November 29, 2003

Law - Punitive Damages, Bedbugs, and the 7th Circuit

I've been collecting items for this entry for some time, but the tipping point occurred this morning with a feature on NPR's Morning Edition described as "about a recent federal appeals court ruling in a case involving bedbugs. The ruling puts the bite back into compensatory damage awards." Listen to it here.

Jan Crawford Greenburg, who is featured on the NPR bit, is the author of this story, titled "Big award in bug case stirs debate," that appeared in the Nov. 24, 2003 edition of the Chicago Tribune. Some quotes:

[7th Circuit Judge Richard Posner's] recent opinion upholding the jury's award not only takes the corporation to task for an infestation that reached "farcical proportions," it also provides an important analysis of punitive damages that is certain to reverberate in other disputes across the country.

Posner's decision comes on the heels of a Supreme Court ruling that knocked down a $145 million punitive-damages judgment in an insurance case and amid renewed efforts to pass laws scaling back those types of awards. The public has long been torn about huge awards, with critics saying they are getting ridiculously big and defenders insisting they provide a vital check on corporate wrongdoing.

Courts across the country are grappling with how to decide when big-money punitive damage awards--those intended to punish wrongdoing, not just reimburse plaintiffs--are simply too large.

The Supreme Court has said punitive damages can be so excessive that they violate the Constitution, and it has given lower courts guidelines for reining in colossal awards. In its most recent ruling on the issue this spring, it said punitive damages that were dramatically higher than the compensatory damages--the payments that compensate victims for their financial loss--would be considered suspect.

The article also quotes "Catherine Sharkey, a professor at Columbia University Law School who has just written a law review article on punitive damages," reporting that Sharkley:
called Posner's opinion "very significant." Not only did it interpret the recent Supreme Court decision, she said, it also laid out a comprehensive analysis of why punitive damages are awarded in the first place, such as deterring bad behavior and giving plaintiffs an incentive to sue and correct the problem. "There hasn't been enough attention placed on what are the purposes of punitive damages," she said.

Posner said the bedbug case shows that there are circumstances in which punitive damages can be dramatically higher than compensatory damages. * * *

Although the ratio of punitive damages to compensatory damages in the bedbug case was far greater than the Supreme Court contemplated in State Farm, Sharkey and others said Posner's approach complied with the high court's ruling. Sharkey noted that other courts have reached the same conclusion under similar circumstances. A federal appeals court in New York, for example, recently said a $75,000 punitive damages award was appropriate in a police misconduct case where compensatory damages were $1. "Judge Posner indicates that you have to make it not worth their financial while . . . to engage in willful and wanton conduct," Stamatis said. "Otherwise, no one would be deterred."

Professor Sharkey has an article in the current (November 2003) issue of the Yale Law Journal titled "Punitive Damages as Societal Damages." Unfortunately it is not available online, but this synopsis was located via Columbia University:
Under current law, classwide assessment of widespread public harms has proceeded under the rubric of retributive punishment and deterrence—the traditional justifications for punitive damages—bypassing class action procedural requirements and unjustly enriching the plaintiff.In the wake of the Supreme Court's admonition in State Farm [State Farm Mutual Automobile Insurance Co. v. Campbell et al. (4/7/2003)] that such a practice can violate due process by exposing defendants to the risk of "multiple punitive damages awards for the same conduct," the Article proposes explicit recognition of a distinct category of compensatory societal damages for redress of third-party and societal harms. Up until now, this category has been quietly subsumed within punitive damages. But damages for specific harms to third parties and more diffuse harms to society are actually compensatory (as opposed to punitive) in nature, and should, once assessed, be distributed by legislatures, courts, and juries accordingly. Drawing upon heretofore unconnected trends in punitive damages and class action tort cases, and state-level legislative and judicial innovations with "split-recovery" schemes for distributing punitive awards, the Article explores various mechanisms for transforming punitive damages into societal damages, including the formation of an "ex post class action" at the remedial stage and the punitive-damages-only class at the liability stage.The theory of compensatory societal damages—whether or not embraced by legislatures and courts—reveals more clearly the tradeoffs in transforming the doctrine of punitive damages to achieve the compensatory and deterrence goals of the tort system.
[I've highlighted text in order to tie it to Indiana's punitive damages allocation statute and two recent Indiana Supreme Court opinions interpreting that statute, all of which are discussed in this Indiana Law Blog entry from 6/2/03, and this entry from 6/25/03.]

Finally, some quotes from the Posner opinion in Mathias v. Accor Economy Lodging, Inc. and Motel 6, an 11-page decision well worth reading in full. Some citations have been omitted:

The plaintiffs claim that in allowing guests to be attacked by bedbugs in a motel that charges upwards of $100 a day for a room and would not like to be mistaken for a flophouse, the defendant was guilty of “willful and wanton conduct” and thus under Illinois law is liable for punitive as well as compensatory damages. The jury agreed and awarded each plaintiff $186,000 in punitive damages though only $5,000 in compensatory damages. The defendant appeals, complaining primarily about the punitive-damages award. * * *

There was, in short, sufficient evidence of “willful and wanton conduct” within the meaning that the Illinois courts assign to the term to permit an award of punitive damages in this case. But in what amount? In arguing that $20,000 was the maximum amount of punitive damages that a jury could constitutionally have awarded each plaintiff, the defendant points to the U.S. Supreme Court’s recent statement that “few awards [of punitive damages] exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm Mutual Automobile Ins. Co. v. Campbell, 123 S. Ct. 1513, 1524 (2003). The Court went on to suggest that “four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Hence the defendant’s proposed ceiling in this case of $20,000, four times the compensatory damages awarded to each plaintiff. The ratio of punitive to compensatory damages determined by the jury was, in contrast, 37.2 to 1.

The Supreme Court did not, however, lay down a 4-to-1 or single-digit-ratio rule—it said merely that “there is a presumption against an award that has a 145-to-1 ratio,” State Farm Mutual Automobile Ins. Co. v. Campbell, supra, 123 S. Ct. at 1524—and it would be unreasonable to do so. We must consider why punitive damages are awarded and why the Court has decided that due process requires that such awards be limited. * * *

As the Court emphasized in Campbell, the fact that the plaintiffs in that case had been awarded very substantial compensatory damages—$1 million for a dispute over insurance coverage—greatly reduced the need for giving them a huge award of punitive damages ($145 million) as well in order to provide an effective remedy. Our case is closer to the spitting case. The defendant’s behavior was outrageous but the compensable harm done was slight and at the same time difficult to quantify because a large element of it was emotional. And the defendant may well have profited from its misconduct because by concealing the infestation it was able to keep renting rooms. Refunds were frequent but may have cost less than the cost of closing the hotel for a thorough fumigation. * * *

Finally, if the total stakes in the case were capped at $50,000 (2 x [$5,000 + $20,000]), the plaintiffs might well have had difficulty financing this lawsuit. It is here that the defendant’s aggregate net worth of $1.6 billion becomes relevant. A defendant’s wealth is not a sufficient basis for awarding punitive damages. That would be discriminatory and would violate the rule of law, as we explained earlier, by making punishment depend on status rather than conduct. Where wealth in the sense of resources enters is in enabling the defendant to mount an extremely aggressive defense against suits such as this and by doing so to make litigating against it very costly, which in turn may make it difficult for the plaintiffs to find a lawyer willing to handle their case, involving as it does only modest stakes, for the usual 33-40 percent contingent fee.

The briefs of the parties may be found here. You may listen to the oral argument here or download it to listen on your computer or via a portable player such as the iPod.

I was particularly struck, while reading Judge Posner's decision, by the amount of legal and investigative work that must have gone into the uncovering of the defendant's long history of hiding the bedbug problems at the Motel 6 on East Ontario Street and by the statement of Judge Posner that an extremely aggressive defense such as exhibited here could "make litigating against [a defendant] very costly, which in turn may make it difficult for the plaintiffs to find a lawyer willing to handle their case, involving as it does only modest stakes, for the usual 33-40 percent contingent fee." My thought, in light of Judge Posner's discussion, was: What is, or will be, the impact of a statute such as Indiana's punitive damages allocation statute, IC 34-51-3-6 (which provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff, and that the jury is not to be advised of the way its award will be allocated)? Would it make it difficult for a plaintiff, with a case like that of the Mathias siblings here, to find an attorney willing to undertake the suit in Indiana?

In the interests of full disclosure, I must reveal that I read this opinion with some sympathy for the plaintiffs! I myself was a plaintiff, some 25 years ago, in a federal bedbug suit -- I'm told that it has appeared in at least one casebook -- that was dismissed by Judge Stecker for lack of jurisidction over the nonresident defendant. The cite: Oddi v. Mariner-Denver, Inc., d/b/a Holiday Inn of Downtown Denver, Colorado (SD Ind. 12/5/1978), 461 F.Supp. 306.

Posted by Marcia Oddi at 11:09 AM

Law - Redistricting decision expected Monday in Colorado

The Indiana Law Blog last covered this issue in an Oct. 26, 2003 entry, where we included this quote from an excellent and still available, at least as of this morning, Washington Post story:

Both plans [Colorado and Texas] 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 and a number of other papers carried this AP story yesterday (initial link per How Appealing) with the lead:
The Colorado Supreme Court will issue a long-awaited ruling Monday on whether the Republican-led Legislature had the right to redraw congressional districts last year - a decision that could have national implications in the 2004 races. Democrats and Republicans said they need a decision soon so campaigning can begin in earnest. With party caucuses scheduled for April, candidates need to know where to campaign. County commissions and clerks are also waiting for the decision.
An earlier (10/27/03) story from the reported:
Colorado, with Republicans locked into every key legislative position at the Statehouse, is one of 20 states this year with a single political party holding all the lawmaking cards. Democrats control the House, Senate and governor's office in six of those states, while the GOP holds the same in the other 14. But of those 20, only two attempted to squeeze into the history books this year by adjusting congressional voting districts and stacking the maps in their favor. Just one, however, was successful. [Note - this story was written before Texas also finally suceeded in its redistricting effort.]

"In my memory, there has never been a midcensus gerrymander like the one that was attempted in Texas and succeeded in Colorado," said Nathaniel Persily, a University of Pennsylvania professor and one of the country's leading experts on redistricting and election law. The Republican-powered redistricting plan in Colorado would all but assure a GOP representative from five of the state's seven districts. But the fate of the state's congressional districts is in the hands of the Colorado Supreme Court, which is expected to rule shortly on which district boundaries — those set by a state district court in 2002 or the new GOP-approved 2003 lines — are valid.

The case is The People of Colorado ex rel. Salazar v. Colorado Secretary of State Donetta Davidson. The question posed is:
If the Colorado General Assembly fails to timely pass redistricting legislation when Congress reapportions after a census, does the General Assembly have the authority to redistrict again, when: (1) it failed to act prior to the first congressional election after the 2000 census; (2) the Colorado Supreme Court approved a trial court's redistricting plan that set boundaries for the 2002 election and "elections thereafter"; (3) congressional elections have taken place in compliance with the state court plan; and (4) the legislature's actions result in Colorado being redistricted multiple times in a single decennial period.
The Colorado constitutional provision at issue is Art. V, Sec. 44:
Section 45. Representatives in congress. The general assembly shall divide the state into as many congressional districts as there are representatives in congress apportioned to the state by the congress of United States for the election of one representative to congress for each district. When a new apportionment shall be made by congress, the general assembly shall divide the state into congressional districts accordingly.
Amended 1974, S.C.R. 1, sect. 1, effective Jan. 1, 1975

[Update 12/1/03] A Jeffrey Tobin article on redistricting appears in this week's edition of the New Yorker. (Link via How Appealing)

Posted by Marcia Oddi at 09:51 AM

November 27, 2003

Indiana Decisions - More on Procedural Aspects of D&M Healthcare

In a November 20, 2003 Indiana Law Blog entry, titled "An important procedural aspect of D&M Healthcare," I briefly discussed the application of Indiana Appellate Rule 58: Effect of Supreme Court Ruling on Petition to Transfer, to an evenly divided Supreme Court.

As the Indiana Supreme Court has five members, the possibly of an evenly divided court likely would occur only when there was a vacancy on the Court or one of the justices had recused himself. In D&M Healthcare, as I recounted in the November 20 entry, Justice Sullivan has recused himself.

Here again is the text of Rule 58:

A. Effect of Grant of Transfer. The opinion or not-for-publication memorandum decision of the Court of Appeals shall be final except where a Petition to Transfer has been granted by the Supreme Court. If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated except for:
(1) those opinions or portions thereof which are expressly adopted and incorporated by reference by the Supreme Court; or

(2) those opinions or portions thereof that are summarily affirmed by the Supreme Court, which shall be considered as Court of Appeals’ authority.

Upon the grant of transfer, the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court.

B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court. No Petition for Rehearing may be filed from an order denying a Petition to Transfer.

C. Supreme Court Evenly Divided. When the Supreme Court is evenly divided upon the question of accepting or denying transfer, transfer shall be deemed denied. When the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.

Rule 58 sets out a two-step process (although the two steps at times may be performed simultaneously by the Court).* Click to open a Chart of the Rule 58 Process in a new window.

What we are interested in here are the two items on the right side of the Chart:

(1) When the Supreme Court is evenly divided on the question of whether or not to grant transfer, transfer shall be deemed denied. (58C, sentence 1).

(2) When the Supreme Court is evenly divided in issuing an opinion, the decision of the Court of Appeals shall be reinstated (58C, sentence 2).

Is there any case law where the Supreme Court is evenly divided on the decision to grant transfer?

There are two cases where the Supreme Court has been evenly divided on the decision to grant transfer. The first is the “pocket veto case” referred to several times in my earlier D&M Healthcare discussions. It is the Court of Appeals opinion that is the law in State ex rel. Mass Transportation Authority v. Indiana Revenue Board, 144 Ind.App. 63, 242 NE2d 642 (12/31/1968); transfer denied with opinion 2/6/69; rehearing denied with opinion and order 12/16/1969. This is the decision where the Court of Appeals said: “[W]e also judicially know that for years, the executive branch of our state government has illegally and unlawfully pocket vetoed various bills which have been duly enacted by the legislature.” The Supreme Court denied the petition for transfer in a per curiam opinion that reads:

PER CURIAM. This action is before this court on petition to transfer from the Appellate Court. Hunter and Arterburn, JJ., believe that transfer should be denied. DeBruler, C.J., and Jackson, J., are of the opinion that the transfer should be granted. Givan, J., did not participate in this case.

There not being a majority of those judges participating in this case in favor of granting the petition to transfer, it is denied.

251 Ind. 607, 244 NE2d 111 (2/6/1969)

The second case is Michael G. Tyson v. State of Indiana, 622 NE2d 457 (10/15/1993), where Justice Shepard discusses Tyson’s application asking him “to vacate my earlier disqualification and cast a vote now on the petition to transfer denied by this Court on September 22, 1993.” A quote:
Counsel for Tyson claims that this Court's denial of his petition to transfer by the vote of an equally divided Court denied his client due process of law. The Indiana Constitution prohibits appointing a substitute justice after a recusal, State ex rel. Mass Transp. Auth. v. Indiana Revenue Bd. (1969), Ind., and thus there is the possibility from time to time of an equally divided court. The Supreme Court of the United States uses the same rule we use and occasionally an even number of participating Justices divide equally. ... This has sometimes happened in cases of substantial importance. See, e.g., State ex rel MTA v. Indiana Revenue Bd. (1969), 251 Ind. 607, 244 N.E.2d 111.
Is there any case law where the Supreme Court is evenly divided in arriving at a decision, once transfer has been granted?

According to Rule 58C, sentence 2, when the Supreme Court is evenly divided in issuing an opinion, the decision of the Court of Appeals shall be reinstated. This is the situation that could occur in the Supreme Court’s consideration of D&M Healthcare, as Justice Sullivan has recused himself. No cases involving this portion of Rule 58C have been located.

[NOTE: Several other interesting aspects of Rule 58, although not specifically related to the evenly divided court issue, will be the topic of a future entry.]

*A recent example of an “all in one” action by the Court is found in Robert Johnson v. State of Indiana, where the Court of Appeals had dismissed Appellant’s appeal because of filing delay, ruling the right was forfeited. The Supreme Court issued an order 11/25/03 stating “We grant transfer of jurisdiction, reinstate the appeal and remand the case to the Court of Appeals for further proceedings consistent with this order.”

Posted by Marcia Oddi at 05:30 PM

Environment - Air war between the states

"23 States Go to Battle Over Looser EPA Rules: Nine attorneys general take on 14 counterparts that have sued to block the relief for industry." So reads the headline to this AP story in today's LA Times that also appears in a number of other papers across the country. Some quotes:

A legal war between the states erupted Wednesday over the federal government's move to relax air pollution regulations. Nine states are taking on 14 states that want to block new federal rules relaxing pollution requirements for power plants, refineries and manufacturers. The battle falls along partisan lines.

Virginia's attorney general, Jerry Kilgore, a Republican, led his state and Alabama, Alaska, Arkansas, Kansas, Nebraska, North Dakota, South Dakota and Utah in asking to intervene in a case filed in the U.S. Court of Appeals for the District of Columbia.

Fourteen states last week filed suit to stop the Environmental Protection Agency from implementing new Clean Air Act rules that make it easier for older plants to make upgrades without having to install more pollution controls. * * *

Filing suit against the EPA to block the new rules from going into effect Dec. 26 were New York, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Vermont and Wisconsin. The states were joined by a number of cities, including New York, San Francisco, and Washington.

Indiana Law Blog coverage from earlier this month of the initial 14-state suit may be found here.

A very interesting opinion piece in the Atlantic Journal-Constitution last week (11/19/03) discussed the "regional divide" the original 14-state suit represented -- no attorney generals from the South were represented. (The motion filed Wednesday (11/26/03) by the 9 states, however, does include Virigina, Arkansas and Alabama.) Some quotes from the article:

The Clean Air Act has a long history of regional divisiveness, and the wind plays a big part in it. It blows from west to east, and swirls north at the same time. The Northeast is downwind of practically everybody.

From its first incarnation in 1970, the Clean Air Act has held one source of upwind pollution as a key target -- coal-fired power plants in the Midwest and South, which put out chemicals that cause acid rain, contribute to smog, contaminate fish and contribute to global warming.

Tough national clean air laws became a passion in the Northeast states in large part because that's where problems like acid rain first showed themselves, in the form of lifeless lakes with water clear as gin and acidic as lemon juice. The Northeast states also largely use cleaner and more expensive fuels than coal to produce their electricity, and their higher rates reflect that. The South and Midwest rely on coal, and their electricity consumers pay less because of that.

The price difference is a second reason the Clean Air Act plays better politically in the Northeast than it does here. The changes the Northeast wants to see from clean air laws -- cleaned up or closed down coal-fired power plants in the South and Midwest -- will come out of ratepayer pockets in the South and Midwest.

More from the Atlanta Journal-Constitution:
The regional rift played out for years in fierce arguments about how much of the blame for the Northeast's pollution problems lies with other states. The regions dueled with competing studies and experts and dismissed one another's "junk science" in testy multistate task force meetings. The hostilities peaked in a swell of lawsuits from all sides in the late 1990s, followed by a 1999 bombshell from the EPA and the Justice Department.

With vocal support from the Northeast, the Justice Department sued a handful of the country's largest coal-fired power companies in the South and Midwest, including Southern Co. The suits claimed the utilities had violated the Clean Air Act for decades by keeping old plants running without pollution controls, and threatened fines of up to $27,000 per day for each violation.

When the Bush administration softened the Clean Air Act on Oct. 27, it changed the part of the law the utilities were accused in court of violating. A dozen attorneys general, mostly from the Northeast, sued immediately. This week, when the group filed to enjoin the law from taking effect in 12 states where it would otherwise take effect next month, their number had grown to 14 -- still with no one from the South.

Posted by Marcia Oddi at 09:16 AM

November 26, 2003

Environment - Wetlands, I-69 and Arnold

Several interesting environmental stories today.

First, National Public Radio ran a story on wetlands mitigation this morning that caught my attention. Their description: "When developers drain natural wetlands, they're required by law to replace them. But if the project is bound to fail, developers can buy credit from wetland bankers to rebuild elsewhere. WKSU's Julie Grant reports on this new breed of entrepreneurs." Listen to it here.

More on wetlands from this story in this morning's LA Times. Some quotes:

Just more than half of the members of the House of Representatives on Tuesday urged President Bush to drop regulatory changes that could reduce the number of streams and wetlands protected under the Clean Water Act. They asked the president in a letter to abandon a rulemaking process launched in January and to rescind guidance sent to regulators telling them how to interpret a 2001 Supreme Court ruling. The letter was signed by 218 legislators, including 26 Republicans.

"The Clean Water Act is a landmark piece of legislation which shouldn't be diluted," said Rep. Jim Saxton (R-N.J.), one of the letter's authors. "Congress has few responsibilities greater than preserving clean water for future generations, and improving the quality of water damaged by many years of neglect." * * *

Spokeswomen for the White House Council on Environmental Quality and the Environmental Protection Agency said the administration had not decided yet whether to rewrite the rule that defines which waters and wetlands are protected by the Clean Water Act. Officials continue to review the more than 130,000 comments responding to the administration's notice of proposed rulemaking. They stressed that whatever the decision, the president remained committed to the goal of no net loss of wetlands.

[An earlier ILB entry on the proposed redefinition of "wetlands" may be accessed here.]

Second, this story in the Indianapolis Star this morning reports that gubernatorial candidate Mitch Daniels has endorsed the "direct route" for the I-69 extension selected by Governors O'Bannon and Kernan. Some quotes:

Earlier in his campaign for governor, Daniels said he was open to reconsidering the so-called "direct route" that then-Gov. Frank O'Bannon had selected for the interstate. Some have been opposed to the route for environmental reasons, others because it bypasses Terre Haute.

Tuesday, Daniels said he has decided to "enthusiastically endorse the direct route of I-69." He said that by being flexible and creative in the design and financing of the road, it could be completed faster.

Finally, another interesting story from the LA Times, this one headlined: "Regulations' Foes Woo Governor: Industry group sends him a list of state environmental rules that it contends harm business. Some activists voice alarm." Some quotes:
From restrictions on a rocket fuel ingredient in drinking water to regulations on tailpipe exhaust, industry groups are dusting off old arguments against California environmental rules, seeing Gov. Arnold Schwarzenegger's administration as a fresh chance to assert anew that the state's policies harm business.

The Thursday Group, a coalition of lobbyists for some of the most powerful industries in the state — including chemical companies, defense contractors, real estate developers and biotechnology firms — sent the governor a letter last week with a lengthy list of environmental rules that it did not like. * * *

Terry Tamminen, the Santa Monica environmentalist whom Schwarzenegger recently appointed as his secretary of environmental protection, also downplayed the lobbying push, saying everyone had a right to make his feelings known. Schwarzenegger, he said, has said he supports some of the regulations, such as on tailpipe exhaust. "I just think it's standard operating procedure," Tamminen said. "Any time there is a new administration, people are going to want to restate their case. I don't see that as offensive or improper."

Posted by Marcia Oddi at 01:03 PM

November 25, 2003

Indiana Decisions - Re Motion to Transfer for Incorrect Venue

Brian Linky, et al. v. Midwest Midrange Systems, et al. (11/25/03 IndCtApp)
Baker, Judge

As stated by the court:

Appellant-defendant Brian Linky raises one issue in this interlocutory appeal of right under Indiana Appellate Rule 14(A)(8): whether the trial court abused its discretion by denying his Motion to Transfer for Incorrect Venue. Specifically, Linky argues that Marion County, the venue in which appellee-plaintiff Midwest Midrange Systems, Inc. (“Midwest”), brought this case, is not a preferred venue. Thus, he claims that the cause should be transferred to Kosciusko County, which is a preferred venue. Finding that the trial court did not abuse its discretion, we affirm. * * *

It would simply constitute a waste of judicial resources to sever the action against Linky and transfer it to Kosciusko County only to have him subsequently joined as a party to the action against Goldenberg in Marion County. The sequence of the inclusion of the defendants in this action does not change the result. Thus, the trial court correctly denied Linky’s motion to transfer venue. Affirmed.
BROOK, C.J., and SHARPNACK, J., concur.

Posted by Marcia Oddi at 03:51 PM

Indiana Decisions - Question of whether juror's statement was prejudicial

Vlado Naumoski, et al. v. Miguel & Janet Bernacet (11/25/03 IndCtApp)
Baker, Judge

As stated by the Court:

Appellants-defendants Vlado Naumoski, Great American Lines, Inc., Independent Contractors Leasing Corporation, and AFA Enterprises (collectively, “Naumoski”) appeal the trial court’s granting of appellees-plaintiffs Miguel and Janet Bernacet’s Motion to Correct Errors. Specifically, Naumoski contends that the trial court should not have granted a new trial where a juror’s affidavit stated that another juror voiced his personal knowledge of the location of the traffic accident that was involved in this litigation. Finding that the trial court properly admitted the affidavit, but that it was an abuse of discretion to grant a new trial, we reverse. * * *

Bernacet had ample opportunity during the trial to offer evidence to the jury that there were four lanes rather than three. Therefore, Bernacet cannot show that he was prejudiced by the juror’s comments.

Inasmuch as Bernacet failed to carry his burden of proof to the trial court that the juror’s statement amounted to gross misconduct and prejudice, we conclude the trial court erred in granting the motion to correct errors and in granting a new trial. Thus, we reverse and remand with instructions to reinstate the jury’s verdict.
Reversed and remanded.
BROOK, C.J., and SHARPNACK, J., concur.

Posted by Marcia Oddi at 03:24 PM

Indiana Decisions - Duty of care to business invitee

Sheryl L. Thayer v. James Whitcomb Riley Festival Association, et al. (11/25/03 IndCtApp)
Riley, Judge

The issue: whether the trial court erred in granting summary judgment in favor of the Riley Festival based on its finding that the Riley Festival did not owe Thayer a duty of care.

The facts:

Each year, the City of Greenfield allows the Riley Festival to use certain streets, sidewalks, and public buildings in the downtown area to conduct its festival activities. The Riley Festival leases booth space to craft vendors on East Main Street, West Main Street, North State Street and South State Street, all of which are public, city streets. On October 7, 2000, Thayer and a friend operated a crafts booth on West Main Street. That day, at approximately 3:15 in the afternoon, Thayer walked towards the Memorial Building, where she intended to use the public restroom. However, before she reached the Memorial Building, Thayer tripped over part of the sidewalk and fell. As a result of her fall, Thayer suffered some severe injuries, including a fracture dislocation of the right elbow and a commuted right radial head fracture. Thayer underwent multiple surgeries.
As stated by the Court:
Thayer’s action sounds in negligence. To recover on a theory of negligence, Thayer must establish: 1) a duty on the part of the Riley Festival to conform its conduct to a standard of care arising from its relationship with Thayer, 2) a breach of the duty owed by the Riley Festival to Thayer, and 3) an injury to Thayer proximately caused by the Riley Festival’s breach of duty. Usually, in determining whether the Riley Festival owed a duty to Thayer, the following three factors would be considered: 1) the relationship between the parties, 2) the reasonable foreseeability of harm to the person injured, and 3) public policy concerns. Accordingly, Thayer asserts that the trial court erred in granting summary judgment in the Riley Festival’s favor. Specifically, she asserts that the Riley Festival owed her a duty of reasonable care, because: 1) she was an invitee of the festival, 2) at the time of her injury, the Riley Festival exercised possession and control of the property in question, and 3) the Riley Festival knew or should have known that the sidewalk was hazardous.

However, in the instant case, the parties do not dispute the relationship between the Riley Festival and Thayer, rather the dispute centers on whether the Riley Festival possessed and controlled the sidewalk outside the Memorial Building at the time of Thayer’s injury. * * *

We find that the evidence set forth above, when considered together, fully supports the trial court’s finding that the Riley Festival did not have control over the sidewalk where Thayer was injured on October 7, 2000. Consequently, the Riley Festival successfully negated an element of Thayer’s claim, specifically, that, at the time of her injury, the Riley Festival exercised possession and control of the property in question. As a result, we find that the trial court’s grant of summary judgment in favor of the Riley Festival and against Thayer was appropriate.

CONCLUSION. Based on the foregoing, we find that the trial court did not err in granting summary judgment in favor of the Riley Festival and against Thayer. Affirmed.
FRIEDLANDER, J., concurs.
SULLIVAN, J., concurs with opinion.

Posted by Marcia Oddi at 03:16 PM

Indiana Decisions - Supreme Court grants transfer in AOPA standing case

The Indiana Supreme Court has granted transfer in the case of Rosemary Adams Huffman v. Indiana Department of Environmental Management (IDEM) and Eli Lilly and Company, thereby vacating the 5/19/03 Indiana Court of Appeals decision on the standard one must meet to petition for administrative review. As discussed here in the ILB on 5/20/03:

Shortly after IDEM issued Lilly a renewal of its NPDES permit for its Greenfield facility, plaintiff Huffman filed a petition seeking administrative review by the Office of Environmental Adjudication (OEA) of IDEM's action, citing grounds including that she owned propery contiguous to the facility. OEA dismissed on the basis that "the judicial doctrine of standing, which requires a showing of direct injury, applied to administrative proceedings and that [plaintiff] failed to allege facts sufficient to establish any direct injury." On appeal, the trial court affirmed and this appeal ensured. The Court of Appeals reversed and remanded.
The appellate court's conclusion:
[I]n order to qualify for administrative review as an “aggrieved or adversely affected” person [under IC 4-21.5-3-7(a)(1)(B) ], one need not show that he or she has sustained or was in immediate danger of sustaining some direct injury. Rather, a person need show the imposition of a burden or obligation, a substantial grievance, or the denial of some personal, pecuniary, or property right.
Transfer was granted 11/19/03, the Case Number is 49 S 02 - 0311 - CV - 00578.

Posted by Marcia Oddi at 12:41 PM

November 24, 2003

NOT law - Laugh out loud

I couldn't resist this laugh-out-loud entry from today's Howard Kurtz' Media Notes colunm in the Washington Post:

They Don't Even Look Alike

"Because of an editing error, a story on the front page yesterday misattributed a quote from the speaker on an audiotape purportedly of Saddam Hussein as coming from Senate Minority Leader Tom Daschle of South Dakota. It was the speaker on the tape, not Daschle, who said, 'The evil ones now find themselves in crisis, and this is God's will for them.' " -- Cleveland Plain Dealer.

Posted by Marcia Oddi at 08:03 PM

Indiana Decisions - 7th Circuit Vacates District Court Opinion and Remands Challenge to ProLiance under Sherman Act

U.S. Gypsum v. Indiana Gas and ProLiance Energy (11/24/03 7th Cir.)

Some quotes of interest from this decision:

When Indiana Gas and Citizens Gas formed ProLiance, USG and several other customers asked the Indiana Utility Regulatory Commission to block the plan. They offered two lines of argument: first, that ProLiance would itself be a utility that could not come into existence without the Commission’s permission; second, that Indiana Gas and Citizens Gas (which are utilities subject to the Commission’s jurisdiction) did not satisfy the “public interest” standard when forming ProLiance. The Commission rejected the first on grounds that do not matter to this antitrust litigation. It rejected the second after finding that ProLiance serves the public interest by enabling Indiana Gas and Citizens Gas to make better use of their joint reserve capacity. Petition by Ratepayers of Indiana Gas Co., No. 40437 (Sept. 12, 1997), affirmed under the name United States Gypsum, Inc. v. Indiana Gas Co., 735 N.E.2d 790 (Ind. 2000).

One month after the state Supreme Court’s decision, USG filed this antitrust action, only to be met by the argument that the Commission’s decision knocks out essential elements of the federal claim. The district court wrote that USG loses because “the issue sought to be precluded—the improper creation and operation of ProLiance—is the same as that involved in [the] prior action that was before the” Commission. But “the improper creation and operation of ProLiance” is not an “issue”; that is far too lofty a level of generality. Putting the matter this way suggests that the district court has equated issue preclusion with claim preclusion. Indiana did not require USG to present its federal antitrust claims to the Commission, so the rules of merger and bar do not block this litigation. Unless the agency decided some concrete issue that also bears on the antitrust claim, USG does not encounter a problem with preclusion.

Re defendants' contention that the state agency found that ProLiance lacks market power, the Court said:
[The agency] did not find that ProLiance has none. What it did say is that (a) the pipelines’ transportation capacity to Indiana is unaffected by ProLiance, so that no matter how much of the capacity has been committed to ProLiance by contract, total deliverable supplies cannot fall; and (b) ProLiance had to date acted to make better use of the existing capacity by pooling amounts held in reserve.

“To date” is a vital qualifier. The Commission issued its opinion in September 1997. More than six years have passed since then. What is ProLiance doing today? It does not take a leap of fancy to envisage a joint venture behaving itself long enough to win regulatory approbation, and only then applying the squeeze in the market. The agency found that in 1997 ProLiance was beneficial to consumers and that a “thriving robust . . . secondary market” (opinion at 40) protected third parties such as USG. It wrote: “[m]ost important to our decision is witness Feingold’s uncontradicted evidence that, post-ProLiance, the market place continues to function with no ill effects.” Id. at 41. “[T]he affected markets are as robust after the formation of ProLiance as they were prior to its formation.” Id. at 55. That was 1997. What of 2003? The agency recognized that its record had been compiled quickly and reflected only the initial months of ProLiance’s operations. “There simply is little experience with the actual operation of the alliance. . . . [E]xperience under the current agreements may indicate that their actual operation does not comport with the public interest even though we find that they do so now.” Id. at 57. Reviewing this decision, the Supreme Court of Indiana made a similar point, observing that, if circumstances change, the agency may revisit the subject. 735 N.E.2d at 804. These reservations foreclose any argument that Indiana would deem the agency’s decision preclusive with respect to the economic effects of ProLiance in the period after September 1997. If the findings made in 1997 would not block Indiana itself from revisiting the subject in 2003—and they don’t—then under §1738 they do not block adjudication in federal court either. It may be that a fresh look will lead to the same conclusions reached six years ago, but nothing in the agency’s decision prevents a federal court from taking that fresh look in antitrust litigation.

I am unable to find onlline the District Court opinion of Judge Young. But I was able to locate the briefs in this case, as the 7th Circuit regularly provides access to briefs. Here are the links to the Appellant Brief and Appendix, the Appellee Brief, and the Appellant Reply Brief.

Posted by Marcia Oddi at 06:44 PM

Indiana Decisions - re setting aside a default judgment for excusable neglect

Pat & Kim Coslett, et al. v. Weddle Brothers Construction Company, et al. (11/20/03 IndSCt)
Dickson, Justice

This appeal challenged the trial court's ruling setting aside default judgments for excusable neglect. The Court of Appeals reversed in a memordandum decision. The Supreme Court granted transfer, thereby vacating the Court of Appeals deicison, and affirmed the decision of the trial court to set aside the default judgments.

When plaintiff-appellants initiated this action against Weddle Brothers, the defendants sent a copy to their insurance agent but did not timely file any answers or other responsive pleadings with the trial court.

Default judgments were entered against Weddle Brothers on July 13, 2001 as to the plaintiffs' complaint, and on October 11, 2001 as to Vanderburgh County's cross-claim. On November 30, 2001, a claims manager for Zurich North American Insurance wrote to Weddle Brothers, advising it that Coslett's Furniture's claims were not covered under the Weddle Brothers policy. When Weddle Brothers received that letter in mid-December, it immediately sought and retained counsel, and on February 6, 2002, moved to set aside the default judgments on the grounds of improper service and excusable neglect. Following extensive further briefing and argument, the trial court set aside the default judgments.
After stating that "Once entered, a default judgment may be set aside because of mistake, surprise, or excusable neglect," and discussing the case law, the Court here concludes:
To resolve this appeal, the overriding issue is whether the circumstances of this case require us to conclude that the trial court abused its discretion in setting aside its prior default judgments. In accord with our disfavor of default judgments, our preference for disposition of cases on their merits, and our deference to trial court decisions in ruling upon motions to set aside default judgments, the controlling question is not whether there has been a "breakdown in communication" but whether there is "even slight evidence of excusable neglect."

Here the trial court noted both the important role of default judgments in the efficient administration of justice and the judicial preference for deciding disputes on their merits. It stated: "One can easily argue that Weddle Brothers did respond to this lawsuit in a reasonable manner. It argues that it handled the complaints the way it always does, by notifying its insurance company." The trial court observed that the case "concerns substantial amounts of money and weighty policy determinations," and considered whether "a client should have to look over its representative's shoulder to make sure it is being defended." The trial court concluded, "considering all the facts and circumstances involved, the Court finds Weddle Brothers has shown excusable neglect and that it has a meritorious defense to both the plaintiffs' and the County's claims against it." We conclude that the ruling of the trial court is supported by evidence of excusable neglect, is entitled to deference, and was not an abuse of discretion. [citations omitted]

Posted by Marcia Oddi at 12:16 PM

Environment - Property Reuse and Brownfields

Stories today on property reuse and brownfields properties. This story from the Muncie StarPress reports on the Indiana Land Use Consortium's sixth annual conference in Indianapolis last week. (See also this Indiana Land Resources Council site.) Awards were granted to:

the city of West Lafayette for Wabash Landing, a town-center re-development project, and the city of Richmond for the Starr-Gennett Piano Factory re-development.

The Wabash Landing project turned an abandoned eyesore including a former Sears department store into luxury apartments, a 9-screen movie theater, a Borders Bookstore, a Hilton Garden Inn, a Scotty's Brewhouse, public space, parks, a parking garage and other uses along the Wabash River. The project has generated $14 million in city, state and federal funding along with $57 million in private investment.

Richmond is planning to re-develop the abandoned, contaminated piano factory into a museum, amphitheater, and park where the Gorge and Cardinal Greenway recreational trails will connect. * * *

Officials from Elkhart and Tippecanoe counties discussed farmland preservation ordinances enacted by those counties in 1999 and 2000, respectively.

Joe Tutterow, director of the Indiana Land Resources Council, said Putnam, Shelby and Bartholomew counties also were taking steps to preserve farmland. "This is very new, very early," Tutterow said.

Former Maryland Governor Parris Glendening talked about his state's smart growth programs, which are designed to:
- Revitalize cities, towns, older suburbs and rural communities by targeting state funding for infrastructure, economic development and other services to designated growth areas.

- Preserve the most valuable farmland and ecologically important areas.

- Save taxpayers the enormous cost of building the infrastructure.

Also see this earlier ILB entry on smart growth programs.

The Louisville Courier Journal has this interesting editorial today headlined "Rules for 'brownfields' development are finally near." Some quotes:

New rules have been proposed for cleaning up Kentucky's "brownfields" and redeveloping them. (Drum roll. Ruffles and flourishes.) This is cause for real celebration, as the long struggle to develop sound public policy ends and the benefits begin to emerge.

All over Kentucky, developers have their eyes on all manner of abandoned business properties, which can be reused in imaginative ways — after they are cleaned up.

None of the antagonists in the low-profile, high-intensity war over brownfields is entirely happy with some aspects of the emerging regulatory regime. Allowable lead levels remain in dispute, despite signals from the courts that tough standards are required.

But the tortuous process of turning Kentucky's 2001 brownfields law into a working reality is nearly finished. Louisville has a special interest in the outcome, with some very promising sites, such as the Shippingport warehouse district, just waiting for the right developers and the right regulatory signals.

The opportunities, though, are not exclusively urban. One doleful result of tobacco's collapse has been the closing of more than 100 auction warehouses. These could re-emerge as everything from retail centers to housing complexes, once they are free of dangerous residue.

Nor will the new remediation standards and regulatory processes apply only to what we usually think of as brownfields. They'll also apply to the much more troubling polluted sites that are borderline qualifiers for Superfund status. There, the potential public benefit in well-thought-out regulation is obvious.

A worth-reading LCJ story from 11/20/03 may be found here. Some interesting quotes:
The state had 154 tobacco auction warehouses in 1986 — and just 38 now. Many sit vacant, said Donna Graves, the association's executive director. Jimmy Chappell, who owns a warehouse in Shelbyville, is among those who could use the new brownfields regulations. His property, formerly the Big Shelby Tobacco Warehouse, is about the size of two football fields and has been unused since 1999. The corrugated metal and wood structure, built in the late 1920s, sits near downtown Shelbyville. Its wooden steps are worn from the footsteps of generations of farming families, who came each winter to sell their crop at auction.

"If you came here five years ago, you would see 20 to 25 people working the floor," Chappell said last week, standing inside the mammoth structure as rain pelted the roof and leaked through the ceiling, dripping on the pine floor. "I've seen this thing completely full with tobacco." He isn't sure what to do with the property, although he's had a few offers to buy it. He also thought briefly about renovating it into housing for low-income people. He's not certain what, if any, environmental problems the warehouse might have. There might be lead paint in the former office, he said. "It's a shame about these old buildings," he said, leaning on a wooden beam as daylight shone through a skylight. "They were perfect for what they were used for."

The story also talks about Indiana's successful voluntary cleanup program, which has been in effect since 1993. Access here Indiana's voluntary remediation and brownfields program websites.

Posted by Marcia Oddi at 10:33 AM

November 23, 2003

State Supreme Court Series: Hawaii

For some time I've been thinking about putting together a comparison of the states' supreme courts, detailing matters such as number of justices, are the justices elected or appointed, what is the length of the term, what is the jurisdiction, etc.

Today I had a better idea - an occasional series on the state supreme courts, beginning with Hawaii. Why Hawaii? Because of a post today on How Appealing, linking to the first of a four-part Honolulu Advertiser report on the Hawaii Supreme Court. Pairing the dry facts about a state's court with reporting about the court itself, or its opinions, should make the series more interesting.

Today's Hawaii stories: "Supreme Court struggles as cases, criticism pile up", available here, discusses challenges facing the Hawai'i Supreme Court today. Among the findings: a backlog of over "375 cases, including more than 20 that have been awaiting a ruling for more than four years and cover a wide range of issues, from labor law to criminal procedures." Also:

Roughly two-thirds or more of the high court's decisions are issued via so-called memorandum opinions and summary disposition orders. These rulings are not published in law books and do not create precedent that provides guidance for lawyers and lower court judges on how to handle similar cases. The number of published decisions has grown in the past few years, although lawyers say they need more guidance from the court.
In addition the report cites "Infighting among some of the justices [that] raises questions about their ability to work together and has gone so far as to boil over into some of the court's decisions."

Today's story also has a sidebar listing some of the major rulings by the Hawai'i Supreme Court under Chief Justice Ronald Moon. Other members of the Supreme Court are Simeon R. Acoba Jr., Steven H. Levinson, Paula A. Nakayama and James E. Duffy Jr. Reports about each of the justices appear in today's Honolulu Advertiser.

Like Indiana and other state supreme courts, the Hawaii Supreme Court is also responsible for administering the judicial branch of government. This interesting story, titled "Justices must juggle reviews, administrative tasks," describes how the Hawai court deals with these responsibilities and how the caseload is handled. Some quotes:

Justices don't just spend all of their days pondering opinions. They also tend to other matters, including reviewing and making decisions on various issues that reach their desks, including procedural motions, attorney disciplinary cases, rule changes and other paperwork. That's estimated to take anywhere from a third to half of a justice's time.

A member of Chief Justice Ronald Moon's staff said Moon, who is the administrative leader of the state's courts, spends 65 percent to 75 percent of his day on administrative matters and the rest of the time on appellate case work. He typically works 12-hour days, taking work home and coming to the office almost every Saturday and sometimes on Sunday.

Finally, today's stories include this chart about tracking appeals in Hawaii's court system.

Upcoming stories (I'll add links as they become available):

Monday: Lives are on hold as the court tries to tackle its backlog of cases. (Access Monday's main story and links to Monday's related stories and charts here.)

Tuesday: Lawyers want more guidance from the court. Plus, a look at tension on the bench. (Access Tuesday's main story and links to Tuesday's related story and chart here.)

Wednesday: What's next for the court? (Access Wednesday's two stories here and here.)

Entire Series. Access the entire series here.

Now for the facts this series will cover about each state court:
Hawaii Supreme Court websites: Hawaii State Judiciary; Hawaii Supreme Court

Number of justices: Five. Official biographies are available here.

Selection and terms: The justices are appointed by the Governor for an initial 10 year term. The Governor selects appointees from a list of not less than four and not more than six names submitted by the Judicial Selection Commission. All appointments must be confirmed by the state Senate. To be considered for appointment, a person must be a resident and a citizen of the State and of the United States and licensed to practice law by the Supreme Court of Hawaii for not less than 10 years preceding his or her nomination. Justices may be retained by the Judicial Selection Commission, but must retire at age 70. (from the Court's site)

Jurisdiction: The Supreme Court has original jurisdiction to: Answer questions of law reserved to it by the trial courts or certified to it by a federal court. Entertain civil cases submitted on agreed statements of facts. Decide questions arising in proceedings for extraordinary relief in the nature of writs of mandamus, prohibition, and habeas corpus. (from the Court's site)

Article VI of the Constitution of the State of Hawaii, The Judiciary, is available here. It details the appointment of justices and judges; the qualifications; tenure, compensation, retirement; judicial selection commission; retirement, removal, discipline; administration; and rules.

Posted by Marcia Oddi at 07:06 PM

November 22, 2003

Law - Chief Justice of Indiana on C-Span's "America & the Courts"

C-Span's weekly series, America & the Courts, this week featured: "Chief Justice of the United States William Rehnquist [speaking] with state chief justices from supreme courts around the nation at a conference in Williamsburg, Virginia. They discuss differences in state and federal constitutional law. This program was recorded on Nov. 14, 2003."

The first half hour included an address by Chief Justice Rehnquist in which he contrasted the frequency of Governors becoming President with that of state supreme court justices becoming members of the Supreme Court of the United States. The panel, including Chief Justice of Indiana Randall T. Shepard, occupied the second half hour of the program (check here for an earlier ILB notice of this conference). The panel discussion was titled “Dual Enforcement of Constitutional Norms.”

The entire one hour program will be viewable at this link on C-Span, probably beginning tomorow, 11/23/03.

Posted by Marcia Oddi at 08:18 PM

Administrative Law - Policymaking by the Administrative Judiciary

"Policymaking by the Administrative Judiciary," a 72-page paper by Charles H. Koch, Jr., Dudley W. Woodbridge Professor of Law, William and Mary School of Law, is highly recommended. You can access this PDF document here, via the Social Science Research Network Electronic Library (SSRN). Below is the abstract (thanks to Legal Theory Blog):

Administrative agency authority to evolve policy in the course of adjudication is well established. While the scope of that authority and the judicial role with respect to such questions commands considerable scholarly attention, the process for exercising that authority inside administrative judiciaries is largely neglected. The policymaking role of the administrative judges in particular has been insufficiently conceptualized and hence their role in that regard poorly understood, even by themselves. Administrative judges must apply policy in individual context. As the record builders and initial decisionmakers, the administrative judges launch the policy related issues. Even clear policy leaves them some discretion and agency policy, being ambiguous or rendered ambiguous by the individual case, may afford judges considerable range. Necessarily then policymaking by administrative judges creates a tension within the agency hierarchy. The agencies endeavor to maintain dominance over policy and constantly struggle to keep the administrative judges within the strict confines of its policy pronouncements. For this reason, it is the policy aspects of the hearing level decisions, more so than individual dispute resolution, that defines the relationship between the agency and the judges.

This article seeks to understand the policymaking aspect of administrative adjudications. It exposes the myth that adjudicative judges are not part of the policymaking process. It examines how they do contribute to that effort. And it suggests ways to incorporate them most effectively in the adjudicative policymaking process and thereby the overall administrative policymaking process. Some first level answers can be derived from the various studies and commentary on judicial law making. Yet, the hierarchical allocation of policymaking in administrative adjudications is fundamentally distinct. Thus, the article looks closely at the adjudicative policy development in terms of precedent (or consistency), the internal force of varies categories of rule, the nature of policy oriented factual development and finding, the adjudicative staff's role, and agency supervision of policy judgments. From this analysis of the classic adjudicative hierarchy, the article considers the special circumstances of adjudicative policymaking in "coordinate" systems: centralized panels and split function. It concludes that conscious attention to the judge's role and full utilization of them for policymaking will significantly improve many administrative systems.

Posted by Marcia Oddi at 11:28 AM

November 21, 2003

Indiana Decisions - Applicability of Attractive Nuisance Doctrine

Jayla Morningstar, et al. v. Brian & Elizabeth Maynard (11/21/03 IndCtApp)
Mathias, Judge

Here the Court ruled: "The doctrine of attractive nuisance is inapplicable to the case at bar."

The first step in resolving premise liability cases is to determine the plaintiff’s visitor status, which defines the duty owed by the landowner. A person enters the land of another either as an invitee, licensee, or trespasser.A landowner owes a trespasser the duty to refrain from willfully or wantonly injuring him or her. However, with regard to children, Indiana courts long have recognized that landowners may sometimes owe a higher duty of care, even when the children are trespassers.

The attractive nuisance doctrine recognizes that a child may be incapable of understanding and appreciating all of the possible dangers that may be encountered in trespassing. The attractive nuisance doctrine applies when the problem complained of is (1) maintained or permitted upon the property by the owner; (2) particularly dangerous to children, and of such a nature that they will not comprehend the danger; and (3) particularly attractive to children. Further, (4) the owner must have actual or constructive knowledge of the condition, and that children do or are likely to trespass, and to be injured; and (5) the injury must be a foreseeable result of the wrong. However, the doctrine is limited to cases where the danger is latent.

Thus, if the doctrine of attractive nuisance applies to this case, the Maynards owed Corbin a heightened duty of care; if the doctrine does not apply, the Maynards only were required to refrain from willfully or wantonly injuring Corbin.

The policy reasons behind the attractive nuisance doctrine include the consideration that children may not be mature enough to understand the dangers associated with trespassing and the latent dangers associated with the objects in question. [Citations omitted]

Here the child's "supervising adult"
assumed the responsibility of understanding the dangers involved when she gave Corbin permission to use the Maynards’ trampoline and witnessed Corbin and the other children jumping on the trampoline before Corbin’s injury. Thus, as with Kelly [v. Ladywood Apts], the permission of Corbin’s supervising adult—who is deemed capable of and responsible for understanding the dangers of trespassing and latent conditions—precludes the applicability of the doctrine of attractive nuisance.

Posted by Marcia Oddi at 02:35 PM

Indiana Decisions - Court of Appeals reverses trial court re a TRO obtained by DNR

Larry Bowyer v. Indiana Department of Natural Resources (11/21/03 IndCtApp)
Barnes, Judge

Because Bowyer, who is purchasing on contract a campground located on the southern shore of Lake Cicott in Cass County, continued to engage in construction activities in Lake Cicott’s waters (allegedly dumping construction debris into the lake and altering its shoreline without a DNR permit as required by law), the Indiana Department of Natural Resouces (DNR):

filed a “Verified Motion for Automatic Temporary Restraining Order Without Notice.” On March 30, 2001, without prior notice to Bowyer and without conducting a hearing, the trial court entered an “Automatic Temporary Restraining Order Without Notice” ordering Bowyer to cease “any and all excavation/construction activities, of any nature whatsoever, below the shoreline of Lake Cicott, until this cause is fully determined.” The manner in which this TRO was obtained, as well as its duration, is authorized by Indiana Code Section 14-26-2-19(b).

After the TRO was issued, Bowyer ceased construction activities that required entering Lake Cicott’s waters. However, he continued work on the campground itself. August 2001, DNR officials concluded (for the first time) that Lake Cicott’s “shoreline” was located at 702.2 feet above sea level. This conclusion was reached by examining vegetation and soil on the north and east shores of the lake. Thereafter, officials put up temporary markers indicating the “shoreline” on the north and east shores, but not on the south shore where Bowyer’s campground was located. At the time, the actual water level of Lake Cicott was six to seven feet below the 702.2 foot level.

In June 2002, DNR filed a motion to hold Bowyer in contempt for violating the TRO. At a hearing in August 2002, DNR alleged Bowyer had performed work on his campground below the 702.2 foot level that it claimed was Lake Cicott’s “shoreline,” beginning in April 2001 and continuing through at least October 2001. There was no evidence, however, that Bowyer had performed any work below the actual water line of Lake Cicott. Instead, it appears to be undisputed that all of the work in question had taken place on land.

On October 22, 2002, the trial court entered an order finding Bowyer in contempt for violating the TRO. It fined Bowyer $50,000, which it suspended so long as Bowyer pays $250 per month while he reverses the construction he had been carrying out on the campground. After the trial court failed to rule on Bowyer’s motion to correct error and it would have been deemed denied under Indiana Trial Rule 53.3(A), he initiated this appeal.

The Court states that "Bowyer does not make an explicit argument, based on citation to appropriate authorities, that the “Automatic Temporary Restraining Order Without Notice” was void because the manner in which it was obtained violated due process."
Nevertheless, we feel compelled to note our grave concerns with the TRO and the statute under which it was obtained. The TRO was issued without notice and without an opportunity for a hearing, which are two fundamentals of due process. ... Of course, TROs are not per se unconstitutional. Our supreme court enacted Indiana Trial Rule 65(B) for the purpose of providing an orderly and constitutional procedure for obtaining a TRO. * * *

Indiana Code Section 14-26-2-19(b), under which the DNR obtained the TRO in this case, dispenses with many of Trial Rule 65(B)’s safeguards and in its entirety provides:

If a defendant continues to violate this chapter after the service of notice of the action and before trial, the plaintiff is entitled, upon a verified showing of the acts on the part of the defendant, to a temporary restraining order without notice. The temporary restraining order is effective until the cause has been tried and determined.
* * * It is a fundamental rule of law in Indiana that “in the event of a conflict between a procedural statute and a procedural rule adopted by the supreme court, the latter shall take precedence.” * * *

We reiterate that although Bowyer was obligated to comply with the TRO to the extent possible, a statute cannot create an exception to procedures set forth in rules promulgated by our supreme court. If a party wishes to obtain a TRO, it must comply with Indiana Trial Rule 65(B). As for whether Bowyer willfully violated the TRO, its failure to define Lake Cicott’s “shoreline” rendered it ambiguous, and Bowyer cannot be held in contempt for allegedly violating it. We reverse the finding of contempt.

Posted by Marcia Oddi at 02:20 PM

Indiana Law - Governor Kernan cancels contract with company based in India

"State ends deal with Indian firm: Kernan wants Hoosiers to get shot at landing agency contract." So reads the headline to this front-page story today in the Indianapolis Star, aboout the $15.2 million, four-year contract the State of Indiana entered into with Tata America International Corp., a New York-based subsidiary of a company in Bombay, India, to upgrade computers used to process unemployment claims at the Department of Workforce Development:

Top aides to then-Gov. Frank O'Bannon had signed off on the politically sensitive, four-year contract before his Sept. 13 death. State officials got a number of letters and phone calls complaining about the contract after The Indianapolis Star wrote about it on Sept. 29. * * * Tata America International Corp. won the Department of Workforce Development contract over two U.S.-based companies: Accenture LLP and Deloitte Consulting LP. Tata's proposal came in $8.1 million lower than the next-most-competitive bid. State officials said, at the time, that it was best suited to their needs.
Here is the part of the story that really caught my eye:
"This is in no way saying there's anything wrong with the company, that they have done anything wrong. We're taking another look at the state's procurement practices as a whole."

Kernan's decision, made with strong encouragement from several House Democrats, reverses an earlier decision by Alan Degner, the state's workforce development commissioner. Degner had called the contract "a binding agreement" with Tata America, the New York subsidiary of a firm in Bombay, India.

Thursday, Degner said a "convenience clause" in the contract allowed the state to cancel it without financial penalty. * * * Degner said company officials were disappointed to get his call Thursday but understood that state officials had a right to end the deal. He said TCS will not be excluded from the work when new proposals are sought in the months ahead.

A spokeswoman for TCS said: "This is a decision for the state of Indiana to make, and TCS will comply."

It might be interesting to see the "convenience clause." Does it give the State an unlimited right to terminate? If so, it may be that there never was a binding agreement; rather that this was an "illusory" contract -- one that does not obligate the parties equally, that does not bind the parties to their promises. A second question might be -- is this "convenience" clause a part of every state contract?

Posted by Marcia Oddi at 08:07 AM

November 20, 2003

Indiana Decisions - Doctrine of reformation applied in dispute over easement

S & S Enterprises v. Marathon Ashland Petroleum (11/20/03 IndCtApp)
Najam, Judge

This case invloved a boundary dispute between S&S Enterprises and Marathon. S&S claimed that:

Marathon was trespassing on its property and sought injunctive relief accordingly. S & S further alleged that the parties disagreed on the location of the Easement granted to Marathon in 1972 by S & S’s predecessor in title, Ramada Indiana, Inc. Specifically, while the Easement itself grants Marathon an easement along the west property line, a Rider to the Easement grants Marathon an easement along the east property line. Marathon filed its Answer and requested that the trial court determine the actual location of the easement.

In March 2002, S & S moved for summary judgment, arguing that the Rider governs the easement’s location. Marathon then filed its cross-motion for summary judgment, arguing that the Rider was the product of mutual mistake and should be reformed to reflect the parties’ intentions, which was to grant an easement along the west side of the property line. On November 26, 2002, the trial court issued its Order and found that “mutual mistake existed in the execution of the Easement and Rider,” denied S & S’s summary judgment motion, and granted Marathon’s motion. S & S now appeals and presents a single issue for review: whether the trial court erred when it granted Marathon’s summary judgment motion and reformed the Rider based on mutual mistake. We affirm. * * *

Because of the alleged mutual mistake, Marathon has invoked the doctrine of reformation, an extreme equitable remedy which allows the trial court to reform a written instrument only in cases of mutual mistake or fraud. See Estate of Reasor v. Putnam County, 635 N.E.2d 153, 158 (Ind. 1994).

However, the parties agree that a trial court should not reform a recorded instrument where a bona fide purchaser has acquired the property without notice of the alleged defect, or, in this case, the alleged mutual mistake.

The Court here concludes that Marathon met its burden of proof in establishing that S & S is not a bona fide purchaser insofar as the easement is concerned.
The primary purpose of reformation is to effectuate the common intentions of all parties to an instrument which were incorrectly reduced to writing. It follows that a grant of reformation is necessarily predicated upon a prior understanding between all parties on essential terms. Otherwise, there would be no standard to which an instrument could be reformed.
After reviewing the evidence, the Court concluded:
Based on the undisputed designated evidence, we conclude that Marathon met its burden of proving by clear and convincing evidence that Ramada intended to grant Marathon an easement along the west side of the Marathon Parcel property line. We further conclude that a mistake was made when Ramada executed the Rider to the Easement, that the mistake was mutual on the part of both Ramada and Marathon Oil Company, and that the Rider does not reflect the true intentions of the parties. See Estate of Reasor, 635 N.E.2d at 158. We, therefore, hold that the trial court properly entered summary judgment for Marathon. Affirmed.

Posted by Marcia Oddi at 04:47 PM

Indiana Decisions - An important procedural aspect of D&M Healthcare

In the Indiana Law Blog's October 3, 2003 entry on D&M Healthcare, the "vetoed bills" case (check here for all ILB entries on this case), I discussed the oral argument before the Indiana Supreme Court the day before, and noted: "Only four of the five justices were present for the argument; Justice Sullivan was not present."

Later in the post I report the Court's: (1) decision to grant transfer, vacating the opinion of the court of appeals, and (2) its announcement that all justices concur in the transfer except Justice Sullivan, "who is not participating in the decision whether to grant transfer." Noting that an explanation for Justice Sullivan's recusal may be that Cheryl Sullivan, who is married to the Justice, had that day been appointed by Governor Kernan to head the FSSA, I explain that the FSSA is the state agency that, along with its director John Hamilton (who Sullivan would replace) is the defendant in D&M Healthcare.

My thoughts at the time were that having only four justices available to decide the case could lead to a tie. What would that mean procedurally, as the court had already vacated the court of appeals opinion? If the judges were split 2-2, would that mean the trial court opinion would prevail? That was my conclusion at the time.

But that conclusion was wrong. Here is what Appellate Rule 58, Effect of Supreme Court Ruling on Petition to Transfer, provides:

A. Effect of Grant of Transfer.The opinion or not-for-publication memorandum decision of the Court of Appeals shall be final except where a Petition to Transfer has been granted by the Supreme Court. If transfer is granted, the opinion or not-for-publication memorandum decision of the Court of Appeals shall be automatically vacated except for:
(1) those opinions or portions thereof which are expressly adopted and incorporated by reference by the Supreme Court; or
(2) those opinions or portions thereof that are summarily affirmed by the Supreme Court, which shall be considered as Court of Appeals’ authority.
Upon the grant of transfer, the Supreme Court shall have jurisdiction over the appeal and all issues as if originally filed in the Supreme Court.

B. Effect of the Denial of Transfer. The denial of a Petition to Transfer shall have no legal effect other than to terminate the litigation between the parties in the Supreme Court. No Petition for Rehearing may be filed from an order denying a Petition to Transfer.

C. Supreme Court Evenly Divided. When the Supreme Court is evenly divided upon the question of accepting or denying transfer, transfer shall be deemed denied. When the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated.

It is the very last sentence of the section that is relevant here: "When the Supreme Court is evenly divided after transfer has been granted, the decision of the Court of Appeals shall be reinstated."

In D&M Healthcare, Inc. et al. v. Frank O'Bannon, et al. (IndCtApp 8/13/03) the Court of Appeals reversed the trial court and ruled that failure of the Governor to follow the precise requirements of Article 4, Sec. 14(a)(2) of the Indiana Constitution as to the return to the General Assembly of a bill he vetoed after adjournment meant that the bill would become law notwithstanding his veto. The Supreme Court granted transfer, in an order issued 10/2/03, which states (as reported in the Court's docket):

Dated 10/3/03, the following statement appears on the docket: "SULLIVAN, JUSTICE. I AM NOT PARTICIPATING IN THIS CASE." Thus it is clear that Justice Sullivan has recused himself both from the decision on transfer, and on the consideration of the case itself, leaving open the possibility that Appellate Rule 58(D) may come into play.

[I'll have more on these procedural issues today or tomorrow and will include that information here, as an addition to this post]

Posted by Marcia Oddi at 02:09 PM

November 19, 2003

Indiana Decisions - 7th Circuit rules again on two Indiana religous discrimination cases

On June 28 the Indiana Law Blog reported on two decisions involving, as stated at the time:

questions of discrimination against individuals because of their religious beliefs. The first, Benjamin Endris v. Indiana State Police, concerns a former state trooper who was was dismissed after refusing to work on a riverboat casino because of his religious beliefs.

The second involves a woman who, according to the Star story: "had to remove her head wrap, called a geles. If she failed to do so, she was told, she would be written up for insubordination for violating the dress code." The case is Holmes, Patricia v. Marion County Office of Public Welfare (02-1377).

According to the Star's coverage at the time: "Ex-welfare worker's lawsuit gets OK: 2 who said they were victims of religious discrimination by state get different results":
Benjamin P. Endres Jr., who refused to work at the Blue Chip Casino in Michigan City in 2000, lost his lawsuit. Patricia Holmes, however, was allowed to proceed with her suit.
But that was not the 7th Circuit's last word on the matter. Today the 7th Circuit issued separate rulings on each dispute, each with an explanatory preface. Here is the one for the Endris ruling, the Holmes' is similar, insofar as the first paragraph is concerned:
This appeal originally was consolidated with No. 02-1377, Holmes v. Marion County Office of Family and Children, and the two appeals were decided in a single opinion, which is reported at 334 F.3d 618 (7th Cir. 2003). In response to the petition for rehearing and rehearing en banc, the court has decided to de-consolidate the appeals and to issue a separate opinion in each. The panel’s opinion resolving this appeal follows.

All members of the panel have voted to deny the petition for rehearing. A judge in active service called for a vote on the petition for rehearing en banc. A majority did not favor rehearing, so the petition is denied. Judges Ripple, Rovner, and Williams voted to grant rehearing en banc. Judge Ripple has written a dissenting opinion (joined by Judges Rovner and Williams) that immediately follows the panel’s new opinion.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

Judge Easterbrook authored this 11/19/03 opinion, Endres v. Indiana State Police. Endres sued under Title VII of the Civil Rights Act of 1964, contending that Indiana discriminated against him on account of religion. Endres relied on a definition in §701(j) of that Act which provides that religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
Endres contends that §701(j) gives law-enforcement personnel a right to choose which laws they will enforce, and whom they will protect from crime. Many officers have religious scruples about particular activities: to give just a few examples, Baptists oppose liquor as well as gambling, Roman Catholics oppose abortion, Jews and Muslims oppose the consumption of pork, and a few faiths (such as the one at issue in Smith) include hallucinogenic drugs in their worship and thus oppose legal prohibitions of those drugs. If Endres is right, all of these faiths, and more, must be accommodated by assigning believers to duties compatible with their principles. Does §701(j) require the State Police to assign Unitarians to guard the abortion clinic, Catholics to prevent thefts from liquor stores, and Baptists to investigate claims that supermarkets mis-weigh bacon and shellfish? Must prostitutes be left exposed to slavery or murder at the hands of pimps because protecting them from crime would encourage them to ply their trade and thus offend almost every religious faith?
As might be guessed from the preceding, the panel ruled no, the "decision of the district court is reversed, and the case is remanded with instructions to enter judgment for the State Police on the merits." Three judges issued a written dissent from the denial of rehearing in banc. A quote:
Not only does the panel’s decision here abandon the
analytical framework of Rodriguez and Ryan, it also ignores the clear language of the statute. It simply blue pencils the reasonable accommodation requirement from the statute as it applies to police and fire personnel. It relies on no language of the statute, no interpretive regulation, no legislative history. It simply constructs a categorical statutory amendment where none exists.
In Holmes v. Marion County Office of Family and Children (11/19/03), §701(j) of the Civil Rights Act is again at issue.
Patricia Holmes, an employee of Indiana’s child-welfare system, took two days of paid leave rather than comply with a directive to remove a headwrap required by her faith. She filed suit under Title VII of the Civil Rights Act of 1964, contending that Indiana discriminated against her on account of her religion. She relies on a definition in §701(j) of that Act, 42 U.S.C. §2000e(j), which provides that religion “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”
Initially the court finds that, in spite of a prior ruling, "county offices of family and children in Indiana now must be classified as part of the state for purposes of the eleventh amendment. This does not require the overruling of Baxter, which dealt with superseded legislation." Then to the second issue:
Thus we arrive at the question whether a claim against a state, based on the accommodation clause of §701(j), may be litigated in federal court. The parties’ dispute concerns venue, not substance: it is the validity of §701(a), to the extent it authorizes private parties to sue a state in federal court, and not the validity of §701(j), that is at issue—for legislation based on the commerce clause may be applied to states (as employers) via suits brought by the federal government in federal court, or via private suits in state courts that are already open to litigation against the state.
Ultimately the court ruled no and vacated the decision of the district court, remanding the case "with instructions to dismiss that portion of the complaint that alleges failure to accommodate, while retaining that portion of the complaint that alleges disparate treatment."

Posted by Marcia Oddi at 06:49 PM

Indiana Decisions - Supreme Court Suspends Indianapolis Attorney for Six Months

In the Matter of Alexandra J. Caputi (11/17/03 IndSCt)
Per Curiam

As stated by the court, in part:

The Disciplinary Commission charged the respondent, Alexandra J. Caputi, with failure to act with reasonable diligence in handling a client’s case and failing to keep her client adequately informed about the case. Today, we find that her conduct violated the Rules of Professional Conduct for Attorneys at Law and under the circumstances warrants a suspension from the practice of law for six months without automatic reinstatement. * * *

We now find that a client hired the respondent to file a petition seeking to emancipate the client’s daughter. However, seven months after the client hired the respondent the petition still had not been filed. During this period, the respondent did not return the client’s numerous telephone calls seeking information about the status of the case. The client ultimately hired another attorney who found that the client’s ex-wife had no objection to the emancipation and who thereafter completed the matter.

By this conduct, we find the respondent violated Ind. Professional Conduct Rule 1.3, which provides that lawyers must act with reasonable diligence and promptness in representing a client, and Prof.Cond.R. 1.4(a), which requires lawyers to keep clients reasonably informed about the status of a matter. * * *

The hearing officer’s report notes four instances where he concluded that the respondent testified falsely during the hearing of this matter. Specifically, the hearing officer found that the respondent testified falsely when she (1) denied her client provided her with the client’s ex-wife’s address; (2) stated she could not file the emancipation petition because she did not have the client’s daughter’s address; (3) claimed she left messages for the client on his home answering machine and had been unable to reach the client or leave a message on his cell phone; and (4) denied failing to return the client’s telephone inquiries about the case.

Additional aggravation of the respondent’s misconduct lies in the fact that this is not the first time she has been disciplined for neglecting client matters or knowingly making false statements in connection with a disciplinary matter. This Court suspended the respondent for 90 days in 1997 pursuant to a six-count complaint charging her with failing to act with reasonable diligence, failing to keep clients informed, and knowingly making a false statement of material fact in connection with a disciplinary matter. Matter of Caputi, 676 N.E.2d 1058 (Ind. 1997). Our decision in that case stated:

Absent an agreement, the respondent’s misconduct would have incurred a lengthier period of suspension. Any other acts of professional misconduct by this respondent will not be viewed lightly.

Posted by Marcia Oddi at 09:59 AM

November 18, 2003

Indiana Law - Star story on 2003 vetoes

A story today in the Indianapolis Star discusses both the vetoes eligble for override by this (2004) General Assembly, and the past vetoes in dispute as a result of the lower court rulings in D&M Healthcare (access earlier ILB postings on D&M Healthcare here).

Re the vetoes currently eligible, the Star writes:

The legislature can vote to override or sustain these vetoes as early as today, when lawmakers gather to organize for the 2004 General Assembly. It takes a simple majority -- or 51 votes in the House and 26 votes in the Senate -- to override a veto. Leaders in the House and Senate say they'll likely wait until January, the start of the regular session, to address the vetoes.
Re the vetoes that may be impacted by a Supreme Court ruling in D&M Healthcare, the Star reports:
While lawmakers will control the fate of these vetoes, dozens more issued over the past two decades are in limbo. A legal challenge, now before the Indiana Supreme Court, could wipe out governors' vetoes dating back to 1981.

At issue is when the governor "returns" vetoes to the legislature. If the legislature has adjourned when the governor vetoes a bill, the Indiana Constitution states the governor shall return the vetoed bill to the legislature on the next session day.

But O'Bannon, and many governors before him, often returned the vetoes to the clerk of the House and secretary of the Senate early. The Indiana Court of Appeals ruled in August that the practice was unconstitutional.

Tina Noel, spokeswoman for Gov. Joe Kernan, said this year's six vetoes won't be affected by the court's ruling. Jon Laramore, Kernan's counsel, hand-delivered O'Bannon's veto messages to the House and Senate on Oct. 20, when the legislature held a special session to confirm Kernan's choice of Kathy Davis for lieutenant governor. That was the first day legislators were back in session since O'Bannon vetoed the bills.

The Star story also carries a list headed: "During the 2003 regular session, six bills were vetoed by then-Gov. Frank O'Bannon." The Star's list follows. I have added links to the text of the enrolled acts and the governor's veto messages:
Senate Bill 337 -- Establishes the Native American Affairs Commission. Veto message
Senate Bill 440 -- Requires the Air Pollution Control Board to adopt new rules, incorporating federal requirements. Veto message
Senate Bill 533 -- Allows some livestock operations to build facilities without state approval. Veto message
House Bill 1525 -- Forbids a prosecutor to reveal identifying information about victims in some court proceedings and increases the penalty for resisting law enforcement. Veto message
House Bill 1660 -- Increases penalties for battery on endangered adults. Veto message
House Bill 1798 -- Establishes a program for issuance of permits for filling, dredging or excavating certain wetlands; allows a municipality to adopt an ordinance about storm-water facilities. Veto message

Posted by Marcia Oddi at 11:29 AM

Law - Massachusetts Supreme Court rules on same-sex marriage

The Massachusetts Supreme Court delivered its decision today in Goodridge v. Department of Public Health, ruling (4-3) that same-sex couples are entitled to marriage licenses under Massachusetts law. A quote from the first page of the opinion:

The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry. We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals. It forbids the creation of second-class citizens. In reaching our conclusion we have given full deference to the arguments made by the Commonwealth. But it has failed to identify any constitutionally adequate reason for denying civil marriage to same-sex couples.

We are mindful that our decision marks a change in the history of our marriage law. Many people hold deep-seated religious, moral, and ethical convictions that marriage should be limited to the union of one man and one woman, and that homosexual conduct is immoral. Many hold equally strong religious, moral, and ethical convictions that same-sex couples are entitled to be married, and that homosexual persons should be treated no differently than their heterosexual neighbors. Neither view answers the question before us. Our concern is with the Massachusetts Constitution as a charter of governance for every person properly within its reach. "Our obligation is to define the liberty of all, not to mandate our own moral code." Lawrence v. Texas, 123 S. Ct. 2472, 2480 (2003) (Lawrence), quoting Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850 (1992).

Chief Justice Marshall wrote the opinion, and was joined by Justices Ireland and Cowin; Justice Greaney wrote a concurring opinion; Justice Spina dissented, and was joined by Justices Sosman and Cordy, both of whom also wrote separate dissents.

Background on the case may be found on this page, produced by the Boston Globe.

[Updated 11/19/03] Today's papers carry a number of stories on the civil marriage decision. The Washington Post has three stories: here, here, and here (an analysis by Charles Lane).

The NY Times has a number of stories: Here, here (a political analysis), and here (a Linda Greenhouse legal context analysis).

The Boston Globe covers the ruling here, and has political analysis here and here.

This story in today's Indianapolis Star reported:

Indiana is one of several states in which marriage laws are being challenged. The state has more than 10,200 same-sex couples, according to the 2000 census, but it does not allow same-sex unions. Nor does it recognize civil unions, such as those allowed in Vermont, or gay marriages, which are permitted in Canada.

In May, Marion Superior Court Judge S.K. Reid ruled the state is justified in banning same-sex marriages, saying state lawmakers have the power to define and set rules for marriage as they see fit. Reid noted that there is no constitutional guarantee to same-sex marriage.

[Ken Falk of the Indiana Civil Liberties Union] said many of the arguments Massachusetts officials made in support of their ban are similar to those made by Indiana officials and cited in Reid's ruling. "This case, like several other recent decisions, disposes of the arguments that the state is making in our case," said Falk.

In the case referred to, Marrison v. O'Bannon, the Star reported on 5/7/03 that the the Superior Court of Marion County:
dismissed a lawsuit seeking to lift a ban on gay marriages in Indiana. The Indiana Civil Liberties Union said it will appeal Superior Court Judge S.K. Reid's ruling on the lawsuit, filed in August by three same-sex couples. "Same-sex couples in a committed relationship are no different than married couples," said ICLU attorney Ken Falk. "The time has come to recognize that." But Reid ruled that the state is justified in allowing only opposite-sex couples to marry. Such a law, she wrote, "promotes the state's interest in encouraging procreation to occur in a context where both biological parents are present to raise the child."
A check of the Court of Appeals' docket for Case Number: 49 A 02 - 0305 - CV - 00447 shows quite a lot of activity, and it appears that oral arguments may be scheduled.

[Updated 11/20/03] This excellent legal overview appeared in yesterday's Boston Globe. And here is the analysis of David Savage of the LA Times.

Posted by Marcia Oddi at 10:43 AM

Environment - More on revised new source review rules

The NY Times today has this story headlined "14 States File Suit in Attempt to Block New E.P.A. Rules" that begins:

A coalition of 14 states plus the District of Columbia filed papers in federal court today in an effort to stop the Environmental Protection Agency from introducing a new rule that the states say will seriously weaken the provisions of the Clean Air Act and send more pollution into the atmosphere. Twelve states, led by New York, sued the E.P.A. on Oct. 27, arguing that the new regulations would lower air pollution protections and damage public health. Today the same states, joined by California and Illinois, sought a court order blocking the new regulations, which are scheduled to be introduced on Dec. 26, in 12 states that do not administer these rules themselves. The 38 other states will have up to three years to decide whether to adopt the new rules.
Here is the October 27, 2003 filing; and here is today's (11/18/03) motion for stay.

Re the strategy behind the two suits:

"The Oct. 27 action and today's action are like a two-pronged approach to what from our perspective is the same problem," Mark Violette, a spokesman in Albany for [NY AG Elliot] Spitzer, said.

"We went into court on Oct. 27 and we said essentially this is illegal," Mr. Violette said. "We are suing the Bush administration and the E.P.A., and we will show in the course of a lawsuit, a trial, a) why this rule is injurious to the health of Americans and to the environment, and b) will show why the way the Bush administration did this is illegal."

Essentially, the request to the court today will be to block the rules from taking effect as scheduled, "while we are in the middle of a lawsuit about the legality of the rule itself," Mr. Violette said.

The coalition's press releases relating to the action are here (re October filing) and here (re November motion for stay).

Posted by Marcia Oddi at 09:47 AM

Environment - EPA proposes easing low-level radioactive waste disposal requirements

"Radioactive Waste Plan Attacked: EPA Suggests Storing Low-Level Material in Landfills," is the headline to this story today in the Washington Post. Some quotes:

The Environmental Protection Agency is considering an important rule change that for the first time would allow the nuclear industry to store low-level radioactive material in ordinary landfills and hazardous waste sites. The agency today will formally invite public comment on its plan to "promote a more consistent framework" for the disposal of the waste, including such low-yielding radioactive materials as cesium, strontium, cobalt and plutonium. Currently, those materials must be stored in nuclear waste sites closely regulated by the Nuclear Regulatory Commission, the EPA and state governments. EPA officials stressed that the waste under review contains only small amounts of radioactive material and that any loosening of rules would not affect the carefully monitored handling of lethal spent nuclear fuel, high-level radioactive waste, or tailings from the processing of uranium or thorium ore.
The LA Times carries this AP story, with the lead: "The Bush administration is considering allowing low-level radioactive waste to be dumped at toxic waste sites and other facilities that currently aren't permitted to receive it."

The Advanced Notice of Proposed Rulemaking, titled "Approaches to an Integrated Framework for Management and Disposal of Low-Activity Radioactive Waste: Request for Comment," is published in today's (11/18/03) Federal Register; access it here. EPA's background page on the ANPR is available here. The U.S. Nuclear Regulatory Commission page on raadioactive waste, including low-level radioactive active waste, is avaiable here.

Posted by Marcia Oddi at 09:31 AM

November 17, 2003

Indiana Law - Access to Court Records

This article from earlier this month in the Lawrence, Kansas' Laurence Journal World is titled "With technology comes new set of questions for state courts." The lead:

Kansas City, Mo. — Moving a state's courts into the online, high-tech world is fairly straightforward. All it takes is money, time, and the right people and equipment. But that's only half the task the nation's state courts are confronting. The rest -- for which no technical manuals or prewritten programs exist -- consists of anticipating and addressing the perplexing legal issues that technology can create.
The article continues:
To assist them, chief justices and court administrators from around the country have developed model guidelines on what to post, what to keep only on paper and what should still be seen only by court personnel, lawyers, and other parties such as law enforcement officers or social workers. The model's recommendations include keeping Social Security numbers off the Internet; making some records available only at a courthouse rather than online; and leaving the addresses of domestic violence victims out of online records.

Missouri, which began connecting all of its courts and putting some records online years ago, is among the few states that adopted their own rules. The state's award-winning "" Web site now contains searchable records from 33 of the 45 trial-level judicial circuits. Searching the site yields selected facts on each case, such as the parties' names, their birthdays (to distinguish them from people with the same name), type of case, important dates and final disposition. But some details, although they are public information, must still be viewed the old-fashioned way, at the court clerk's office. That's a nod to reality: Personal information about a minor child, for example, will be seen by far fewer people at the courthouse than if it were posted on the Web.

"The law says that if you go into a courthouse and request a public document, the clerks are required to give that out. But if something is put online, everyone in the whole world can go query it," said Nancy Griggs, court services director in Missouri's Office of State Courts Administrator.

The conference was sponsored by the National Center for State Courts. Here is the conference program. Their Public Access to Court Records resource page is available here.

Some of you may have heard NPR's Morning Edition this morning, which carried a story re "The Judicial Conference, which creates policy for federal courts, moves to make criminal court filings more widely available online." You can access it for listening here. More information can be found in this overview: "Privacy and Public Access to Court Records - Trends in 2002: Public and Private Dimensions Create a Diverse Group of Collaborators," available here. And this brief article on the Judicial Conference of the United State's efforts explains:

At issue is not what constitutes a public record (see "How Public are Public Records"), but how freely accessible records that are already deemed public should be.
An illustration of how the Judicial Conference efforts will impact bankruptcy filings may be seen here.

The Indiana Supreme Court issued a release last Friday, dated 11/15/03, titled "Supreme Court Proposes New Access Rule for Court Records." It reads in part:

A new Supreme Court rule on public access to court records is needed to respond to the growing use of electronic record keeping in the state's court system, Associate Justice Brent Dickson announced today. Justice Dickson chaired a Task Force that included judges, news media members court clerks and representatives of various other interested organizations that focused the changing nature of the way information is stored in today's increasingly technological society.

"Our task force believes the proposed rule reflects the proper balance between the rights of privacy and the public's right, and ability, to access public court records. It is the result of a many hours of frank discussions and much hard work by our task force. I truly value their dedication," said Justice Dickson.

The proposed rule is a complete rewrite of current Indiana Supreme Court Administrative Rule 9. The goal of the task force was to comprehensively address the issues of public access and privacy in court records that are likely to be maintained and distributed in electronic formats. The proposed rule is designed to be "user friendly" and is based in part on a national model adopted by the Conference of Chief Justices and the Conference of State Court Administrators.

It operates on the principle that court records are public unless the information is expressly determined to be confidential. The proposed rule also encourages courts to adopt methods to enable the public to access the records from off-site and around the clock. It also specifies that certain identifying information, such as social security numbers, Personal Identification Numbers and birth dates as well as addresses and phone numbers of victims and witnesses be kept confidential.

Individuals will have until January 16, 2004 to comment on the rule. It will be become final after the Supreme Court has reviewed any comments and made any necessary changes. Please direct any comments to Ron Miller via email at or fax at 317.233.6586 or U.S. Mail at Ron Miller, Division of State Court Administration, 115 W. Washington Street, Suite 1080, Indianapolis, IN 46204. To view the proposed rule and its commentary, please visit:

Posted by Marcia Oddi at 01:50 PM

Indiana Law - More on the separation of powers and the IEDC

[Note: I have made several minor revisions in the latter part of this post to enhance its clarity]

The Sunday Indianapolis Star has this story on the Indiana Economic Development Commission (IEDC), headed: "Politics endangers fledgling agency: Members of new group, state officials disagree on who'll be boss of development." Some quotes:

Supporters say a public-private partnership like the Indiana Economic Development Corp. could go beyond what government can do to tap business and university expertise for setting economic development priorities. They also hoped the corporation -- modeled on successful programs in other states -- could attract business funding that a government agency couldn't access. * * *

The new legislation requires the new agency to create and regularly update an economic development plan, establish performance measures and report on economic performance. It also is mandated to seek private-sector money and authorized to take on debt.

Placed under corporation supervision are several existing economic development nonprofits. A 23-member advisory board is overseeing the corporation until a new board takes over when the agency opens for business in July 2005. The friction is driven partly by a section of the legislation saying the corporation "shall carry out the economic development functions of the state."

Though the legislation specifies creation of an Office of Economic Development to carry out the wishes of the board, the language doesn't spell out the corporation's relationship to the Department of Commerce. * * *

[Dan Evans, president of Clarian Health Partners in Indianapolis and a member of an independent advisory board to the new Indiana Economic Development Corp.], a lawyer in the Indianapolis law firm of Baker & Daniels before taking over Clarian, views the legislation as crystal-clear: All economic development agencies, including Commerce, come under the corporation."That's the law," Evans said.

Indeed, SECTION 263 of HEA 1001, the act creating the IEDC, provides in part:
(a) The duties conferred on the department of commerce [DOC] relating to economic development in Indiana . . . are transferred to the Indiana economic development corporation . . . on July 1, 2005."
Also transferred are the relevant "rules and policies" of the DOC, "all property and obligations of the DOC that are associated with the economic development activities of the DOC, and any related appropriations and funds of the DOC. Further:
(e) Any reference in a law or other document to the [DOC] or director of the [DOC] made before July 1, 2005, and relating to its economic development function shall be treated after June 30, 2005, as a reference to the [IDEC] established by this act."
The Star article also notes:
Indiana became a pioneer in using nonprofits to help create jobs with the 1961 launch of the Indiana Port Authority, which today operates a statewide system of ports, foreign trade zones and economic development programs.
The separation of powers challenge posed by the IEDC act:

As stated on page 24 of my paper: "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941,":
Despite the fact that quasi-public entities have been created by the general assembly in the past, none except Book has posed a challenge to the separation of powers approaching that presented by the new IEDC act. The governor does not have a seat on the IEDC board; the lieutenant governor is named in the act as the chair of the board, but is given no other authority.
In Book v. SOBC, the law provided that members of the General Assembly would serve on the board of the State Office Building Commission. Earlier laws creating the state toll road commission and the state toll bridge commission gave all appointments to the governor. After the court ruled in Book that legislators could not serve on the Commission and that the appointments were to be made by the governor, this issue did not come up again -- subsequent laws, including the port commission act, gave the appointment powers to the governor.

[See Ennis v. State Highway Commission, 231 Ind. 311, 108 N.E.2d 687 (1952) (toll road commission); Indiana Toll Bridge Commission v. Minor, 236 Ind. 193, 139 N.E.2d 445 (1957); Book v. State Office Building Commission (1958), supra; Orbison v. Welsh, 242 Ind. 385, 179 N.E.2d 727 (1962) (port commission); Steup v. Indiana Housing Finance Authority, 273 Ind. 72, 402.] N.E.2d 1215 (1980).]

However, as has been discussed here before, the IEDC act raises the constitutional issue presented in Book anew by giving 12 of 23 IEDC appointments to the legisative leadership, and 7 other appointments to the State's university presidents.

In a related question, a reader has asked:

I would be interested in knowing your thoughts, if any, regarding Chief Justice Emmert's partial concurrence in Book where he questions the Court's consistency holding, on the one hand, that the SOBC is a separate body corporate and politic, separate from the State, hence, avoiding the constitutional debt prohibition, while on the other hand that legislative membership on the Commission violated Article 3, Section 1 because the Commission was part of the Executive Department.
The Court addressed the issue posed by Justice Emmert in Book four years later in the port commission test case, Orbison v. Welch (1962). Some quotes:
Appellant's argument here is that either the Port Commission is an agency of the state so that its issuing of revenue bonds would be contracting a debt and pledging the credit of the state in violation of the Constitution, or if that is not the case, then the Commission must be a private corporation and the Act is providing for the loan of state funds derived from taxation for a purpose not truly public in nature.

We believe appellant's argument has heretofore been answered by our discussion of his third contention, supra, wherein we cited the Ennis, the Toll Bridge and the State Office Building cases. The similarity of the statute involved in the case at bar and the nature of the activity created by the Indiana Port Commission Act compel us to conclude that the Port Commission is a public corporate entity separate from the state as a sovereign entity, or to put it in other words, the Port Commission is the same sort of hybrid as existed in the Toll Bridge and State Office Building cases: that is, it is a separate corporate entity which is an instrumentality or agency of the state although it is not the state in its sovereign corporate capacity.

As noted earlier, the port commission law provided that the members of the commission were to be appointed by the governor. In Orbison v. Welsh, the decision upholding that law, the court also pointed to the fact that the statute provided that the selection of the port's location was subject to the approval of the governor. Further, the court pointed out that expenditures of funds transferred to the port commssion from the State were subject to the approval of the governor.

My conclusions. The various acts creating commissions and authorities are structurally quite similar, and they have been upheld by the Indiana Supreme Court in a series of interlocking opinions. In each case the court has found the entity created to be "a public corporation separate from the state as a soverign entity . . . which is an instrumentality or agency of the state although it is not the state in its soverign corporate capacity." In each instance the role of the governor in the execution of these laws had been made clear, either in the act itself or, as in Book, after the court had ruled.

To the extent that the IEDC act follows the pattern of the laws the court has upheld in earlier cases, there is little likelihood that it will fail. But to the extent that the IEDC act departs from this proven formula by, for instance, removing the governor from the picture, this is the risk that a challenge under Article 3 of the Indiana constitution, based upon the court's earlier rulings in Tucker v. State and Book v. SOBC, will be successful. Such a challenge may not come immediately, but each of the rulings in the earlier cases came about as the result of a test case of the constitutionality of the toll road act, the SOBC act, etc. Rulings upholding these statutes were a necessary prerequisite to the bond issues that were the rationale behind the creation of each of the earlier public corporate entities. Similarly, the IEDC act provides, at IC 4-1.5-5-5:

After June 30, 2005, the corporation may incur debt. Debt incurred by the corporation does not represent or constitute a debt of the state within the meaning of the Constitution of the State of Indiana or Indiana statutes.

Posted by Marcia Oddi at 10:15 AM

November 16, 2003

Environment - Fishing, ecology, and economics

This story in the Washington Post today is headlined "Fishing and Ecology Clash in New England: Ocean's Depleted Stocks Prompt Tough Decisions"A quote:

All along New England's craggy coast, fishermen face the same sad choice: Soldier on toward economic -- and ecological -- ruin, or abandon the only livelihood they have ever known. Theirs is a self-inflicted wound. Decades of overfishing depleted all ground-fish species -- tasty bottom dwellers such as flounder, cod and haddock -- from New England waters by the early 1990s. Cod, the region's signature fish, declined by more than 70 percent in that time.

Regulation came too little, too late, fought by fishermen at every turn. In 1994, with the ecological damage already done, fishing days were cut in half and certain waters were closed. In 2001, days at sea were reduced by an additional 20 percent. But most fish stocks have not come back, and now their pursuers are vanishing. Of the more than 1,700 ground-fishing boats that plied New England's waters in 1997, fewer than 1,400 remain.

An immediate and brutal downsizing is perhaps the only option New England has to avoid the fate of Newfoundland, where all commercial cod fishing has been banned, costing 40,000 jobs, environmentalists and oceanographers say. After a lawsuit by environmentalists, a federal judge left little choice, giving a 2004 deadline to stop overfishing. Even as Pereira's crew members unloaded their catch recently, regulators were cobbling together the most draconian rules in the history of New England's troubled fishery.

Many have noted the echoes here of the tragedy of the commons.

A lot more on the overfishing issue, from an economist's point of view, may be found here, at the blog Knowledge Problem: Commentary on Economics, Information and Human Action. A quote from this analysis (which also contains a number of useful links):

These efforts continue to fall in the category of control-and-manage, and even supposedly forward-looking analyses of the fishing problem, such as the Pew Oceans Commission report from June, 2003, retain the emphasis on control-and-manage instead of aligning economic and environmental incentives. This old-style perspective retains restrictions on the number of fishing days, stiff quotas with no trading, and other regulations that introduce rigidity into the industry without any thought to creating incentives that enable flexibility and creativity in figuring out how to align the long-run interests of the fishermen and the fish, both of whom have interests in the long-run sustainability of the fish population.

But fishermen do not have the incentive to act in their own long-run interest when the regulatory and legal institutions are constructed to treat fish populations as a commons managed by quotas that are rigid and difficult to enforce.

The answer suggested in the analysis is individual tradeable quotas: "Thursday’s Wall Street Journal had an editorial on ITQs and fish populations, which made essentially the same points as I have here and points out the phenomenal success that New Zealand has experienced with ITQs."

Another story today in the Post is headlined: "Activists Plan Fight for Marine Mammals: Exempt From Some Rules to Protect Animals, Navy Might Seek to Alter Sonar Limits."

Posted by Marcia Oddi at 11:31 AM

Indiana decisions - Two from Court of Appeals

A number of opinions were issued by the Court of Appeals Friday, including these two:

GKN Co., formerly known as Gust K. Newberg Construction Company v. Starnes Trucking, Inc. (11/14/03 IndCtApp)
Robb, Judge

Here the trial court granted Starnes' motion for summary judgment on the grounds that the indemnification clause in the Subcontractor agreement was unenforceable for failing to state with clarity that Starnes agreed to indemnify GKN for GKN’s own negligence. The Court of Appeals reversed:

Absent prohibitive legislation, no public policy prevents parties from contracting as they desire. For instance, in Indiana, a party may contract to indemnify another for the other’s own negligence. However, this may only be done if the party knowingly and willingly agrees to such indemnification. Such provisions are strictly construed and will not be held to provide indemnification unless it is so stated in clear and unequivocal terms. We disfavor indemnification clauses because we are mindful that to obligate one party for the negligence of another is a harsh burden that a party would not lightly accept.

This court has followed a two-step analysis to determine whether a party has knowingly and willingly accepted this burden. First, the indemnification clause must expressly state in clear and unequivocal terms that negligence is an area of application where the indemnitor (in this case, Starnes) has agreed to indemnify the indemnitee (in this case, GKN). The second step determines to whom the indemnification clause applies. Again, in clear and unequivocal terms, the clause must state that it applies to indemnification of the indemnitee by the indemnitor for the indemnitee’s own negligence. [cites omitted]

The Court ruled that "The indemnification clause in the Subcontractor Agreement clearly and unequivocally identified the subject of Starnes’s indemnification of GKN for GKN’s own negligence."

Raymond Snellenbarger v. Peter F. Kunz and Jane Elder Dunz, and Two Gaits Development Company, Limited Partnership (11/14/03 IndCtApp)
May, Judge

Here Kunz contracted to have a historic barn disassembled and reconstructed at a new site, on a new foundation, by Snellenbarger. During the course of the project Kunz removed Snellenbarger from the job and compelted the project with other contractors. The Court stated the issues as:

1. Whether a supplemental agreement requiring a contractor to pay damages if a job is not completed by a specified date was entered without consideration and is an unenforceable penalty provision; and

2. Whether sufficient evidence supports the trial court’s judgment for Kunz and its damage award.

The Court here affirmed the lower court. With respect to the suuplmental agreement, the Court said:
Snellenbarger claims the supplemental agreement is void as a matter of law because penalty provisions are not allowed under Indiana law and because he was not given consideration in exchange for his signature on the penalty provision. Assuming arguendo the amendment of October 10, 1997 was an unenforceable penalty provision entered without proper consideration, such fact would not require us to reverse the trial court’s judgment. The judgment for Kunz was not based on a breach of the deadline established in that amendment. Rather, the trial court determined Snellenbarger breached the contract by failing to perform in a workmanlike manner as required by the original contract. Moreover, the damages the trial court awarded to Kunz were not based on the penalty provision. Therefore, the validity of supplemental agreement does not affect the validity of the trial court’s judgment, and we need not address it. * * *

Conclusion. Neither the trial court’s judgment nor its damage award was predicated on the amendment to the contract regarding the date for completion. We therefore need not determine the validity of that amendment. In addition, because Snellenbarger breached the contract, his argument regarding the damage award fails. The trial court’s judgment is supported by its findings and the evidence. We accordingly affirm the trial court’s judgment in favor of Kunz.

Posted by Marcia Oddi at 10:59 AM

November 14, 2003

Indiana Law - Public access v. email privacy for state employees and officials

This AP story from IU's Bloomington campus, headlined "IU says campus e-mail could be made public: Employees urged to get separate personal accounts; concern is raised by press group," is published in the Indianapolis Star today. The lead:

Indiana University officials have advised employees to use private e-mail accounts to send and receive personal messages because e-mails sent through IU computers could be made public. University employees and students who use IU computers "should expect and assume that all records created and maintained in any format, including e-mail," could be made public under state law unless the messages fall within a specific legal exception, according to a memo written by Thomas Gannon, the school's associate counsel.
A look at the state Public Access Counselor's site shows a number of entries re accessing emails of state employees. For instance, in this Advisory Opinion from 6/19/01, the issue was not only retrieving current emails, but those that had been "deleted."
You also requested email messages for certain employees in the Department of Family and Children, the FSSA, and State Personnel.2 Both State Personnel and the FSSA provided some of the information. However, you were told that some of the email messages had been deleted but could be retrieved with considerable work by a network technician. Further, if you wanted those records then you would be responsible for the direct cost associated with the retrieval of those records. * * * If the Family and Social Services Administration and State Personnel Department can support their burden of proving that reprogramming is necessary for retrieving the deleted emails and the re-creation of deleted information, then it is my opinion that these agencies can charge you the direct cost of that reprogramming.
A snippet from a 9/19/01 opinion:
According to your complaint, you made a public records request dated May 1, 2001 on behalf of your client to the IDEM for copies of e-mail messages for ten (10) specific employees of the IDEM concerning a matter known as the "Shelly Ditch." On July 27th and August 3rd, 2001, you received letters from Ms. Reeves that included three hundred seventy-five (375) pages of documents reflecting approximately two hundred thirty-one (231) e-mail messages. You also received a twenty-seven (27) page document, which you refer to as a "privilege log" outlining three hundred fifteen (315) additional records for which the IDEM denied disclosure. It is your position that the IDEM violated the APRA by failing to disclose records to you that were responsive to your May 1st request for e-mail messages concerning the Shelly Ditch. You have listed several examples of e-mail messages that were not produced or referenced on the privilege log that concerned the Shelly Ditch as evidence of the fact that the IDEM has not been responsive to you.
Finally re the Public Counselor opinions, here is the link to an interesting 3/28/03 Advsory Opinion re the alleged denial of access to public records, including emails, by the office of the Attorney General "related to the predatory lending settlement reached by the Attorney General with Household International, Inc."Serendipitously, yesterday I noticed this entry on the Abstract Appeal web site:
Going Public. Many people appreciate that Florida has a very broad public records law, but do you know that the media routinely check through various officials' email records, hoping to find something newsworthy? Now, the emails discussed in this story in today's Palm Beach Post were probably not found through a random search, but either way, they make a good example of the sort of things media folks love to find in public officials' email…
The lead to the Palm Beach Post story reads:
TALLAHASSEE -- In the days preceding the first press account of a bankrupt Ocala businessman's possible misuse of $400,000 in school voucher money, Gov. Jeb Bush's office considered fabricating reasons to drop him from the program, internal correspondence shows. A top aide in Bush's office and an official in his Department of Education discussed the idea via e-mail on Aug. 21, weeks after The Palm Beach Post first began asking for state records of James K. Isenhour and his scholarship funding organization, the Silver Archer Foundation.
Some of you may recall much press on the email privacy issue in 2001 when the General Assembly enacted HEA 1083 (pp. 3-4), which would have exempted the General Assembly, and the legislative services agency, from the public records law, except to the extent expressly set out in law or in the rules of the house, senate, or legislative council. The bill was vetoed by Governor O'Bannon on May 10, 2001. A copy of the veto message may be found here. Some quotes:
Regrettably, it appears that House Enrolled Act 1083 was passed, at least in part, as a reaction to a media request for all e-mails (regardless of content or relevance) sent or received by certain legislators over a two-week period. It is not surprising that some legislators viewed this request as needlessly invasive. These are not ideal conditions for making sound public policy. * * *

I believe an open government is essential to a free society. That is why I, as a state senator, along with Senator Ed Pease, sponsored the public records act in 1983. The legislature’s records should be open to the public, with a few carefully crafted exceptions. Although the legislature, as a separate branch of government, clearly has the power to exempt itself from the public records act and address these issues in its rules, this is not a step that should be taken hastily or without careful deliberation and meaningful opportunity for public comment. It is easier to change or suspend legislative rules than to amend or repeal a statute.

The debate over this legislation has raised many legitimate and difficult questions. Should a personal letter or e-mail from an individual constituent be treated differently than a letter or e-mail from a lobbyist or corporation? Should there be an exception for those records where disclosure would constitute a clearly unwarranted invasion of personal privacy? Should there be an exception in the public records act for records declared confidential by legislative rule, as there is with the judicial branch? Although there is a constitutional right to petition the legislature, does it follow that there is a right to do so in secret under all circumstances? How should the public records act be updated to take account of today’s technology? These and other issues need to be considered in greater depth.

In 1993, the Indiana Supreme Court held, based on separation of powers, that the courts could not compel the legislature to produce documents if it would interfere with the legislature’s internal operations. House Enrolled Act 1083 may therefore be unnecessary to the extent that the legislature cannot, under current law, be compelled to produce documents.

The main issue presented by House Enrolled Act 1083 is whether the General Assembly should expressly exempt itself from the public records act that it has successfully operated under for the last 18 years. Symbolically, and perhaps substantively, this would be a step backwards. I do not believe this is a step that should be taken without careful reflection and opportunity for public participation.

The case referred to by Governor O'Bannon is State ex rel. Masariu v. Marion County Superior Court (10/12/93). The case involved an effort by Indianapolis Newspapers to obtain access to voting records of the House of Representatives from the Clerk of the House via the Indiana public records law. "The Relator seeks a writ of prohibition barring Respondent court and judge from proceeding further with an action brought against her, styled Indianapolis Newspapers, Inc., William Theobald, and Nancy Winkley v. Betty Masariu in her official capacity as Principal Clerk of the Indiana House of Representatives, under Cause No. 49D01--9304--CP--416." Our Supreme Court ruled:
The complaint asserts that the voting records of the House of Representatives are public records available for inspection and copying pursuant to Ind.Code § 5--14--3--2. We find, however, that to the extent such enactments empower the judicial branch to inquire into and interfere with the internal operations of the Indiana House of Representatives, said application transgresses the above separation of powers clause of our state constitution. Courts cannot be authorized to undermine the exclusive constitutional authority of the presiding officers of each house to authenticate all legislation. See Roeschlein v. Thomas (1972), 258 Ind. 16, 280 N.E.2d 581. If the legislature wishes to authorize sanctions against itself upon a claim by press or public alleging improper legislative secrecy, such sanctions would have to be determined and imposed solely by the legislative branch itself, without recourse to the courts.
Justice Givan wrote the opinion, Justices DeBruler and Dickson concurred. Chief Justice Shepard dissented with separate opinion in which Justice Krahulik concurred.
This case presents several issues of considerable importance about the operation of Indiana government, such as whether legislators' votes should be recorded on amendments to the state's multi-billion-dollar budget, how citizens can learn whether their own legislators voted yes or no on those amendments, and whether the distribution of powers article in the Indiana Constitution prevents the judiciary from taking notice of such matters. I cannot agree that all these issues are so simple that they should be resolved in a few paragraphs through the supervisory procedure of a writ of prohibition. I would permit the trial court to complete the litigation so that we could hear the matter through the regular appellate process.
(Note: HEA 1083 is one of the bills whose veto potentially could be affected by the Supreme Court's resolution of D&M Healthcare, of which much has been written in this ILB.)

Posted by Marcia Oddi at 08:35 AM

Indiana Law - Governor Appoints New Clerk of the Courts

Governor Kernan yesterday announced that he is appointing David Lewis of Indianapolis to fill the office of Clerk of Courts. View the press release here. The Courier Journal has coverage here.

The office became vacant when the elected Clerk, Brian Bishop, resigned the position this June, seven months after his reelection to a second term. Additional Star coverage (an editorial) is here.

Bishop was elected to a second four-year term in November of 2002. As stated at IC 33-15-1-1: "A clerk of the supreme court shall be elected under IC 3-10-2-7 by the voters of the state. The term of office of the clerk is four (4) years, beginning January 1 following the individual's election."

IC 3-10-2-7 provides that the secretary of state, auditor, treasurer, and clerk of the supreme court "shall be elected in 2002 and every four years thereafter." IC 3-10-2-6 provides that the governor, lieutenant governor, attorney general, and superintendent of public instruction "shall be elected in 2002 and every four years thereafter." Thus half the state-wide offices are up for election every two years.

It is not clear from the press release whether the Governor's appointment is intended to fill the unexpired term of the office of clerk of the courts (which would run until 2006), or until a successor shall have been elected and qualified (which could mean 2004, the next general election). The Constitution provides, at Art. 5, Sec. 11:

Section 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.
The answer to this may be obvious -- I hope someone will let me know and I will post it here.

Earlier Indiana Law Blog coverage of the proposal to change the clerk of the courts to a court-appointed position may be found here.

Posted by Marcia Oddi at 08:23 AM

November 13, 2003

Indiana Decisions - Restrictions on corporate law transfers

F.B.I. Farms, Inc., et al. v. Birchell More (11/13/03 IndSCt)
Boehm, Justice

The Indiana Supreme Court today ruled:

We hold that as a general proposition, restrictions on corporate share transfers may require approval of the transfer by the corporation’s Board of Directors, at least in a family-owned corporation. Although generally valid against purchasers with notice of them, such restrictions may not prevent a creditor from foreclosing a lien on the shares, but a purchaser who buys at a foreclosure sale with notice of the restrictions acquires the shares subject to the restrictions. We also hold that if shares are subject to a right of first refusal, and the holder of the right has notice of the foreclosure, the holder cannot exercise the right against a purchaser at a foreclosure sale after the purchaser has taken title to the shares without objection from the holder of the rights. * * *

Conclusion. We affirm the trial court’s ruling that F.B.I. Farms did not cancel the shares prior to the sheriff’s sale where Moore reacquired them. We also uphold the trial court’s finding that the transfer restrictions did not prevent the sheriff’s sale, and that the transfer restrictions remain applicable to the shares in Moore’s hands. We reverse the trial court’s ruling that the two disputed transfer restrictions are unreasonable and therefore unenforceable, and find that the director-approval and blood-member restrictions are reasonable and enforceable. The case is remanded for further proceedings consistent with this opinion.

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.
RUCKER, J., concurs in result without opinion.

Posted by Marcia Oddi at 05:25 PM

Law - Indiana's Chief Justice to Join Rehnquist Panel in Virginia

As announced in a Supreme Court release today:

Indiana Chief Justice Randall T. Shepard will join a prestigious panel of jurists and legal scholars to discuss the relationship between state and federal constitutions. The event, titled “Dual Enforcement of Constitutional Norms” will be held November 14, 2003 at the William and Mary School of Law in Williamsburg, Virginia.

Chief Justice Shepard will join a panel including Chief Justice William Rehnquist of the U.S. Supreme Court, the Hon. Roger Wollman of the Eighth Circuit Court of Appeals, Virginia Chief Justice Leroy Hassell Sr., retired Connecticut Supreme Court Justice Ellen Ash Peters and a distinguished group of legal academicians.

Chief Justice Shepard was asked to join the panel because of his own legal scholarship on state constitutions and his advocacy of using state constitutions as a source of new rights and protections for state’s citizens, a theme he highlighted in his 1989 Indiana Law Review article, Second Wind for the Indiana Bill of Rights, and in subsequent articles and opinions.

Unfortunately, the 1989 law review article does not appear to be freely available online. It is, however, being used in at least one college course this semester (see page 3).

Posted by Marcia Oddi at 12:49 PM

Indiana Law - Living wills in Indiana; Florida Terri Schiavo case and the separation of powers

Tuesday (11/11/03) the Indianapolis Star had an excellant feature on living wills. Access it here. Indiana Code 16-36-4, concerning living wills and life prolonging procedures, may be found here. The entire Indiana Code article on medical consent, IC 16-36, may be accessed here.

This issue has been in the news in recent weeks because of the Florida Terri Sciavo case. Much has been written on this case, but what I really wanted was to see the actual documents. They are all available via Abstract Appeal, an excellent web log focusing on Florida law and the 11th Circuit. In the Schiavo situation, the Florida legislature passed a law "authorizing the Governor to issue a one-time stay to prevent the withholding of nutrition and hydration under certain circumstances." Access that new law here. This legislation followed a long history of judicial action - see the timeline here. Copies of the trial and appellate court decisions are available here. There is also a questions and answers section, with references to Florida's general statute law on these issues.

A 10/23/03 analysis titled "In Florida Right-to-Die Case, Legislation That Puts the Constitution at Issue," by Adam Liptak of the NY Times (still available here), points to the separation of powers issues raised by the Florida legislature's action:

In enacting a tightly focused one-time-only law that effectively reversed a series of court decisions allowing a Florida man to withdraw life support from his brain-damaged wife, the Florida Legislature has created a constitutional crisis, legal scholars said. "Courts get to decide particular cases, not legislatures," said Steven Gey, a law professor at Florida State University. * * *

"We believe that a court sooner or later - we hope sooner - will find this law to be unconstitutional," Michael Schiavo's lawyer, George Felos, said on NBC's "Today." That is likely, legal scholars said. Even if that happens, however, the governor and his allies in the Legislature will have demonstrated their commitment to an issue of great concern to conservative voters in Florida.

From a legal standpoint, the main question is whether the Florida Legislature is authorized to undo a concluded judicial decision. In general, courts decide particular cases and legislatures enact general laws. When either branch of the government strays from its role in the constitutional structure, its actions can violate the doctrine of the separation of powers.

The Supreme Court ruled in 1995 that Congress was prohibited from reopening final court decisions under that doctrine. "The prohibition is violated when an individual final judgment is legislatively rescinded for even the very best of reasons," Justice Antonin Scalia wrote for the majority, "such as the legislature's genuine conviction (supported by all the law professors in the land) that the judgment was wrong."

That decision interpreted the U.S. Constitution, and the question in the Schiavo case is whether the Florida Constitution has a similar prohibition. Gey said it did. "If anything," he said, "Florida separation-of-powers law is even more rigid than federal law." But the hastily written legislation is hard to follow, and it will allow many sorts of arguments in the courts.

The 1995 US Supreme Court ruling mentioned in the analysis is Plaut v. Spendthrift Farm, 512 US 211 (1995) - thanks to the lawyers at SCOTUSblog for identifying the case.

Posted by Marcia Oddi at 08:33 AM

Indiana Decsisions - TRO halts enforcement of new Indianapolis adult bookstore ordinance

"Adult bookstore law blocked by U.S. judge: X-rated business wins temporary order preventing city from enforcing ordinance." So reads the headline today in this story from the Indianapolis Star. The lead:

A federal judge has put the city's new adult bookstore ordinance on hold, dealing a setback to one of Mayor Bart Peterson's chief policy accomplishments this year. Annex Books and other local adult book and video stores have won a temporary restraining order blocking enforcement of the new ordinance, which would limit the stores' hours and establish other restrictions. The order, issued Nov. 3 by U.S. District Judge Sarah Evans, points to "serious reservations" about the constitutionality of the ordinance.
Judge Barker's 11/3/03 order in Annex Books v. Indianapolis is available here. [Note: see also Ed Feigenbaum's earlier report in Indiana Daily Insight (under "In State Circles").]

Posted by Marcia Oddi at 07:24 AM

November 12, 2003

Indiana Decisions - Specific performance

Clyde Perfect and Ella Mae Perfect v. Michael McAndrew (11/12/03 IndCtApp)
Sharpnack, Judge

The Court's intro:

Clyde and Ella Mae Perfect (the “Perfects”) appeal the trial court’s judgment granting specific performance of a contract to sell real estate to Michael E. McAndrew. The Perfects raise four issues, which we consolidate and restate as: [1] Whether the trial court’s finding that the parties intended an “in gross” sale of real estate is clearly erroneous; [2] Whether the trial court’s finding that there was no mutual mistake of fact is clearly erroneous; and [3] Whether the trial court’s judgment improperly added a provision to the contract. We affirm.
Important facts here: Based upon acreage listed in the deed conveying the property to the Perfects, the Perfects thought that the property consisted of 81.1 acres. The parties walked the boundaries of the property. McAndrew never had any conversations with the Perfects regarding the acreage of the property.The survey, conducted after the offer had been accepted, indicated that the property contained 96.2815 acres rather than 81.1 acres. As stated by the trial court:
On April 23, 1999, the parties met at the real estate and [McAndrew] and [Clyde Perfect] discussed the boundaries of the property. The parties agreed upon what land was being bought and sold. * * *

On the issue of what land was intended to be bought and sold there was a meeting of the minds. There was no ambiguity, no fraud, no misrepresentation, and no equitable circumstances that would indicate otherwise. This was an in gross sale of the land owned by the Defendant Ella Mae Perfect. It had been described in the deed both [the Perfects] received as containing 83.08 acres. Two one acre tracts were subsequently sold off that tract. The tract was described in a plat book as containing 81 acres. But, the [Perfects] definitely intended to sell and [McAndrew] intended to buy the entire tract. Only when the survey demonstrated more acreage did the [Perfects’] position change. In such an event the sale of the specific tract will prevail over acreage. See Bowling v. Poole, (Ind. App. 2001) 756 N.E.2d 983. See also King v. Brown, (Ind. 1876) 54 Ind. 368, and Langsdale et al. v. Girton Ex’r, (Ind. 1875) 51 Ind. 99. See also Cravens v. Kiser, (Ind. 1853) 4 Ind. 512 for a statement of the general rule. See also Lehman v. Reice, (Ind. App. 1941) 36 N.E.2d 952, where the legal maxim “That which may be made certain is certain” is applied to allow explanatory evidence to identify real estate. There was never a question by either party of what real estate was being sold. The difficulty came when the sellers realized for the first time that the assumed acreage was wrong. At that point the [Perfects] attempted to renegotiate the terms of the contract.

The on the issue of whether the parties intended a sale "in gross" as opposed to a per acre sale of land, the Court of Appeals concluded:
[W]hile the phrase “more or less” may assist in determining if the sale was an in gross sale or a price per acre sale, the language is not determinative. Despite the lack of the phrase “more or less” in this case, we find Bowling instructive. Here, the contract described the land as “Anderson Rd, 81.1 acres owned by Perfects.” Plaintiff’s Exhibit 4 at 1. Before accepting the Perfects’ counteroffer, McAndrew walked the property with Clyde, and Clyde pointed out the boundaries. McAndrew never had any conversations with the Perfects regarding the acreage of the property. In fact, Clyde testified that he never discussed the acreage with McAndrew and did not counteroffer with a price per acre. Thus, there is no evidence that the parties ever discussed a per acre price for the property. There is also no indication that the estimated acreage was the controlling inducement in the contract. Although the contract describes the property as “Anderson Rd, 81.1 acres owned by Perfects,” the evidence indicates that the estimated acreage was merely a manner of describing the property. The evidence indicates that the parties contemplated a sale of the entire tract for a lump sum, not a price per acre. See, e.g., Bowling, 756 N.E.2d at 990 (holding that the parties contemplated an in gross sale of the property). Consequently, the trial court’s finding that the sale was an in gross sale rather than a price per acre sale was not clearly erroneous.
Regarding the assertion that "the trial court’s finding is clearly erroneous because this 'is a classic example where mutual mistake of fact renders the contract voidable by either party,'" the Court said:
[T]here is no evidence that the parties were mistaken about the actual tract of land to be sold. In fact, Clyde testified that “[t]here wasn’t any question about which piece of property [they] were dealing for. The only question [was] how many acres it really [was].” Transcript at 92. There is also no evidence that the exact acreage was the essence of the parties’ agreement. As noted above, it is not enough that McAndrew and the Perfects were mistaken about the acreage. Rather, to constitute a mutual mistake of fact, the fact complained of must be one that is “of the essence of the agreement” and “must be such that it animates and controls the conduct of the parties.” Bowling, 756 N.E.2d at 989. Based upon the evidence, we cannot say that the acreage of the property was the essence of the agreement or controlled the conduct of the parties.

Posted by Marcia Oddi at 02:32 PM

Environment - AEP buys out entire Ohio town

The Washington Post reports here today:

American Electric Power Co. (AEP), the nation's largest electricity producer, has purchased Cheshire for $20 million after years of acrimony with residents over emissions at the coal-fired Gen. James M. Gavin Power Plant, whose towering smokestacks are just steps away from their homes. Governments have purchased neighborhoods, such as Love Canal, before because of environmental concerns, but this is believed to be the first time a private company has bought an entire town. All but a dozen or so of the village's residents took the deal and left. * * * Most people agreed to leave in exchange for about 31/2 times what their property was worth and an agreement not to sue AEP. Some used the money to buy new homes, most within a 50-mile radius. Residents over 70, such as Preston, sold their homes but got permission to stay in them for as long as they live.
This process has been underway for some time, as this May 7, 2002 story from the Cincinnati Enquirer attests.

Posted by Marcia Oddi at 09:43 AM

Law - Bankruptcy cases in the news

On Monday, November 10, 2003 the U.S. Supreme Court heard oral arguments in a bankruptcy case, Lamie v. U.S. Trustee. Goldstein and Howe, the firm that posts the SCOTUSblog, argued the case for the petitioner and presents a good, and lengthy, writeup on it here. As they write:

An alleged "scrivener’s error" in the Bankruptcy Reform Act of 1994 has pitted attorneys, debtors and courts against one another over how to interpret the law. At issue is whether the omission of "debtor’s attorney" from a list of people who can be paid from a bankruptcy estate was deliberate or inadvertent. Section 330(a)(1)(A) provides: “the court may award to a trustee, an examiner, [sic] a professional person employed under section 327 or 1103- - (A) reasonable compensation for actual, necessary services rendered by the trustee, examiner, professional person, or attorney.” Prior to the 1994 alterations, this section included the phrase “the debtor’s attorney” following “an examiner” and included the conjunction “or” between “attorney” and “a professional person.”
Here (scroll down to Nov. 10) is's excellent set of resources for this case, inlcuding links to the statute, the 4th Circuit decision, and the briefs.

An interesting bankruptcy decision was issued last week, November 5, 2003, by the our federal district court (SD Ind). In Indiana Department of Revenue v. Williams, Judge David F. Hamilton states:

After the Indiana Department of Revenue (the “IDR”) committed its second violation of the automatic stay provision of the bankruptcy code, 11 U.S.C. § 362, by sending the debtors a second demand for payment of unpaid taxes, the United States Bankruptcy Court for the Southern District of Indiana found the IDR in contempt of court and imposed a sanction of $325 in attorney fees. The IDR has appealed the finding and the sanction, arguing primarily that the Eleventh Amendment to the United States Constitution prohibits such an exercise of federal judicial power against it. The importance of the general issue to the state and others transcends the modest stakes in this particular case. As explained below, the court affirms Judge Coachys’ finding and the sanction. By filing a claim against the debtors in their bankruptcy proceeding, the IDR waived any Eleventh Amendment immunity it might have enjoyed for its violation of the automatic stay provision.

Posted by Marcia Oddi at 09:25 AM

November 11, 2003

Environment - Tyson Chicken Inc. ruled a 'person in charge' of houses operated by both the company and its contract growers

The Evansville Courier & Press reports today (here) that "A federal judge has ruled Tyson Chicken Inc. - or its parent company, Tyson Foods Inc. - has responsibility to report ammonia emissions from large poultry operations if they exceed federal air-quality standards. U.S. District Judge Joseph McKinley rejected arguments by Tyson, one of the nation's largest meat processors, that responsibility for environmental problems rests with the people who raise animals under contract for the company." More:

The judge in his order said "no reasonable juror could differ on the issue whether Tyson Chicken Inc., is a 'person in charge'" of houses operated by both the company and its contract growers. * * *

"This court has ruled that Tyson is responsible for the pollution it causes," said Sierra Club attorney Barclay Rogers at the environmental group's San Francisco offices. "Previously, Tyson had argued it was not responsible for pollution even though it was actively engaged in the management of its operations. The court saw through Tyson's arguments, ruling essentially when it calls the shots, it's on the hook for the pollution."

"This really sends a message to Tyson, to poultry growers and to all confined animal feeding operations," said Aloma Dew of Owensboro, conservation organizer for the Sierra Club's Cumberland Chapter. "They had better follow the law because the Sierra Club doesn't intend to have Kentucky's air and water ruined by corporate greed."

Gov. Paul Patton on two occasions in recent years attempted to extend liability for environmental damages caused by animal feeding operations to the companies that own the livestock through regulations administered by the state's Cabinet for Natural Resources and Environmental Protection. The state's General Assembly, though, refused to enact those regulations into law.

The Louisville Courier Journal reports here:
In a ruling that may have national implications, a federal judge in Owensboro said that Arkansas-based Tyson Foods shares responsibility for air pollution from three factory-scale farms it helps to operate in Western Kentucky.

Although the ruling by District Judge Joseph H. McKinley Jr. is binding only in the Western District of Kentucky, "It really establishes, under federal environmental laws, that you have to view these operations as an integrated whole," said Frankfort lawyer Philip Shepherd, an attorney for the Sierra Club and several neighbors of Western Kentucky chicken farms.

An attorney representing local farmers agreed that the ruling has the potential to be "devastating to the poultry industry of West Kentucky" and could subject other large animal-feeding operations — such as those for pigs or cattle — to similar lawsuits from the Sierra Club. * * *

In the ruling, issued Friday, the judge concluded that Tyson was, indeed, "an operator" of the farms and detailed the company's close relationship with its Kentucky business affiliates.

"Tyson Chicken is involved in the facility design and equipment specifications," the judge wrote in his opinion. "Tyson Chicken directs growers how to build and orient the houses, how to heat, cool, ventilate the buildings, and how to illuminate the house(s) to ensure optimum chicken growth."

THE JUDGE also noted that Tyson owns the chickens "throughout the production process" and provides technical and medical support to the growers.

"Most importantly, Tyson Chicken technical advisors monitor ... the facilities (and) test ammonia levels inside the house(s) and direct ventilation program(s) to exhaust ammonia into the environment," the judge wrote.

He also found that ammonia emissions from all 16 to 24 chicken houses at each of the farms should be added together for purposes of compliance with federal environmental laws.

Tyson and its local growers had argued that each chicken house should be considered a separate facility. That's a key point because federal law requires all facilities that emit more than 100 pounds of ammonia a day to report releases to a federal National Response Center.

I was able to obtain a copy of the 50-page Western District of Kentucky ruling. You may access it here.

Two earlier Indiana Law Blog entries may also be of interest here. The first is this report from June 14, 2003 on poultry processors' liability for farmers' practices -- it discusses Maryland's efforts at a co-permitting rule, which would have required poultry companies to share waste disposal responsibilities with their contract chicken growers.

The second is this Indiana Court of Appeals decision from June 26, 2003. The question here involved who was responsible for the death of a business invitee, Tyson or their contract chicken grower. At the time, I noted: "This case is interesting in that it explains how Tyson Chicken works with its independent contractors."

Posted by Marcia Oddi at 03:35 PM

Indiana Law - More on the IEDC membership issue

A reader wrote to me last week: "I heard this afternoon that it has been publicly discussed that the Indiana Economic Development Commission (IEDC) membership appointment process is to be overhauled. Word is that the Governor will be given all the appointments with legislative leaders having powers to recommend individuals to the Governor for appointment."

The reference is to one of the conclusions reached in my recent paper, "Maintaining the balance of power between the legislative and executive branches of Indiana state government post 1941," which examines both the constitutional separation of legislative and executive powers, and the governor's sole and exclusive authority to exercise executive powers within the executive branch of state government.

One conclusion reached in the paper was that the IEDC legislation enacted in 2003 may run afoul of the constitution, insofar as 19 of the 23 members of its board are to be appointed, not by the governor, but rather by the leadership of the general assembly (12 members), and by the seven presidents of the seven state universities (7 members).

Would a change such as described -- to have the governor make the appointments from a list submitted by the general assembly -- resolve the concerns raised? I think not.

My thoughts. To start, Matthew Welch in his book, View from the Statehouse (1981), points out the practical problems of arrangements where the general assembly determines the pool of candidates. The 1941 Budget Act provided that four members of the general assembly "were to act as the arm of the legislature in supervising expenditure of the state's funds." The members, one republican and one democrat, were appointed by the governor from the membership of the general assembly (the pool of candidates in that case). Welch says (at pp. 81-82):

In theory, the governor controlled the committee, since its members were his appointees. Actually, however, he frequently found his freedom of choice quite limited if he expected to have successful working relations with the general assembly, since a powerful legislator would exact his appointment to the committee as a price for his cooperation during the session.
It has been settled that members of the general assembly cannot serve in the executive branch, and they cannot appoint others to serve. Or, as stated in Book v. State Office Bldg Comm., the legislative power is the power to makes laws, "not to enforce them or appoint the agents charged with their enforcement." And the general assembly may not do indirectly what it can not do directly. The legislature may not nominate others to serve, and require that the governor confirm the list of nominees, or that he select from the list of nominees.

If the executive authority of the State rests in the governor, and if that authority includes the appointing authority, as stated by our court in Tucker v. State and Book, then any statutory limitation placed by the general assembly on that constitutional power must fail. Limiting the governor's power to appoint to a list recommended by the general assembly would fall witin that category.

Another question. The same reader urges that, while all the above may be true, it is irrelevant because the IEDC, although created by the general assembly, is separate from state government, under the reader's theory (although many existing functions of state government are to be transferred to it), and so the constitutional limitations outlined above do not apply. I hope to give my thoughts on this later this week.

Posted by Marcia Oddi at 10:26 AM

Indiana Law - Fire Marshall and Attorney General dispute continuation of fireworks case

A brief story in the Indianapolis Star last Friday (11/7/03) reported that Indiana's Attorney General said his office

was conceding a lengthy court fight over a requirement that fireworks distributors obtain a $1,000 certificate for each wholesale location. The office said it would not pursue an appeal of a March ruling in Delaware County Circuit Court. Judge Robert L. Barnet ruled that the State Fire Marshal cannot require distributors to get a $1,000 certificate of compliance for each location of their wholesale fireworks operations.
An AP story carried in the Star on Saturday said much the same thing, adding:
Indiana Attorney General Steve Carter's office said Friday that the lengthy legal battle had already been costly enough and that the office probably could not win an appeal of the judge's ruling.

Gary Secrest, the appellate division chief at the attorney general's office, said in a written statement that Barnet's ruling left little in doubt, adding that the legislature has the power to alter the law. "(The) court has clearly determined that the (state fire marshal's office) has overstepped its authority in its interpretation of a state statute," Secrest said.

Barnet's March ruling found that the state statute clearly refers to certificate in the singular, and that charges for multiple permits were beyond the agency's authority.

State law is clear in that certificates are required in the case of retail fireworks sales, Carter's office said.

The Indiana Law Blog yesterday obtained a copy of the AG's statement, here it is in full:
November 7, 2003: Statement from the Attorney General's Office to end lengthy litigation on Fireworks certification charges.

Indianapolis - The Attorney General's Office has decided that eight and a half years of litigation over the interpretation of a state statute over fireworks certification needs to end. The state will not pursue an appeal of a trial court ruling finding that the State Fire Marshal is unable to require wholesale fireworks distributors to get a $1,000 certificate of compliance for each location of its wholesale operations.

In 1995, Celebration Fireworks challenged the State Fire Marshal's interpretation of the Certificate of Compliance statute to pay a $1,000 fee per location of operation versus a single $1,000 fee. In March of this year, a Delaware County Circuit Court judge ruled against the Fire Marshall stating that the statute clearly refers to certificate in the singular and that charges for multiple permits were beyond the scope of the agency's authority. State law is clear in that Certificates are required on a per location bases for retail sales.

Since 1995, the State has not enforced its per-location fee for wholesale operations pending a ruling by the court. The content of the ruling leads the Attorney General's Office to believe an appeal is unlikely to succeed, and that it would only continue to drain limited state resources.

Judge Robert L. Barnet writes, "It is unequivocal that [the statute] I.C. 22-11-14-5 and the statutes relating to it do not expressly require payment of a fee and a separate Certificate of Compliance for each location. Furthermore, there is no implicit intent to require separate fees and Certificates of Compliance for each location."

The ruling also states that "It is apparent from the language used in the statute that the legislature contemplated and decided not to include a per location requirement.....Clearly, the Legislature weighed the options and chose to allow a certified copy to be sufficient instead of requiring an original Certificate of Compliance for each location."

In the last several years, the Attorney General's Office has been successful in its appellate role for the state and in defending the State Fire Marshal. The Office carefully considers court rulings and bases appeals on several factors including likelihood of success and its use of limited resources.

Says Attorney General Appellate Division Chief Deputy Gary Secrest, "In this situation, the court has clearly determined that the Agency has overstepped its authority in its interpretation of a state statute. It also points out that theLegislature has established its role in providing direction on the matter set forth.

This Office is ready to offer its assistance to the State Fire Marshal in crafting a legislative proposal that would meet its goals in the area of Fireworks regulation.

The Attorney General's Office believes it is time to end lengthy and costly litigation and dedicate its limited resources on issues and cases with a reasonable chance for legal success.

[The statute at issue, IC 22-11-14-5, may be accessed here.]

This story, however, does not stop there. Also on November 7, the firm of Locke Reynolds filed, on behalf of "Appellants Tracy Boatright [who is the current state fire marshall] and the State of Indiana," a "Notice of withdrawal of appellants' motion to dismiss" and a "Verified emergency motion for third extension of time within which to file the brief of appellants." Some quotes from the motion:

The Fire Marshall and the State of Indiana request this extension because differences have arisen between the appellants and the Attorney General, who previously had represented the appellants in the case. On November 6, 2003, the Attorney General filed a motion to dismiss the appeal despite the fact that he knew that the Fire Marshall and the State wished to pursue the appeal. Until the afternoon of November 6, 2003, the Fire Marshal's staff had been assured that attorneys in the Attorney General's office were preparing an appellate brief that could be filed on November 7, 2003.

The differences that have arisen between the Fire Marshall and the Attorney General require the relationship between the appellants and the Attorney General to be terminated. On the evening of November 6, 2003, the appellants obtained new counsel, who require additional times to assess the case and prepare the Biref of Appellants.This appeal involves an issue of statutory interpretations greatly affecting public interest and public safety, namely, proper enforcement of fireworks licensing laws.

This dispute highlights some larger issues: The attorney general is a separately elected state official in the executive branch of state government. By law:
IC 4-6-2-1. Such attorney-general shall prosecute and defend all suits that may be instituted by or against the state of Indiana, the prosecution and defense of which is not otherwise provided for by law, whenever he shall have been given ten (10) days' notice of the pendency thereof by the clerk of the court in which such suits are pending, and whenever required by the governor or a majority of the officers of state, in writing, to be furnished him within a reasonable time; and he shall represent the state in all criminal cases in the Supreme Court, and shall defend all suits brought against the state officers in their official relations, except suits brought against them by the state; and he shall be required to attend to the interests of the state in all suits, actions or claims in which the state is or may become interested in the Supreme Court of this state.
(Formerly: Acts 1889, c.71, s.4; Acts 1921, c.85, s.2.)
Presumably an attorney-client relationship exists between the attorney general and the chief executive, the governor. But who is to make the calls about litigation -- the attorney or the client? Many of these decisions -- whether to pursue litigation, whether to appeal, etc. -- may have important public policy implications. Should they be made by the governor, with the advice of counsel, or should they be made otherwise? Interesting issues.

[Update 11/17/03] A check of the Clerk's docket this morning shows that the Emergency Motion was granted in "Case Number: 18 A 02 - 0305 - CV - 00437 BOATWRIGHT, TRACY, ET AL. -V- CELEBRATION FIREWORKS, INC." The pertinent entries:

11/13/03 ****** ABOVE ENTRY MAILED ******
11/13/03 ****** ABOVE ENTRY MAILED ******

Posted by Marcia Oddi at 07:36 AM

Indiana Decisions - Disciplinary ruling on Judge Spencer

In Re: Frederick R. Spencer (11/7/03 IndSCt)
Per curiam

This opinion details the changes against Judge Spencer, and the sanctions imposed. The Supreme Court's November 7th release on this matter was reported in this ILB entry.

Posted by Marcia Oddi at 06:55 AM

Law - Who determines whether federal executive action is subject to judicial review - the executive or the courts?

A November 3rd ILB entry, titled "What degree of deference does the judiciary branch owe the executive for actions taken in the name of national security?" reported on Linda Greenhouse's NY Times analysis of that date, in which she explored a basic decision facing the Supreme Court -- "[W]hether to become a player in the debate over where to set the balance between individual liberty and national security."

Yesterday the Supreme Court elected to become a player. As reported by Greenhouse, again on the NY Times front page:

Setting the stage for a historic clash between presidential and judicial authority in a time of military conflict, the Supreme Court agreed on Monday to decide whether prisoners at the United States naval base at Guantánamo Bay, Cuba, are entitled to access to civilian courts to challenge their open-ended detention.

The court said it would resolve only the jurisdictional question of whether the federal courts can hear such a challenge and not, at this stage, whether these detentions are in fact unconstitutional. Even so, the action was an unmistakable rebuff of the Bush administration's insistence that the detainees' status was a question "constitutionally committed to the executive branch" and not the business of the federal courts, as Solicitor General Theodore B. Olson argued in opposition to Supreme Court review.

And near the end of the piece is this:
If the justices decide that the federal courts do have jurisdiction, the cases will go back to district court in the first instance for a decision on the merits of the detainees' claims. Lawyers for the Kuwaiti group, from the law firm of Shearman & Sterling, describe what the detainees are asking for as modest relief: to be informed of any charges against them, to be allowed to meet with lawyers and family members and to obtain "access to an impartial tribunal to review whether any basis exists for their continued detentions." Without those rights, their brief says, their detention violates the Constitution as well as domestic and international law.
The Times also provides a link to's docket for the cases, with lower court decisions and briefs of the parties and amicus. Another good resource is the SCOTUSblog entry from today.

Charles Lane of the Washington Post also has good coverage of this story. Some quotes:

The court's announcement sets the stage for a potentially historic ruling in which the justices must balance the president's assertion of his constitutional powers as commander in chief against human rights claims based in part on international law.

The Bush administration had urged the court not to review the case, arguing in its brief that the "detention serves the vital objectives of preventing combatants from continuing to aid our enemies and gathering intelligence to further the overall war effort."

Briefs submitted on behalf of the detainees offered an equally dramatic view of the stakes, suggesting that the United States risks its reputation as a beacon of liberty and drawing parallels between the Guantanamo detentions and the internment of Japanese Americans during World War II.

[Update 11/12/03] A Linda Greenhouse update today in the NY Times, that begins:
In its decision to accept the Guantánamo Bay prisoners' appeals despite the Bush administration's objections, the Supreme Court brushed past the "judges keep out" fence the administration had tried to erect around its open-ended detention policy.

No matter how the court eventually rules, that action alone may well come to define a singular moment in the relationship between the White House and the Supreme Court, two inherently powerful institutions that for the last several years have been in alpha mode, each intent on exercising its power to the maximum extent possible.

Though it may not have been clear that the court was ready to join the post-Sept. 11 debate, it now appears that the administration laid down a challenge the justices were unwilling to ignore. This was a moment long in coming: the imperial presidency meets the imperial judiciary.

Posted by Marcia Oddi at 06:37 AM

November 10, 2003

Environment - Continental Steel Superfund Site in Kokomo

This must be "Indiana day" at the NY Times. In addition to the front page story on the Unitied Airlines economic development package, noted below, the Times also carries this story on the first page of its "National" news section. Here, Kokomo's Continental Steel site is used as an example, just as the United deal was, to hang the piece on. The Kokomo site is identified as "only one in a big backlog of hazardous waste sites that has emerged over the last several years as Superfund dollars have been stretched thin."

The Times headline: "Superfund Job, Not Quite Finished, Frustrates Town." Some quotes:

The worst has been removed from this industrial city's largest hazardous waste site. Barrels of chemicals have been carted away. Contaminated front yards have been stripped and covered with fresh sod. The rusty buildings where rats and homeless men took shelter have been demolished and removed.

Three years ago, a chain-link fence with barbed wire was put around the site, the former home of Continental Steel, a Kokomo manufacturer that went bankrupt in 1986. Since then, the city has been waiting for the federal government to finish the cleanup. But the money for the Superfund program, which restores the nation's worst abandoned toxic waste sites, has not kept pace.

Posted by Marcia Oddi at 12:47 PM

Law - "Impact fees" to pay for the costs of development

The NWI Times has an interesting story this morning, datelined Chesterton, and headlined "Cities consider using impact fees: Local leaders get lesson in complex process to pay for costs of development." Some quotes:

The fees are collected from builders to reimburse communities for the costs of development on roads, bridges, sanitary sewers, storm sewers, the water supply and parks. The fees are collected when the building permit is issued and must be kept separate from other city revenue and used on improvements for which the fee is imposed.

PCBA President Jake Wagner told the 20 or so builders and government officials at the seminar Thursday at the Garden Hilton in Chesterton, that developers are willing to pay their fair share for the impact their projects have on the area as long as the cost is determined legally and logically. * * *

As Fehribach explained, the process is detailed and can be costly, but it has worked for the Indiana communities of Fishers and Noblesville, the only two in the state to enact impact fees. A full study for one category of impact fees would take six months to a year. The cost depends on the size of the study area and the amount of detail in the study.

The feasibility study took almost a year and cost $30,000, paid for by the PCBA, the county, Valparaiso, Portage and Chesterton. It has been estimated a full study would establish the amount of the fees for any of the categories would cost $100,000 or more.

[Update 11/27/03]Impact fees may be located beginning here in the Indiana Local Planning and Zoning Law (IC 36-7-4- 1300 et seq).

Posted by Marcia Oddi at 09:39 AM

Indiana Law - More on Appointing the Clerk of the Courts

Last Monday in this Indiana Law Blog entry, we discussed the Indianapolis Star story about Rep. Ed Mahern's proposal to make the Clerk of the Courts an appointive office. The Star story noted that Clerk Brian Bishop had resigned in June, seven months after reelection, and a permanent successor has not yet been named. Today the Star has an editorial titled "Appoint the Clerk," supporting Mahern's proposal. Near the end of the piece, the Star notes: "For the record, Brian Bishop is the current clerk." Perhaps they meant to say: "For the record, Brian Bishop was the person most recently elected to fill the office of clerk of clerk. However, he resigned in June. No permanent successor has yet been appointed."

Posted by Marcia Oddi at 07:27 AM

Law - Indiana Economic Development Techniques under the Spotlight

An important story today on the front page of the NY Times, headlined "States Pay for Jobs, but It Doesn't Always Pay Off," focuses on Indianapolis' experience with United Air Lines. Some quotes:

That is what happened. United Airlines got $320 million in taxpayer money to build what is by all accounts the most technologically advanced aircraft maintenance center in America. But six months ago, the company walked away, leaving the city and state governments out all that money, and no new tenant in sight.

The shuttered maintenance center is a stark, and unusually vivid, reminder of the risk inherent in gambling public money on corporate ventures. Yet the city and state are stepping up subsidies to other companies that offer, as United once did, to bring high-paying jobs and sophisticated operations to Indiana. Many municipal and state governments are doing the same, escalating a bidding war for a shrunken pool of jobs in America despite the worst squeeze in years on their budgets. * * *

Ninety-three cities bid for the center, and United finally settled on Indianapolis, promising to add $500 million of its own money to the $320 million that the city and state raised through bond issues. United's $500 million would go mainly into future expansion, and there was expansion. But in the end, the airline invested only $229 million. The city, operating through the Indianapolis Airport Authority, even owns the tools arrayed in each of the 12 hangar bays, ready for the next tenant.

United plainly drove a hard bargain. But the deal was signed during the 1990-91 recession, and the hard times encouraged the state to fold some Keynesian stimulus into the agreement, said Mark S. Moore, director of public finance for the state of Indiana, and one of the negotiators. "Whether we spent the dollars or United spent the dollars, let's not forget it was a recession," he said. "We put lots of people to work building that facility for a lot of years at good wages."

Posted by Marcia Oddi at 06:47 AM

November 09, 2003

Law - Various Sunday stories of interest

Starting with the LA Times, there is this news analysis headlined "States' Tobacco Settlement Has Failed to Clear the Air," that begins:

A landmark legal settlement forged by the four top cigarette makers and state attorneys general snuffed out the companies' worst litigation nightmare. State treasuries were assured of a windfall of $246 billion, a chunk of which would go to helping smokers quit and stopping kids from starting. Both sides could see themselves as winners. Nothing turned out quite as expected. States didn't live up to pledges to invest settlement payments in aggressive antismoking campaigns. Smoking rates have fallen, particularly among teens, but the credit goes as much to bans on public smoking and sharp increases in cigarettes taxes. States have become so dependent on those taxes, and on settlement payments, that their financial interests and those of the industry are in some ways intertwined. And tobacco's Big Four have ratcheted up spending on advertising and promotions — one thing most people figured the settlement was sure to diminish — in part to combat discounters that have picked up market share.
The LA Times also has this interesting story on legislative riders - "provisions that probably couldn't become laws on their own but might be able to ride to success on the back of unrelated legislation that is already on its way to enactment." In this case, the riders are aimed at environmental requirements.

The Washington Post has Part I of a must-read two-part series titled: "URBAN WARFARE: The Fight for Talent Among American Cities: Brain-Gain Cities Attract Educated Young." The lead:

In a Darwinian fight for survival, American cities are scheming to steal each other's young. They want ambitious young people with graduate degrees in such fields as genome science, bio-informatics and entrepreneurial management. * * *

"In our business, you have to cannibalize," said Ron Sims, the county executive of King County, which surrounds Seattle, and a Democratic candidate for governor of Washington state. "Many cities don't fight back very well."

In addition to Seattle, the largest brain-gain cities include Austin, Atlanta, Boston, Denver, Minneapolis, San Diego, San Francisco, Washington, and Raleigh and Durham, N.C.

The rising tide of well-schooled talent has created a self-reinforcing cycle. Newcomers such as Sam Long have made a handful of cities richer, more densely populated and more capable of squeezing wealth out of the next big thing that a knowledge-based economy might serve up.

My first reaction is, is our Indianapolis-West Lafayette-Bloomington "triangle" destined to serve only as part of a "feeder system" for these established "brain-gain" cities? [Update 11/10/03] Part II, focusing on Washington, DC, is here.]

The Post also has an overview of the newest chapter of the financial world's scandals: "Now mutual fund managers have been added to the community of highly paid professionals who were supposed to look out for the financial interests of investors but decided to put their own interests first."

The Post also has this review of 'And the Dead Shall Rise: The Murder of Mary Phagan and the Lynching of Leo Frank' by Steve Oney. I read this with interest, as I caught the author talking about his book early this morning on BookTV and had made a note on the title. Here is the Post's lead:

What turns a murder into a myth? The Leo Frank saga had most of the key elements: innocence defiled, lurid sex tales, racial and religious venom, blood and power and big money and, not least, headlines that shrieked to the heavens -- and maybe beyond.

Steve Oney's brilliant narrative shows why, 90 years later, the tale of murder and revenge in Georgia still has the capacity to fascinate, provoking the classical responses to tragedy: pity, awe and sorrow without end.

Another Post analysis is titled: "FDA's Authority Tested Over Drug Imports: At Issue Is Whether Agency Will Lose Role in Assessing Safety of Medications." The lead:
The growing political momentum of efforts to legalize and expand the importation of cheaper prescription drugs from Canada and elsewhere has escalated into a fundamental challenge to the Food and Drug Administration's authority to assess drug safety and protect the public from potentially unsafe medications, advocates on all sides agree.

With governors and mayors clamoring to import price-controlled medications from Canada, and Congress debating whether to open the borders to significantly more drugs from 25 other countries, the FDA's insistent opposition is no longer automatically carrying the day.

The NY Times today has a front-page environmental story headlined "States Planning Their Own Suits on Power Plants." Also this story titled "Mine Safety Official Critical of Policies Faces Firing," that begins:
The Bush administration has notified a mine safety official who has sharply criticized federal mining policies that it intends to fire him, according to documents and the official's lawyers. The official, Jack Spadaro, the superintendent of the National Mine Health and Safety Academy in Beckley, W.Va., has been an outspoken critic of a federal investigation into a huge spill of coal sludge in eastern Kentucky three years ago. The accident, at the Martin County Coal Company, is considered one of the biggest environmental disasters in the Appalachian region.
Finally, this Times story about Diebold touch screen electronic voting machines. A quote:
BUT the controversy surrounding Diebold goes beyond its chief executive's political activities. In July, professors at Johns Hopkins University and Rice University analyzed the software code for the company's touch-screen voting machines and concluded that there was "no evidence of rigorous software engineering discipline" and that "cryptography, when used at all, is used incorrectly."

Making matters worse, the software code for the machines was discovered in January by a Seattle-area writer on a publicly accessible Internet site. That the code was unprotected constitutes a significant security lapse by Diebold, said Aviel D. Rubin, an associate professor of computer science at Johns Hopkins, co-author of the study of the code.

[Update 11/10/03] Another voting machine story, this one in the LA Times, about former state elections officials now working for voting machine companies: "The regulators and the regulated are so closely intertwined that the regulators go almost exclusively to [the vendors] for information and answers to questions."

Posted by Marcia Oddi at 05:24 PM

November 07, 2003

Law - Circuits Split on RLUIPA Applicability to Institutionalized Persons

Now this IS interesting. On 10/30/03 the 7th Circuit (Bauer, Coffey, and Diane P. Wood), in Charles v. Verhagen, affirmed a district court ruling (WD Wis.) that the RLUIPA (Religious Land Use and Institutionalized Persons Act) "was a constitutional exercise of Congress’ power under the Spending Clause and that it did not violate the Tenth Amendment or the First Amendment’s Establishment Clause."

Today, the 6th Circuit, in Cutter v. Wilkinson, an appeal from the SD Ohio, issued this ruling (link via How Appealing):

RONALD LEE GILMAN, Circuit Judge. Plaintiffs in these three consolidated cases are Ohio prisoners who contend, among other claims, that various Ohio corrections officials have violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc–2000cc-5. The defendant officials filed motions to dismiss the RLUIPA claims, challenging the constitutionality of 42 U.S.C. § 2000cc-1, the section of the Act that applies to institutionalized persons. Their motions were denied by the district court. In this interlocutory appeal, defendants contend that RLUIPA (1) exceeds Congress’s powers under both the Spending and Commerce Clauses, (2) violates states’ rights under the Tenth Amendment, and (3) improperly advances religion in violation of the Establishment Clause of the First Amendment. For the reasons set forth below, we agree that the portion of RLUIPA that applies to institutionalized persons—specifically, 42 U.S.C. § 2000cc-1—violates the Establishment Clause. We therefore REVERSE the district court’s denial of defendants’ motions to dismiss and REMAND the case for further proceedings consistent with this opinion.
Of particular note are these paragraphs, including the Court's parenthetical comment at the end of the second paragraph:
Two circuits, without reference to Justice Stevens’s concurring opinion, have come to the opposite conclusion regarding the constitutionality of RLUIPA. See Charles v. Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003); Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002). Furthermore, five circuits, including the Seventh and Ninth, have concluded that the identical operative language in RFRA does not violate the Establishment Clause. See In re Young, 141 F.3d 854, 863 (8th Cir. 1998); Mockaitis v. Harcleroad, 104 F.3d 1522, 1530 (9th Cir. 1997); Sasnett v. Sullivan, 91 F.3d 1018, 1022 (7th Cir. 1996), vacated on other grounds, 521 U.S. 1114 (1997); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 470 (D.C. Cir. 1996); Flores v. City of Boerne, 73 F.3d 1352, 1364 (5th Cir. 1996), rev’d on other grounds, 521 U.S. 507 (1998). Two district court opinions, in addition to the one below, have also concluded that RLUIPA is constitutional. See Johnson v. Martin, 223 F. Supp. 2d 820 (W.D. Mich. 2002); Charles v. Verhagen, 220 F. Supp. 2d 955 (W.D. Wis. 2002), aff’d, No. 02-3572 (7th Cir. Oct. 30, 2003).

Against this apparent juggernaut of circuit and district court opinions stand two district court decisions that reach the opposite conclusion. One is Madison v. Riter, 240 F. Supp. 2d 566 (W.D. Va. 2003) (Turk, J.), and the other is Kilaab Al Ghashiyah (Khan) v. Dep’t of Corrections, 250 F. Supp. 2d 1016 (E.D. Wis. 2003) (Adelman, J.), overruled by Charles v. Verhagen, No. 02-3572 (7th Cir. Oct. 30, 2003). Both are remarkably well-worded and persuasive opinions that clearly set forth the history of RLUIPA, the analytical basis for concluding that RLUIPA violates the Establishment Clause, and the unpersuasive nature of the contrary opinions. Indeed, our own analysis can (and will) be considerably streamlined by repeated references to Madison and Ghashiyah. (Inexplicably, the Seventh Circuit in Charles makes no reference to either of these district court opinions.)

For earlier ILB entries on the RLUIPA, check this link.

Posted by Marcia Oddi at 04:42 PM

Indiana Decisions - Supreme Court Suspends Madison Circuit Judge Frederick R. Spencer

In a release issued today, the Indiana Supreme Court announced:

The Indiana Supreme Court ruled today that Judge Fredrick R. Spencer, Madison Circuit Court, committed judicial misconduct in his handling of a special prosecutor request in 2002, and ordered a 30-day suspension from office without pay.

The Madison County Prosecutor had filed a complaint with the Judicial Qualifications Commission after Judge Spencer appointed a special prosecutor in a group of juvenile cases without notifying the prosecutor or conducting a hearing on the special prosecutor request, and the Commission subsequently filed formal disciplinary charges. The Commission, by counsel, Meg Babcock, and Judge Spencer, represented by Indianapolis attorneys James Voyles and Dennis Zahn, presented their evidence to a panel of Masters in March, 2003; the Masters then reported to the Court that they found Judge Spencer had violated certain ethical rules, and recommended the Court suspend him for up to 30 days. The Commission argued for the full 30-day suspension.

The Court found the Commission proved that Judge Spencer violated several sections of the Code of Judicial Conduct. Specifically, the Court found he engaged in an improper ex parte proceeding when he issued the special prosecutor Order without notice to the prosecutor, that he failed to follow the special prosecutor law, that he allowed the public controversy surrounding these juvenile cases as well as his relationship with the prosecutor to affect his judicial conduct, that he failed to promote public confidence in the judiciary, and that he violated the ethics rules requiring him to dispose fairly of all judicial matters. Noting in its opinion that, in a brief filed with the Court after the hearing, Judge Spencer acknowledged his failure to follow the law, and apologized, the Supreme Court wrote, “If the conduct herein represented an isolated incident of judicial misconduct, we might be inclined toward leniency.” However, the Court pointed out that it issued a Public Reprimand against Judge Spencer in 2001 relating to a campaign violation, that the Commission publicly admonished him in 1999 after he granted an ex parte change of custody, and that the Commission privately cautioned him in 1997.

The date of Judge Spencer’s suspension is yet to be determined, but must begin within 30 days.

Questions about this Press Release may be directed to Meg Babcock, Counsel to the Commission, at (317) 232-4706, and to Judge Spencer or his attorneys, James Voyles and Dennis Zahn at (317) 632-4463.

[Update 11/8/03] A brief story in this morning's Indianapolis Star includes this:
The court suspended Judge Fredrick R. Spencer for 30 days without pay because of his March 2002 decision to appoint a special prosecutor in a case without notifying Madison County Prosecutor Rodney Cummings and letting him speak about the matter in a court proceeding. The case involved the children of some political opponents of Cummings, a Republican.

Posted by Marcia Oddi at 04:20 PM

November 06, 2003

Law - "Informational" Roadblocks at Issue before U.S. Supreme Court

As reported today here in the Washington Post:

A legal struggle of potential importance to every American who drives a car occupied center stage at the Supreme Court yesterday as the justices heard oral argument in a case that could determine how much police in search of criminals can limit the motoring public's freedom of movement.

At issue are "informational checkpoints" where police officers stop traffic, inform vehicle occupants of a recent crime and ask if they have any information about it. Opponents, including the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, call them de facto roundups of innocent people that violate the constitutional prohibition against "unreasonable" seizures.

More from the Post story:
The case arose from the 1997 drunken-driving conviction of Robert S. Lidster, who was stopped by police at an informational checkpoint in Lombard, Ill. The police were passing out fliers and asking for help in finding the perpetrator of a fatal hit-and-run at the same site a week earlier; Lidster nearly hit an officer with his car and smelled of alcohol.

But he appealed his case all the way to the Illinois Supreme Court, which struck down the checkpoints by a vote of 4 to 3. The Illinois court said it did not want to "make roadblocks 'a routine part of American life.' "

The U.S. Supreme Court has approved checkpoints for such special purposes as checking for drunk drivers or hunting contraband near U.S. borders. But in 2000, the court ruled 6 to 3 that police in Indianapolis could not stop cars and check them for drugs using sniffer dogs.

The Indianapolis case is City of Indianapolis v. Edmond (US SCt 11/28/2000). Access it here via For more on the Indianapolis ruling, particularly as it relates to seatbelt enforcement, see this ILB entry, and this somewhat related 9/30/03 Indiana Court of Appeals seatbelt decision. Also related are the two ILB entries headed "If real drug checkpoints are unconstitutional, what about phony checkpoints?" Access them here and here.

The latter entry references Illinois v. Lidster (access the Illinois Supreme Court opinion here), the case that was argued yesterday before the Supreme Court. As summarized here by Duke Law's Supreme Court Online, the issue in Lidster is: "Whether Indianapolis v. Edmond, 531 U.S. 32 (2000), prohibits police officers from conducting a checkpoint organized to investigate a prior offense, stopping all oncoming motorists to hand out flyers about the offense and arresting motorists for drunk driving."

The NY Times' Linda Greenhouse also writes on police roadblocks today. Access here her piece, that begins:

Police roadblocks, and the circumstances under which the police can impede the free movement of drivers whom they have no reason to suspect of a crime, are familiar territory for the Supreme Court. The court has upheld roadblocks to catch drunken drivers and, near the country's borders, illegal immigrants. It has struck down those aimed at finding illegal drugs.

The justices wrestled in an argument on Wednesday with still another variant: "informational checkpoints" designed to find not wrongdoers but witnesses to a crime, in this case a fatal hit-and-run accident in a Chicago suburb. A week after the accident, at the same location and late hour, the police in Lombard, Ill., blocked the road and handed each driver a flier that described the incident and asked for any information about it. One approaching driver nearly hit one of the officers with his car, leading to a sobriety test and a drunken driving conviction. * * *

The question for the justices was whether the roadblock was a valid investigatory tool or, under the Fourth Amendment, an unreasonable and therefore unconstitutional seizure. The Illinois Supreme Court, dividing 4-to-3, found the roadblock unconstitutional and overturned the conviction of the driver, Robert S. Lidster.

And two more articles about Lidster, this one from the Christian Science Monitor, and this one from the Chicago Tribune.

Posted by Marcia Oddi at 12:34 PM

Environment - Wetlands: "Waters" definition revisions proposed; Report on Mercury Emissions

Wetlands. The LA Times reports today: "Rule Drafted That Would Dilute the Clean Water Act: If implemented, streams and wetlands would be open to development. California and other parts of the arid West would bear the brunt." Access the story here. Some quotes:

Bush administration officials have drafted a rule that would significantly narrow the scope of the Clean Water Act, stripping many wetlands and streams of federal pollution controls and making them available to being filled for commercial development.

The rule, spelled out in an internal document provided to The Times by a senior government official, says that Clean Water Act protection would no longer be provided to "ephemeral washes or streams" that do not have groundwater as a source. Streams that flow for less than six months a year would also lose protection, as would many wetlands, according to the document. * * *

The new rule-making exercise was triggered by a 2001 Supreme Court ruling that limited federal jurisdiction over isolated, non-navigable, intrastate waters and wetlands. But the draft rule circulating within the administration would leave a much broader range of waters and wetlands outside the strictures of the Clean Water Act. * * *

The draft revision of the rule defining waters of the United States was prepared by officials at the Army Corps of Engineers and Justice Department, according to the official who provided the document. Copies of the document were circulated to officials at other agencies in recent weeks, the official said. Corps spokeswoman Cynthia Smith said there would be no comment on a leaked draft. Justice Department officials also refused to comment.

Mercury. The Washington Post today reports here: "Mercury Rules Work, Study Finds: EPA, Florida Cite Emissions Regulations." A quote:
The report, to be released today in Tallahassee by Florida environmental officials, concludes that strict government controls of emissions can produce dramatic improvements in much less time than scientists once assumed. The levels of mercury contaminant found in largemouth bass and other wildlife of the Everglades declined by 60 to 75 percent since state and federal agencies began waging an aggressive campaign in the early 1990s to close or modernize municipal and medical-waste incinerators that emitted mercury gases.

Posted by Marcia Oddi at 07:17 AM

Environment - EPA Reportedly Will Drop Power Plant Cases

This front-page story this morning in the NY Times is headlined (in the print version): "Lawyers at EPA say it will drop pollution cases: Looser rules will apply - Shift may affect inquiries on clean-air violations by 50 power plants."

Some quotes:

The lawyers said in interviews on Wednesday that the decision meant the cases would be judged under new, less stringent rules set to take effect next month, rather than the stricter rules in effect at the time the investigations began. * * *

Under the old rules of the so-called New Source Review program, power plants, oil refineries and industrial boilers that were modernized in ways that increased harmful emissions generally had to install more pollution controls. Under the new rules, any renovation project that costs less than 20 percent of the power-generating unit's value will be exempt, and no pollution controls will need to be added even if the project increases emissions. Critics say thresholds set at that level would exempt most of the power plants that have been under investigation.

One career E.P.A. enforcement lawyer said the decision, coupled with the changes in the underlying rules, could mean that the utility industry could avoid making as much as $10 billion to $20 billion in pollution-control upgrades. The Bush administration and the utility industry say the old rules were too costly and ineffective. * * *

The revised New Source Review rules were initially released in late August . . . Those rules will take effect in December in 12 states that do not administer these rules themselves. The 38 other states [including Indiana] will have up to three years to decide whether to adopt the new rules.

Last week, about a dozen states and cities filed suit in federal court to overturn the changes to the New Source Review program that the agency seeks to enact. One E.P.A. official said that about half of the 50 power plants under investigation had already received notices of violations, meaning the agency believed that an environmental violation had occurred. Under this week's change, the E.P.A. lawyers said they also would review investigations involving 30 to 40 oil refineries, though they said some of those investigations were still likely to proceed.

The Washington Post also runs this story this morning, on page 3; access it here. The lead:
The Bush administration confirmed yesterday that it will close pending investigations of 70 power plants suspected of violating the Clean Air Act and will consider dropping 13 other cases against utilities that were referred to the Justice Department for action, following the Environmental Protection Agency's decision in August to ease enforcement rules.
The LA Times has this story, titled "EPA Drops Its Cases Against Dozens of Alleged Polluters: In a policy reversal, the agency halts actions on Clean Air Act violations brought by the Clinton administration against coal-fired power plants." Some quotes:
For months, top Bush administration officials had said that the new rules would apply only prospectively — that past violations would still be pursued. But EPA officials told regional enforcement officials in a meeting in Seattle Tuesday evening and in a conference call Wednesday morning that the agency would no longer pursue cases of past violations under the old rule.

EPA attorneys were surprised by the change in policy. "Up until now, people were saying it's business as usual," said one EPA attorney, who participated in the conference call. He spoke on the condition that he not be identified. The only violations of the old rule that would be prosecuted are the seven cases against electric utilities that are already in court.

Access the Oct. 6, 2003 ILB entry titled "EPA rule revisions on power plant modifications impact cases in process" here, and an October 10th followup here. Also see this October 16th ILB report.

Posted by Marcia Oddi at 06:54 AM

November 05, 2003

Indiana Law News - Court Staffer Earns Randall T. Shepard Pro Bono Award

In a release today the Indiana Supreme Court announced:

The Indiana Pro Bono Commission selected David J. Remondini as the 2003 winner of the Randall T. Shepard Pro Bono Award.

Mr. Remondini, who serves as Counsel to Indiana Supreme Court Chief Justice Randall T. Shepard, was given the award named for his employer in recognition of his years of work in developing Indiana’s effort to encourage the state’s lawyers to provide free legal work to needy clients.

The Randall T. Shepard Pro Bono Award is the top award given annually by the Indiana Pro Bono Commission. The statewide commission is appointed by the Supreme Court and the Indiana Bar Foundation and is charged with building the state’s pro bono network.

J. Philip Burt, of Fort Wayne, chairs the Commission and presented the award to Mr. Remondini. “David has been a vital part of this new structure. His common sense approach to critical problems that have been encountered and his leadership by example have been invaluable to all of us,” said Mr. Burt.

A longtime Boston Bruins fan, Mr. Remondini, was also presented with a framed color photograph of opening night at the Fleet Center in Boston. Mr. Remondini was given the award and photo at the Commission’s annual dinner in honor of Chief Justice Randall T. Shepard, who has spearheaded Indiana’s pro bono effort.

Visit the Indiana Pro Bono Commission website here.

Posted by Marcia Oddi at 06:07 PM

Indiana Decisions - Contract Breach as a Negligence Claim; Economic Loss

Greg Allen Construction Company, Inc. v. Daniel L. and Sondra E. Estelle (11/5/03 Ind SCt)
Shepard, Chief Justice

As stated by the Court:

A corporation breached its contract with private homeowners by performing substandard work on renovations. The trial court granted breach of contract damages against the corporation, but not against the corporation’s president, who did most of the work. The Court of Appeals held that the corporation’s president was individually liable for the negligent work. We granted transfer and now affirm the trial court. * * *

The Estelles alleged that both Allen Construction and Greg Allen breached the contract and were negligent. Because he was acting as president and employee of Allen Construction, the trial court found that Allen was not individually liable to the Estelles. The Court of Appeals disagreed, holding that because Allen participated in and supervised the negligent acts, he was personally liable in tort.

(The 1/11/02 Court of Appeals decision may be accessed here.)

The Supreme Court's conclusion:

The rule of law is that a party to a contract or its agent may be liable in tort to the other party for damages from negligence that would be actionable if there were no contract, but not otherwise. Typically, damages recoverable in tort from negligence in carrying out the contract will be for injury to person or physical damage to property, and thus “economic loss” will usually not be recoverable. But that is only the usual case, not the uniform rule.

Conclusion. We affirm the judgment of the trial court as to Greg Allen’s personal liability. In all other respects, we summarily affirm the decision of the Court of Appeals. Ind. Appellate Rule 58(A)(2).

Sullivan, Boehm, and Rucker, JJ., concur.
Dickson, J., concurs in result.

Posted by Marcia Oddi at 02:29 PM

Law - Followup on Pork Check-off Program Entry

Last Saturday the ILB had an entry titled "Law - 6th Circuit Upholds District Court's Ruling that Pork Checkoff Program is Unconstitutional." Access it here.

This Andrea Neal opinion piece today in the Indianapolis Star is headlined: "Got cash? Farmers forced to pay for ad campaigns." A quote:

It's one of the more outrageous policies of our government, and it's pervasive throughout agriculture. In essence, Congress requires farmers to pay a fee to fund promotion, research and consumer education about the benefits of their commodities. The money is collected like a tax, then handed over by the U.S. Department of Agriculture to a board representing producers in the respective sectors. These folks, as a general rule, speak for Big Agriculture, not the interests and concerns of small, family farmers, who continue to go out of business by the hundreds each year.

Posted by Marcia Oddi at 07:06 AM

November 04, 2003

Law - Supreme Court to review Wilderness Policy

Do the federal courts have jurisdiction to consider claims before an agency has announced a final policy? The Boulder Daily Camera reports here that the Supreme Court granted certiorari in Norton v. Southern Utah Wilderness Alliance, where "it will review whether environmentalists can sue the government over its alleged failure to protect wilderness study areas from off-road vehicles and other possible threats."

The Denver-based 10th U.S. Circuit Court of Appeals ruled that the Bureau of Land Management has a statutory obligation to protect wilderness study areas, and could face lawsuits for failing to do so. The 9th U.S. Circuit Court of Appeals in San Francisco came to a similar conclusion in a Montana case. * * * The issue for justices is not whether those areas deserve special designation, but whether courts have jurisdiction to consider the subject. [Solicitor General] Olson said the groups could challenge final agency actions, but not inaction.

Goldstein & Howe's SCOTUSblog has a nice summary of the issues that begins: "At issue in Norton v. Southern Utah Wilderness Alliance, No. 03-101, is whether courts can, under the Administrative Procedure Act, “compel agency action unlawfully withheld or unreasonably delayed" for current management of federal lands."

Posted by Marcia Oddi at 01:30 PM

Environment - Bush to ease CSO requirements; more on Judge Keele's ruling

CSOs. This story today in the LA Times reports that:

The Bush administration proposed Monday to allow sewage treatment plants to release partially treated sewage into waterways when utilities are inundated with wastewater during heavy rainstorms or snowmelts. The change would be the latest in a series of apparent rollbacks of environmental regulations by the administration, a record Democrats hope to capitalize on during the presidential election next year. The Environmental Protection Agency said the proposal would help local utilities prevent the accidental overflows of raw sewage into waterways that sometimes occur when treatment plants are overloaded. * * *

Wastewater agencies said the proposal would merely authorize treatment plants to continue doing what many of them have done for years.

"Blending has always been an accepted practice," said Adam Krantz, a spokesman for the Assn. of Metropolitan Sewerage Agencies. The agency estimates that 20% to 50% of treatment facilities sometimes blend treated and partially treated water and then release it into waterways, enabling them to handle large amounts of wastewater. * * *

If the new policy is adopted, some states, including California, could maintain tougher regulations. But 25 states prohibit environmental regulations that exceed federal standards.

More on Judge Keele's ruling. Friday the ILB reported here (including a copy of the ruling) that Judge Keele of the Marion County Superior Court had ruled that Indiana law does not allow groups to challenge administrative agency decisions unless the groups are directly harmed. Today the Louisville Courier Journal contains this story on that ruling. Some quotes, although this would be a good story to read in full:
Environmental groups trying to fight a landfill permit for the Clifty Creek power plant near Madison will not be allowed to intervene in the case under a court decision that could limit the future effectiveness of similar special-interest organizations.

Marion Superior Judge Michael Keele ruled that Save the Valley, the Hoosier Environmental Council and the Citizens Action Coalition could not participate in the case solely because the permit would affect members of the groups. The judge ruled instead that the groups themselves must be aggrieved — meaning their office buildings, property or employees must be affected by the power plant — for the organizations to have standing in the case. * * *

Bryan Tabler, an attorney for the Clifty Creek plant, a privately owned utility in Jefferson County, said the state traditionally has not recognized what is known as "associational standing," or a group's right to represent their members. "This has been the law of Indiana for 106 years, at least," Tabler said. "So this decision doesn't change anything."

The decision is a win for the state environmental agency, which told the court that allowing special-interest groups to appeal the hundreds of permits the agency issues each year "would lead to multiple burdensome challenges."

[Update 10/6/03] This AP story on Judge Keele's decision ran today in the Indianapolis Star.

Posted by Marcia Oddi at 09:34 AM

November 03, 2003

Law - What degree of deference does the judiciary branch owe the executive for actions taken in the name of national security?

In a front page analysis today in the NY Times, Linda Greenhouse explores a basic decision facing the Supreme Court: "[W]hether to become a player in the debate over where to set the balance between individual liberty and national security."

As early as this week, there may be an indication of whether the court intends to remain on the sidelines, leaving the last word to lower courts that have so far deferred to the White House, or to weigh in with the same assertiveness it has displayed so often in recent years on some of the most bitterly disputed issues in American life.
Greenhouse examines the relevant cases "in the queue on the court's docket" and then explains that the Court's hearing any of these cases is purely discretionary and that the appeals fall within none of the "unofficial criteria" the Court generally uses in selecting cases for review. There is no conflict between circuits and the solicitor general is not urging reviews.
The question, then, is whether the justices will nonetheless see these cases as simply important enough to command the Supreme Court's attention despite the absence of the traditional factors that govern discretionary review. The appeal filed by Shearman & Sterling, an international law firm with offices here, on behalf of Fawzi Khalid Abdullah Fahad al Odah and 11 other Kuwaitis held at Guantánamo invokes the court's robust sense of institutional pride and concern for the separation of powers, a particular interest of the conservative majority.

"It is not for the executive branch to define the jurisdiction of the federal courts," the brief says. The decision of what steps are required to protect the country "is not a judgment the executive alone should make," it continues, adding: "Someone impartial must have authority to examine the executive's actions. That is the traditional role of the judiciary."

The appeal filed by the Center for Constitutional Rights, a liberal public interest law firm in New York, on behalf of Shafiq Rasul, Asif Iqbal, Mamdouh Habib and David Hicks, the British and Australian citizens held at Guantánamo, makes a case for the significance of the issue, all other considerations aside.

"The United States has created a prison on Guantánamo Bay that operates entirely outside the law," the brief asserts. It adds, "The conditions that make this `war' unique are the same conditions that make it essential for the government to provide some process by which innocent people can secure their release."

Finally, Greenhouse concludes:
It is apparent that the justices are paying close attention to the debates reflected in the pending cases and are as aware as anyone else that the court's historical reputation has often depended on its response at equivalent moments.

Posted by Marcia Oddi at 05:57 PM

Indiana Law - Change the Clerk of the Courts to a Court-appointed position?

[Updated] This story today in the Indianapolis Star reports that Rep. Ed Mahern, D-Indianapolis, is proposing legislation to make the Clerk of the Courts an appointive office. According to the comments in the story, this may be an idea whose time has come:

David Remondini, counsel to Supreme Court Chief Justice Randall T. Shepard, said Shepard backs the change. "If the legislative and executive branches feel this is a good change for Indiana government, the chief justice supports this change and is willing to put his energy behind it," he said.

"It ought to be an appointment," said Mahern, adding that he finds it strange to elect someone to the executive branch of government only to work for the judicial branch. Besides, he said, "nobody knows who these people are."

In the past, about the only publicity the clerk's office has gotten is bad publicity. * * *

Luke Messer, executive director of the Indiana Republican Party, said it may make sense to no longer elect what is "a ministerial sort of job." "It sounds to me like a pretty good idea," said Messer, R-Shelbyville. "And as a legislator, who knows? I may be a co-sponsor."

Many of you may remember that the Clerk of the Courts was originally a constitutional office. Art. 7, Sec. 7 of the Constitution of 1851 provided that:
There shall be elected by the voters of the State, a Clerk of the Supreme Court, who shall hold his office four years, and whose duties shall be prescribed by law.
There was also a state-wide elected Reporter of the Courts, a statutory office. This office was not established in the Constitution, but Art. 7, Sec. 6 authorized it:
The General Assembly shall provide, by law, for the speedy publication of the decisions of the Supreme Court, made under this Constitution; but no judge shall be allowed to report such decisions.
This office of Clerk of the Courts has always been considered to be an office in the judicial branch of government, not the executive. (For more information on this, see the discussion in my paper on the separation of powers in Indiana.)

Article 7, Judiciary, was completely rewritten via a constitutional amendment ratified at the election of November 3, 1970. Sections 1 through 20 were replaced with new provisions. (Unfortunately bearing the same section numbers as the replaced language. This is a particular problem if you use the Burns edition of the Indiana Constitution. The West version contains notes such as "The 1970 amendment rewrote this section, which read as appearing in 1851 . . . ").

The law providing for the state-wide election and the powers and duties of the Clerk, orginally appearing in the 1852 Revised Statutes (2 RS 1852, ch. 2), appears with little change now at IC 33-15-1.

The statute providing for the state-wide election of the Reporter (codified at 33-15-8), as well as IC 33-15-9, relating to the reporter's duties, was repealed by PL 4-1983, SEC. 20, effective Jan. 15, 1985.

Thus, earlier changes that removed the Clerk as a constitutional office have left the option open for the General Assembly to now abolish this state-wide elected office.

Posted by Marcia Oddi at 07:25 AM

November 02, 2003

Law - Woes of saving patented seeds

The NY Times today has an interesting article by Adam Liptak headlined "Saving Seeds Subjects Farmers to Suits Over Patent." A quote:

In 1998, Mr. McFarling bought 1,000 bags of genetically altered soybean seeds, and he did what he had always done. But the seeds, called Roundup Ready, are patented. When Monsanto, which holds the patent, learned what Mr. McFarling had sown, it sued him in federal court in St. Louis for patent infringement and was awarded $780,000.

The company calls the planting of saved seed piracy, and it says it has won millions of dollars from farmers in lawsuits and settlements in such cases. Mr. McFarling's is the first to reach a federal appeals court, which will consider how the law should reconcile patented food with a practice as old as farming itself. * * *

Legal experts say Monsanto is likely to win its appeal, in part because Mr. McFarling signed a standard contract when he bought the seed. He said he did not read the contract at the time and it had never occurred to him, until Monsanto contacted him with a $135,000 settlement offer, that he had done anything unlawful. He had paid about $24,000 for 1,000 bags of seeds, including a "technology fee" of $6.50 per bag.

The contract, which Monsanto calls a technology agreement, said buyers could use the seed "only for a single season" and could not "save any seed produced from this crop for replanting."

An earlier appeal, Monsanto v. McFarling (8/23/02 CA FedCir) the court upheld an injunction against Mr. McFarling. The Times article points to the dissent by Judge Clevenger. An excerpt from the dissent:
It cannot seriously be disputed that by signing the Technology Agreement McFarling became attached to a contract of adhesion. Although the definition of an adhesive contract varies, Monsanto's own state of Missouri has defined an adhesive contract as "one in which the parties have unequal standing in terms of bargaining power (usually a large corporation versus an individual) and often involve take-it-or-leave-it provisions in printed form contracts." High Life Sales Co. v. Brown-Forman Corp., 823 S.W.2d 493, 497 (Mo. 1992) (en banc). The Technology Agreement certainly meets these criteria: the terms printed on the reverse of the Technology Agreement are not subject to negotiation and Monsanto's billions of dollars in assets far exceed McFarling's alleged net worth of $75,000.
An interesting view from Britain appeared in this Oct. 17, 2003 story from the Times Online. A quote:
But Monsanto’s decision to sell its European wheat business is * * * a simple confirmation that the seeds business has been a disastrous investment. Monsanto paid £350 million for Unilever’s plant breeding business in 1998, a deal that raised eyebrows because the price was about 20 times the revenue earned by the business. But those were heady days; Monsanto had already spent $5 billion (£3 billion) buying three seed businesses, Dekalb Genetics, Delta Pine & Land and Cargill’s operation. Monsanto took the view that the future for agribusiness was seeds and the technology of producing new varieties. Dupont was in hot pursuit, as was Novartis, the Swiss drug company.

The future was in seeds but Monsanto was unable to develop successful hybrids with wheat and cereal farmers who have the annoying habit of saving seed for next year, a strategy that can reduce their royalty payments. The Cambridge plant breeding station has never made a profit, so it must go. [emphasis added]

A quick search on Google shows that seed patents are a global concern, raising a wide-varienty of issues, both pro and con, beyond the contract of adhesion questions raised in the McFarling case.

Posted by Marcia Oddi at 08:28 AM

November 01, 2003

Law - 6th Circuit Upholds District Court's Ruling that Pork Checkoff Program is Unconstitutional

An editorial in the NY Times today lauds a decision of the 6th Circuit last week upholding a federal district court ruling that the pork checkoff program is unconstitutional. The checkoffs, as described by the Times, are "the fees collected from farmers to pay for generic advertising like the familiar 'Got Milk?' and 'Pork: The Other White Meat' campaigns. The so-called checkoffs are mandated by the federal Agriculture Department but administered by industry groups." The Times continues:

In reaching its judgment, the appeals court cited the Supreme Court, which ruled in 2001 that forcing mushroom growers to participate in a checkoff program violated their First Amendment rights by compelling them to express a message with which they did not agree. * * *

What makes this battle over checkoffs especially heated is not just the millions of dollars at stake. It is the fact that the checkoff issue calls attention to the radical split between large and small farmers. Since the mid-1980's, when commodity promotion programs began, the concentration of farming in fewer and fewer hands has increased sharply, especially in the hog business. It is hard for a small farmer to justify giving up any of his earnings to help pay for advertising that disproportionately benefits gigantic corporate farms. If the U.S.D.A. valued small farmers, as it claims, it would accede to the courts, not to the pressure of industry groups.

District Judge Richard Enslen's October 25, 2002 opinion responds to the "government speech" argument with this statement:
[T]he instant case involves mandated fees which are directed toward a discrete occupation (hog producers) and which fund speech as to which some producers have sincere philosophical, political and commercial disagreements. Even aside from the important political and philosophical objections to such speech, the commercial interests of objecting producers to such speech is ample. In days of low return on agricultural, the decision of an individual farmer to devote funds to uses other than generic advertising are very important. Indeed, the frustration of some farmers are likely to only mount when those funds are used to pay for competitors’ advertising, thereby depriving the farmer of the ability to pay for either niche advertising or non-advertising essentials (such as feed for livestock). This is true regardless of whether objecting farmers are correct in their economic analysis that the assessments and speech do not sufficiently further their own particular interests. In short, whether this speech is considered on either philosophical, political or commercial grounds, it involves a kind of outrage which Jefferson loathed. The government has been made tyrannical by forcing men and women to pay for messages they detest. Such a system is at the bottom unconstitutional and rotten.

For these reasons, the Court concludes that the mandated system of Pork Act assessments is unconstitutional since it violates the Cross-Plaintiffs’ rights of free speech and association.

Access Judge Enslen's 33-page opinion and order here. The 6th Circuit's ruling is available here. Some quotes:
The United States District Court for the Western District of Michigan declared the Pork Promotion, Research and Consumer Information Act (the “Pork Act”), 7 U.S.C. § 4801 et seq., and the Pork Promotion Order issued thereunder, 7 C.F.R. § 1230, unconstitutional and issued an injunction terminating all activities under the Pork Act and the Pork Promotion Order. The Act mandates that pork producers and importers (collectively “pork producers”) pay assessments, known as “checkoffs,” to fund promotion, research, and consumer information to benefit the pork industry.

The district court held that requiring the payment of these assessments violates the First Amendment rights of pork producers by compelling them to subsidize speech with which they do not agree. Appellants argue that: (1) the assessments subsidize a government program that advances the government’s policy of promoting pork consumption, and, therefore, are immune from First Amendment scrutiny; (2) even if not part of a government program, the assessments are not compelled speech; (3) the Pork Act program that requires the collection of assessments, is a lawful restraint on commercial speech; and (4) even if the use of assessments for promotion under the Pork Act violates the First Amendment, the injunction ordered by the district court is overly broad in that it eliminates funding for programs that are constitutional. For the reasons stated below, we AFFIRM the grant of summary judgment by the district court.

The Circuit Court addresses the "government" speech argument thusly: "In sum, the costs and content of the speech in question are almost completely the responsibility of members of the pork industry. The First Amendment does not lie dormant merely because the government acts to consolidate and facilitate speech that is otherwise wholly private."

Finally, some other coverage. AgriNews, covering Minnesota and Northern Iowa, has a story containing these quotes:

"The success of the pork checkoff has been well documented," said Ogden, Iowa, pork producer Craig Christensen, [National Pork Board] president. "We all invest in the checkoff and the checkoff delivers, especially for pork producers."

But Minnesota pork producer Rich Smith disagrees. "The pork checkoff has forced family farmers to pay into a program that supports corporate concentration, industrialization and the factory farm system of livestock production, which drives family farmers out of business," Smith said. "The end of the checkoff is long overdue.", a Washington-based interest group, has background on related checkoff cases (mushrooms and beef).

Posted by Marcia Oddi at 06:03 PM

Indiana Decisions - Continuous representation doctrine applies in Indiana legal malpractice cases

As Ed Feigenbaum of Indiana Daily Insight reported last week:

(WED) The Indiana Supreme Court denies transfer in Biomet v. Barnes & Thornburg , No. 02A05-0205-CV-197, a case we have been following for you in Indiana Legislative Insight. Denial of transfer means that the Indiana Court of Appeals ruling in which it breaks new ground is upheld. The appellate court overturned the trial court ruling and decided that Biomet was correct in asserting that the two-year statute of limitations for legal malpractice in this case did not commence until Barnes & Thornburg no longer represented it in the underlying action. The Court of Appeals wrote that:
Under the continuous representation doctrine, the statute of limitations does not commence until the end of an attorney’s representation of a client in the same matter in which the alleged malpractice occurred. Although several jurisdictions have addressed whether the continuous representation doctrine should apply to the attorney-client relationship, this is an issue of first impression in Indiana. After considering the competing policy considerations set forth by the parties, we conclude that Indiana should adopt the continuous representation doctrine to delay the commencement of the statute of limitations until the end of an attorney’s representation of a client in the same matter in which the alleged malpractice occurred.
Access the 7/8/03 Court of Appeals decision here: Biomet, Inc. v. Barnes & Thornburg. As can be seen from the pertinent portion of the case docket, reproduced below, the Indiana Supreme Court denied transfer on 10/23/03 by a vote of 3 to 2.
9/16/03 ***********TRANSMITTED ON TRANSFER 09/16/03*********** RS
10/23/03 ****** ABOVE ENTRY MAILED ******
10/23/03 ***************OPINION CERTIFIED***************

Posted by Marcia Oddi at 05:26 PM