, gives a fine overview of the law in this area. The article begins:
On September 2, the U.S. Court of Appeals for the Ninth ruled in Summerlin v. Stewart that past death sentences imposed by judges, rather than juries, must be set aside. The decision could lead to the resentencing of as many as 122 prisoners in six death penalty states within the Circuit where judges impose criminal sentences: Arizona, Colorado Idaho, Montana, Nevada, and Idaho.A key point made in the article:
The key modern U.S. Supreme Court decision that provides guidance on whether a constitutional ruling that changes the law must be retroactively applied is Teague v. Lane. Under Teague, a court must ask whether the decision was merely procedural, or a substantive one that affected the fundamental structure of criminal proceedings.A somewhat related article today in the NY Times talks about how "more and more law school graduates are finding it hard to work in low-paying positions as public defenders, legal aid lawyers and — notwithstanding the popularity of "Law and Order" — prosecutors."
[Thanks to How Appealing for pointing to both these articles this morning.]
Last month our focus was on Article 5, section 14 of the Indiana Constitution, regarding the Governor's veto power and when vetoed bills are to be returned to the house of origin. (For background, see the D&M Healthcare link in the Categories section in the column to your right.)
This week, because of the temporary incapacity of Governor O'Bannon, focus has shifted to Article 5, section 10, relating to gubernatorial succession. As with the veto provision, the increased scrutiny resulting from the pressure of events has revealed that perhaps not every eventuality is adequately covered by the current language.
To help me think this through, I have prepared a draft "Gubernatorial Succession" chart. If you are interested, it may be accessed here.
My initial thoughts after studying the provisions are:
1. Pursuant to Art. 5, Sec. 10(b)(3), the General Assembly might consider putting into place in the next session a law detailing how an Acting Lieutenant Governor might be selected and what his powers would be (recall that the Lieutenant Governor has both legislative and executive powers under the Constitution).
2. Several people have posed the question - what if something happened now to Acting Governor Kernan? Art. 5, Sec. 10(e) covers a situation where both the office of Governor and Lieutenant Governor are vacant, but what about a case where the office of Governor is not "vacant", but rather the Governor has been declared incapacitated? This is a very difficult topic, but one that must be thought through.
If the GA were convened in session when such an incident occurred, it would have little choice, in my opinion, but to proceed under Art. 6, Sec. 7, which authorizes the GA by a joint resolution passed by 2/3 of each House, to remove an incapacitated official from office. Once that was done, the GA would proceed under Art. 5, Sec. 10(e) "to elect a Govenror of the same political party by a majority vote of each house."
The very real problem here, however, is that when the GA is not convened in session, the Constitution makes no provision for it to convene itself into session to exercise its powers under Art. 6, Sec. 7. Although Art. 5, Sec. 10(e) does provide such "self-convening" authority when there is a vacancy in both the office of Governor and Lt. Governor, to exercise its authority under Art. 6, Sec. 7, the GA must wait until the next session convenes, if there is no Governor or Acting Governor to call it into special session.
This of course may be corrected by constitutional amendment, but that will take several years. It may be worth considering, in the meantime, that as Art. 4, Sec. 9 provides that "The length and frequency of the sessions of the General Assembly shall be fixed by law," the GA might enact language to "bridge the gap," allowing it to "self-convene" in very specific circumstances relating to vacancies in the executive branch. A precedent might be the untested "technical session day" concept contained in IC 2-2.1-1.
Thoughts?
[Update] A reader has sent me a copy of HJR 8, proposing an amendment to Art. 5, Sec. 10, with the comment that it is "an amendment passed by both the 112th and 113th Assemblies which addresses a dual vacancy with the assembly out of session. I don't see that it addresses the issue of incapacity of both officials, however."
The Joint Resolution would, however, provide for an order of leadership in the event both the executive offices should become vacant. It says the Speaker, for example, "shall discharge the duties of the governor if the office of governor and the office of lieutenant governor are both vacant." The proposed language does not, however, use the term "Acting Governor."
The same reader adds that the consultation with the family "was important, as a precedent, that both the leadership and the Court establish that neither the governor nor the family on his behalf would challenge the action."
"IU revises policy on ID photos: Guidelines eased after Muslim women object to removing their head scarves," is the headline today to a story in the Indianapolis Star:
IU revised the 7-year-old policy after receiving complaints from four female students, said Dean of Students Richard McKaig. All four women, who wear the head scarves, or hijabs, for religious reasons, said they were asked to remove the traditional Muslim garments when they tried to obtain their student ID cards. * * * *The Indiana Law Blog discussed Indiana case law and statutes on this issue in late May and early June; access there earlier entries here and here.
The issue of religious head coverings and ID photos has earned attention since the Sept. 11, 2001, terrorist attacks. In Florida, a Muslim woman sued the state this year, claiming that Florida officials violated her religious freedom by revoking her driver's license until she agreed to be photographed showing her full face instead of wearing a religious veil that obscured all but her eyes.In Indiana, the Bureau of Motor Vehicles allows a religious exemption for driver's license photos, though it does require that the face not be obstructed in the picture, said agency spokeswoman Miriam Viernes. The manager of the license branch in Bloomington said such situations were common in the diverse college town. "In this community, we take pictures like this all the time," said Dave Martin. "Normally, when they have a covering on, we just ask to make sure it's for religious reasons, and they're allowed to leave it on. It hasn't been a problem."
The Indiana Daily Student covered this story on Monday.
A ruling involving former Indiana University all-time star quarterback Antwaan L. Randle El, who is now in his second year as a wide receiver with the Pittsburgh Steelers,* was issued today by the Court of Appeals.
Antwaan L. Randle El v. Tashia Beard (9/10/03) involves a paternity dispute wherein Randle El is attempting to establish "paternity, child support and parenting time of [the child.]" The appellate court ruled: "[T]he trial court did not have jurisdiction over Mother and could not determine the support issue. Accordingly, we reverse and instruct the trial court to dismiss Father’s petition to establish support."
________________
*See: "The wide receiver trio of Plaxico Burress, Hines Ward and Antwaan Randle El ranks among the most feared in the NFL."
In an Order issued today (access it here)*, titled "IN THE MATTER OF THE TEMPORARY INABILITY OF GOVERNOR FRANK L. O’BANNON TO DISCHARGE THE DUTIES OF OFFICE: Pursuant To Article 5 Section 10 of the Indiana Constitution," the Indiana Supreme Court temporarily transfered authority from Governor Frank L. O'Bannon to Lt. Governor and now also Acting Governor Joseph E. Kernan. The Order concludes:
Our Constitution also provides, “In case the Governor is unable to discharge the powers and duties of his office, the Lieutenant Governor shall discharge the powers and duties of the office as Acting Governor.” Ind. Const. art. 5 § 10(a) (in relevant part). We have now made the requisite finding under Section 10(d) that the Governor is “unable to discharge the powers and duties of his office.” Therefore, the Lieutenant Governor, Joseph E. Kernan, shall discharge the powers and duties of the office of Governor as Acting Governor in addition to serving as Lieutenant Governor. Of course, Governor Frank L. O’Bannon continues to be Governor of Indiana, entitled to the emoluments of that office during the period in which the Lieutenant Governor is serving as Acting Governor. Any official actions taken by the Lieutenant Governor since 9:30 a.m. on Monday, September 8, 2003 are hereby ratified.Indianapolis Star coverage of the incredibly sad but historic occasion is here.
Updates to our entry of 9/6/03 on the federal corruption indictments in Lake County.
The papers in NW Indiana seem to have a propensity for somewhat "over the top" stories. A column today in the Gary Post Tribune is an example (as was the NWI Times story on gubernatorial succession cited yesterday). The Trib story is about my hometown, Chesterton, and the now-defunct Coffee Creek Cente. Some quotes:
Welcome to the Up A Creek Center, just east of INDICTMENT-49 in Chesterton, where you can apply for their new 5-to-10 year mortgage, with time off for good behavior. Thanks to Kevin Pastrick, Peter Manous and Gerry Nannenga, there are 10 million reasons why people won’t be shopping for a home at Up A Creek. * * * * This will become Porter County’s white-picket elephant, thanks to the charade engineered by the Mistake On The Lake Erie Land Company, and their not-so-proud parents, NiSource. Chesterton is now stuck with a baffling series of unnecessary streets behind a white picket fence, the visibly empty promises of a nostalgic Morgan’s Corner development, which smelled a lot like Aberdeen.An interesting story on the RTV 6 site dated September 7 reports on life in federal prison for the former Lake County Auditor:
In coming months, former Lake County Auditor Peter Benjamin, former Gary deputy clerk Junifer Hall and ex-Lake County Councilman Troy Montgomery also will go behind bars. With more public corruption indictments expected soon, the Post-Tribune visited with [Robert] Freeland, asking him to convey to future inmates what it will be like for them behind bars. Freeland was a state representative, city councilman and county recorder before this. Now, he is No. 05946-027. * * * * Freeland was sentenced on money-laundering charges in 1999 for a scheme prosecutors said he conducted as recorder. He is the only former elected official from Lake County who is in federal prison due to a public corruption conviction. But soon there will be others. What can they expect? Federal prison has impacted Freeland in every way imaginable and he knows it. He detests it. But he also knows there is no escape from it.Re the appeal of George Pabey, loser in lower court in his challenge to the results of the East Chicago mayorial election, the Indiana Supreme Court on 9/8/03 denied his request to bypass the Court of Appeals and instead transfer the appeal directly to the Supreme Court.
There are been stories all summer about the Democrat Texas legislators hiding out in Louisiana and now New Mexico so that the Republican members of their General Assembly, who occupy a distinct majority in both houses, do not have a quorum. With a quorum, they would vote to reapportion their Congressional Districts, improving their position.
The Indiana Law Blog had an entry on this July 2, 2003 (access it here), titled "Somebody has to decide whether it is legal to reapportion without a new census requiring it." That quote came from a Washington Post story about a similar, but successful, reapportionment effort in Colorado. Now the Colorado reapportionment is being challenged before the Colorado Supreme Court. A story today in the Denver Post reports:
The state legislature did not have the authority to redraw congressional district boundaries this year, argued Solicitor General Alan Gilbert * * * * "Once a valid plan is in place, you can't do it again until the next census comes around," Gilbert argued. * * * * The state legislature did not have the authority to redraw congressional district boundaries this year, argued Solicitor General Alan Gilbert, representing Salazar. A district court approved a redistricting plan last year when a divided legislature failed to act. "Once a valid plan is in place, you can't do it again until the next census comes around," Gilbert argued. * * * *Here is an analysis of what the Colorado may decide from the legal commentator for the CBS station in Denver.The newly drawn plan is designed to strengthen the Republican grip on five of Colorado's seven congressional seats. It is part of a nationwide movement with which President Bush's political adviser Karl Rove has been involved.
The Colorado court's ruling could determine what other states do. Twenty other states have one-party control in their legislatures and may consider changing their congressional boundaries to give one party or other a greater advantage in Congress.
Meanwhile, Reuters is reporting today that the Democrat Texas legislators are giving up their standoff and returning to Texas.
Here in Indiana. On a different, but related note, former Indiana Lieutenant Governor John Mutz has an interesting opinion piece in this week's Indianapolis Business Journal (not available online). He points out that today, "because of sophisticated computers, it is even easier to carve up the electorate for political advantage. ... Gerrymandering is no longer an art form -- it is a precise mathematical reality." Mutz continues that in Indiana, because we have a split legislature, with Republicans controlling the Senate and Democrats the House: "When a census occurs, the two legislative bodies compromise on reapportionment." Each house accepts the other's map, thereby maintaining the status quo:
The composition of the districts, except in unusual election years, almost guarantees a Republican Senate and a Democratic House. In fact, both houses are so gerrymandered that, out of 100 House seats, only 10 or 12 are seriously contested in an election year. In the Senate, change is even less.Mutz suggests that, given the stalemate, major changes in policy are unlikely unless the traditional reapportionment process is replaced with an independent commission.
The very sad news about Governor O'Bannon is reported today in a number of stories in the Indianapolis Star. A Special Report page has been created by the Star, from which all its stories may be accessed.
[Update 9/10/03: Please see note at end of entry] Having digested the news about Governor O'Bannon's condition, the NW Indiana Times is moving ahead in a must-read story today about what happens next, headlined Dems ponder life without O'Bannon. A taste:
O'Bannon's incapacitation means Kernan will step up into the governor's office if nominated by the speaker of the house and the senate's president pro tempore and approved by the Indiana Supreme Court. That is basically a formality, said Supreme Court spokesman David Remondini, who said all five justices are on standby for a call.But as I read the applicable constitutional provision, the office of Lieutenant Governor becomes vacant only in the event of the death or resignation of the Governor. The first part of Article 5, section 10(d) reads:But what could really trigger a donnybrook would be Kernan's nomination to replace himself as lieutenant governor. That nomination would have to be ratified by a simple majority of both the state House and Senate.The move, should Kernan remain out of the race, could give a boost to either Simpson or Andrew if he nominated one of them.
If he does, it is possible the Republican-dominated Senate could stonewall the nomination, forcing Kernan to nominate a neutral noncandidate for the post and potentially incurring the anger of the Democrat-led House leadership.It may be, however, Kernan has no intention of nominating either Simpson or Andrew. It is no secret Kernan has been at odds lately with some of the inside circle of the O'Bannon administration.
(d) Whenever the President pro tempore of the Senate and the Speaker of the House of Representatives file with the Supreme Court a written statement suggesting that the Governor is unable to discharge the powers and duties of his office, the Supreme Court shall meet within forty-eight hours to decide the question and such decision shall be final.In that case, the last sentence of Section 10(a) would apply:
In case the Governor is unable to discharge the powers and duties of his office, the Lieutenant Governor shall discharge the powers and duties of the office as Acting Governor.Therefore, short of the "death or resignation of the Governor or his removal* from office," the Lieutenant Governor does not assume the office of Governor, but rather serves as Acting Governor. There is no vacancy in the office of Lieutenant Governor in such case, as the Governor retains the authority to submit "a written declaration that no inability exists, [and thereupon] resume the powers and duties of his office," pursuant to the second part of Article 5, section 10(d):
Thereafter, whenever the Governor files with the Supreme Court his written declaration that no inability exists, the Supreme Court shall meet within forty-eight hours to decide whether such be the case and such decision shall be final. Upon a decision that no inability exists, the Governor shall resume the powers and duties of his office.__________
Section 7. All State officers shall, for crime, incapacity, or negligence, be liable to be removed from office, either by impeachment by the House of Representatives, to be tried by the Senate, or by a joint resolution of the General Assembly; two-thirds of the members elected to each branch voting, in either case, therefor.Or course, if the General Assembly was not already convened in regular session, it would first have to be called to a special session by the Acting Governor. See Article 4, Section 9:
Section 9. The sessions of the General Assembly shall be held at the capitol of the State, commencing on the Tuesday next after the second Monday in January of each year in which the General Assembly meets unless a different day or place shall have been appointed by law.*[Update: 9/10/03] - A reader wrote to me yesterday evening: "I thought that this a.m.'s Times story that you linked to was a tad irresponsible and certainly far-fetched on a number of levels." I replied: "So did I. I hoped with the information I provided people would figure that out for themselves." Perhaps I also should have flagged my incredulity about the content and precipitance of the Times story with a phrase other than "must read" story, such as "hasty and insensitive" story.But if, in the opinion of the Governor, the public welfare shall require it, he may, at any time by proclamation, call a special session.
The length and frequency of the sessions of the General Assembly shall be fixed by law.
(History: As Amended November 3, 1970. The schedule adopted with the 1970 amendment to Article 4, Section 9 was stricken out by the November 6, 1984, amendment).
The Indianapolis Star is reporting this afternoon: "State officials gathered today to discuss the possible transfer of power from Gov. Frank O'Bannon, who was stricken early this morning in his Chicago hotel room, to the lieutenant governor." The story continues:
If the governor is not able to fulfill his duties, and he is not able to say so, then the president pro tempore of the Senate and the speaker of the House must file a written declaration with the Indiana Supreme Court.See the Star website for extensive coverage of this ongoing situation. The most recent report is that "Indiana Gov. Frank O'Bannon was undergoing emergency surgery today after suffering a cerebral hemorrhage at a hotel in Chicago, where he was attending a trade conference."
The Indiana Constitutional provision covering succession, Article 5, section 10, provides:
(a) In case the Governor-elect fails to assume office, or in case of the death or resignation of the Governor or his removal from office, the Lieutenant Governor shall become Governor and hold office for the un-expired term of the person whom he succeeds. In case the Governor is unable to discharge the powers and duties of his office, the Lieutenant Governor shall discharge the powers and duties of the office as Acting Governor.[Update] For updated news on the O'Bannon story, visit this Google page.(b) Whenever there is a vacancy in the office of Lieutenant Governor, the Governor shall nominate a Lieutenant Governor who shall take office upon confirmation by a majority vote in each house of the general assembly and hold office for the un-expired term of the person whom he succeeds. If the general assembly is not in session, the Governor shall call it into special session to receive and act upon the Governor's nomination. In the event of the inability of the Lieutenant Governor to discharge the powers and duties of his office, the General Assembly may provide by law for the manner in which a person shall be selected to act in his place and declare which powers and duties of the office such person shall discharge.
(c) Whenever the Governor transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Lieutenant Governor as Acting Governor. Thereafter, when the Governor transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office.
(d) Whenever the President pro tempore of the Senate and the Speaker of the House of Representatives file with the Supreme Court a written statement suggesting that the Governor is unable to discharge the powers and duties of his office, the Supreme Court shall meet within forty-eight hours to decide the question and such decision shall be final. Thereafter, whenever the Governor files with the Supreme Court his written declaration that no inability exists, the Supreme Court shall meet within forty-eight hours to decide whether such be the case and such decision shall be final. Upon a decision that no inability exists, the Governor shall resume the powers and duties of his office.
(e) Whenever there is a vacancy in both the office of Governor and Lieutenant Governor, the general assembly shall convene in joint session forty-eight hours after such occurrence and elect a Governor from and of the same political party as the immediately past Governor by a majority vote of each house.
(History: As Amended November 7, 1978).
"Storm deluge sends raw sewage gushing: 350 million gallons of waste pour into water from aging system," is the headline to a front page story in this Sunday's Indianapolis Star. A quote:
This past week's torrential rain, including a record-breaking 7.2 inches Monday, underscored how far Indianapolis has yet to go to upgrade its century-old sewers. The system, which can overflow with as little as a quarter-inch of rain, has been under scrutiny from federal and state regulators. The storm caused more than 350 million gallons of raw sewage to be released into area rivers and streams -- about 50 million gallons per inch of rain -- because the system couldn't handle the extra water.For the Indiana Law Blog's coverage of this story last week, check here.
A companion piece in today's Star caught my eye. Headlined: "City drains millions from plants: 2004 budget calls for Indianapolis to tap sewer fees to pay for public safety projects," the story reports that the "city will tax its own wastewater treatment facilities $9 million in next year's budget":
The city will collect $70 million in sewer fees next year, but is not allowed to use that cash for non-sewer programs. Instead, officials transfer the money collected by the fees to the facilities and then immediately impose a tax on the same facilities to free up the cash.In other words, if I understand this story correctly, our sewer user fees will NOT go to upgade our sewer system, as we have been led to understand in countless public hearings over the past few years, but will instead be transferred to fund our police and fire departments. (Is this correct, or have I missed something?) Here, for instance, is a quote from the Q&A section of the Indianapolis plan to fight raw sewage overflows (emphasis added):
An increase in the sewer user fee is the most equitable method to obtain the revenues needed to address the CSO/raw sewage problem. A number of sewer users have tax exempt status and do not pay property taxes. Some of these tax exempt entities include the federal, state, and local government, universities and hospitals, just to name a few. In Center Township 30% of the property is tax exempt. The institutions that are the largest users of the sewer system will pay a larger share of the costs to upgrade our sewer system.
"Supreme Court Justices Ruth Bader Ginsburg, Stephen Breyer and Anthony Kennedy played a role in the opening night of the Washington Opera's 2003-2004 season Saturday night, at the DAR Constitution Hall." This from a story on CNN.com (complete with photos).
The justices sat on stage while they were treated to performances by tenor Placido Domingo, who is also the Washington Opera's director, and other distinguished singers. They decided to participate in the event after the president of the Washington Opera, Michael Sonnenreich, wrote them, offering parts that required no rehearsal. It was Ginsburg's second appearance with the Washington Opera: She was an extra in the January 1994 production of "Ariadne auf Naxos" with Justice Antonin Scalia.The Washington Post carried an AP story yesterday, with the lead:
Anthony Kennedy likes to listen to the opera while working, Ruth Bader Ginsburg dreamed of a career as a diva and Stephen Breyer has twice performed on stage - albeit a half-century ago. Who says Supreme Court justices are all law, no show biz. Despite their limited performing arts resumes, the three made rare special appearances, with non-singing roles, in the Washington Opera's season-opener "Die Fledermaus" on Saturday night.The justices played guests at a royal ball.
Growing up in NW Indiana, served by the Chicago media market and the major paper in the "region" at that time, the Gary Post Tribune, my high school friends and I living in Porter County knew all about Illinois state government and Chicago and Lake County Indiana politics, but nothing of the other 90 Indiana counties.
Now, after many years in Indianapolis, the reverse is true. Our media market is central Indiana. Lake County might as well be a foreign county. Witness the fact that one of the biggest Indiana political stories of the decade is taking place right now in Lake County, with the latest chapter occurring yesterday. The Indianapolis Star coverage is limited to an AP story buried on page 3 of its City-"State" section. This AP story is even briefer than the version the Star posted yesterday on its site, which included items such as:
Gov. Frank O'Bannon picked [one of the indictees, Peter] Manous to become state chairman in July 2001, when Robin Winston resigned from the position. Asked Friday by The Associated Press for comment, O'Bannon spokeswoman Mary Dieter replied, "We have nothing to say."To keep things straight, federal indictments were issued in two separate corruption cases Friday.
(1) One involved Peter Manous, "charged with taking a kickback of $200,000 in connection with a Porter County land deal" [the Coffee Creek deal], and Kevin Pastrick, son of long-time East Chicago Mayor Robert Pastrick. The Munster Times' story is headlined "Feds indict three in Coffee Creek land deal," and begins:
Former Indiana Democratic Chairman Peter Manous took a kickback of $200,000 from the son of East Chicago Mayor Robert Pastrick in 1999, according to a 16-count federal indictment unsealed Friday. Manous, along with childhood friend Kevin Pastrick and former state carpenters' union boss Gerry Nannenga, was indicted for illegally profiting from a union-funded land deal at the upscale Coffee Creek development in Chesterton. Pastrick and Manous also are charged with lying to federal investigators. Kevin Pastrick and Manous allegedly paid Nannenga $65,465 to convince him to approve a $10 million investment from a Northwest Indiana carpenters union pension fund into Coffee Creek four years ago. The union bought 55 acres of undeveloped land.(2) The other involved corruption charges lodged against "six East Chicago city officials ... stemming from a $16 million sidewalk and curb-replacement project." The Munster Times also has good coverage of this "sidewalk scandal" story:
Federal investigators delved into East Chicago City Hall and found enough graft to indict six city councilmen and department heads Friday on public corruption charges. East Chicago Mayor Robert Pastrick isn't named in the 17 felony counts, but his close political allies and hand-picked advisers are charged with skirting state law to award millions in public works contracts to build sidewalks and curbs and trim trees on private and public lands.The Times goes on to detail the alleged scheme:
The 47-page indictment alleges the scheme centered on the city's sidewalk project -- a $14 million sidewalk reconstruction and tree-trimming program, which The Times reported extensively on at the time in response to complaints from concerned residents. The city announced the project in mid-1998 and accepted bids that year from Bucko Construction and Rieth-Riley Construction, both of Gary, but the East Chicago Board of Works instead awarded the work to other contractors. They allegedly poured private sidewalks, driveways and parking lots, and built pools and garages in the two months before the May 1999 Democratic primary in East Chicago, which Pastrick and City Council members won. The concrete flowed until the money dried up just after the primary. Scores of people in East Chicago were left for months with driveways that did not connect to garages and sidewalks that did not connect to homes. The work later resumed and continued into 2000. The indictment alleges the defendants violated state laws requiring East Chicago to obtain competitive bids on all public works projects of more than $75,000 "to safeguard the public against favoritism, graft extravagance, improvidence and corruption and to ensure honest competition for the best work and supplies at lowest reasonable costs."The is much more in the Times story, plus a number of related stories on the Times site today - check them out as I don't know how long the Times maintains its stories, if at all.
Chicago's ABC News lead story last evening was on the East Chicago story. Read it here. You might also click the "Watch the vido" box, which gives a better idea of how the story is playing up there, and the site also offers the option to see "photos of suspects."
The Gary Post Tribune has a very strong piece today on the indictments. The lead:
The federal government reached into East Chicago on Friday and ripped the guts out of the city. It was an exorcism of corruption of the two worst kinds - vote buying and misuse of public money. What was once the most politically powerful machine in Indiana was reduced to disgrace. City councilmen and department heads were led away - reportedly one or more in shackles. A city known for its rough and tumble politics took its hardest fall. It may never recover.Read this one today - unfortunately the Post Tribune stories are unavailable after the first day. More from the story:
While the FBI did the bulk of the investigation, it was U.S. Attorney Joseph Van Bokkelen who played maestro Friday morning. And what a scene he did orchestrate. Van Bokkelen was one of the panelists at a seminar on ethics in government hosted by the Quality of Life Council. As Van Bokkelen spoke about Zero Tolerance for public corruption, Pastrick was one of more than 100 people looking on. At that very moment - unknown to Pastrick - federal agents swept into his city, arresting city councilmen and department heads.These events are also covered in the NWI Times today, in a story headlined "Arrests played out like an adagio, while code of ethics is passed." More:
A drama unfolded Friday outside The Center of Purdue University Calumet while U.S. Attorney Joseph Van Bokkelen told an audience he has zero tolerance for public corruption in Northwest Indiana. "On some days, I feel like the grim reaper,'' he said, standing underneath a set of alabaster lights. "But I'm really a nice guy."The NWI/Munster Times also has a story giving the biographies of the indictees. For background, you may also want to read the biography of East Chicago Mayor Pastrick, available here from the City's website.His calm belied the activities elsewhere in the region Friday. While Van Bokkelen addressed the Northwest Indiana Quality of Life Council on the need for ethics in government, federal agents fanned out to arrest six prominent East Chicago officials named in one of two federal indictments. Three other prominent political players turned themselves in to federal authorities Friday as part of the other indictment.
Meanwhile, in yet another Lake County story:
A Lake Superior Court judge toppled the results of Schererville's Democratic primary election for town judge Friday, dubbing as fraudulent at least 23 absentee ballots cast for incumbent Deborah Riga. The ruling -- believed to be the first of its kind in the state by some attorneys in the case -- means challenger Kenneth Anderson captures the party nomination after contesting the results of the May 6 election. The race was decided by 11 votes. In her 45-page written ruling, Judge Mary Beth Bonaventura chastised Riga campaign worker, Robert Grkinich, for "illegal, deliberate actions" to either forge or fabricate 23 absentee votes on behalf of his candidate.Here is the report from from the Post-Trib. The lead:
* * * * * "We believe this may be the first time in Indiana history in which a judge reversed the outcome of an election based on fraud," said Anderson attorney Ed Hall. Hall noted that in a recent challenge of the East Chicago mayoral race, a judge ruled that fraudulent absentee balloting had taken place by supporters of Mayor Robert Pastrick but was not pervasive enough to overturn the election. Pastrick's 278-vote victory -- by virtue of his 1,093 absentee votes -- was reduced to a 123-vote victory when LaPorte County Judge Steven King invalidated 155 absentee ballots. [my emphasis]In the Schererville race, Grkinich's tactics included arranging for at least three absentee votes to be cast by people no longer living in Schererville and by filling in the ballots for others, who later testified they did not actually vote in the election cycle, the judge ruled.
Schererville will have a new town judge next year. Lake Superior Court Judge Mary Beth Bonaventura on Friday overturned the outcome of the May primary, ruling that voter fraud allowed incumbent Judge Deborah Riga to claim victory. She declared Kenneth Anderson as the Democratic nominee and, with no Republican challenger, that means Anderson will be the new town judge as of Jan. 1. This is believed to be the first time in Indiana history that a judge reversed an election based on voter fraud. “This is not a victory for me,” Anderson said. “This is a victory for the people of Schererville and this is a victory for voting.” Bonaventura threw out 23 fraudulent absentee ballots and said precinct committeeman Bob “Bosko” Grkinich “is, in some form or fashion, connected to each and every ballot.”The East Chicago decision already has been appealed and the appellant, George Pabey, has filed to transfer the cause to the Indiana Supreme Court. Access the court docket here; enter Case Number: 45 A 04 - 0308 - CV - 00425 or PABEY, GEORGE v. PASTRICK, ROBERT A., ET AL. Here is the NWI Times 8/14/03 story reporting LaPorte County Judge Steven King's ruling on the challenged East Chicago vote. To review the 104-page opinion, access this page.
This story in the Indianapolis Star online site this afternoon reports:
Twelve business attorneys from Leagre, Chandler & Millard will join Barnes & Thornburg on Monday, after the two firms struck a deal earlier this week. The remaining 17 labor, litigation and government services attorneys from Leagre "are pursuing other options," said partner David Millard. Seven of the 12 attorneys will become partners in Barnes & Thornburg, including Millard, Dick Leagre and Marcus Chandler.
B&T announces this story on its website, with a 9/3/03 date:
INDIANAPOLIS, SEPTEMBER 3, 2003 – The law firm of Barnes & Thornburg has announced that twelve lawyers from the business law practice of Leagre Chandler & Millard, LLP, an Indianapolis law firm, have joined Barnes & Thornburg.[Update 8:45 p.m.] Ed Feigenbaum just wrote to say: "dang, Marcia -- I had this on my site Monday night!" Darn, guess I'd better put his site, Indana Daily Insight, into the rotation. Check it out, he has posted some real news from troubled NW Indiana ("the Feds had swooped down on East Chicago City Hall and taken into custody at least five people") this afternoon. The Star now has the story too, via the AP. The lead: "Federal indictments unsealed today named a former Indiana Democratic Party chairman, the son of East Chicago's longtime mayor and six officials of that city in two separate corruption cases."The attorneys from Leagre Chandler & Millard joining forces with Barnes & Thornburg's Business Department include the founding partners of the firm, Richard Leagre, Marcus Chandler and David Millard. David Millard will chair Barnes & Thornburg's Entrepreneurial Services Group, which focuses multiple legal disciplines on the needs of high growth companies. Marcus Chandler will co-chair Barnes & Thornburg's BTech Group with Barnes & Thornburg's Donald E. Knebel. BTech, the firm's business and technology practice group, takes a similar multidisciplinary approach to serving the needs of technology companies nationwide.
"Leagre Chandler & Millard concentrated on middle market and high growth companies, and was very successful in attracting those clients," said Millard. "With the full range of services of Barnes & Thornburg behind us, we can provide additional legal services to emerging companies and have the resources to continue to serve them as they grow."
Barnes & Thornburg is one of the largest law firms based in the Midwest with more than 360 attorneys before the combination. "While we have a national transactional practice serving large, mature companies, we have always focused on Indiana's fine middle market companies and entrepreneurs as an important part of our client base," said Catherine L. Bridge who chairs Barnes & Thornburg's Business, Tax and Real Estate Department. "High growth companies will play a significant role in the future in the Midwest's economy. Barnes & Thornburg wants to expand its service to these segments of the market, and the addition of the attorneys from Leagre Chandler & Millard will greatly assist us in doing so."
"Barnes & Thornburg is strategically becoming more regional and national," said Alan A. Levin, Barnes & Thornburg managing partner. "Opening the Grand Rapids office and expanding our Chicago office earlier this year fit with that strategy. This combination increases our national and regional practice, because Leagre Chandler & Millard serves high growth companies not only in Indiana, but across the country."
In each of the last five years, Leagre Chandler & Millard represented more companies on the Indianapolis Business Journal's (IBJ) list of the 25 fastest growing private companies than any other law firm. In 2002, Leagre Chandler & Millard also represented two of the top four on the IBJ's list of the 20 fastest-growing public companies. Those clients included Obsidian Enterprises Inc., the fastest growing public company on the IBJ 2002 list. The firm also represented two of the 50 fastest growing companies in America, as listed in INC. Magazine's 2002 Inc. 500.
Both Barnes & Thornburg and Leagre Chandler & Millard were listed among the top five corporate law firms in Indiana this year by the magazine Corporate Board Member. Both law firms are former winners of the Cyberstar Award (now Mira) as the top service provider to Indiana high tech companies.
"The synergies of this combination of two high profile business law practices will benefit middle market and high growth companies throughout the marketplace," said Marcus Chandler, managing partner of Leagre Chandler & Millard.
A story posted on the Indianapolis Star website this afternoon reports: "Steel Dynamics Inc. has received a state air pollution permit and can now move toward reopening the mothballed Qualitech steel plant at Pittsboro early next year. Indiana Department of Environmental Management officials said today that suggestions from supporters and environmentally concerned neighbors are included in the final version of the 155-page permit."
Access the entire Steel Dynamics permit document here (Warning - this link will immediately begin downloading the 294-page permit document.) As explained on the first page of the document, "Pursuant to IC 13-15-5-3, this permit is effective immediately, unless a petition for stay of effectiveness is filed and granted according to IC 13-15-6-3, and may be revoked or modified in accordance with the provisions of IC 13-15-7-1."
If you have any involvement in air permitting, I recommend to you the IDEM "Air Permits Online" website, an outstanding resource for anyone interested in the status/content of Indiana air permits.
The Indiana Supreme Court has just released this information:
NEW FAMILY COURT “SEED” GRANTS AVAILABLEIndiana counties wishing to expand current projects or join the growing “family court” movement are now eligible to seek grant funding, Chief Justice Randall T. Shepard announced today.
For the last four years, the movement known as the Family Court Initiative, has been successful in developing innovative programs to better serve children and families in the court system.
In 2003 the legislature appropriated $500,000 for the next two years to the Indiana Supreme Court for the continuation and expansion on the Family Court Initiative. The new funding, known as Phase III of the Family Court Initiative, will provide seed grants to new counties, and transition funding to continue the successful work of the current nine family courts.
Applications are available at the Supreme Court's Family Court Project website. These family court grant applications are due October 10, 2003. Grant awards will be made by the Supreme Court in early 2004.Phase I of the Family Court Initiative focused on the development of case coordination models for families with many legal matters. Phase II added in the concepts of multiple-county projects and affordable mediation. Phase III will continue these concepts, with an added focus on helping counties utilize new legislation for funding mediation programming for families of modest means.
Phase III will additionally seek to develop family court projects that “tie-in” to existing drug courts. Growing numbers of juvenile and family law cases involve substance abuse, and many of these families could benefit from the judicial strategies being developed in Indiana’s drug courts. Family court projects now operate in Monroe, Porter, Putnam, Owen, Boone, Montgomery LaPorte and Marion counties.
"Court backs defense attorneys' access to clients: Investigators must notify criminal suspects if a lawyer is waiting to see them, justices say," reads the headline this morning for this story in the Indianapolis Star. Some quotes from the story:
Criminal investigators can't keep a lawyer waiting at the jailhouse door while his or her client is inside being questioned by police. That's the unmistakable command given Wednesday by the Indiana Supreme Court, which unanimously ruled that a detained person must be told immediately if a lawyer is waiting to see that suspect.The opinion is David F. Malinski v. State of Indiana (IndSCt 9/3/03), where the Court wrote:The decision means police officers can't extract a confession from a suspect while his lawyer is waiting at the front desk. This ruling is a victory for criminal suspects and defense attorneys in Indiana, who say it's not uncommon for police to keep the two separated while investigators try to get the suspect to waive the right to speak with a lawyer.
Malinski argues that the trial court erroneously denied his motion to suppress his statements because his right to counsel under Indiana Constitution, article I, section 13 was violated. He claims that the police had an affirmative duty to inform him that an attorney was present and actively trying to speak with him while he was being interrogated.
* * * * * We hold that law enforcement officials have a duty to inform a custodial suspect immediately when an attorney hired by the suspect’s family to represent him is present at the station seeking access to him.
* * * * * C. Effect of Failure to Inform. Obviously, a suspect may waive his right to counsel and give a statement while in custody. Such a valid waiver must be voluntary and intelligent Thus, the question becomes whether withholding information about counsel’s presence made the waiver invalid.
* * * * * Taken as a whole, the record suggests a voluntary and intelligent waiver. First, there is no indication that attorney Martin, retained by Malinski’s family, had a previous relationship with Malinski himself. While hardly dispositive, this fact makes it seem less likely that Malinski would have responded to the lawyer’s request than would be the case if the request came from someone he already knew.Second, the police repeatedly read Malinski his rights and he consistently waived them and agreed to talk. Third, Malinski signed a written waiver of his Miranda rights. Indeed, before taking a second recorded statement, the FBI agents showed Malinksi his signed waiver and asked him once again whether he understood his rights. Malinski acknowledged his rights and signature on the waiver form, and again chose to provide a statement. Finally, at no time during the interrogations did Malinski request counsel, a fact more supportive of a knowing waiver than would be the case if the record reflected some indecision.
The record does not suggest any hesitation. In fact, Malinski provided two detailed statements of the events surrounding Lori’s disappearance. Such detailed accounts demonstrate a willingness on Malinski’s part to cooperate with law enforcement officers. The fact that neither statement constituted a confession further suggests the lack of any likely effect that contact with counsel would have had on Malinski’s decision to talk. The only effect that resulted from the two statements Malinski provided was that of two inconsistent statements. In both statements he maintained his innocence.
Thus, numerous factors weigh in favor of finding a knowing, voluntary, and intelligent waiver. In light of all the circumstances, we conclude that Malinski’s ignorance of Martin’s presence did not convert his waiver into one that was involuntary. The trial court did not err in denying Malinski’s motion to suppress his statements.
USA Today reported Monday: "The Bush administration has ended a 25-year-old ban on the sale of land polluted with PCBs. The ban was intended to prevent hundreds of polluted sites from being redeveloped in ways that spread the toxin or raise public health risks." Access the story here. The story continues:
The decision, already in effect, has not been made public. It is being treated as a "new interpretation" of existing law, according to the memo, which was obtained by USA TODAY. As such, no public comment was required.A followup today in The Journal News (Westchester County New York), also a Gannett paper, reports:
"The intent is to prevent the spread of PCB contamination," EPA spokeswoman Mary Mears said. "It is our opinion that transferring property has nothing to do with spreading PCB contamination. It is immaterial to the responsibilities the parties have to clean up the land, no matter who owns the property."And here is more from the same story:The change in the rule, Mears said, will release properties currently off-limits to developers. "We believe this will not cause any increase in the spread of PCB contamination," Mears said, "and it may well be good for the environment. There have been land transfers where the new owner is willing to do a cleanup as a condition of redeveloping it. In some instances, this change may encourage cleaning up the land."
The policy change shifts at least some of the long-term responsibility for ensuring the safety of contaminated land from the federal government to the state. It is a change that was welcomed by the state [NY] Department of Environmental Conservation. "We are pleased that the EPA recognized that the existing policy inhibited the redevelopment and reuse of land in some instances," said Matt Burns, a DEC spokesman. "New York's remedial programs are addressing the contamination in those sites, and we will make sure they are remediated to protect the public health and the environment."
The Toxic Substance Control Act was changed based on a reinterpretation of the measure on Aug. 14 by Robert Fabricant, the EPA's general counsel. The act prohibits the commercial trafficking of PCBs, which had been interpreted to include the sale of land containing the compound. In his memo, Fabricant concluded that limits on land sales "are not necessary to advance the statutory goal of limiting exposure to PCBs, and that in many cases limitations on conveyance of real property serves not only as an unnecessary barrier to economic redevelopment, but may actually delay the cleanup of contaminated properties as well."The LA Times today also has a story. The NY Times ran this story yesterday.Fabricant wrote that changes in property ownership would not change liabilities associated with PCB contamination, and that "the real property transfer prohibitions do not serve any protective purpose."
Transfers have been occasionally allowed on a case-by-case basis by the EPA's regional offices, as long as there is an approved cleanup plan in place at the time of the sale, Fabricant noted. In May 2002, the agency permitted the Department of Defense to transfer title of a Naval Air Warfare facility owned by the Navy and managed by Raytheon to the city of Indianapolis. The site employed 1,500 people and was destined to be closed, but the city wanted to assume title and continue Raytheon's management. If an exemption had not been made, Fabricant wrote, the regulation "would have required the facility to shut down, and 1,500 jobs would have been unnecessarily lost."
"Superfund to run out of money next month" is the headline to this story today in the Washington Post.
Re the recent EPA changes to the NSR reviews (access our earlier update here), an AP story published today in the Indianapolis Star reports:
New pollution-control rules have provoked a flurry of criticism from environmentalists, but some companies in northwest Indiana doubt whether the changes will affect their operations. The rules, announced last week by the U.S. Environmental Protection Agency, will require older industries to install modern pollution-control devices when they upgrade certain equipment. But factories can avoid installing new controls if their upgrades cost less than 20 percent of the replacement cost of the main production equipment, such as generators, turbines and furnaces.
The 9th Circuit yesterday overturned "the sentences of more than a hundred death row inmates in three western states yesterday, ruling that the prisoners' constitutional rights were violated when they were sentenced under state laws that permitted judges, rather than juries, to decide between execution and life imprisonment," According to a story this morning in the Washington Post.
Yesterday's ruling was the latest aftershock of the Supreme Court's landmark 2000 ruling in a case known as Apprendi [Apprendi v. New Jersey]. In Apprendi, the court held that the constitutional guarantee of a jury trial meant that every fact that might result in an increased penalty for the defendant must be found by a jury beyond a reasonable doubt -- not, as practices in some states under certain circumstances, by a judge, according to a more relaxed standard of proof, in a separate sentencing proceeding. * * *For Indiana background, see the Indiana Law Blog entry from 6/29/03, available here.If the 9th Circuit ruling is upheld, its reach could extend to Nebraska and Colorado, which had similar laws to Arizona, Idaho and Montana and where nine more death row inmates might benefit, said Deborah Fins, who tracks the death row population for the NAACP Legal Defense Fund, an anti-capital punishment organization.
Four other states, Florida, Alabama, Delaware and Indiana, with a total death row population of 632, have used hybrid systems in which juries advise judges, but judges make the final call. Those systems are not directly at issue in this case. In Maryland and Virginia, juries determine death sentences.
Donald Knoy v. Joseph W. Cary and Janice Cary (IndCtApp 8/29/03)
Robb, Judge
Joseph Cary was injured during an after hours community service project, a clean up activity at a local park in Vincennes, Indiana, sponsored by his employer, Gemtron Corporation (“Gemtron”), due to the alleged negligence of co-worker Donald Knoy. Cary filed suit against Knoy. Knoy filed a Motion to Dismiss, contending that the trial court lacked subject matter jurisdiction. Tthe trial court denied Knoy’s motion. The Court of Appeals affirmed.
The Indiana Worker’s Compensation Act contains an exclusivity provision which limits an employee whose injury meets the jurisdictional requirements of the Act to the rights and remedies provided therein. Ind. Code § 22-3-2-6; Sims v. United States Fid. and Guar. Co., 782 N.E.2d 345, 349 (Ind. 2003). Accordingly, if an employee’s injury occurred by an accident arising out of and in the course of employment, then the employee is entitled to worker’s compensation benefits. Sims. The exclusivity provision bars a court from hearing any common law action brought by the employee for the same injuries. Id.. Since the Industrial Board, the Worker’s Compensation Act’s administrative body, has exclusive jurisdiction, lawsuits filed by employees for injuries suffered that arise out of and in the course of employment are subject to dismissal by the trial court or lack of subject matter jurisdiction. Ski World, Inc. v. Fife, 489 N.E.2d 72, 73 (Ind. Ct. App. 1986).With respect to after hour injuries, after summarizing earlier rulings, the Court rules:
An injury “arises out of” employment when a causal nexus exists between the injury sustained and the duties or services performed by the injured employee. Milledge v. Oaks, 784 N.E.2d 926, 929 (Ind. 2003). An accident occurs “in the course of employment” when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is fulfilling the duties of employment or while engaged in doing something incidental thereto.
Knoy concedes that this court and our supreme court have not previously addressed whether injuries received during an after hours community service activity sponsored and organized by an employer arise out of and in the course of employment. However, he encourages us to extend the holdings of Noble, Ski World, and Weldy to reach that conclusion. * * * The holdings in Noble, Ski World, and Weldy lead us to believe that there are two important factors in deciding whether an injury arises out of and in the course of employment: first, whether the employer’s encouragement to attend the event crosses the line into an expectation of attendance and second, whether the activity is designed to benefit the company in some way other than merely providing an enjoyable activity for the employees. * * * Although Gemtron’s interests may have been calculated to promote their goodwill in the community, this is not a direct business benefit as described by our supreme court in Noble. Additionally, this court has held that such an amorphous benefit is not sufficient to confer coverage under the Worker’s Compensation Act.Vaidik, J., concurs.Therefore, because no evidence was presented at the hearing to show that Gemtron expected its employees to attend and the only benefit to Gemtron was to promote goodwill in the community, we hold that the trial court did not err in denying Knoy’s Motion to Dismiss.
In summary, Gemtron encouraged its employees to attend the clean-up activities, provided gloves for them, and also provided food and beverages to those who showed up to work. Gemtron’s sponsorship of and participation in the event served its best business interests by enhancing its image and thereby fostering a good relationship with the local community. These facts are sufficient to establish that there was a direct nexus between Cary’s employer, Gemtron, and the event at which Cary was injured so as to render Cary’s activities there within the scope and course of his employment. Thus, Cary’s exclusive remedy lay in the Worker’s Compensation Act, and the trial court did not have subject matter jurisdiction over Cary’s complaint. I would reverse and remand with instructions to grant Knoy’s motion and dismiss Cary’s action.
This afternoon the Indianapolis Star is reporting here on its online site that:
The Labor Day storms have poured between 300 and 400 million gallons of untreated storm water and sewage into the city's waterways. The city's treatment plants are working overtime to treat combined sewage -- the term for sewage mixed with storm water -- but cannot keep up with demand. . . . The overflow is finding its way into White River, Fall Creek, Pleasant Run and Pogues Run.A NY Times story last week (last item in the entry) in the Indiana Law Blog reported that the recent power outage and lack of backup generators 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.[Update 9/3/03] A Star editorial today remarks that "The city still isn't adequately prepared to cope with heavy rainstorms." Access it here.
September always reminds me of starting classes, although it has been years . . . Anyway, with that in mind, I have some reading recommendations.
I'm currently reading: Pinstripes & pearls : the women of the Harvard Law School class of '64 who forged an old-girl network and paved the way for future generations, by Judith Richards Hope. A number of now prominent people were in that class, including not only the author but DC Circuit Judge Judith W. Rogers, Justice Steven Breyer, former Senator Pat Schroeder and many others. Janet Reno was one year ahead of this class, Elizabeth Dole one year behind. Although it starts out a little slow, I'm to the part where the author is describing the first-year experiences in class and out. A couple of examples follow.
The Harvard students were given assigned seats in every class and the women were always assigned seats in the front row:
Pat Scott (Schroeder) was astonished: "I had thought we all got to sit where we wanted. . . . And then in two of my classes the guys on either side of me wanted to have their seats changed because they had never sat next to a girl in their entire educational lives."Harvard decided to admit more than just a token woman or two to the class of '64 -- 22 were accepted, and 15 graduated in a class of 513. The term "critical mass" is familar to all of us now, particularly since the Universty of Michigan cases decided in the last Supreme Court term, but this quote really brought its meaning, and import, home to me:
As Dinni Lorenz (Gordon) told me: "I remember many things about my gender that shaped my law school experience. I remember walking into the library at Langdell Hall, through those vast echoing spaces, and my heels would make a clicking sound on the hard, polished cork floors. A hundred pair of eyes would look up and heads would swing. People would stare. It seemed that every male in the library would turn and look because they knew this was the sound of a woman's step. I would feel a clenching in my stomach. For me, it was excruciating, just excruciating. I felt exposed in a way that was really very painful for me. There was constantly the sense of being such a tiny minority that stuck out and was the object of curiousity."Out of time -- my other reading recommendations will have to wait.