Marion County Superior Court Judge Michael Keele ruled this week that:
[A]n organization or membership association does not satisfy the jurisdictional standing requirement of IC 4-21.5-3-7(a)(1)(B) by stating facts that demonstrate that its members are aggrieved or adversely affected by the order of which review is sought. In order to invoke administrative review under AOPA, a petitioner seeking review under IC 4-21.5-3-7(a)(1)(B) must petition for review in a writing that states facts demonstrating that "the petitioner is aggrieved or adversely affected by the order" of which review is sought. Allegations of an unaffected association that members of the association (or any other persons that the petitioner itself) are aggrieved are not sufficient to invoke the tribunal's jurisdiction over the case.The case is Indiana-Kentucky Electric (IKEC) and IDEM v. Save the Valley, et al. In December 2002, three Indiana environmental groups, Save the Valley, Inc., Hoosier Environmental Council, Inc., and Citizens Action Coalition of Indiana, Inc. sought administrative review of a solid waste facility permit renewal issued by the IDEM to the Indiana-Kentucky Electric Corporation's Madison, Indiana generating station. The three environmental groups claimed that their members were adversely affected by the permit renewal and sought to have the permit modified. No individual person challenged the permit decision, and the groups did not claim that they themselves were harmed by the permit, but instead claimed that some of their members were harmed. Here are copies of the Marion County Court's ruling and order (thanks to Barnes & Thornburg for the docs).
On Monday I published here a note that I was making my 27-page paper, titled "Maintaining the balance of power between the legislative and executive branches of Indiana state government post 1941," available via The Indiana Law Blog because of the long lead-time for potential journal acceptance and publication (which may be six months to a year or more). You may access the paper by going to my "publications" page via the link in the right column, or you may access it directly here. My paper received a nice mention today (dateline 11/03/03) on page 6 of Ed Feigenbaum's excellent subscription-only publication covering Indiana state government, Indiana Legislative Insight.
The Attorney General's opinion: "It is our opinion that to the extent House Enrolled Act 1001 (Public Law 224-2003) requires the Treasurer to diminish the principal of the Common School Fund, it is unconstitutional as a violation of Article 8 of the Indiana Constitution."
In the November 1, 2003 issue of the Indiana Register, Indiana's Attorney General has published Opinion #6 from 2002, plus Opinions #1 through 8 of 2003. Most interesting to me were the four most recent opinions:
Official Opinion 2003-5, issued 6/17/03 to the State Treasurer, Tim Berry. The introduction:
This letter responds to your request for an advisory opinion on the duties and responsibilities of your office as they relate to the retroactive application of House Enrolled Act 1001, (Public Law 224-2003). In your letter dated May 5, 2003 you stated:The Opinion concludes:Section 115 [of the Act] directs me to transfer $25 million out of the Common School Fund, back to the Abandoned Property Fund, and then into the General Fund, even though Article 8 of the Constitution appears to prohibit any transfers out of the Common School Fund for any purpose. Although authorized by HB 1001 to make these transfers, I am reluctant to do so in light of the directives contained in the Constitution without your assurance that the transfers would be lawful.It is our opinion that to the extent that Section 115(b) of House Enrolled Act 1001, (Public Law 224-2003) requires the Treasurer to diminish the principal of the Common School Fund, it violates Article 8 of the Indiana Constitution.
It is our opinion that to the extent House Enrolled Act 1001 (Public Law 224-2003) requires the Treasurer to diminish the principal of the Common School Fund, it is unconstitutional as a violation of Article 8 of the Indiana Constitution.Official Opinion 2003-6, issued 8/12/03 to Representative Tiny Adams. The "brief answer":You should be aware that this opinion is not binding on a court, which could reach a different conclusion. Welliver v. Coate, 114 N.E. 775, 780 (Ind. App. 1917). However, we believe it to be the correct answer, one upon which you may rely in your actions, and one which this office will be prepared to defend if subject to court challenge.
It is our opinion that legislation seeking to provide exceptions to a general ban on smoking will likely survive constitutional scrutiny under an equal protection analysis if the classifications created in the ordinance bear a rational relationship to a legitimate government concern. We further believe the legislation would survive constitutional scrutiny under the Privileges and Immunities Clause if the preferential treatment granted by the ordinance is reasonably related to innate characteristics that distinguish the preferentially treated classes, and the preferential treatment granted is uniformly available to all individuals similarly situated.Official Opinion 2003-8, issued 8/12/03 to Charles Johnson, State Board of Accounts. The question: "You requested an advisory opinion concerning the application of Indiana Code Sections 36-1-8-5 and 5.1 concerning the establishment of rainy day funds by political subdivisions. Our office withheld issuing an advisory opinion pending the outcome of legislative action taken in 2003."
Official Opinion 2003-8, issued 8/27/03 to Representative Ralph Ayres. The question: "Is a redevelopment commission of a unit (county, city or town), created pursuant to Indiana Code section 36-7-14-3, separate from such unit, and therefore able to acquire and dispose of property and appropriate non property tax revenues for purposes of redevelopment or economic development within the boundaries of the unit, without the approval of the legislative body of that unit?" The "brief answer":
Although initially established by a unit of government, a redevelopment commission created pursuant to Ind. Code § 36-7-14-3 is a special taxing district and a political subdivision, and not merely an agency of the unit. Redevelopment commissions have been granted broad powers by the General Assembly regarding acquisition and disposition of property, issuance of bonds for redevelopment, and the general conduct of business. Ind. Code chapter 36-7-14 contains comprehensive and detailed sections governing the powers of a redevelopment commission, its acquisition and disposition of property, and the various mechanisms available for funding its activities. While approval of the fiscal or legislative body of the establishing unit is required for some transactions, other transactions do not require such approval.Access the Opinions referenced above here. Opinion #5 is at p. 16 of the document, #6 at p. 19, #7 at p. 22, and #8 at p. 28.
Escobedo v. BHM Heal Associates, Inc. et al (10/29/03 IndCtApp)
Mathias, Judge
Per the opinion:
The employees (“Employees”) of BHM Health Associates, Inc. (“BHM”) filed suit in the Superior Court of Lake County against BHM, Donna Huddleston (“Huddleston”), Leona Bonczek (“Bonczek”), and AAA Health Care, LLC (“AAA”). The trial court ruled in favor of the Employees with respect to their claims against BHM, but also ruled in favor of Huddleston, Bonczek, and AAA. The Employees appeal, presenting the following restated issues for review: Whether Huddleston and Bonczek are entitled to the protection of BHM’s corporate status; and, Whether the BHM purchase agreement (“Agreement”) renders AAA liable for BHM’s wage obligations that accrued prior to January 31, 1997.In its discussion of piercing the corporate veil in Indiana the court said (citations omitted):Concluding that Huddleston and Bonczek are not entitled to the protection of BHM’s corporate status but that the Agreement does not render AAA liable, we affirm in part and reverse in part.
It is well settled that Indiana courts are reluctant to disregard a corporate entity; however, we may do so to prevent unfairness to third parties. When a court exercises its equitable power to “pierce the corporate veil,” it engages in a highly fact-sensitive inquiry. Id. The plaintiff bears the burden of proof with respect to piercing the corporate veil.
To decide whether plaintiff has met this burden, we consider whether the plaintiff has presented evidence showing: (1) undercapitalization; (2) absence of corporate records; (3) fraudulent representation by corporation shareholders or directors; (4) use of the corporation to promote fraud, injustice or illegal activities; (5) payment by the corporation of individual obligations; (6) commingling of assets and affairs; (7) failure to observe required corporate formalities; or (8) other shareholder acts or conduct ignoring, controlling, or manipulating the corporate form.
Monterey P. Morgen v. Ford Motor Company (10/29/03 IndSCt)
Sullivan, Justice
A jury rejected Monterey P. Morgen’s claim that Ford Motor Company was responsible for the serious injuries he suffered as a back seat passenger in an automobile accident. The Court of Appeals ordered a new trial on the ground that the jury had been improperly instructed on Morgen’s failure to use his seat belt. We find that the instruction was not erroneous, and even if it were, it did not affect the jury’s verdict.In this case:
Shepard, C.J., and Boehm, J., concur.
Dickson, J., dissents with separate opinion.
Rucker, J., dissents with separate opinion in which Dickson, J., concurs.
Veronica Embry v. Frank O'Bannon, et al. (10/29/03 IndSupCt)
Dickson, Justice
This was an appeal from a summary judgment denying relief in an action brought by four Indiana taxpayers against Governor Frank O'Bannon and Superintendent of Public Instruction Suellen Reed ("the State").
The taxpayers' lawsuit challenges the "dual-enrollment" process whereby the State provides public funds "which are used to pay teachers who teach classes in parochial schools and which are used to provide such things as internet services to parochial schools." The taxpayers contend that this practice violates Article 1, Section 6 of the Indiana Constitution, which states: "No money shall be drawn from the treasury, for the benefit of any religious or theological institution." (Hereafter "Section 6.") Because this dual-enrollment process does not provide any substantial benefit to the participating parochial schools or directly fund activities of a religious nature, we hold that it does not violate Section 6, and we affirm the judgment of the trial court.First the court addressed the standing issue, ruling:
Both the trial court and the Court of Appeals concluded that the plaintiffs lack standing to bring this action, in reliance on Pence v. State, 652 N.E.2d 486 (Ind. 1995). As we recently held in [Cittadine v. Indiana Dep't of Trans., 790 N.E.2d 978, 980 (Ind. 2003)], however, "Pence did not alter the public standing doctrine," 790 N.E.2d at 983, which has been recognized in Indiana case law for more than one hundred and fifty years and remains viable today. Because the plaintiffs' complaint is not grounded on a claim of private rights, but rather on their shared public interest as taxpayers in the allegedly unconstitutional expenditure of public funds, they fall within the public standing exception to the general standing requirement, and are entitled to bring this action.With respect to Article 1, Section 6:
In summary, while the text of Article 1, Section 6, in the context of history may be helpful in discerning whether its framers and ratifiers specifically intended it to apply to the funding of religious schools, the text and its historical context do not inform us whether the framers intended to prohibit all public funds from providing merely incidental benefits to religious and theological institutions. Indiana case law, however, has interpreted Section 6 to permit the State to contract with religious institutions for goods or services, notwithstanding possible incidental benefit to the institutions, and to prohibit the use of public funds only when directly used for such institutions' activities of a religious nature. Because the dual-enrollment programs permitted in Indiana do not confer substantial benefits upon any religious or theological institution, nor directly fund activities of a religious nature, such dual-enrollment programs do not violate Section 6.You may wish to review this opinion in detail: for the various points of view on standing; on the application of Article 1, section 6; and for the court's statement of its standard of review of state constitutional claims.Conclusion. Transfer is granted. Although we reverse the trial court's conclusion that the plaintiffs lack standing to bring the instant action, we affirm its conclusion that dual-enrollment programs do not violate Article 1, Section 6, of the Indiana Constitution. Summary judgment is therefore affirmed.
Rucker, J., concurs. Shepard, C.J., concurs in result. Sullivan, J., concurs in part 1 and concurs in result in part 2, with separate opinion which Shepard C.J. joins. Boehm, J., concurs in result, with separate opinion, in which Sullivan, J. concurs.
Alaska Dept. of Environmental Conservation v. EPA. The issue: When may the EPA override a state exercise of delegated regulatory authority under the Clean Air Act? See the earlier ILB entry for all the links for this case, argued this month before the U.S. Supreme Court. Add to these now this link to the transcipt of the 10/8/03 oral argument. (Thanks to SCOTUSblog for the link.)
In case you didn't know who Dean Buntrock is, Judge Richard Posner spells it out in the first paragraph of the 7th Circuit opinion issued today in the case of Buntrock v. SEC, that begins:
In February of 2002, shortly after the Securities and Exchange Commission had authorized its legal staff to sue Dean Buntrock—the controversial former chief executive officer of the controversial Waste Management corporation (see, e.g., Peter Elkind, “Garbage in Garbage Out: Waste Management Used to Be a Wall Street Darling…,” Fortune, May 25, 1998, p. 130; Peter Carbonara, “The Greening of Waste Management,” American Lawyer, Dec. 1990, p. 42; Kim Foltz, “Still Down in the Dumps,” Newsweek, Apr. 16, 1984, p. 70)—charging him with violations of federal securities law . . .
There are a number of entries in the Northwest Indiana papers today's about the plan announced by U.S. Rep. Pete Visclosky to restore Indiana's south shore of Lake Michigan. This story, from the NWITimes, has a great photo of a concrete plant on the beach. A quote:
The vision, now called the Marquette Greenway Plan, involves a transformation of Northwest Indiana's lakeshore, covering about 45 miles from the state line at Hammond to the eastern edge of Portage. Visclosky, D-Ind., envisions a gradual transition from a shoreline reminiscent of the Industrial Revolution into a picturesque swath of public space more in keeping with the 21st century.The NWITimes also has an editorial on the plan. A quote:The key elements of the plan include recapturing 75 percent of the shoreline for public use, a minimum 200-foot setback from the shoreline for all new structures and facilities and a continuous pedestrian/bicycle trail along the shore. * * *
What may bring Visclosky's vision to life is an agreement he facilitated between the mayors of East Chicago, Gary, Hammond, Portage and Whiting. All five cities signed a memorandum of understanding to collectively pursue a master plan for the Lake Michigan shoreline. Each city contributed $8,000 to secure a $160,000 matching grant from the Indiana Department of Natural Resources to pay for development of the master plan. Portage has agreed to collect and distribute money associated with the master plan for the reclamation project. It also has agreed to distribute the requests for proposals for the study. The master plan will provide the cities with a detailed map analysis and evaluation of the shoreline and its potential for public recreational use.
It is a bold plan, similar to the one that resulted in the establishment of Indiana Dunes State Park and, later, Indiana Dunes National Lakeshore. The difference is that in this new plan, business and the environment can peacefully coexist. The plan calls for setting aside Lake Michigan frontage, at least 200 feet deep, along 75 percent of more of the lakeshore between the Illinois state line and the east side of Portage for free public access by the end of this decade.The editorial also stresses this excellent point: "Keep in mind that much of this land has been set aside for industrial use for more than a century. As Visclosky reminded editors at The Times last week, land-use decisions made in the late 19th century continue to shape public policy in the 21st century, effectively locking the public out of enjoying the region's biggest asset -- Lake Michigan. But this is no longer the 19th century. The decline of steel in the region makes this the perfect opportunity to revisit those decisions and work to rescue some of that lakefront land for public use."The vision is that a miniature version of Chicago's Lake Shore Drive -- this one for pedestrians, not motor vehicles -- could be built throughout Northwest Indiana. That is a long way away. There are many hurdles, not the least of which is simply determining who owns the land, what environmental hazards it contains and how to clean it up if necessary. Considering so much of it has been used by heavy industry, environmental cleanups are sure to be needed.
And then there are the issues of how that public access is acquired. Will it be an outright purchase? An easement? Zoning restriction? Will the landowner donate it or sell it cheap? Will there be a big legal battle over acquisition? These questions and more have to be resolved to put the plan into place. But first things first. There is now an agreement to start working on it, and that is a major step.
A Gary Post Tribune editorial warns that "If it is going to becoming a reality, the key lies with the five mayors. If they drop the ball, it won’t work." Also:
Even though the Marquette Project was proposed 18 years ago, the timing couldn’t be better for pushing ahead today. With some industries having closed their lakefront sites and the steel industry no longer needing the vast amounts of land they own, reclaiming that land for public use must be done quickly.Visclosky made that point to the Quality of Life Council a year ago, saying, “We must not replace one set of exclusive owners of lakeshore property with another set of exclusive owners. We must follow the lead of Daniel Burnham, Chicago’s legendary city planner, who believed that 80 percent of that city’s shoreline should be set aside for public use.”
While the Indiana shoreline will never rival Chicago’s, there is no finer example to follow. Given that the steel industry no longer needs all the land it owns, each affected city should commence negotiations to acquire that excess land. It is a win-win situation in that steel — by divesting itself of the land — will be reducing its property tax bills.
Detroit Free Press columnist Brian Dickerson has an interesting article today about Michigan law on governmental negligence. His take on it is:
For decades, motorists and pedestrians injured as a result of negligent highway maintenance have been able to sue for damages, giving municipalities a powerful incentive not to fall down on the job. But since assuming control of the state Supreme Court in 1999, Republican justices bankrolled by the insurance industry have steadily limited such lawsuits, ruling that the government's duty to maintain safe highways doesn't extend to traffic signals, signs and streetlights adjacent to the road.In his column Dickerson quotes from a Michigan Court of Appeals opinion criticizing the Michigan Supreme Court:
"It should go without saying that the mandate to keep a road in reasonable repair includes the need to properly operate traffic devices with respect to that road," Judge William Murphy wrote for the Court of Appeals majority. "One can imagine the chaos that would ensue on Michigan roads without traffic signals, signs and lighting that operated properly."Thanks to the Michigan law blog, The LitiGator, for the link.But under recent rulings by the state Supreme Court, Murphy noted, a municipality would be immune from liability even if it 1) took months to repair a malfunctioning traffic signal, 2) installed one-way signs pointing in the opposite direction of the actual traffic flow, or 3) failed to provide stop signs or traffic signals at a newly created intersection.
"If the Legislature intended for there to be no consequences for failure to properly maintain traffic signals, signs and lighting, so be it," Murphy wrote. "If this was not what was intended, the Legislature may wish to act accordingly."
I have located the Michigan Court of Appeals opinion referred to; it is dated 9/23/03. A quote:
Our ruling today is made on the basis of binding precedent that we are required to follow. However, we respectfully voice our strong disagreement with recent case law precedent that has whittled away and vitiated the highway exception to governmental immunity, MCL 691.1402(1), to a degree which we believe is beyond that contemplated and intended by the Legislature. We find it imperative that the Legislature make itself heard, clearly and unequivocally, with respect to whether the highway exception should apply to traffic signals, signs, and lighting. The need for legislative clarity is apparent, considering the wide disparity of judicial opinions on the matter, including those issued by the majority sitting on the Michigan Supreme Court. See e.g., Nawrocki, supra, overruling Pick v Szymczak, 451 Mich 607; 548 NW2d 603 (1996). Ultimately, it is the Legislature’s call, not the courts’. Our concern is with the injustices and inequities that can result through reliance on binding judicial opinions precluding application of the highway exception that might not reflect the Legislature’s intent. This Court fully appreciates that we are not members of the Legislature and that appellate opinions are not a proper forum to articulate personal sentiments; however, this opinion is not meant to seek particular legislation but rather seeks legal clarification on a matter of great importance, i.e., the safety of our public roadways.
Last week this story in the Indianapolis Star reported:
A large northern Indiana dairy farm with a history of manure-disposal problems has been ordered to stop applying manure to farmland near a large state reservoir.Today this AP story reports:State environmental officials obtained a temporary restraining order Tuesday against the De Groot Dairy Farm a day after cow manure entered a drainage ditch near the farm for the second time in less than two weeks. That ditch flows by the farm, which has about 1,400 dairy cattle, to the Salamonie Reservoir about one-and-a-half miles away.
A large northeastern Indiana dairy farm ordered by a judge to stop applying manure to farmland near a reservoir apparently found a way around that ban, a state official said. The state environmental agency last week obtained a temporary restraining order against the De Groot Dairy Farm after cow manure twice entered a drainage ditch near the farm in less than two weeks.The Muncie Star-Press also has a story today (access it here), reporting:A neighbor on Monday saw manure being applied to that land and contacted the Indiana Department of Environmental Management, agency spokesman Dan Hottle said. A state inspector confirmed that manure was being spread, but that it was from animals belonging to farm owner Johannes De Groot's daughter, Hottle said Tuesday.
IDEM says De Groot has discharged manure into George W. Young Drain multiple times. The drain runs to Salamonie Reservoir, about 1.5 miles from the farm."This spill has relevance for the proposed dairy in Randolph County because it underlines the problems Vreba Hoff dairies have had not only in Indiana, but also in Michigan and Ohio," according to Wendy Carpenter, an opponent of Vreba Hoff's proposed Goldstein dairy farm in Randolph County.
"We in Randolph County are alarmed by the continual violations of the Vreba Hoff dairies, both operational and construction violations."
A manure spill from the proposed Goldstein dairy similar to the one at De Groot wouldn't have to travel even a quarter mile in a ditch to reach Sparrow Creek, which runs to White River, Carpenter said.
[Update on waste tires] Today's Muncie Star-Press also reports that the Indiana Environmental Quality Service Council (EQCS), a legislative study group, will consider waste tire recycling regulation at its meeting today.
Council chair Sen. Beverly Gard, R-Greenfield, on Tuesday issued a draft recommendation calling for Indiana's waste-tire statute to be "reviewed for updates to meet current situations arising in the waste tire industry and with waste tire cleanups." Gard also proposes to demand financial assurance for closure of tire processing facilities as a requirement for permitting, and to allow for innovative uses of waste tires "without bureaucratic red tape."The ILB entry on waste tires from last weekend may be found here.
[Update] The U.S Senate Tuesday (10/28/03) confrimed Michael Leavitt of Utah as the next administrator of the EPA.
Naomi & Grant Stewart v. City of Indianapolis (10/28/03 IndCtApp)
Kirsch, Judge
After Naomi and Grant Stewart’s dog, Sheba, bit a child on three different occasions, the City of Indianapolis brought suit against them for violating the ordinance addressing the way in which dangerous animals are kept. The issue: "Whether the trial court erred in granting summary judgment in favor of the City on its complaint requesting an injunction and fines against the Stewarts for violating the ordinance prohibiting dangerous animals from being unconfined and unrestrained where the incidents alleged all took place on the Stewarts’ property from which the dog was unable to escape." The Court here reversed. The ordinance provides:
(a) For purposes of this section, the words vicious, fierce or dangerous animal mean and include an animal which has:The Court said that in order to violate the ordinance, the owner or keeper of the animal in question must have permitted the dog to be unconfined and unrestrained, noting that neither of these terms is defined by the ordinance. The Court found that "the word 'restrain' means to actively control and prevent conduct, rather than mere containment" and “'[c]onfine' means 'to keep within limits; restrict.'" The Court found that at the time of one incident:
(1) Attacked a person without having been provoked by that person;
(2) Attacked, at some place other than its owner’s or keeper’s property, another animal; or
(3) Chased or approached a person at some place other than its owner’s or keeper’s property, in a menacing fashion or apparent attitude of attack.(b) It shall be unlawful for an owner or keeper of a vicious, fierce, or dangerous animal to cause, suffer, or allow it to go unconfined and unrestrained on the owner’s or keeper’s premises, or to run at large, in the city.
Sheba may have been “unrestrained,” but was not “unconfined” within the meaning of the ordinance because her movement was restricted to the Stewarts’ back yard. Because an owner or keeper violates the ordinance only when the animal is both “unrestrained” and “unconfined,” the Stewarts did not violate the ordinance on this occasion.As for the second incident:
[A]t the time of the incident, Sheba was confined to the garage of the Stewarts’ home and that the garage door was lowered sufficiently to prevent her escape. Again, this evidence shows that the Stewarts did not violate the ordinance because they did not permit Sheba to go “unconfined.” Rather, Sheba’s movement was restricted to the Stewarts’ garage.And at the time of third incident:
The evidence also establishes that an invisible fence bounded the Stewarts’ front yard and was powered on at the time of the incident. Further evidence showed that Sheba was trained not to cross the “fence” and was wearing a collar that would have caused her to be shocked if she tried to exit the area bounded by the fence. Sheba may have been “unrestrained” but was not “unconfined” under the circumstances because her ability to move was kept within limits by the invisible fence.
"Cleaning the Streets, Polluting the Air: Clouds of dust are public health threat" is the headline to this story in the always excellent Indianapolis Eye Online News Magazine. (I have my own gripes about the "street cleaning" done in my neighborhood.)
In this story, the Washington Post reports today that the "Idea of Electronic Rulemaking Boots Up Slowly." Some quotes:
Almost a year after the Office of Management and Budget launched a government-wide Web site called Regulations.gov, there has been extremely light use of the portal to comment on the thousands of proposed rules that federal agencies issue each year, according to an audit by the General Accounting Office.On the other hand, a story last Thursday in Government Computer News reports:In addition, some federal agencies that should be leaders in electronic rulemaking did not list rules that they had open for comment on their own Web sites. A few took no electronic comments at all. * * *
The auditors found that Regulations.gov was the best place -- and sometimes the only place -- to find out about rules that were open for comment. Federal agencies proposed 411 rules during that period. Almost all of them were available for comment on the site.
But finding those rules was tougher: Only two of the rules issued by the agencies gave members of the public any direction in their announcement in the Federal Register or on their own Web site that they could comment on them through Regulations.gov. And once a user found her way to the site, there was no way to find all the rules open for comment within a Cabinet department.
Environmental Protection Agency officials are questioning the timing of a recent General Accounting Office report criticizing the rollout and progress of the E-Rulemaking project, which EPA leads.“I’ve never seen an audit like this in the first two weeks to two months of a site rollout,” said Kim Nelson, EPA’s CIO. “This would be more appropriate in one or two years from now, because systems roll out over a period of time.”
In the report, Electronic Rulemaking—Efforts to Facilitate Public Participation Can Be Improved, auditors said Regulations.gov did a better job than most agency docket systems in letting citizens find rules, but lacked the complete functionality that would attract more users to the site.
Today I am making available a paper I completed in July, titled "Maintaining the balance of power between the legislative and executive branches of Indiana state government post 1941." This 27-page article originally was intended for traditional publication. I have elected to make it available on The Indiana Law Blog because of the long lead-time for potential journal acceptance and publication, which may be six months to a year or more.
Why did I write it? In the late 60s I attended night law school and worked during the day for the Indiana General Assembly's staffing agency at the time, the Legislative Advisory Commission. Much of my legal education came from the legislative job. At the time I heard about one case over and over, "Tucker v. State."
In the 70s, when I served in the executive branch as counsel to the State Budget Agency, I heard about another case over and over, "the Grills case."
This year, in a different century, I elected to research these decisions and examine how they may impact today's legislative and executive branches. This paper is the result. Here is the outline:
I. INTRODUCTIONIf you have comments, I hope you'll let me know. I am also making this paper permanently available on my publications page.
II. POLITICAL ACTIVITY PRECEDING TUCKER V. STATE
A. The 1933 Executive Reorganization
B. The 1941 General Assembly’s Response
III. THE SUPREME COURT’S DECISION IN TUCKER V. STATE
A. The Separation of Powers
B. The Executive Including the Administrative
C. The Appointing Authority of the Governor
IV. SUBSEQUENT LEGISLATION AND CHALLENGES
A. Book v. State Office Building Commission
B. Gardner v. Grills
V. TWO PROBLEMATIC STATUTES AND THE POTENTIAL REMEDIES
A. The State Budget Agency Act of 1961
1. The Issue
2. Resolving the Constitutional Defects
B. The Department of Commerce and the IEDC
1. The Issue
2. Resolving the Constitutional Defects
VI. CONCLUSION
See this excellent analysis in the Washington Post today of the questions raised by the recent Texas and Colorado legislatures' actions to redraw their congressional districts. Some quotes:
In both cases, divided state legislatures could not agree on redistricting plans in 2001, after the 2000 Census. Courts stepped in to draw new district lines, the normal procedure in such circumstances. But in 2002, Republicans gained complete control of the legislative process in both states. This year, the GOP has moved aggressively to exploit that advantage, hoping to solidify the party's control of the U.S. House of Representatives through the end of this decade.The story notes that "during much of the 20th century, states often did not redraw congressional boundaries even once a decade. The only times they were compelled to redistrict was when, as a result of the decennial census, they gained or lost seats in the House. Washington state did this in the 1950s, creating an 'at large' House seat in 1951 and converting it into a traditional district covering only part of the state in 1957." However:The Texas plan could swing as many as seven House seats to the Republicans; the Colorado plan is designed to shore up GOP prospects in two highly competitive congressional districts.
Both plans are under court challenge on numerous grounds, including the contention of Democrats that the plans are unconstitutional. The cases' outcome could determine whether congressional redistricting remains generally a once-a-decade process after the census or becomes what Bernard Grofman, a political scientist at the University of California at Irvine, calls "a carnival every time a legislature changes [party] hands."
The key constitutional issue raised by the cases is whether a state legislature is free to redraw congressional boundaries a second time in a decade after an election has been held using district lines that were legally implemented, either by the legislature or by a court.
"There are no court cases" dealing with that issue, said Tim Storey, the redistricting specialist with the National Conference of State Legislatures. "It's essentially a new question."
The states' casual approach to redistricting ended in 1962 with Baker v. Carr, the landmark Supreme Court decision that laid the foundation for the "one person, one vote" doctrine. From then on, states were to redraw House districts to keep their populations about equal after each once-a-decade census. There have been numerous instances of multiple redistrictings during the same decade, but always under pressure or order from a court to comply with constitutional mandates or laws such as the Voting Rights Act of 1965. Except in those cases, states have regularly redrawn congressional districts only once a decade. Storey said about a dozen states have constitutional provisions prohibiting multiple redistricting in the same decade, but Texas is not one of them. Nor do the U.S. Constitution or federal court precedents prohibit the practice.Earlier Indiana Law Blog stories on redistrcting may be found here.
Here is a related Washington Post article on Texas redistricting. See also this analysis from the excellent Election Law blog. A taste:
It would be a big leap for a court to say that because we must apportion every ten years, we may not redistrict within an apportioned state more than once a decade. Such a rule does nothing to further the goals of reapportionment.The National Conference on State Legislatures maintains an outstanding resource on redistricting. Access it here. Particularly interesting is this item, "Top Ten Reasons Why Redistricting is Now a Permanent Campaign."
The Chicago Tribune today begins a major four-part series on wrongful convictions. The first story, published today, is headlined: "Crimes go unsolved as DNA tool ignored: Genetic profiles in rapes, slayings not sent to FBI." Here is the Tribune's description of its investigation:
In the past 15 years, DNA testing has emerged as a revolutionary forensic tool, providing an unprecedented exactitude in identifying and convicting criminals and freeing prisoners convicted of crimes they did not commit.These stories will constitute "Chapter 9" in the Tribune's multi-year coverage of criminal justice and the death penalty, titled "Justice Derailed." Access the complete series here.Yet a Tribune investigation shows that, as in the Jean case, law-enforcement authorities are still struggling--and in some cases refusing--to fully exploit DNA technology.
The newspaper examined every case in the U.S. where DNA testing has freed a convicted inmate, focusing on 115 murders and rapes where the release left a crime unsolved. In some of those cases, DNA was quickly used to link known suspects to the crime.
But in 44 of the remaining 97 cases, or just under half, authorities have not followed up by submitting the genetic profile of the suspected perpetrator to the FBI's national DNA database, a well-established law-enforcement tool that has been used to link more than 8,600 convicted felons to other crimes.
Scott Turow, former assistant U.S. attorney in Illinois and noted crime author, who has recently written a non-fiction book titled "Ultimate Punishment: A Lawyers' Reflections on Dealing with the Death Penalty," wrote this article late last year for the New Yorker. A quote:
Yet despite the retributive wrath that the public seems quick to visit on particular crimes, or criminals, there has also been, in recent years, growing skepticism about the death-penalty system in general. A significant number of Americans question both the system's over-all fairness and, given the many cases in which DNA evidence has proved that the wrong person was convicted of a crime, its ability to distinguish the innocent from the guilty.And here is an article from the National Review titled "Governor Ryan did the right thing" (when he changed the sentences of death-row prisoners to life in prison), that refers to Turow's article.
Waste Tire. This story in the Indianapolis Star this morning reports on Indiana's continuing efforts re waste tire disposal and management. Here is another story, this one from the Muncie Star-Press. [Update 10/30/03] The Star-Press had three more stories today on waste tires. Access them here, here, and here.
Air. The NY Times reports today that:
Congressional investigators have determined that a top Bush administration air-quality regulator was warned that administration proposals to revise federal clean-air regulations could harm government lawsuits to force power plants and refineries to make upgrades that would sharply reduce the pollution they produce. With the release of the report this week by the General Accounting Office, the investigative arm of Congress, several Democratic senators have called for an investigation by the inspector general of the Environmental Protection Agency.View the ILB entry from Oct. 23 on this issue here, along with a link to the GAO report.
[Update 10/26/03] "Clean Air Dispute Shrouds North Dakota
U.S. contends coal-fired power plants have increased sulfur dioxide levels in ecologically sensitive areas. The state believes otherwise," is the headline to this story today in the LA Times.
It is time again - as reported here in the Indianapolis Star this morning:
Even though the rest of the country will adjust its watches back one hour at 2 a.m. Sunday, Indiana is still one of three states that do not observe daylight-saving time. * * * Arizona and Hawaii are the two other states that don't observe daylight-saving time. Here, 77 counties stay on Eastern Standard Time all year long, meaning most of the state is on Chicago time during the summer months and on New York time when it's cold. But 15 counties in the state's northwest, southwest and southeast corners do change their clocks.This is on my list for a thorough review of Indiana law and how we got this way, but today I don't have the time.
Lawrence & Judy Gunkel v. Renovations, Inc., et al. (10/24/03 IndCtApp)
Baker, J.
The Court's introduction:
The law occasionally—almost uncannily—throws together parties and counsel within what seems a close degree of kinship. Here, appellants-plaintiffs Lawrence and Judy Lynn Gunkel—through their attorney David W. Stone, IV, appeal the entry of summary judgment in favor of appellees-defendants J & N Stone, Inc., in a case involving stone masonry. [See footnote] Specifically, the Gunkels contend that the trial court erred in granting J & N Stone’s motion for summary judgment because the economic loss doctrine should not have barred the Gunkels’ negligence claim as a matter of law. Concluding that the trial court erroneously applied the economic loss rule to bar the Gunkels’ claims for damage to property other than the masonry itself, we reverse.After a thorough discussion of the economic loss rule, the Court decided:
[My emphasis. The footnote: "We heard oral argument in Indianapolis on September 23, 2003. We thank counsel for their capable presentation in a situation where these “Rolling Stones” could have made a complicated matter even more complicated."]
The reason for the Gunkels’ abandonment of their contract remedy is not apparent. Undoubtedly, it appears that a claim for breach of contract could go forward. With respect to the Gunkels’ negligence claim, we are persuaded that the U.S. Supreme Court’s rationale in East River and Saratoga should apply in cases where the negligent installation of a portion of a home causes subsequent damage to “other property.” Notwithstanding this holding, however, the Gunkels’ “other property” was not damaged. The Gunkels had claimed that “walls, ceilings and floors,” together with “drywall, OSV board and some of the carpet and carpet padding” were damaged. Walls, ceilings, floors, drywall, OSV board, and carpeting are not “other property,” but rather fixtures. Black’s Law Dictionary 638 (6th ed. 1990) (A fixture is that which is fixed or attached to something permanently as an appendage, and not removable). These items were affixed to the Gunkels’ home, just as the turbines in East River were “affixed” to the ship. Thus, it is apparent that only the “product itself,” the Gunkels’ home, was damaged. In sum, the economic loss rule bars the Gunkels from proceeding to trial on a negligence theory, and, thus, the trial court did not err in entering summary judgment for J & N Stone.
Jason L. Inlow, et al. v. Anita Inlow (10/24/03 IndCtApp)
Riley, Judge
In this appeal the Inlow children are challenging the trial court's grant of summary judgment in favor of Appellee-Defendant Anita C. Inlow. Lawrence W. Inlow (Inlow) died intestate on May 21, 1997. Inlow was survived by the Inlow Children, who are the children of his first marriage; his second wife, Anita; and one minor child from his marriage to Anita. The Court here affirmed the trial court, with Robb, J. concurring. The most notable part of this opinion is Judge Baker's separate concurrence:
I concur in the result reached by the majority and agree that no unjust enrichment or conversion occurred. However, I write separately because I believe that this is not the proper forum to settle this dispute. As noted in our opinion, Inlow v. Henderson, Daily, Withrow & Devoe, 787 N.E.2d 385, 391 (Ind. Ct. App. 2003), matters concerning the estate of a deceased are entrusted to the probate court.
In the prior case, the Inlow Children had attempted to pursue a claim of legal malpractice against Henderson Daily, alleging that the Inlow estate had been damaged because of Henderson Daily’s negligence. Id. at 390. We held that the trial court properly dismissed the Inlow Children’s claims, noting that “the entire Probate Code—except provisions that permit dispensing with administration altogether—considers the personal representative the focal point of overseeing claims on behalf of the estate.” Id. at 391. Furthermore, we held that “[t]he probate court and the personal representative are in the best position to assess, among other things, the strength of a claim, the costs to the estate in pursuing it, and the desirability of closing the estate before certain assets depreciate in value.” Id. at 399. Thus, it seems to me that the Inlow Children’s claims should have been addressed to the probate court.
I note that this case was briefed subsequent to our opinion in Henderson Daily and was submitted after our decision to deny rehearing was issued on July 7, 2003. Thus, the Inlow Children’s attorneys were on notice that the probate court was the proper forum in which to address these types of claims. Unless these attorneys have agreed to provide their services at no cost—if such is the case, I expect that the sun will rise in the west tomorrow—the morass of legal activity directed at Lawrence W. Inlow’s estate simply amounts to the wanton depletion of the heirs’ assets. Thus, I would remand this case to the trial court with instructions that it transfer the same to the probate court and that it affix sanctions against counsel for the Inlow Children.
The Washington Post ends up its five-day series today with this story about U.S. residents buying drugs from Canada and Mexico, headlined: "Millions of Americans Look Outside U.S. for Drugs: Desire for Low Prices Often Outweighs Obeying Law."Some quotes:
Mexico, Canada and other countries have become the discount pharmacies for many Americans, those looking simply to save money as well as the uninsured struggling to pay for their medications. In the process, the nation's drug distribution chain is being breached, exposing consumers to risk and swamping regulators, according to state and federal records and interviews with dozens of federal agency officials, state investigators, academics and security specialists for the pharmaceutical industry. * * * The Food and Drug Administration said that nearly all of the medications brought in from foreign sources by individuals are illegal and possibly unsafe. But agency officials have said they do not want to be the ones seizing medications from seniors. Customs and border inspectors who are the frontline enforcers of federal law allow in most pharmaceuticals, because "we are not in the business of taking away medication from people who need it," as Brooks said. * * * The debate over allowing Americans to take advantage of cheaper drugs from overseas has been a recurring battle in Congress for the past three years. Proposals have ranged from allowing imports from about 30 countries to allowing them only from Canada. That debate continues, with the issue of opening the borders now linked to the question of whether to add a prescription drug benefit to Medicare. As those congressional debates continue, however, many Americans have reached their own decisions, buying foreign medication pill by pill and package by package.Another Post story today, titled "Canada Is a Discount Pharmacy for Americans: FDA Doing Little to Stop Cross-Border Trade in Drugs," reports:
A combination of new technology, regulatory gaps and a growing demand for low-cost drugs is reshaping the U.S. drug distribution chain and fueling an entire new industry in cross-border prescription sales. In effect, Canada has become the United States' favorite drugstore for seniors -- and its de facto Medicare drug benefit. In recent months, the issue has captured national attention, with debates in Congress, protests by seniors, threats by U.S. drug companies to curtail shipments to Canadian pharmacies and announcements by several state and local governments that they intend to use Canadian drugs for their employee health plans.The NY Times has a story today in its business section, titled "Cheap Drugs From Canada: Another Political Hot Potato." Datelined Lexington, Kentucky, the story begins:
For years, just about the only Americans regularly buying drugs in Canada were thrifty gray-haired New Englanders. Now, with state budgets squeezed, it is the nation's governors who are demanding access to Canada's cheap drugs. Here in Kentucky, the issue has become central to a tight governor's race. * * * Drug makers long ignored the trickle of patients who trooped across the border to buy drugs cheaply, but that trickle is threatening to turn into a flood. The growing political support for drug imports has galvanized the industry against one of the most serious threats to its profits since the Clinton health care proposals of 1993. The governors of Minnesota, Illinois, Iowa and Wisconsin have said in recent weeks that they want to import cheaper medicines from Canada, saving state budgets and their citizens millions in the process. * * * Governor Blagojevich of Illinois said in a telephone interview Tuesday that the state spent $340 million last year on prescription drugs for 230,000 state employees and retirees — a tab he said could be cut by tens of millions with drugs from Canada. Mr. Blagojevich said that Washington gave the drug industry steep tax breaks to support research and asserted that drugs sold in Canada were as safe as those sold in the United States. Governor Pawlenty of Minnesota said that the states could resolve any safety worries by identifying Canadian pharmacies that can be trusted to provide safe products. "We could bring some due diligence to the process and help bring about consumer protection," he said.[Update 10/27/03] The NY Times today had a story titled "Illinois Seeks Permission to Buy Drugs in Canada." A quote: "Gov. Rod R. Blagojevich will ask the federal authorities to give Illinois special permission to buy its employees' prescription drugs from Canada because, he said Sunday, he now has evidence the move would be safe for consumers and would save the state more than 16 percent of its annual share of drug costs." Also on 10/27, columnist William Safire writes:
The price of most new prescription drugs is high in the United States mainly because it includes the producers' huge investment in scientific research. In Canada, the government strips out the cost of such research and imposes a low price ceiling. In a shortsighted manner, our pharmaceutical companies have meekly or greedily gone along with this foreign rip-off, picking up extra sales on a research investment already made.But this foolish acceptance of foreign price controls means that the U.S. consumer is subsidizing the foreign consumer. Not being dopes, pursuing their economic interest, American bargain-hunters are now buying these drugs where they are sold cheaply -- outside the United States.
To counter this trend, our federal officials have been warning that imported drugs may be counterfeit or conflict with other drugs. That may scare some buyers, but most will take their chances. In reality, what with an open border and the Internet, sales will go to the cheapest seller. More Americans will join Canadians in buying drugs that do not support the cost of research into new drugs.
Thus has Phanny Pharma outsmarted itself. By willingly cutting its prices to sell into price-controlled economies, not only has it invited American buyers to go where the bargains are, but it has also invited U.S. politicians to call for foreign prices on products bought by state and local governments. And there go billions in private capital and earnings needed for costly research into new cures and treatments.
An AP story this morning reports: "2 Studies Contradict EPA on New Rules: Changes to Boost Pollution, They Say" The lead:
Environmental Protection Agency rule changes could lead to almost 1.4 million tons more air pollution in 12 states and jeopardize Clinton-era lawsuits against power plants, two studies concluded yesterday, contradicting Bush administration claims.More on the reports:
The General Accounting Office, Congress's investigative arm, said EPA rule revisions could lead to reduced fines and pollution controls in some of the clean air lawsuits against utilities that were begun during the Clinton administration.The 37-page GAO report, titled "Clean Air Act: New Source Review Revisions Could Affect Utility Enforcement Cases and Public Access to Emissions Data," may be found here. The Highlights page is here. I am unable to locate the Rockefeller Family Fund project/Council of State Governments report.A separate study by a Rockefeller Family Fund project and Council of State Governments said changes in the way industrial plants are allowed to count emissions would increase outputs of sulfur dioxide, nitrogen oxides, volatile organic compounds, carbon monoxide and soot.
The U.S. EPA is proposing to amend the definition of "solid waste," and has a web site dedicated to the re-definition. Access it here. The proposed change is slated to appear in the Federal Register shortly, with this heading:
The Environmental Protection Agency (EPA) is today proposing revisions to the definition of solid waste that identify certain recyclable hazardous secondary materials as not discarded, and thus not subject to regulation as wastes under Subtitle C of the Resource Conservation and Recovery Act (RCRA). The proposed rule would also establish specific regulatory criteria for determining whether or not hazardous secondary materials are recycled legitimately.You can access the 172-page Prepublication Notice here and the 2-page Fact Sheet here.
I also found two outstanding links via the Solid Waste page. First is this page, titled "Institutional Knowledge/Regulatory Interpretations." (Slow loading, but worth the wait.) The first part is an index, leading to specific tables on the latter part of the page. The tables contain links to various EPA letters on waste definition issues.
The second link of note is RCRA Online. This is where you can locate those elusive guidance documents you are looking for (or discover that such documents exist). For those of us who practiced environmental law in the last century, this ability to immediately access these guidance documents is a revolution.
According to information on the the Federal Trade Commision's website, the Unauthorized Practice of Law Committee of the Indiana State Bar Association (ISBA) has:
drafted a proposed amendment to Indiana Supreme Court Admissions & Discipline Rule 24 in contemplation of submitting its proposal to the Indiana Supreme Court. On July 14, 2003, you asked the United States Department of Justice and the Federal Trade Commission ("FTC") for comments on the draft. This letter is submitted in response to your request.The full text of the October 1, 2003 letter may be found here. The FTC letter concludes:The proposed draft amendment would, for the first time in Indiana, impose rules defining the practice of law. Our agencies are concerned that consumers could be adversely impacted by the proposed draft, because it is overbroad and likely to prevent nonlawyers from providing, in competition with lawyers, services that Indiana law currently permits. If implemented as written, the draft proposed rule would likely raise costs for consumers and limit their competitive choices. Antitrust laws and competition policy generally consider sweeping restrictions on competition harmful to consumers and justified only by a showing that the restriction is needed to prevent significant consumer injury. Because the proposed rule is likely to restrain competition while likely providing little benefit to consumers, we recommend that Rule 24 be left in its current form, or alternatively, that the proposed revision be narrowed substantially.
The proposed draft definition, which has ambiguous definitions of the practice of law that go beyond existing Indiana restrictions on the unauthorized practice of law, would likely reduce competition from nonlawyers. Indiana consumers, in turn, would likely pay higher prices and face a smaller range of service options. The proposed amendment contains no showing of harm to consumers from lay service providers that would justify these reductions in competition, and the Department of Justice and the Federal Trade Commission are aware of no such evidence. Without a showing of likely harm, restraining competition in a way that is likely to harm Indiana consumers by eliminating their ability to choose among competing providers is unwarranted. We therefore recommend that Rule 24 be left in its current form, or alternatively, that the proposed revision be narrowed substantially.The letter notes in footnote 10, "The Indiana State Bar Association is a private organization of lawyers and is not a state agency." (I have been unable to locate online a copy of the ISBA Section's proposal.)Thank you for requesting the opinion of the Justice Department and the Federal Trade Commission. We appreciate this opportunity to present our views and would be pleased to address any questions or comments regarding competition policies.
The Indiana Supreme Court itself has a Committee on Rules of Practice and Procedures. This page shows recent rule amendments. The current text of Rule 24, Rules Governing the Unauthorized Practice of Law, may be found here.
Thanks to reader David A Giacalone (mentioned earlier this month in this ILB entry) for pointing me to the FTC/DOJ letter, which is posted on the FTC site under the heading Commission Actions for October 2003. This FTC news release, dated Oct. 10, 2003, also is available.
Today's Indianapolis Star reports, in a story with this headline - "Judge cites pay in decision to retire: Marion County jurist with 3 years remaining in his term will leave bench after 26 years" - that Marion Superior Court Judge Steve Frank has announced that he will retire from the bench Dec. 31 for a better-paying job as a mediator. Some quotes:
Some see Frank's decision to leave before his term is up as a harbinger of deeper troubles. "This is a signal that things are really out of kilter for the judges," said David Remondini, counsel to Indiana Supreme Court Chief Justice Randall Shepard. "He's the canary in the coal mine. Here's a judge, who is experienced in making decisions in the courtroom, and he's leaving in the middle of his term and taking a risk."The Star story notes that if judges' pay had kept pace with state workers' during the last six years, they would now be earnng $117,000 per year rather than $95,000. The story also notes that "The average salary for judges in Illinois, Ohio, Michigan and Kentucky is about $113,000 a year."State and county taxpayers will have to pay $54,000 a year to Frank, Remondini said, and another $95,000 to his replacement. "If we pay $110,000, maybe Frank stays another year," he said. "Every year a judge stays after they are eligible to retire saves the taxpayers money."
Judges have long complained their pay has not kept pace with inflation. Lawmakers approved a judicial pay raise in 2001, but it was vetoed by Gov. Frank O'Bannon.
The Star story does not report the fact that new associates in large midwestern firms will be making $125,000 next year, fresh out of law school.
The story also does not mention that the judicial pay raise bill, vetoed in 2001 by Governor O'Bannon, is one of those that could be affected by the D&M Healthcare case now pending a decision before the Indiana Supreme Court. As reported here in the Star on Sept. 27, a class action suit has been filed in Marion County on the judges' pay veto.
"Rights, and Wrongs: Defendants may represent themselves, but doing so is often a very poor choice." That is the headline to an interesting story today in the NY Times that looks at the outcomes of various high-publicity cases where defendants have been granted, or denied, the right to represent themselves. A quote:
Defendants who are incompetent to stand trial at all or who act in bad faith are denied the right to represent themselves. In 1998, on the eve of trial, a judge rejected such a request by Theodore J. Kaczynski, the Unabomber, because, the judge said, the defendant's motive was to delay the proceedings. Legal scholars have criticized the ruling in the case of Mr. Kaczynski, who eventually pleaded guilty and was sentenced to life in prison.[Update] I just found this additional information via The Volokh Conspiracy: A column by Dahlia Lithwick arguing that the right to represent yourself in these cases is "court assisted suicide." And a link to the 1975 case, Faretta v. California, where the U.S. Supreme Court ruled: "The Sixth Amendment as made applicable to the States by the Fourteenth guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily and intelligently elects to do so; and in this case the state courts erred in forcing petitioner against his will to accept a state-appointed public defender and in denying his request to conduct his own defense."
This story in today's NY Times, headlined "Judge Rules Stewart Note to Lawyer Won't Be Evidence," caught my eye.
The judge, Miriam G. Cedarbaum, wrote in a 20-page opinion released yesterday that the message was protected by a rule covering lawyers' work product and therefore could not become evidence. * * *The opinion is available on CourtWeb, via the S.D.N.Y. site. A quote from the opinion:Forwarding the message to [Stewart's duaghter] Alexis Stewart, who is not a lawyer, raised the possibility that Martha Stewart had waived its protection as a work product. But Judge Cedarbaum concluded that "Stewart did not substantially increase the risk that the government would gain access to materials prepared in anticipation of litigation," and cited Martha Stewart's affidavit in which she wrote that "Alexis is the closest person in the world to me" and added: "In sharing the e-mail with her, I knew that she would keep its contents strictly confidential."
Most courts that have analyzed the question whether a party has waived work product protection over documents by disclosing them to third parties have found waiver only when the disclosure “substantially increased the opportunities for potential adversaries to obtain the information.” 8 Charles Alan Wright et al., Federal Practice & Procedure § 2024 (1994); In re Copper Market Antitrust Litig., 200 F.R.D. 213, 221 n.6 (S.D.N.Y. 2001); In re Grand Jury Subpoenas Dated December 18, 1981 and January 4, 1982, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982). Thus, courts have found parties to have waived protection of the doctrine by voluntarily submitting documents to potential adversaries, such as government agencies. See, e.g., Steinhardt Partners, 9 F.3d at 235. Courts have also decided that by disclosing work product to an adversary in one case, parties may waive protection in future cases against different adversaries. See, e.g., Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 480 (S.D.N.Y. 1993). However, the sharing of litigation materials among nonadversarial parties, such as co-plaintiffs, or among parties opposing the same adversary in different proceedings, has been held not to constitute waiver. See, e.g., Am. Tel. & Tel., 642 F.2d at 1299.This approach recognizes that the purpose of the work product doctrine “is to protect material from an opposing party in litigation, not necessarily from the rest of the world generally.” Id. at 1298-99.
The Indiana Court of Appeals made available a number of opinions today. Included among them were the following:
Jerry Thacker v. Margaret & Jack Wentzel, Jr. (10/17/03)
Brook, Judge
Thacker (pro se) appeals from the trial court’s order granting summary judgment in favor of defendants “the Wentzels”. The Wentzels appeal from the trial court’s order denying their petition for attorney fees and further request an award of appellate attorney fees. Re attorneys' fees, the court said:
Indiana appellate courts have formally categorized claims for appellate attorney fees into “substantive” and “procedural” bad faith claims. Boczar v. Meridian Street Found., 749 N.E.2d 87, 95 (Ind. Ct. App. 2001). To prevail on a substantive bad faith claim, the party must show that the appellant’s contentions and arguments are utterly devoid of all plausibility. Procedural bad faith, on the other hand, occurs when a party flagrantly disregards the form and content requirements of the rules of appellate procedure, omits and misstates relevant facts appearing in the record, and files briefs written in a manner calculated to require the maximum expenditure of time both by the opposing party and the reviewing court. Even if the appellant’s conduct falls short of that which is “deliberate or by design,” procedural bad faith can still be found. Finally, we note that even pro se litigants are liable for attorney’s fees when they disregard the rules of procedure in bad faith. Srivastava, 779 N.E.2d at 61; see also Watson v. Thibodeau, 559 N.E.2d 1205, 1211 (Ind. Ct. App. 1990) (stating that the court could “cut [the pro se litigants] no slack simply because [they] have no formal legal training.”). * * *Security Trust Corporation, et. al. v. Estate of Robert R. Fisher (10/16/03)Thacker’s non-compliance with our appellate rules of procedure is substantial, permeates his entire brief, and precludes our review of his allegation of error on appeal. Keeping in mind our duty to use great restraint when determining that an award of appellate attorney fees is warranted, we nonetheless find that such an award is appropriate under the facts of this case. See Catellier v. Depco, Inc., 696 N.E.2d 75, 80 (Ind. Ct. App. 1998) (finding procedural bad faith where appellant’s brief contained many appellate rules violations including argument in the statement of case and statement of facts); see also Srivastava, 779 N.E.2d at 61 (finding award of appellate attorney fees appropriate where pro se appellant failed to present cogent arguments and brief was permeated with unsubstantiated accusations). Accordingly, we remand this cause to the trial court with instructions to calculate the amount of appellate attorney fees the Wentzels are entitled to recover.
The Court stated the issues in this case as: Whether viatical settlements were subject to the Indiana Securities Act at the time of sale to Fisher; Whether the viatical settlement at issue is an “investment contract” as that term is interpreted under the Indiana Securities Act; and Whether Indiana Code section 23-2-1-1(k) is unconstitutional as applied to Ramer because of retroactive application. The ruling:
The March 2000 amendment to Indiana Code section 23-2-1-1(k) constitutes a clarification of the existing law and any viatical settlement contract sold after that amendment qualifies as a “security.” After applying the Howey test, we conclude that the viatical settlement at issue in this case was an investment contract; consequently, it qualified as a security pursuant to Indiana Code section 23-2-1-1(k). Further, Indiana Code section 23-2-1-1(k) is not unconstitutional as applied to Ramer. The trial court therefore did not err when it granted Fisher’s motion for partial summary judgment. Affirmed.Elizabeth Cortner v. John and Martha Louk (10/16/03)
The question here was whether the trial court abused its discretion in granting a mistrial based upon questions posed by the jury while it was deliberating and statements jurors made after the verdict was returned. The court reversed and remanded.
This front-page story today from the NY Times, headlined "Students Find $100 Textbooks Cost $50, Purchased Overseas," makes a number of points, including:
Just like prescription drugs, textbooks cost far less overseas than they do in the United States. The publishing industry defends its pricing policies, saying that foreign sales would be impossible if book prices were not pegged to local market conditions. But many Americans do not see it that way. The National Association of College Stores has written to all the leading publishers asking them to end a practice they see as an unfair to American students.Layed on top of this is the high cost of a domestic college education in general:"We think it's frightening, and it's wrong, that the same American textbooks our stores buy here for $100 can be shipped in from some other country for $50," said Laura Nakoneczny, a spokeswoman for the association. "It represents price-gouging of the American public generally and college students in particular."
But thanks to the Internet, more and more individual students and college bookstores are starting to order textbooks from abroad — and a few entrepreneurs, including Mr. Sarkis and his friends, have begun what are essentially arbitrage businesses to exploit the price differentials.
Disgruntlement over textbook costs has been growing in the United States as prices have risen. Last month, Senator Charles E. Schumer, Democrat of New York, announced that the average New York college freshman and sophomore spends more than $900 a year on texts — 41 percent more than in 1998 — and proposed a plan to make $1,000 of textbook costs tax deductible. The same week, University of Wisconsin students demonstrated against high textbook prices and in favor of creating a textbook rental system.Here is an example of the price differential in textbooks:To be sure, textbook costs, however high, are only the final straw for American college students, whose tuition costs and fees have been rising rapidly. At Williams and other elite universities, for example, tuition, room and board now tops $35,000 a year. In Britain, though, the cost of tuition is largely borne by the government and students pay much less. For example, tuition alone for undergraduates at Harvard is currently $26,066 a year as compared with $1,840 at Oxford University.
The differences are often significant: "Lehninger Principles of Biochemistry, Third Edition," for example, lists for $146.15 on the American Amazon site, but can be had for $63.48, plus $8.05 shipping, from the British one. And "Linear System Theory and Design, Third Edition" is $110 in the United States, but $41.76, or $49.81 with shipping, in Britain.
Three interesting stories:
This story in the NY Times on Sunday reported on the successful use of bioremediation to clean up TCE-contaminated sites:
The bacterium was discovered in 1997 by a team of scientists at Cornell University. They found that it had a strange natural affinity for devouring dangerous industrial chemicals like the one found at Caldwell Trucking — trichlorethylene, or TCE, which was often used as a heavy cleaner and is suspected of being a carcinogen. The bacteria have an unusual cell wall, and are tiny even by bacterial standards. "They're really weird organisms," said Dr. Stephen H. Zinder, the chairman of the microbiology department at Cornell University.This story in the LA Times on Sunday reports on the impact the U.S.S.Ct. decision ("SWANCC", also check earlier ILB entries here) on isolated wetlands has had nationally. Some quotes:Using the "bugs" — as both he and others refer to D. ethenogenes — is a vast improvement over the pump-and-treat method, a tactic used at many polluted sites that essentially pumps water to the surface in the hope of removing contamination.
"The significant losses predicted immediately after [the court ruling], from what we've been able to see, are not occurring," said Mark Sudol, chief of the Corps' regulatory branch. "There may be [such losses] in the future." But regulators, environmentalists and wetlands experts in states like Georgia and Texas, which have no programs to protect isolated waters, point to projects where hundreds of acres of wetlands and streams have been destroyed or are slated for destruction because they were judged to be isolated.And this AP story out of San Francisco reports that the Federal District Court there ruled on 10/14/03 that "Timber companies that engage in forest logging should be required to obtain federal stormwater pollution permits."Even in California and Washington, which are among the 18 states with their own regulations for isolated waters, some wetlands and arroyos that used to be protected are being obliterated, officials said. Over time, the state officials and environmentalists warned, the cumulative effect on water quality and wildlife could be significant, especially if the Army Corps of Engineers takes a broad view of what is considered "isolated."
U.S. District Judge Marilyn Hall Patel said the U.S. Environmental Protection Agency has misconstrued the 1972 federal Cleanwater Act by exempting logging companies from going through the permitting process for stormwater runoff. * * *This decision, from Chief Judge Patel of the N.D. of California, is not yet available on the Court's site, but may be available here at some point.Jim Branham, a Pacific Lumber spokesman, said the Northern California logging concern was considering its legal options, including appealing the ruling to the 9th U.S. Circuit Court of Appeals in San Francisco. "Obviously, we're concerned that her ruling, which seems to take the position that culverts, ditches, and other kinds of conveyances on forest lands are point sources like pipes out of a factory. It's very disappointing," Branham said. "If, ultimately, that decision becomes the law of the land, it will create complete chaos."
"Right to an Attorney Comes at a Price: Minnesota Law Requiring Fees for Public Defenders Is Challenged," reads the headline today to this story in the Washington Post. Some quotes:
Anyone who has ever watched a cop catch a bad guy on television likely has this constitutional right committed to memory: If you can't afford an attorney, one will be provided for you. But a new Minnesota law that requires poor people to pay as much as $200 for this privilege is under attack by public defenders and some judges, who contend that it undermines the 40-year-old legal tenet established by the U.S. Supreme Court in Gideon v. Wainwright.According to the Post story, last month "District Judge Richard Hopper in Hennepin County, which includes Minneapolis, that the Minnesota law is unconstitutional. The fees are still being collected across the rest of the state pending appeal." State officials have appealed.Minnesota is one of a growing number of states facing enormous budget deficits that are beginning to charge indigents for their constitutional right to legal representation. States including Arkansas, Ohio and New Jersey charge the poor $10 to $200 for lawyers -- fees that proponents argue are nominal and allow everyone to share the burden. Maryland charges adults $50 and juveniles $25; the District and Virginia do not charge. * * *
For years, Minnesota law said that indigents could be charged $28 for legal representation but that judges could waive the fee -- and they routinely did. A recent law revamped the fees, so that they ranged from $50 to $200 depending upon the crime that was charged, and made them mandatory. Proponents, who include some public defenders, said it was needed because the state faced a $4.2 billion deficit that could force layoffs of teachers and cut programs for young people and the elderly.
Good background to the Post story can be found in this Minneapolis-St. Paul Star Tribune opinion piece from July 9, 2003. written by a public defender. A quote:
The problem is not that public defender clients will be required to contribute money to their defense. The U.S. Supreme Court and the Minnesota Court of Appeals have validated certain reimbursement schemes, as long as they are carefully designed to ensure that only those actually capable of repayment are obliged to do so. A proper scheme must allow those who remain indigent or for whom repayment would work manifest hardship to be exempt from the obligation. But that is not the case with the new Minnesota law. The problem with the law lies in its flat-rate schedule and the removal of the judge's discretion to determine whether the copay would work a manifest financial hardship upon the defendant. Absent a fair, means-tested rate schedule, the public defender copays will really become application fees that many will be unable to pay. These copays will lead some truly indigent people to choose to forgo counsel.
This story is the first of five articles in today's (Sunday's) Washington Post with the general heading "PHARMACEUTICAL ROULETTE: A Vast, Unregulated Shadow Market." The lead to the first story:
For half a century Americans could boast of the world's safest, most tightly regulated system for distributing prescription drugs. But now that system is undercut by a growing illegal trade in pharmaceuticals, fed by criminal profiteers, unscrupulous wholesalers, rogue Internet sites and foreign pharmacies.The background behind the Post's yearlong investigation is here.
In the past few years, middlemen have siphoned off growing numbers of popular and lifesaving drugs and diverted them into a multibillion-dollar shadow market. Crooks have introduced counterfeit pharmaceuticals into the mainstream drug chain. Fast-moving operators have hawked millions of doses of narcotics over the Internet.This Post series could serve as a companion-piece to the story the Indianapolis Star published yesterday on Eli Lilly's "efforts to keep its drugs from being imported by Americans." Some quotes:The result too often is pharmaceutical roulette for millions of unsuspecting Americans. Cancer patients receive watered-down drugs. Teenagers overdose on narcotics ordered online. AIDS clinics get fake HIV medicines.
"We think it's an appropriate step to take to protect the integrity of our products and the safety of our patients here in the U.S. and Canada," Lilly spokesman Rob Smith said Friday.[Update 10/20/03] The lead story for day 2 of the 5 day series is here. The headline: "Pharmaceutical Roulette: How the Internet Became a Pipeline for Deadly Drugs - Internet Trafficking in Narcotics Has Surged."He said Lilly officials have tracked a "steady increase" in cases of counterfeit and improperly stored Lilly products coming into the United States. Lilly's move was based on recommendations from a Lilly task force formed two years ago to study the issue of drug imports from Canada, he said.
The Indianapolis Star had another story today on the $15.2 million deal the Indiana Department of Workforce Development entered into with a computer sotware firm based in Indiana. Headlined: "State to stick with Indian firm: Work force agency will honor contract for computer upgrade despite public outcry," the story reports:
Officials acknowledge that hiring a firm that competes with U.S. companies might appear to run counter to their legal responsibility to put Indiana workers first. But they say the contract will save taxpayers millions of dollars -- and insist savings won't come at the expense of jobs in Indiana.A front-page story in yesterday's NY Times, headlined "Company Is Foreign at Tax Time, but Seeks Americans-Only Work," may point to another issue:[Senator Jeff] Drozda said he was upset to learn that federal tax money meant to help unemployed Indiana workers will be spent. The computer overhaul was approved in Energize Indiana, a 10-year plan -- parts of which the legislature passed this year -- to create 200,000 high-tech, high-wage jobs.
A big oil-well drilling company that has used one law to escape American taxes by taking addresses in Bermuda and Barbados is now trying to use another law to qualify for business open only to American companies. Competitors are crying foul, saying they cannot survive if the Bermuda-Barbados company, Nabors Industries, is allowed to vie for contracts while paying little or nothing in taxes. * * *The questions the NY Times story raise in my mind relate to the statement in the Indiana story: "But they say the contract will save taxpayers millions of dollars . . ." How much tax revenue is the State of Indiana losing that an Indiana-based company would pay? How much tax revenue is the State of Indiana losing that Indiana-based employees of an Indiana-based company would pay? And, if an Indiana-based company had bid on the workforce contract, would a straight-up comparsion between an Indiana company's bid and a foreign company's bid accurately reflect how much the project would cost the State of Indiana, if the tax implications were not also taken into account?There is no corporate income tax in Bermuda and under a treaty with Barbados, profits are taxed at 1 percent. The United States corporate tax rate is 35 percent. The savings to Nabors was $10 million last year.
Now Nabors wants to qualify fully for business under the Jones Act, which since 1916 has required that ships engaged in purely domestic trade be built in American shipyards, owned by American companies and operated by American crews. Nabors owns 33 ships serving oil drilling platforms, a tenth of the fleet of about 350 ships that ferry supplies like drill pipe in the Gulf of Mexico.
Nabors argues that its American subsidiary qualifies it for business under the Jones Act, and that under a 1996 law that allows foreign financing of such ships, its Bermuda parent is simply providing the money for these ships.
"The Environmental Protection Agency said yesterday that it would not regulate dioxins in sewage sludge used as farm fertilizer, citing new studies indicating that such usage does not pose significant health or environmental risks." This is the lead to a story today in the Washington Post. More from the story, headlined "Farm Dioxins Won't Be Monitored:"
The announcement came on the eve of a court-imposed deadline for the government to resolve a long-standing controversy over the handling of dioxin-laced sludge. It drew condemnation from environmentalists, public health advocates and scholars who said the administration is gambling with the public's health. * * *Here is a fact sheet on the US EPA decision, and here is the US EPA's site on Use and Disposal of Biosolids (Sewage Sludge), which includes bakground information and this link to the pre-publication copy of the final rule. The case was Gearhart v. Reilly, and later Gearhart v. Whitman.The EPA in December 1999 proposed to regulate the land application and surface disposal of sewer sludge. It would have limited dioxins to the toxic equivalent of 300 parts per trillion of the sludge. Yesterday, the EPA jettisoned the proposed rule. Agency officials said the minuscule additional risk posed by sewage sludge did not warrant the cost of imposing new regulations on sewage authorities and treatment plants, which have opposed the additional regulations. * * *
The EPA was required to announce its decision by midnight yesterday as part of a settlement of a lawsuit filed by the NRDC more than a decade ago to require the agency to limit toxic pollutants in sludge. The Clean Water Act requires the agency to establish limits on toxic pollutants, but the EPA has yet to do so for dioxin or other organic toxic pollutants.
There is a nice article in today's Indianapolis Star on the celebration of the 100th anniversary of our Federal Courts Building. The Federal District Court, Southern District of Indiana, has information about the U.S. Courthouse Centennial here on its website.
Featured today will be a reenactment of the "Civil War-era Milligan trial, which is considered the most significant case the U.S. District Court in Indianapolis has ever handled."
The District Court's most famous trials took place before the current courthouse was built, said George Geib, a history professor at Butler University. An Indianapolis federal judge oversaw the trial of Lambdin Milligan, an Indiana lawyer and Southern sympathizer in the Civil War, and others sentenced to death by a military tribunal on charges of plotting to undermine the Union.Although it appears that there is no free central site for U.S. Supreme Court cases going back beyond 1890, Ex parte Milligan, 71 U.S. 1 (1866) can be found at several places on the web, including here and here. The case has received much attention recently as a result of the use of military tribunals in the war on terrorism. See, for instance, this article, "Media Access to the New Special Tribunals: Lessons Learned From History and the Military Courts," and this article, "Military Tribunals: A long and mostly honorable tradition."The case wound up in the U.S. Supreme Court, which ruled in 1866 that tribunals for the alleged conspirators were unconstitutional because civilians have the right to be tried in civil courts.
Current federal judges and attorneys will take part in a re-enactment of the trial as part of today's festivities. "It's clearly the most important case ever from this court district," said Donald Kite, an attorney and former law clerk in the building.
The AP is reporting this today about an Illinois Supreme Court decision:
In a sharp rebuke of prosecutorial misconduct, the Illinois Supreme Court on Friday ordered new trials for two men convicted in the 1995 slaying of a Chicago police officer. The high court threatened to overturn more cases to stem what it called the "alarming frequency" of misconduct by Illinois prosecutors. * * * The Supreme Court threw out the conviction and death sentence of the alleged triggerman, Murray Blue, in 2000, citing the prosecutors' impassioned appeals to the jury and other errors. It applied similar reasoning in Friday's decision upholding a lower court ruling that threw out the convictions of Jimmie Parker and Clyde Cowley, who were sentenced to life in prison for their roles in Doffyn's shooting. * * * Rarick wrote that prosecutorial misconduct cannot be allowed to continue unchecked because it threatens "the trustworthiness and reputation of the judicial process, and this court will take corrective action to preserve the integrity of the process."Access the opinion, People v. Johnson (10/17/03), here.
The Indianapolis Star this morning has a good graphic showing the results of the comprimise reached on the Indianapolis ballot dispute, and comparing the old and new looks. For earlier coverage on this controversy, check here and here.
This is an interesting story, but what kind of "state document" are we talking about here? The Fort Wayne News-Sentinel reported yesterday in a story headlined "Error could challenge alcohol arrests: Blood-alcohol content machines set according to typo in state rules" that:
Drunken-driving and public intoxication arrests in Indiana from June 5 to Sept. 28 could be challenged after a Fort Wayne attorney found a mistake in a state regulation last month.The story continues:For nearly four months, police departments throughout the state used blood-alcohol content machines that violated rules about regular inspections. Some police departments, while it's always been an option, were told to take suspects to area hospitals to have blood tests on alcohol levels done instead of using the convenient machines. This did not apply to the portable breath tests, which are not admissible in court.
Patrick Arata of Arata Law Firm noticed the error, which he labeled the "creation of a new state regulation," in a document released June 5 by the Indiana State Department of Toxicology. * * * On Sept. 29, the toxicology department re-released its procedure for inspecting Datamasters. In that document, the acceptable result is listed correctly: 0.00.Here is a link to the rules of the Indiana State Department of Toxicology. These are the rules that have "the force and effect of law." None appear to have been changed recently. Here is the Department's website.
The Indianapolis Star today has a Knight-Ridder story headlined "5 states, 2 cities adopt stricter pollution rules: Federal rules were changed to allow older plants to make changes without using controls." It reports:
In a revolt against the Bush administration's loosening of air pollution rules for aging power plants and factories, a coalition of states and localities will announce today that it's going to impose its own tougher regulations.Not so, according to the Star's side-bar quoting IDEM Deputy Commissioner, Tim Method, as saying:Officials from Georgia, New Jersey, North Carolina, Wisconsin, South Carolina and the cities of Cincinnati and Dayton, Ohio, will unveil alternative rules that they developed in reaction to new federal rules allowing older coal-fired utilities to make massive renovations without installing pollution controls. In addition, outgoing California Gov. Gray Davis last month signed a law requiring that state to be tougher on older power plants than the U.S. Environmental Protection Agency.
Other states, including Pennsylvania, Missouri, Ohio and Indiana, probably will join the coalition, said Bill Becker, the executive director of the State and Territorial Air Pollution Program Administrators and the Association of Local Air Pollution Control Officials.
he knew of no plans for Indiana to join the coalition. He said the state is adopting most of the Bush administration rules, with two exceptions:Another report on this issue appears here in today's Phildelphia Inquirer. And a story in today's Washington Post on the Senate's Leavitt hearings re his nomination as EPA Administrator, has this quote:
• Indiana's requirement for controls on mercury emissions will be triggered by levels lower than those in federal rules.
• New federal rules will allow industries to designate a unit, such as a boiler or coating line, as clean -- meaning a permit would not be required to make modifications if the industry can show the unit has relatively low emissions. In Indiana, such units would have to meet a stricter test.
Democrats and environmentalists are particularly concerned about the EPA's decision in August to weaken rules governing airborne emissions by aging coal-fired power plants. They say federal officials misled Congress and the public by playing down the potential harm to pending government lawsuits against utilities and to efforts to reduce health-threatening pollution.Finally, the Atlanta Journal-Constitution had an editorial Sunday titled "Clean-air efforts worth the cost." It begins:The Environmental Integrity Project yesterday disclosed a May 2001 memo from then-EPA Administrator Christine Todd Whitman to Vice President Cheney, warning against undertaking the rule change. "We will pay a terrible political price if we undercut or walk away from the enforcement cases," Whitman wrote. "It will be hard to refute the charge that we are deciding not to enforce the Clean Air Act."
Despite her warning, Cheney's energy task force ordered a review that led to major revisions in the so-called New Source Review regulations that will allow power plants built before 1970 eventually to undertake extensive improvements without having to install modern anti-pollution equipment, as they now must do. A top EPA official told Congress last year that the proposed rules change was "prospective" and would not have a "negative impact" on existing enforcement cases. Yet two former enforcement officers told The Washington Post last week that they repeatedly warned that official, Jeffrey Holmstead, and others that the new rule would inevitably undermine ongoing clean air enforcement cases.
With little fanfare, the Bush administration has been weakening some of the nation's most effective environmental safeguards largely in response to complaints from industry groups that such regulations provide little benefit and are too expensive to implement.The OMB Report was cited in this Sept. 27 Indiana Law Blog entry and has been cited by people of various points of points of view since its release last month.Not so, according to a timely new report issued by the White House Office of Management and Budget. After carefully reviewing 107 federal regulations, the agency determined that in every case, the public good the rules produced far outweighed the costs.
The OMB report concluded that over the last decade, strict enforcement of the Clean Air Act cost industry and local governments as much as $26 billion -- not exactly chump change. However, the OMB found that those same clean air rules saved the national economy between $120 billion to $193 billion through fewer premature deaths, lower hospitalization rates and lost workdays.
Re the Lyndon Johnson issue. Although I remember some talk at the time about whether Johnson could serve two full terms in his own right (of course he ultimately decided not to run for a second full term), it turns out to be a non-issue. The 22nd amendment provides in clause 1:
No person shall be elected to the office of the president more than twice, and no person who has held the office of president, or acted as president, for more than two years of a term to which some other person was elected president shall be elected to the office of the president more than once. But this article shall not apply to any person holding the office of president when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of president, or acting as president, during the term within which this article becomes operative from holding the office of president or acting as president during the remainder of such term.As Kennedy served more than two years (i.e. the "1000 days"), Johnson would have served less than two years filling out Kennedy's term.
Re the "appointment pro tempore" question. The same insightful reader who pointed me in the right direction on the above also gave me the killer response to the "appointment pro tempore" question. She notes that the two-term limit in the Indiana Constitution applies to many offices, including county offices. Vacancies in those offices are generally filled by appointment, at least temporarily.
Art. 6. Administrative.Hence the rationale behind the language of Art. 2, Sec. 11:
Sec. 1. There shall be elected, by the voters of the state, a Secretary, an Auditor and a Treasurer of State, who shall, severally, hold their offices for four years. They shall perform such duties as may be enjoined by law; and no person shall be eligible to either of said offices, more than eight years in any period of twelve years.
(History: As Amended November 3, 1970)Sec. 2. There shall be elected, in each county by the voters thereof, at the time of holding general elections, a Clerk of the Circuit Court, Auditor, Recorder, Treasurer, Sheriff, Coroner, and Surveyor, who shall, severally, hold their offices for four years; and no person shall be eligible to the office of Clerk, Auditor, Recorder, Treasurer, Sheriff, or Coroner more than eight years in any period of twelve years.
(History: As Amended November 4, 1952; November 6, 1984)Sec. 9. Vacancies in county, township, and town offices, shall be filled in such manner as may be prescribed by law.
Art. 5. Executive
Sec. 18. When, during a recess of the General Assembly, a vacancy shall happen in any office, the appointment to which is vested in the General Assembly; or when, at any time, a vacancy shall have occurred in any other State office, or in the office of Judge of any Court; the Governor shall fill such vacancy, by appointment, which shall expire, when a successor shall have been elected and qualified.
In all cases in which it is provided, that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term.and the distinction between the filling of vacancies of those term-limited offices, and the succession of the Lieutenant Governor to the office of Governor in the event of death, resignation or removal from office.
More. Finally, reader Ed Fiegenbaum points to the requirement that the Lieutenant Governor be a male:
Art. 5, Sec. 2. There shall be a Lieutenant Governor, who shall hold his office during four years.More on this later.
Russ Pulliam has an interesting opinion piece on the editorial page of today's Indianapolis Star. The question: if Joe Kernan, who is currently serving out the unexpired term of Governor Frank O'Bannon, ran and was elected in his own right in 2004, would he be eligible to serve again in 2008? Article 5 of the Indiana Constitution:
Section 1. The executive power of the State shall be vested in a Governor. He shall hold his office during four years, and shall not be eligible more than eight years in any period of twelve years.[As many may recall, Otis Bowen was the first Indiana Governor to serve two consecutive terms. Earlier, Henry Schricker served two terms, but they were not consecutive.]
(History: As Amended November 7, 1972).Section 2. There shall be a Lieutenant Governor, who shall hold his office during four years.
In his article, Pulliam cites:
the historical precedent set by Gov. Oliver P. Morton, who served nearly a full term at the start of the Civil War, then was re-elected in an era when governors were limited to one term.Pulliam relates that Morton, elected Lt. Governor in 1860, became Governor, "three days after the inauguration, when Gov. Henry Lane was elected to the U.S. Senate by the General Assembly. Morton served out that term, then was elected to another term in 1864.""Morton ran only once, but he served more than four years," says Butler University History Professor George Geib. "From a historical standpoint, the precedent would say to me that Kernan is eligible to run in 2004 and 2008. But I'm the historian, and I defer to wise lawyers."
[Recall that in those years the U.S. Senator was elected by the General Assembly.*]
Pulliam point to "Another section of the Constitution, Article 2, Section 11, [that] creates an exception to term limits" and asks "The legal question is whether Kernan was appointed or succeeded to the office."
Article 2, Sec. 11.My take on this. The term pro tempore appears in the Indiana Constitution 4 times; the other 3 are in the legislative article, and concern the president pro tempore of the senate.
In all cases in which it is provided, that an office shall not be filled by the same person more than a certain number of years continuously, an appointment pro tempore shall not be reckoned a part of that term.
What does "an appointment pro tempore" mean? In common usage, pro tempore means "For the time being; temporarily."
Governor Kernan was not appointed to office temporarily. He is Governor by virtue of the language of Art. 5, Sec. 10: "[I]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."
[Note] Lyndon Johnson also crossed my mind, but I haven't done the research yet to see what parallels there are other than the obvious.
______
*"United states Senate elections ceased to be an issue in the General Assembly after the adoption in 1913 of the Seventeenth Amendment to the United States Constitution that stipulated direct election by the people." Walsh, Centennial History of the General Assembly.
I very much recommend this tribute, from Ernie the Attorney, to David Giacalone and his ethicalEsQ? site. As you will see from both Ernie's tribute, and David's site, David is giving up his site because of health reasons. I will certainly miss the wisdom of the fellow I call The Ethics Guru. I turned to David for advice when I decided to write my detailed review of the D&M Healthcare issues. His responses were prompt, thoughtful, helpful and encouraging. What more can one ask!
And don't miss reading, if you haven't already, this article from the Vanderbilt Law Review, recommended by David, and referenced by Ernie. It's called "On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession." Its author is Patrick J. Schiltz, who was, in 1999, Associate Professor of Law, Notre Dame Law School. It is an eye-opener. David described it as:
a "must read" for anyone who truly cares about the well-being of individual lawyers and about the future of the legal profession -- that should include every law school applicant and student, recent graduate, professor, school administrator, firm managing partner, bar leader, and practicing attorney. (College and high school counselors, parents, spouses, and significant others, should also take a close look.) The Schiltz Article provides scholarship, perspective and context . . .
The Evansville Courier & Press had an editorial Sunday that begins:
Indiana Gov. Joe Kernan has come forward with a proposal for keeping the Evansville metropolitan area out of hot water on federal ozone standards. It is a proposal unacceptable to many environmentalists, yet it represents a practical solution, one acceptable to public officials and business and commerce leaders. As well, it is a solution that recognizes that air quality in the Evansville area has improved. The Evansville metropolitan area sits now on the borderline between attainment and nonattainment of stricter federal ozone standards. By the letter of the law, the area may be in violation, but not by much. This is an important decision, because how the city is eventually classified may determine whether economic development efforts can go forward or will be blocked.The well-worth-reading editorial continues: "Kernan has asked the federal Environmental Protection Agency to give the metropolitan Evansville area the benefit of the doubt and find it in compliance with federal standards." An Evansville Channel 14 reports:
In the quest for new employers, communities don't want to compete under the black cloud of non-attainment. So, Indiana Governor Joe Kernan is asking the Environmental Protection Agency to make an exception to the rule for southern Indiana. Evansville Mayor Russell Lloyd says, "This is great news for Evansville and southwestern Indiana. The fact that our air quality is improving our ozone levels are declining." * * * Local leaders hope for relief from the feds, because non-attainment could create a poor climate for businesses scouting Evansville, according to Vision 2000 director Ken Robinson. "They want to get rid of you. And non-attainment is one of those red flags that usually takes you off the list."The Courier & Press editorial also noted:
But there is one catch. The state administration is asking that if the EPA finds this proposal unacceptable, then it recommends that only Warrick County be declared in nonattainment. [Reporter] Whitson reported that Warrick is the only county in the metropolitan area whose updated average ozone readings exceeded the federal standards. While we understand the intent of the state to minimize the pain, should the EPA invoke sanctions, separating one county out denies the regional aspect of clean-air initiatives.Here is a link to the IDEM page containing Governor Kernan's letter to U.S. EPA, Region 5. It appears that the comments in the editorial about Warrick county are contained in Commissioner Kaplan's letter, rather than Governor Kernan's.Air quality remains, in our view, a regional concern, demanding regional solutions. Who is to say the violation in Warrick County was not helped along by pollution from one of the other area counties? The best outcome would be for the EPA to allow the metropolitan area, as a whole, the opportunity to continue efforts to reduce ozone, while not invoking control measures.
Edward Wilson and Deborah Wilson v. Sharon Cloum (10/14/03 IndCtApp)
Brook, Chief Judge
Here the Wilsons appeal the trial court’s grant of the petition for visitation of appellee-petitioner Sharon Cloum (“Grandmother”). The facts here are unique. Jeffery and Michelle were the parents of MC, the grandchild. Jeffery killed Michelle. The Tipton county court ultimately terminated father Jeffery's parental rights and granted mother Michelle's parents' (the Wilsons, also referred to as the "Parents" by the Court) petition to adopt. The trial court granted Jeffery's mother's ("Grandmother's") petition for visitation and ordered the Wilsons to "use Grandmother as M.C.’s primary babysitter."
The Court of Appeals affirmed the right of visitation, but ruled:
Clearly, choosing a babysitter is an everyday responsibility of child rearing in which the State has no special interest in substituting its judgment. It is one thing for the trial court to grant Grandmother visitation with M.C. under Indiana Code Section 31-17-5-2; it is quite another for the trial court to dictate Parents’ choice of a babysitter. We therefore vacate that portion of the trial court’s order.For other Indiana Law Blog entires on recent grandparents' rights decisions in Indiana and elsewhere, check here.
Affirmed in part and vacated in part.
BAKER, J., and SHARPNACK, J., concur.
Citizens Action v. NIPSCO (10/14/03 IndCtApp)
Baker, Judge
The Court's introduction:
Appellants-intervenors Citizens Action Coalition of Indiana, United Senior Action of Indiana (collectively, CAC), and Fourteen Individual Intervenors (FII) appeal an order from the Indiana Utility Regulatory Commission (IURC) accepting a settlement negotiated by appellee-defendant Northern Indiana Public Service Company (NIPSCO), appellee-intervenor NIPSCO Industrial Group—an entity comprised of NIPSCO industrial customers—and appellee-statutory party Office of the Utility Consumer Counselor (OUCC). Specifically, CAC claims that the IURC erred by (1) holding that the standard for trial court approval of class action settlements was inapplicable to the IURC’s adoption of a proposed settlement; (2) resolving an IURC-initiated investigation without employing the rate-making formula contained in Indiana Code section 8-1-2-68; (3) misinterpreting the fuel adjustment charge (FAC) statutes; (4) ignoring interference in the settlement negotiations by the Governor’s Office; and (5) violating the “common fund” doctrine with respect to electric utility cases.As the Court notes in a footnote, this was "a rather complicated case," and I refer you to the opinion itself for the details. The Court's conclusion:
In light of the issues discussed above, we conclude that the IURC did not err in refusing to use class action principles and that the record contained sufficient facts from which the IURC could decide whether to approve the settlement. Moreover, the IURC’s interpretation of the relevant Fuel Adjustment Charge statutes is reasonable. Additionally, we observe that CAC’s allegations of interference by the Governor’s Office are not supported by substantial evidence. Finally, we find that inasmuch as CAC and the FII have not applied to the IURC for fees and expenses and no decision as to whether an award of fees has been made by the IURC, any review of this issue is premature.
Affirmed.
Brook, C.J., and Bailey, J., concur.
[Update 10/15/03] Today's Indianapolis Star story adds context to this decision. The lead:
The Indiana Court of Appeals on Tuesday upheld an agreement that settled a state investigation of the Northern Indiana Public Service Co.'s electricity rates by granting customers rate credits. The court affirmed the Indiana Utility Regulatory Commission's September 2002 order approving an agreement extending about $55 million in credits per year, NIPSCO said. The Citizens Action Coalition had challenged the agreement, saying it did not go far enough to compensate consumers for rates the Indianapolis based group contends are excessive. * * *The agreement grew out of a complaint over NIPSCO's rates and a resulting investigation by state regulators that began in January 2001 and produced more than 6,000 pages of testimony. Among other things, the Citizens Action Coalition contended Gov. Frank O'Bannon's office improperly influenced the state Office of Utility Consumer Counselor to agree to the settlement. The coalition wanted the state to reject the settlement and issue its own order to resolve the rate case.
A column this month on the excellent LLRX.com, called Wisdom from the Grammar Goddess, makes a good effort at explaining proper usage of "that" and "which".
The Insurance Defense Blog has an item today with that title. The item;
An interesting story is here concerning an environmental group's allegation that lead shot from a skeet shooting range falls into the Seneca Creek in Maryland and causes lead pollution. Fox5 ran a story on it on the TV news this weekend, and showed a guy wading into the creek and reaching down and grabbing handfulls of the creek bed -- and when he brought his hands up they were full of lead skeet shot.The story quoted is from the Gazette.Net, and includes these quotes:
Tests conducted by the state in July found normal levels of lead in Great Seneca Creek, according to the Maryland Department of the Environment. However, the club and DNR have not obtained permits to dispose lead shot in the creek and surrounding areas as required by the federal Clean Water and Resource Conservation and Recovery acts, according to the Potomac Riverkeeper.No surprise here. A quick search of the web turned up this EPA Best Management Practices Manual for Lead at Outdoor Shooting Ranges. Also this article from the Gun Club Advisor, dated 1994.The gun club is also operating as an open dump for lead shot and clay targets in a floodplain, which violates the Resource Conservation and Recovery Act, according to the group. In some parts of the creek, lead shot can be scooped out in large handfuls, and fragments from clay targets can be found, Merrifield said. "They have to stop shooting lead into the flood plain, and they have to clean it up," he said.
While looking at other state court sites that provide access to the parties' briefs, I ran across, on the Michigan Court's site, this intersting environment case summary:
Can the plaintiff use the Michigan Environmental Protection Act to obtain relief on its claim that the Michigan Department of Environmental Quality improperly granted a permit to extend sand mining operations into a dune area? If the plaintiff can challenge the permit, was the permit improperly granted?This description immediately brought to mind photos from a book about the Indiana Dunes - the old photos were of giant pieces of earth-moving equipment "mining the Indiana dunes" to prepare the site for the construction of the U.S. Steel-Gary Works.
Here, from the Michigan site's page for this case, Preserve the Dunes v. Michigan Dept of Environmental Quality, is the background to the case:
Plaintiff Preserve the Dunes, Inc., a citizens' group, filed a complaint seeking declaratory and injunctive relief. Preserve the Dunes claimed that the Michigan Department of Environmental Quality (DEQ) improperly granted defendant Technisand a permit to mine sand in a designated critical dune area, and that such action would impair or destroy that natural resource. Following a bench trial, the trial judge found that Preserve the Dunes failed to show that any adverse impact on natural resources resulting from sand mining would rise to the level of impairment or destruction of natural resources within the meaning of the Michigan Environmental Protection Act (MEPA, part 17 of the Natural Resources and Environmental Protection Act (NREPA). The Court of Appeals reversed in a published decision. The Court of Appeals held that the DEQ violated part 637 of the NREPA, the Sand Dune Mining Act (SDMA), when it issued a permit to Technisand. The appellate court also held that, under the circumstances, the SDMA supplies the substantive standard for determining whether the MEPA was violated. The Court of Appeals found that there were no relevant factual disputes, concluded that the trial court erred in denying Preserve the Dunes' motion for summary disposition, and remanded for entry of an order granting summary disposition to Preserve the Dunes. Technisand and the DEQ appeal, arguing in part that MEPA does not give third parties the ability to challenge a DEQ permit decision. The defendants also contend that the Court of Appeals used the wrong standard for determining whether the MEPA was violated.Access the briefs of the parties and amicus curiae here.
Timothy R. Chamberlain, M.D. v. Richard Steven Walpole (10/6/03 IndCtApp)
Brook, Chief Judge
The ruling states in part:
Appellants contend that Walpole may not seek damages for the loss of his father’s love, care, affection, society, companionship, and services under the Medical Malpractice Act because he would not be able to recover them under the Wrongful Death Act. Appellees counter that the damages provisions of the Wrongful Death Act do not apply to the Medical Malpractice Act. All parties agree that this appeal turns on statutory interpretation. * * *Judge Baker's lengthy dissent concludes with this paragraph:Quite simply, the Medical Malpractice Act is plain and unambiguous as to the damages recoverable thereunder. Consequently, we may not construe these provisions of the Medical Malpractice Act with the Wrongful Death Act. * * * Even if the Medical Malpractice Act were ambiguous in this regard, the Medical Malpractice Act and the Wrongful Death Act do not relate to the same general subject matter and are therefore not in pari materia. * * * Moreover, even if the Medical Malpractice Act were ambiguous and in pari materia with the Wrongful Death Act, there would be no need to harmonize the two acts because they do not conflict. * * * Finally, even if the Medical Malpractice Act were ambiguous, in pari materia with the Wrongful Death Act, and in conflict with it, we would nonetheless conclude that the damages provisions of the Medical Malpractice Act must apply in the instant case. “When two statutes on the same subject must be construed together, the court should attempt to give effect to both, however, where the two are repugnant in any of their provisions, then the later statute will control and operate to repeal the earlier to the extent of the repugnancy.” * * *
Thus, the Medical Malpractice Act would control in any event.
In sum, Walpole’s potential recovery for his claim under the Medical Malpractice Act is not limited by the damages provisions of the Wrongful Death Act. The Medical Malpractice Act plainly and unambiguously provides that Walpole may pursue claims for “loss of services, loss of consortium, expenses, and other similar claims.” Appellants’ argument must fail.
Affirmed.
SHARPNACK, J., concurs with opinion.
BAKER, J., dissents with opinion.
Inasmuch as the majority’s view has the potential of creating certain anomalous results in these circumstances, is contrary to the public policy embodied in our Medical Malpractice Act, and violates Article I, Section 23 of our state constitution, I dissent and therefore vote to reverse the denial of the appellants’ motion for preliminary determination.
S.H. v. D.H., Opinion on Appellant's Motion to Stay and Opinion on Appellee's Motion to Reconsider (10/10/03 IndCtApp)
Baker, Judge
As the Court states in its OPINION ON APPELLANT’S MOTION TO STAY, where the Mother of the minor argued that the trial court erred in requiring both her signature and the signature of the Father, to give consent for Minor to receive an abortion:
Indiana Code section 16-34-2-4(a) provides, “No physician shall perform an abortion on an unemancipated pregnant woman less than eighteen (18) years of age without first having obtained the written consent of one (1) of the parents or the legal guardian of the minor pregnant woman.” It appears from the trial court’s order that the judge construed this statute to mean that the minor must obtain the consent of one of the parents in an intact marriage or the collective legal guardian if the parents are divorced. However, on its face, the statute provides that the consent of only one parent or one legal guardian is required in any circumstance. The word “guardian” is not pluralized, and we reject the notion that Mother and Father become one guardian simply by virtue of sharing joint legal custody after divorce. Put another way, each individual is a legal guardian of Minor. * * * [B]y statute in Indiana, a minor may only be required to obtain the consent of one parent, one legal guardian, or the court through the judicial bypass procedure before she may legally receive an abortion. I.C. § 16-34-2-4.In the Court's OPINION ON APPELLEE’S MOTION TO RECONSIDER, the Court addresses the Father's argument:
It is a canon of statutory interpretation that when a statute may be construed to support its constitutionality, that construction must be adopted. Dept. of Revenue of State of Indiana v. There to Care, Inc., 638 N.E.2d 871, 873 (Ind. Ct. App. 1994). In general, the State may not deny rights to one group of minors that are given to another group of minors based on the status of their parents. * * * Likewise, the State may not require the consent of two parents for a minor to receive an abortion simply because the parents happen to be divorced with joint legal custody where that burden would not be imposed on the minor child of an intact family. To paraphrase the Littlepage court, this would merely be visiting condemnation upon the head of an innocent child who is not responsible for her parent’s divorce. There is no rational reason to make it more difficult for the child of divorced parents to receive an abortion than for the child of married parents. Thus, the trial court erred when it required both Mother and Father to give their consent.
Reversed and remanded with instructions to dissolve the trial court’s order.
HOFFMAN, Sr. J., and BAILEY, J., concur.
Father argues that although the trial court erred in requiring both his signature and the signature of S.H. (Mother), appellant-petitioner, to give consent for Minor to receive an abortion, the fact that the trial court found the fetus to be viable preempts the signature requirement. Finding that the trial court did not have sufficient evidence to make a determination of viability, we affirm our September 11 order. * * * Indiana does not have a bright-line trimester-based presumption of viability. The General Assembly has determined that the attending physician is the individual who determines whether a fetus is viable. This determination may then be reviewed by the courts. To hold otherwise would be to close the courthouse door, which is precluded by Article I, section 12 of the Indiana Constitution. * * * That said, a n interested party, such as the father of the fetus or the parent or legal guardian of a pregnant minor, may challenge the attending physician’s determination that the fetus is not viable in court based on competent evidence, namely the opposing testimony of a doctor who has examined the mother and found the fetus to be viable.The decision is reported here in this morning's Indianapolis Star. Some quotes:We are not today answering the question of whether this particular fetus is viable, nor are we creating a bright-line test for viability. We simply find that in this case, the trial court did not have before it the proper evidence as required by the General Assembly to make a determination, in accordance with a physician’s opinion and/or other relevant evidence, as to whether this particular fetus was viable.
Affirmed.
VAIDIK, J., and BARNES, J., concur.
The 15-year-old girl involved in the case received an abortion after a Sept. 15 hearing last month. She is not identified in court documents.Jacquelyn Bowie Suess, the Indiana Civil Liberties Union attorney who argued on behalf of the minor and her mother, said the decision reaffirms the notion that state law trumps civil contracts such as divorce agreements.
In Indiana, minors seeking an abortion must have the consent of at least one parent or they can seek permission from a judge. This judicial bypass procedure requires the minor to prove she is mature enough to make the decision on her own or that the abortion is in her best interest, Suess said.
The Indianapolis Star website is reporting this story this afternoon. Some quotes:
HAMMOND, Ind. -- The owner of a recycling business buried a tanker containing flammable waste near the Gary/Chicago Airport and later threatened to kill someone he thought had tipped off environmental officials, authorities said. * * *The amount of the fine interested me; however, a review of IDEM's enforcement database shows a notice of violation dated 3/24/03, but nothing further.Authorities allege Vacendak, the owner of D & M Recycling, buried a tanker containing 1,000 gallons of flammable waste in August 2002 on land he leased near the airport. The tanker was buried within 100 yards of the Little Calumet River, according to a probable cause affidavit.
The U.S. Environmental Protection Agency dug up the tanker and hauled it away in May after someone who knew about the burial contacted state officials. Officials said the tanker contained a shiny liquid that smelled like petroleum. * * *
Vacendak then tried to cut the metal with an acetylene torch, but flames shot out of the slit, the affidavit said. Vacendak put out the fire and had two employees go inside with buckets to gather the waste, but they became afraid and refused to go back inside the tanker, according to the affidavit. He then rented the land near the airport and buried the tanker in a huge hole created when the site was cleared, the affidavit alleges.
The Indiana Department of Environmental Management investigated and fined Vacendak $20,000 after receiving a tip about the site in March.
[Updated 10/14/03] IDEM's Office of Enforcement has advised me that the fine information in the quoted article is incorrect; this matter remains under criminal investigation.
Zeller Elevator Company v. Debbie & Perry Slygh (10/9/03 IndCtApp)
Sharpnack, Judge
Here the Company appealed the Indiana Civil Rights Commission's determination that Zeller sexually harassed Slygh and Perry.
Slygh and Perry filed a complaint with the Indiana Civil Rights Commission (“ICRC”) alleging that they were subjected to sexual harassment by Zeller while employed at the Company and that they were forced to leave their employment as a result of the alleged sexual harassment. * * * A hearing was held before an administrative law judge (“ALJ”) for the ICRC. The ALJ entered proposed findings of fact and conclusions thereon finding that “Zeller’s conduct, while unprofessional, was not, from the objective perspective of a reasonable person, sufficiently pervasive to alter Perry’s [or Slygh’s] working conditions.” Thus, the ALJ proposed a conclusion that “[n]either Slygh nor Perry was subjected to unlawful sexual harassment; consequently, neither the termination of Slygh nor the termination of Perry was the result of unlawful sexual harassment.” The ALJ also proposed a conclusion that “[w]hile Zeller’s conduct was not severe, it came close to being sufficiently pervasive to constitute unlawful sexual harassment. He would be well advised to be more circumspect in the workplace.” Slygh and Perry filed an objection to the ALJ’s proposed findings of fact and conclusions thereon with the ICRC. The ICRC considered Slygh’s and Perry’s objections and found that “[b]oth Perry and Slygh demonstrated unwelcome conduct of a sexual nature that was sufficiently severe and pervasive to alter their working conditions to such an extent that a reasonable person would, as Slygh and Perry did, feel compelled to resign.” Thus, the ICRC entered an order remanding the case to the ALJ with instructions to “issue a new proposed decision finding that [Slygh and Perry] were unlawfully sexually harassed, that [Slygh and Perry] were constructively discharged, and proposing appropriate relief.” On remand, the ALJ entered revised proposed findings of fact and conclusions thereon in favor of Slygh and Perry. The ICRC then adopted the ALJ’s proposed order with the exception of correcting some mathematical errors in the award of damages.In its fact-based review, the Court said:
The first issue is whether the ICRC’s order remanding to the ALJ with instructions to find that Slygh and Perry were unlawfully sexually harassed was contrary to the requirements of the Indiana Administrative Orders and Procedures Act, Ind. Code §§ 4-21.5-1-1 through 4-21.5-7-9 (“AOPA”). The Company contends that the ICRC’s remand order is governed by the AOPA. Thus, according to the Company, we must determine whether the ICRC’s remand order was arbitrary, capricious, or not in accordance with law pursuant to Ind. Code § 4-21.5-5-14 (1998). The Company argues that the ICRC’s remand order “failed to cite any evidence to support its decision” and was, thus, arbitrary and capricious. Slygh and Perry argue that the ICRC’s remand order complied with the AOPA because “the law did not require the ICRC to supplement its remand order with findings of fact or anything else to make it valid.” * * *After examining the second issue "The next issue is whether inferences made by the ICRC in its findings were reasonable," and the third issue "The next issue is whether the ICRC’s conclusion that Slygh and Perry suffered actionable sexual harassment is erroneous," and ruling that in neither case could it that the ICRC’s conclusion that Slygh and Perry suffered actionable sexual harassment was erroneous, the Court affirmed the ICRC’s judgment in favor of Slygh and Perry.Thus, the ICRC’s “final order” must contain findings of fact. However, contrary to the Company’s assertion, nothing in the AOPA requires the ICRC to issue findings of fact or cite “substantial evidence” in support of its remand order.
Sequa Coatings Corporation v. Northern Indiana Commuter Transporation District (10/8/03 IndCtApp)
Barnes, Judge
This case addresses the question of whether the indemnity clause in the parties’ agreement violated public policy. As related in the opinion, NICTD, a municipal corporation, operates a commuter passenger train in northern Indiana, and Sequa is a company that applies coatings to coiled steel and aluminum. Sequa was interested in building a facility in a location with limited access, which required crossing NICTD’s railroad tracks. This crossing was known as Midwest Crossing. Midwest Crossing consisted of two railroad tracks owned and operated by Conrail and two railroad tracks owned and operated by NICTD. The Conrail and NICTD tracks were separated by fifty-eight feet of paved roadway. Traffic across Midwest Crossing was limited to those doing business with the various businesses located on the northern side of the tracks and was controlled by flashing lights and crossing gates. NICTD and Sequa entered into an agreement allowing Sequa employees, visitors, customers, and suppliers to cross NICTD’s railroad tracks. Pursuant to the agreement, Sequa was permitted to use and was required to maintain Midwest Crossing. Sequa was also required to pay for signs stating “No Trespassing,” “Private Crossing - - Use at Own Risk,” and “Crossing Restricted to Use by Sequa’s Employees, Visitors, Customers, and Suppliers.”
The agreement also provided in part:An accident occurred involving third parties and both NICTD and Sequa were named as defendants. Here is some of what the court said, but use the link above to access the full opinion:
25. Indemnity. It is understood by all parties that [NICTD’s] operations at or near the Crossings and other property associated with this Agreement involve some risk, and Sequa as part of the consideration for this Agreement releases and waives any right to ask for or demand damages for or on account of the loss of or damage to the Crossings, including the loss of or interference with service or use of the Crossings and irrespective of whether such loss or interference is attributable to the fault, failure or negligence of [NICTD] or others.
Sequa first argues that the trial court erred in denying its summary judgment motion, which alleged that the parties’ agreement was unenforceable because the indemnity clause was void as against public policy. Generally, in the absence of legislation to the contrary, parties to a contract are free to modify the duties that they owe each other as a matter of law. Fresh Cut, Inc. v. Fazli, 630 N.E.2d 575, 578 (Ind. Ct. App. 1994), vacated in part on other grounds.
In Indiana, the parties may agree to cover the risk of harm which may be sustained by third persons by agreeing through an indemnity clause to shift the financial burden from the indemnitee to the indemnitor. As a general rule, indemnification clauses are not void against public policy, though they will be strictly construed and the intent to indemnify the indemnitee for its own negligence must be stated in clear and unequivocal terms. An indemnification clause in a lease is not void or voidable as against public policy simply because the indemnitee is charged with a nondelegable duty to the public or third persons. In its role as lessor, an indemnitee may rightfully demand as part of the consideration for the lease that its lessee bear the entire financial burden, particularly when the lessee contributes to the risk of loss. * * *Indemnity clauses are often entered into and there is nothing inherently unconscionable about a contract containing an indemnity clause or offering certain terms on a take it or leave it basis. Further, the evidence indicates that Sequa entered into negotiations with NICTD for several months before its purchase of the facility was complete. As such, Sequa could have chosen not to purchase the facility upon learning the terms of the agreement and NICTD’s insistence that the indemnity clause was non-negotiable. The evidence also indicates that an existing agreement concerning access to the facility existed with the previous owner and was transferable to Sequa, but Sequa chose to enter into a new agreement for its insurance own purposes. Thus, even if NICTD was in a position of superior bargaining power, we cannot conclude that there was such a great disparity so as to render the entire agreement unconscionable and therefore unenforceable. * * *
Conclusion. The indemnity clause of the parties’ agreement is valid and enforceable because Sequa was acting more like an insurer than a user of NICTD’s common carrier services. Further, Sequa has not established that NICTD concealed the danger associated with the railroad tracks and Michigan trains; that NICTD had superior bargain power sufficient to render the contract unenforceable; that the indemnity clause does not cover first-party claims; and that the settlement agreement NICTD entered into with a decedent’s estate was voluntary or unreasonable. We affirm.
In the Matter of Travis Raymond Fox (10/9/03 IndSCt)
Per Curiam
As the opinion recites, the parties agree that for the year 2001-02, the respondent failed to pay his annual attorney registration and education fees, or to file an exemption affidavit. The Supreme Court issued an order on April 15, 2002 suspending the respondent from the practice of law for his failure to pay the fees, effective 11:59 pm on May 12, 2002. The respondent did not dispute that he twice received notice that the fees were delinquent prior to the order of suspension. At all times relevant to this proceeding, the respondent was employed by the Marion County Public Defender Agency as a conflict attorney in major felony court. In that position, the respondent represented more than 15 criminal defendants in Marion County courts after the effective date of his suspension and prior to his reinstatement to the bar on November 19, 2002.
The Disciplinary Commission alleged that attorney Travis Raymond Fox continued to represent criminal defendants after being suspended from the practice of law for failing to pay his attorney registration and education fees. Respondent Fox and the Commission have tendered for our approval an agreed resolution of this matter, which we accept today, thereby finding the respondent to be in contempt of this Court. * * *In prior proceedings, this Court has imposed much larger fines or even terms of incarceration where attorneys were found to be in contempt for practicing law while suspended. See, e.g., Matter of Baars, 683 N.E.2d 555 (Ind. 1997) (attorney found to be in contempt for practicing law after being suspended for attorney misconduct; ordered incarcerated for 30 days and fined $200); Matter of Lowry, 49S00-0105-CO-244 (Ind. 2001), (attorney fined $2,500 for continuing to practice law after suspension for noncompliance with continuing legal education requirements). In the absence of significant extenuating factors or other special circumstances, that level of discipline is generally appropriate where a suspended attorney practices law in defiance of an order of this Court. In this case, we are willing to accept the parties’ tendered agreement in light of the recitation that the respondent is not able to pay a larger fine, the mitigating factors presented, and the fact that the respondent will provide pro bono service to needy clients to atone for his misconduct.
It is, therefore, ordered that the respondent, Travis Raymond Fox, is hereby ordered to pay to the Clerk of this Court, on or before November 14, 2003, $500 (five hundred dollars) for his contempt of this Court. The respondent is also directed to pay the costs of this proceeding.
We reported Monday on a Washington Post story which had the lead: "The Bush administration's decision last month to weaken rules governing aging coal-fired power plants has complicated government lawyers' pursuit of a case against an Illinois utility accused of violating the Clean Air Act."
Today, a second Post story on the issue begins: "A top U.S. environmental official told Congress last year that Bush administration efforts to soften clean air enforcement rules would not harm pending lawsuits against aging coal-fired power plants, even though key aides had told him just the opposite, two former Environmental Protection Agency enforcement officials said this week." More:
The EPA's decision in August to revise the clean air standards already is affecting an enforcement case against Dynegy, which operates a major power plant in Illinois. As the trial drew to a close, Justice Department lawyers filed a brief Sept. 5 that essentially disavowed their previous definition of the rules governing plant activities. A Dynegy lawyer said the federal brief helped his company's case.At stake is the fate of dozens of enforcement cases brought against 51 power plant operators and scores of refineries during the Clinton administration. A federal judge in Ohio ruled Aug. 7 against FirstEnergy's Ohio Edison Co., marking the first time the Justice Department prevailed in court in such cases. But that was before EPA unveiled the new rules. Suits are pending against major utilities including American Electric Power Co., Cinergy Corp., Duke Energy Corp. and Southern Co.
Under the current Clean Air Act rules, plants and refineries built before 1970 are not required to install modern "scrubbers" while doing routine maintenance. But they must do so if they undertake extensive improvements that extend the facilities' lives and boost harmful emissions.
In July The Indiana Law Blog published an entry about state supreme courts that make briefs available online. Earlier today I was able to access and review the briefs in the Texas case regarding wrongful death laws and stillborns through the Texas Court's website. A handful of state courts, including Texas, and currently two federal courts of appeals, including our 7th Circuit, make briefs available online. The relevant Texas court page reports:
The Texas Supreme Court has begun an effort to post briefs on the merits from petitions granted for review to allow ready access by the public and lawyers across the state to arguments in the detail that justices consider.Our Indiana Supreme Court already makes its oral arguments and a number of Court of Appeals arguments available for viewing online. This is a wonderful resource. Posting the briefs as they are filed would, in my opinion, constitute an invaluable addition.The Supreme Court has notified counsel in cases accepted for review since Jan. 1 that exact copies of briefs already on file be submitted on 3.5-inch diskette for posting on the Court's Web site. Briefs by amicus curiae also will be solicited in this voluntary project.
Links to eBriefs received will be posted on the Case Docket Sheet and Submission Calendar and individuals subscribing for vNotices on a case where an eBrief is posted will receive an email indicating the link to the posted document.
Two interesting stories on the Indiana Wetlands Task Force. This story, from today's TheStarPress.com (Anderson), headlined "Wetland task force makeup questioned" includes these quotes:
A legislator from East Central Indiana is raising questions about the makeup of the Indiana Wetlands Task Force created by former Gov. Frank O'Bannon to recommend wetland conservation legislation.As the meeting was in early September, it looks like the news media picked up on the story after they got hold of the minutes . . . More from the story:The legislator, Sen. Beverly Gard, R-Greenfield, who couldn't be reached for comment Wednesday, raised the issue at the task force's first meeting on Sept. 5.
"Sen. Gard was concerned that the General Assembly may not think the task force as represented at the meeting was balanced or had all the appropriate players at the table," task force consultant D.J. Case & Associates of Mishawaka wrote in a draft summary of the meeting. "Beth Compton [of the governor's office] mentioned that several key interests had been invited but were not in attendance, but also said the governor would consider adding representatives if it would create a better balance."
[The task force] met Sept. 5, but a meeting scheduled for Sept. 22 was canceled because of its proximity to memorial services for O'Bannon, who died Sept. 13. A meeting set for Oct. 3 also has been canceled, but will be rescheduled sometime in October, said Cheryl Reed, assistant commissioner of public policy and planning at the Indiana Department of Environmental Management.And here is an AP story in today's Louisville Courier Journal that reports in part:The task force has about 30 members, including five members of the O'Bannon administration; six members of environmental organizations such as The Nature Conservancy, Sierra Club and Save the Dunes Council; four legislators; and at least three representatives of business and industry: Indiana Builders Association, Black Beauty Coal and Indiana Farm Bureau.
"I don't know if Gov. [Joe] Kernan has the same concerns and caring about wetlands that Gov. O'Bannon did," Paula Yeager of the Indiana Wildlife Federation said Wednesday during a break in a wetland workshop at Fort Harrison State Park in Indianapolis. "There is a lot of strong talk that override of that veto [by the Legislature] is a potential reality as early as organization day in November or one of the first days of the session when it starts in January."
A task force named by the late Gov. Frank O'Bannon to draft rules regulating Indiana's dwindling wetlands is mired in controversy after meeting only once. A state senator who sits on the Indiana Wetlands Task Force complains that the 27-member panel's makeup is heavily weighted in favor of environmental groups at the expense of business interests.Check The Indiana Law Blog entry from May for an overview of the wetlands issue, including a link to Governor O'Bannon's veto message and the 7th Circuit/USSCt SWANCC decision. And here is the entry on the Indiana Supreme Court's decision in Twin Eagle.Sen. Beverly Gard, R-Greenfield, wants additional business representatives added to the task force to avoid the chaos she said prevailed during the panel's first — and so far only — meeting Sept. 5. "The first meeting was as close to a disaster as I've ever seen a meeting," Gard said of the panel, which is charged with recommending permanent wetland regulations to the legislature. * * *
The task force's goal is to develop permanent rules that both protect the state's wetlands and allow economic development.
When O'Bannon vetoed Gard's bill in May, he said it would not achieve its stated goals of "no net loss of wetlands." He set a Nov. 1 deadline for the task force to send him its recommended rules — a deadline a state environmental official now concedes is unlikely to be met.
Cheryl Reed, a spokeswoman for the Indiana Department of Environmental Management, said yesterday that no date has been set for the next task force meeting, although Gard's suggestion of expanding its membership remains under consideration. "The goal of the task force is to bring all of those ideas together and emerge with a compromise that works for the progress of the state," Reed said.
Indiana's isolated wetlands — those not connected to a navigable waterway — are now regulated under a set of interim rules. They were implemented after a 2001 U.S. Supreme Court ruling that left about a third of Indiana's wetlands and ponds without federal protection. Last month, the Indiana Supreme Court turned aside challenges by developers by ruling that the interim regulatory process was valid. * * *
Gard said two-thirds of the task force members were either state employees or representatives of environmental groups. Out of its 27 panelists, five were from the O'Bannon administration, six are members of environmental groups and two others represent hunting groups that support wetland preservation. Four lawmakers, including Gard, are on the panel, along with at least three representatives of business or landowners — the Indiana Farm Bureau Inc., Black Beauty Coal and the Indiana Farmers Union. "It's my opinion that if the legislature were seriously going to consider any recommendations from this group, it needs to be a broader-based, more balanced group," Gard said.
Finally, here is all I could find when looking for information on the new Wetlands Task Force membership.
Last month The Indiana Law Blog contained several reports on stillborn child issues. The first related to 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 was stillborn. This was followed by a report on legslation pending in New Jersey to allow parents to be issued a birth certificate for a stillborn child.
This morning the Fort Worth Texas Star-Telegram.com has a report headlined: "Case raises questions about fetuses' rights: River Oaks couple wants state Supreme Court to extend wrongful death statutes to the stillborn." Some quotes:
In a case to be argued Wednesday, the Reeses are asking the Texas Supreme Court to reinterpret the state's wrongful death statutes and grant viable, unborn children more rights. On Clarence's behalf, the Reeses want to sue Fort Worth Osteopathic Hospital and its doctors, arguing that Clarence died because Tara Reese's treatment was badly bungled in May 1998. The hospital counters that Reese was a high-risk patient with dangerous, pre-existing conditions.The link to the Texas story is via Howard Bashman's How Appealing, which also provides this link to the briefs in the Texas appeal.Thirty-seven states allow civil lawsuits on behalf of fetuses that are capable of living outside the mother's body, court documents show. Texas law, however, allows only infants who are born alive -- if only for one breath -- to be considered an individual with a right to collect damages.
The Reese case troubles legal experts and raises questions for activists on both sides of the abortion debate. The court's decision, they say, could ultimately play a role in the broader debate about a woman's reproductive freedom and the rights of an unborn child.
Note that Indiana is listed in the respondent's brief as among the jurisdictions that do not recognize a wrongful death cause of action unless the child is born alive. The case cited is Bolin v. Wingart (Ind. 2002). Some quotes from the Indiana Supreme Court opinion:
In a case of first impression under Indiana’s Child Wrongful Death Statute, we address the question whether an eight- to ten-week-old fetus fits the definition of “child.” We conclude that it does not. * * *In contrast to the apparent meaning of the express language used in the statute at issue in this case, in other contexts the legislature has enacted protections for unborn children using explicit language. For example, Indiana Code § 35-42-1-6, enacted in 1979, imposes criminal liability for the knowing or intentional termination of a human pregnancy. In addition, the legislature has made it a crime to traffic in fetal tissue. See Ind. Code Ann. § 35-46-5-1 (West 1998).
From these statutes, it is apparent that the legislature knows how to protect unborn children. The fact that the legislature did not expressly include unborn children within the definition of “child” in the Child Wrongful Death Statute lends further credence to our conclusion that an eight- to ten-week-old fetus does not meet the statute’s definition of “child.”
As we observed above, the wrongful death action is entirely a creature of statute. Durham v. U-Haul Int’l, 745 N.E.2d 755 (Ind. 2001). Because this statute is in derogation of the common law, we construe it strictly against the expansion of liability. Ed Wiersma Trucking Co. v. Pfaff, 643 N.E.2d 909, 911 (Ind. Ct. App. 1994), opinion adopted by 678 N.E.2d 110 (Ind. 1997).
The express language of the statute and the fact that it is to be narrowly construed lead us to conclude that the legislature intended that only children born alive fall under Indiana’s Child Wrongful Death Statute. The legislature can certainly expand the scope of protection under the Child Wrongful Death Statute if it so chooses.B. A Mother’s Remedy. The exclusion of unborn children from Indiana’s Child Wrongful Death Statute does not mean that negligently injured expectant mothers have no recourse. As the Missouri Supreme Court has observed, “[T]he mother has her own action for negligently inflicted injury, in which the circumstances of her pregnancy and miscarriage may be brought out and considered as part of the intangible damages.” Rambo v. Lawson, 799 S.W.2d 62, 63 (Mo. 1990), superseded by statute as stated in Connor v. Monkem Co., 898 S.W.2d 89 (Mo. 1995).
As reported today by Howard Bashman, yet another State has invalidated its grandparents' visitation law. Here are some quotes from an AP story reporting on an Iowa decision yesterday:
The court said it's unconstitutional for judges to question a parent's decisions unless the health or safety of the child is in danger.The Iowa opinion, Lamberts v. Lilllig, is available here. Indiana's Court of Appeals issued two decisions relating to Indiana's grandparaents' visitation law in August of this year. Access The Indiana Law Blog entries here (this write-up includes links to the Michigan opinion) and here.The ruling prevents the state from intervening in the case of Arnie and Lucille Lamberts, who wanted to use the law to assure visitation with their granddaughter. The couple's daughter died during childbirth, and they said their relationship with their former son-in-law had deteriorated.
In making its decision, the court cited a 2000 U.S. Supreme Court ruling that found a Washington state law went too far in allowing any person to win a court-ordered right to see a child if it is found to be in the child's best interest. Courts in Michigan and Illinois since have struck down their visitation laws.
And here, from SeniorJournal.com, is a writeup on the April 2002 Illinois Supreme Court decision. A quote:
The ruling yesterday by the Illinois Supreme Court overturned two trial court decisions in which grandparents earlier successfully sued single, surviving parents for more visits with a grandchild. Some say the Illinois "grandparents visitation" law was totally struck down, while others say only parts of it were eliminated.Here, also courtesy SeniorJournal.com, is the Illinois opinion.
As reported here in The Indiana Law Blog on July 27, 2003, Indianapolis lawyer Michael A. Wilkins, suspended from the practice of law for one month by the Indiana Supreme Court because of a footnote in a brief, hoped the U.S. Supreme Court would heard his case. However, Wilkins' petition was denied October 6, 2003. Access the U.S. Supreme Court docket entry here. The Indianapolis Star reports on the denial here.
"Democrats won nearly every provision of their lawsuit over Marion County’s controversial election ballot today — a decision that will force county officials to redesign and print an entirely new voting card in 27 days." This is the lead to a report on the Indianapolis Star's webpage at 10:42 a.m. this morning. the story concludes: "The ruling could have statewide implications, as many other counties that use optical-scan voting technology have laid out ballots the same way." Access earlier Indiana Law Blog coverage here.
Alaska Dept. of Environmental Conservation v. EPA, No. 02-658. The issue: When may the EPA override a state exercise of delegated regulatory authority under the Clean Air Act? Here is a summary presented by the Northwestern University School of Journalism's On the Docket website. Here is the Ninth Circuit opinion, also from Northwestern.
Here is the issue, as summarized on Findlaw's Supreme Court docket for October, 2003:
Whether Sections 113(a)(5) and 167 of the Clean Air Act, 42 U.S.C. 7413(a)(5) and 7477, authorize the Environmental Protection Agency to issue administrative orders to prevent construction of a major emitting facility where a state permitting authority is prepared to grant the facility operator a "prevention-of-significant-deterioration" air quality permit based on an arbitrary and capricious application of the statutory requirement that such sources of air pollution be subject to the best available control technology.The Findlaw site also provides links to the briefs of the parties and other resources.
[Update] Here are some reports on the argument: AP/Washington Post; [more to come]
This story this morning in the Washington Post, headlined "EPA Rule Revisions Roil U.S. Case Against Power Plant," reports:
The Bush administration's decision last month to weaken rules governing aging coal-fired power plants has complicated government lawyers' pursuit of a case against an Illinois utility accused of violating the Clean Air Act.See also this story from August on the FirstEnergy decsion, reporting:The rules in question, part of the act, now say that plants and refineries built before 1970 generally do not have to install modern "scrubbers" during routine maintenance, but must do so if they undertake extensive improvements that extend the facilities' lives and boost their emissions. The new rules, likely to begin to take effect later this year, greatly expand the definition of routine maintenance. * * * The revisions, announced during the Illinois trial, put the government's lawyers in the awkward position of notifying the court of the change while asserting that the current, tougher standards should still apply. * * * The Justice Department's approach in the case contrasts sharply with the unqualified position it took in a case it won Aug. 7, when a federal judge in Ohio ruled that FirstEnergy's Ohio Edison Co. violated the law by upgrading seven aging coal-fired power plants without installing anti-pollution equipment. That was the first time the Justice Department prevailed in court in a New Source Review case brought during the Clinton administration.
A federal judge ruled yesterday that FirstEnergy's Ohio Edison Co. violated the law by upgrading seven aging coal-fired power plants without installing antipollution equipment, in a case with major implications for future clean-air enforcement efforts.Click here for The Indiana Law Blog's earlier writeup on this issue and a link to the Ohio decision.It was the first time a federal judge ruled against a utility in one of the dozen cases that were brought against 51 aging and dirty power plants by the Justice Department and Northeastern state attorneys general during the Clinton administration. The ruling set a precedent that is likely to influence the outcome of several other pending clean-air cases involving some of the nation's oldest and dirtiest plants.
Owen v. State (9/30/03 IndCtApp)
Baker, Judge
The majority opinion reads in part:
We are asked today to settle an issue of first impression in Indiana: Is a sport utility vehicle (SUV) that has been registered as a truck is a “truck” for purposes of Indiana’s seatbelt statute? Appellant-defendant John C. Owen, Jr., appeals his conviction for Failure to Wear a Seatbelt While Operating a Passenger Motor Vehicle, a class D infraction. Specifically, Owen claims that the statute under which he was convicted expressly exempts trucks and that his vehicle, a 1992 Chevrolet Blazer, is a truck. We hold that if an SUV is registered as a truck, then for purposes of Indiana’s seatbelt statute, it is a truck, and we therefore reverse. * * *In his dissent Chief Judge Brooks states in part:Owen claims that the Bureau of Motor Vehicles (BMV) allows SUV owners to register their vehicles as either passenger cars or trucks. Owen registered his vehicle as a truck and received a truck license plate. Thus, Owen contends that the trial court erred in concluding that his Blazer is not a truck and that the seatbelt statute applied to his vehicle. The State agrees that the sole question on appeal is one of law. Specifically, we are asked to decide whether an SUV may be classified as a truck under Indiana Code section 9-13-2-123.
We note that unless the statute indicates otherwise, we give the statute’s language its plain, ordinary meaning. Glotzbach v. State, 783 N.E.2d 1221, 1227 (Ind. Ct. App. 2003). Though “courts rather than administrative agencies must resolve questions of statutory construction,” we note that “an agency’s interpretation of a statute is entitled to great weight.” State v. Hensley, 716 N.E.2d 71, 77 (Ind. Ct. App. 1999). * * *In sum, the definition of “truck” does not necessarily exclude SUVs, and if an SUV owner has paid the fee for a truck plate, then by law he drives a truck that is specifically excluded from the seatbelt law. If an SUV owner does not have a truck plate, then by law he does not drive a truck but instead drives a passenger vehicle that is subject to the seatbelt law. Because Owen licensed his Chevrolet Blazer as a truck, we must conclude that the seatbelt statute does not apply here. As a result, his conviction cannot stand.
Reversed.
SHARPNACK, J., concurs.
BROOK, C.J., dissents with opinion.
Initially, I note that Indiana’s various law enforcement agencies, not administrative agencies such as the BMV, are charged with enforcing Indiana Code Section 9-19-10-2 (“the seatbelt statute”). Accordingly, we owe no deference to the BMV. Indeed, “we conventionally construe penal statutes strictly against the State.” Mayes v. State, 744 N.E.2d 390, 393 (Ind. 2001). * * * Quite simply, a vehicle’s license plate type is not dispositive of whether that vehicle is a “truck” for purposes of the seatbelt statute. The determinative question is whether the vehicle is “designed, used, or maintained primarily for the transportation of property.” Ind. Code § 9-13-2-188(a). A follow-up question then arises: designed, used, or maintained by whom? Unfortunately, the statute is silent on this point.[For related coverage of the seatbelt issue, see The Indiana Law Blog's 5/24/03 entry relating to a IU-Bloomington Law student who "... has filed a lawsuit challenging the constitutionality of local enforcement of Indiana's seat-belt law. Mark Abplanalp, a third-year IU law student who is representing himself, argues that the local enforcement is unconstitutional because it exempts pickup trucks."]
The Indianapolis Star coverage of the Owen decision had this headline Tuesday:"SUV and $9 will get you out of a seat belt: Trucks' exemption from law applies to any vehicle carrying truck plates, judges rule." Some quotes:
Drivers of sport utility vehicles who fork over an extra $9 for a truck license plate don't have to wear their seat belts, a Court of Appeals panel ruled Tuesday. Neither do any of their passengers age 12 and up.The Fort Wayne Journal Gazette reports:The divided appeals court weakened Indiana's seat belt law by declaring that SUVs with truck plates are exempt from the law -- just like traditional trucks. Under the seat belt law, anyone age 12 and older in a truck doesn't have to wear a seat belt. In cars, motorists face a fine of up to $25 for violating the law. * * *
In Marion County, local law enforcement agencies treated an SUV as a car regardless of its plate and ticketed drivers and front-seat passengers who weren't buckled up, according to Marion County Deputy Prosecutor Joel Hand. He said most SUVs aren't purchased to serve as trucks, so they shouldn't be treated like them."The typical SUV is mostly driven by soccer moms who are transporting their kids and their families," said Hand, the liaison to the Marion County Traffic Safety Partnership. Hand said local law enforcement likely will wait until the attorney general's office decides whether to appeal before deciding whether to keep ticketing SUV drivers with truck plates.
While the ruling widens the exception in the state's seat-belt law, it does at least clear up a confusing situation that had different law enforcement agencies using different policies. For instance, the Indiana State Police has operated under the belief that a truck plate exempts front-seat passengers of a vehicle from seat-belt requirements unless they are younger than 12. That is also how the Governor's Council on Impaired and Dangerous Driving viewed the law. But other agencies and local prosecutors - including in Auburn and Kendallville - have disagreed.[Update 10/6/03] This editorial today in the Indianapolis Star, headlined "Seat belt disparity cuts too much slack," opines that "the Indiana General Assembly needs to fix a law that's neither fair nor reasonable."The court ruling appears to tell lawmakers to fix the problem that might arise with owners increasingly "opting" out of the seat-belt law by asking for a truck plate. "Such concerns are best left for our General Assembly to address, as the role of the courts is not to weigh the merits of public safety enforcement mechanisms and adopt certain safety schemes," the decision said.
But Sen. Robert Meeks, R-LaGrange - a former trooper who carried the state's original seat-belt bill - doesn't envision legislators making any changes to the statute. "I think it would be almost impossible to get that passed today," said Meeks, who will not sponsor any bill. "If people aren't smart enough to figure out seat belts could save their lives, then that's up to them. You can take a horse to water, but you can't make it drink."
I watched the oral argument last evening; I urge anyone who has an interest in appellate practice or the Indiana constitution to view it -- it is available here via RealAudio. If you have not been following this case, it may be useful to read Art. 5, Sec. 14 first. It is available here (scroll about halfway through the document).
Only four of the five justices were present for the argument; Justice Sullivan was not present.
Yesterday, Oct. 2, 2003, following the oral argument, the Supreme Court did grant transfer. This from the docket:
CASE TRANSFERRED TO THE SUPREME COURT
SUPREME COURT CAUSE NUMBER 49S050310CV00437
Under the new docket number is the following:
10/02/03 ISSUED THE ENCLOSED ORDER:
10/02/03 ORDER:
THIS MATTER HAS BEEN PENDING BEFORE THE COURT ON PETITIONS TO
TRANSFER FILED BY THE APPELLEES FOLLOWING AN OPINION BY THE
COURT OF APPEALS. THE COURT GRANTS TRANSFER, VACATING THE
OPINION OF THE COURT OF APPEALS.
RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR, EXCEPT SULLIVAN, J., WHO IS NOT
PARTICIPATING IN THE DECISION WHETHER TO GRANT TRANSFER. MS
10/03/03 ****** ABOVE ENTRY MAILED ******
10/03/03 APPELLANT'S ADDITIONAL CITATION OF AUTHORITY (9)
PROOF OF SERVICE (2) PERSONAL LS
10/03/03 ISSUED THE ENCLOSED ENTRY:
SULLIVAN, JUSTICE.
I AM NOT PARTICIPATING IN THIS CASE. MS
10/03/03 ****** ABOVE ENTRY MAILED ******
[Almost immediate update] I just checked the online Indianapolis Star and found the following headline: "Kernan names new head of FSSA." The FSSA is the state agency that is the defendant in D&M Healthcare. Cheryl Sullivan, the appointee, is the wife of Justice Sullivan. That would appear to explain the recusal.
More from the Star story:
Gov. Joe Kernan today appointed Cheryl Sullivan to lead the Indiana Family and Social Services Administration. Sullivan will take a leave of absence from her job as vice chancellor for external affairs at Indiana University-Purdue University Indianapolis. Her first day at FSSA will be Oct. 20.My first thought: It is possible that the absence of Justice Sullivan could lead to the same 2-2 split as was the case in the pocket veto opinion, which led to the Court of Appeals opinion prevailing. My second thought: Wrong. It would lead to the trial court opinion prevailing, as in granting transfer the Supreme Court has vacated the Court of Appeals opinion. Comments?In a way, Sullivan will be returning home. She served as the head of FSSA from 1993 to 1997 under then-Gov. Evan Bayh. During the 2000 presidential campaign, Sullivan was Al Gore's national issues director. * * *
Sullivan said she has committed to leading FSSA for the next 15 months, the time remaining in Kernan's term.
This story in today's Indianapolis Star reports:
State officials asked the Indiana Court of Appeals on Thursday to uphold a lower court ruling that found the state is justified in prohibiting same-sex marriages.For background, see this Indiana Law Blog entry from 5/7/03 on the Marion County Superior Court decision now on appeal.In a 55-page brief, Thomas M. Fisher of the attorney general's staff said the state marriage law serves several important interests, including promotion of the traditional family as the foundation of society. The brief contends the law is not discriminatory, noting the Indiana Constitution provides no right to state-recognized same-sex marriage.
The state's filing came in response to an appeal of the May 7 ruling by Marion Superior Court Judge S.K. Reid in a case challenging the 1986 law, which says only a man may marry a woman and only a woman may marry a man. The original suit was filed in August 2002 by the Indiana Civil Liberties Union on behalf of three same-sex couples.
The Case Number is: 49 A 02 - 0305 - CV - 00447; the case is MORRISON, RUTH, ET.AL. -V- SADLER, DORIS ANN, ET.AL.
This story yesterday in the Indianapolis Star reported that U.S. District Court Judge David Hamilton granted class-action status "to a lawsuit accusing utility executives of dumping their stock before a merger. Tuesday's ruling . . . means nearly 2,000 IPALCO workers can join the lawsuit filed by four former employees." Here is a second story.
Here is the link to Judge Hamilton's opinion.
This front-page story in today's Indianapolis Star, headlined "AT&T settling cable lawsuits: Company was accused of illegally using people's land for its fiber-optic lines," reports in part:
Property owners in Indiana and other states might soon collect thousands of dollars that they say they should have received from AT&T for the use of their land along railroad lines. The communications giant is settling lawsuits filed in 32 states, including Indiana, that allege AT&T installed fiber-optic and other cable under railroad corridors actually owned by private property owners. * * *A valuable sidebar to the Star's story gives the status of class-action lawsuits across the country and a list of the major companies involved. AT&T officials say they are not guilty of any wrongdoing and are settling cases to avoid costly litigation.
AT&T had permission from the railroads to install the cable, but they could not legally give such permission because they didn't own the property, lawyers for the plaintiffs maintain."They knew it was wrong, but they thought they would take their chances and pay it off if they were ever sued," said Henry Price, an Indianapolis lawyer involved in the case. * * *
The cable connecting areas in Indiana and other states grossed the phone companies as much as $60,000 an hour, said Nels Ackerson, another plaintiffs lawyer who is based in Washington.
"They were all in a race to build these optic-fiber networks because we were on the cusp of the information age," Ackerson said. "They figured it would take too much time to negotiate with each landowner. "We don't know how much they made through the years, but we are talking billions of dollars."
Some property owners also were denied the use of their land, the lawsuit alleges. Phone companies posted signs warning that anyone would be prosecuted and fined up to $60,000 an hour if the underground cable was broken, Ackerson said.
(Thanks to Howard Bashman of How Appealing for pointing to this story, as I overlooked it.)
A quick search turned up some interesting sites. One called Right-of-Way Law, lists both John Price and Nels Ackerson, the Indiana lawyers mentioned in the Star story. Here is a report of a 1999 decision that involved both attorneys.
The oral argument in D&M Healthcare, Inc. v. Indiana Family and Social Services Administration will be viewable live online today, 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 and here is the summary provided on the site:
Nursing homes sought a declaration judgment in the Marion Superior Court regarding the validity of certain legislation. The judgment of the trial court was reversed on appeal. D & M Healthcare, Inc. v. Ind. Family and Social Services, 793 N.E. 2d 241 (Ind. Ct. App. 2003). The State has petitioned the Supreme Court to accept jurisdiction over the appeal. Attorneys for D & M; J. Michael Grubbs, Peter J. Rusthoven, Thomas F. Shea, Julie C. Sipe, Indianapolis, IN.As stated in the Court's Order of 9/22/03:Attoneys for Indiana Family and Social Services; Steve Carter, Frances H. Barrow, Indianapolis, IN.
Attorneys for Governor Kernan; Karl L. Mulvaney, Nana Quay-Smith, Rafael A. Sanchez, Indianapolis, IN.
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 CLOSE WITH REBUTTAL.However, as of 10:00 a.m. this morning, this is no docket entry indicating that the Court has issued an order.
I have now had an opportunity to read the D&M Healthcare brief, which was filed last Friday, and I continue to find their position very strong. I have not been able to obtain the Appellee's reply brief, filed Monday. View the webcast, either at 1:30 p.m. today, or later at your leisure, and decide for yourself. (At some point, perhaps The Indiana Law Blog will be able to obtain electronic copies of all the briefs, to post here.)
As the Star reported Monday, a related suit has been filed:
A class-action lawsuit was filed Friday in Marion Superior Court on behalf of judges in 92 counties who say they were improperly denied a pay raise. The suit against Gov. Joe Kernan was filed by a Grant County judge who contends all full-time circuit, superior, municipal and county court judges were improperly denied a pay raise from $90,000 to $99,000 effective Jan. 1, 2002. The bill that contained a provision for a pay hike was approved by the General Assembly in April 2001 but was vetoed by then-Gov. Frank O'Bannon a month later. The lawsuit claims the veto wasn't timely enough.
According to this story on the Munster NWI Times website, the Indiana Court of Appeals yesterday dismissed George Pabey's call for a special election. Some quotes:
The appeals court judges voted 2-1 without comment to let stand a lower-court decision this summer that found widespread vote fraud in Pastrick's favor, but didn't throw out enough of his votes to change the outcome in favor of Pabey, a city councilman.For earlier coverage, see the second part of this September 6th Indiana Law Blog entry.Merrillville lawyer Ned Ruff said Tuesday that Pabey's legal team may consider another appeal to the Indiana Supreme Court, although the Supreme Court rejected a request by Pabey last month to hold an emergency hearing and resolve the issue before the Nov. 4 general election.
[Update 10/2/03] The Munster NWI Times reports today that George Pabey Will make one more appellate effort. The Times reports:
Mayor Robert Pastrick will face one more challenge to his victory in a spring primary tainted by allegations of vote fraud. Lawyers for Councilman George Pabey will petition the Indiana Supreme Court as early as next week in their continuing bid to overturn the May 6 Democratic primary results and order a special mayoral election, according to Merrillville lawyer Ned Ruff.Ruff said Wednesday they will ask the high court to act expeditiously on their request since the general election is only five weeks away. Their decision comes one day after the Indiana Court of Appeals dismissed Pabey's suit without explanation. This legal move is also a long shot. The Supreme Court refused last month to conduct an emergency hearing to resolve Pabey's appeal before the Nov. 4 general election.
This story in the South Bend Tribune this morning reports on South Bend's efforts to contain stormwater runoff. A quote:
IDEM has required developers working at construction sites of five acres or more to apply for runoff permits, and IDEM has provided surveillance of such sites to ensure adherence to pollution prevention guidelines. Soon, however, the requirement will be extended for construction sites of one acre or more, and the surveillance duties will fall on the shoulders of the city.
Follwing up on our July 29 entry "In Indianapolis, Randall L. Tobias is a household name," is a story today in the Indianapolis Star (here), on Tobias' confirmation hearing before the U.S. Senate Foreign Relations Committee, chaired by Indiana's Senator Richard Lugar. According to the Star story:
The committee could vote as early as Thursday to confirm Tobias. If the rest of the Senate approves, Tobias would carry the rank of ambassador and head the U.S. effort to spend $15 billion over five years to fight AIDS worldwide, but primarily in African and Caribbean countries.The Washington Times has an editorial this morning titled "Go to Africa, Mr. Tobias," that has 10 well-worth-reading "suggestions for Mr. Tobias to get a quick start."Lugar, who called Tobias a "good friend," said one reason Tobias hasn't been put in place sooner was the need to review his extensive business ties in order to avoid conflicts of interest.
Another well-worth-reading story is a lengthy feature in this morning's Washington Post, about Bill Gates' and his wife Melissa's dedication to improving world health. Some quotes:
The Gateses are pouring billions of dollars into world health initiatives, a cause they have backed since 1994 but have tackled with rising fervor in the past couple of years. The extent of their giving has grown so quickly that the world has barely begun to absorb the implications.Their money is being used to dramatically expand and improve international vaccination efforts. They are bankrolling programs to find new ways to stop the world's greatest killers, including AIDS, tuberculosis and malaria.
The Gateses have created a foundation worth $25 billion, the largest in the world, and have pledged to give it most of the rest of their $46 billion fortune, derived largely from stock in Bill Gates's company, Microsoft Corp.
Their foundation far exceeds in assets some better-known names in American philanthropy. It is 10 times the size of the Rockefeller Foundation and three times the size of the Ford Foundation. It is only slightly larger than the Wellcome Trust, a London charity that was once the world's largest, but the Gates Foundation has adopted a more intensive focus on saving lives in poor countries.
The Gateses have said they expect to supervise the foundation for the rest of their lives, which could easily mean 30 or 40 more years. They seem virtually certain to surpass John D. Rockefeller and Henry Ford, the oil and automobile magnates, in the scope of their philanthropy.