December 31, 2003

Indiana Law - New Year's Wishes: What the Indiana Law Blog Would Like to See in 2004

This is New Year's Eve. Here is what the Indiana Law Blog would like to see for Indiana in the New Year. Maybe not all at once, but at least a start.

1. Women (note the plural) on the Indiana Supreme Court. Current status: Five men, no women.

2. Copies of briefs for cases before the Indiana Supreme Court made available online. When? At the same time they are filed with the Clerk of the Court.

3. The Debates of the Indiana Constitutional Convention of 1850, the Convention Journal, and related documents made readily available on CD-ROM or DVD, and priced right for the student. Incredibly, these books are out-of-print -- I had to slowly assemble my collection from dealers all over the country.

4. I've got more CD/DVD wishes - the House and Senate Journals since Indiana became a State; the Acts of Indiana for the same time-span. Scanned, so that we can see the printed pages. Electronic finding aids would also be nice, but the important thing right now is to capture all this history and make it available before it totally disintegrates.

5. A booklet containing the Constitution of the State of Indiana, and including all the changes that have been made over time. Also the 1816 Constitution.

6. And finally, all the best in the New Year for all you Indiana Law Blog readers!

Posted by Marcia Oddi at 08:23 PM

Law - 7th Circuit Ruling on "Fair Use" Defense

Chicago Bd. Education v. Substance, Inc. (12/31/03 CA 7th Cir.)
Posner, Circuit Judge

Here the Board of Education sued the publisher, Schmidt, of a newsletter that quoted from the Board's copyrighted tests. Just a few quotes from the 14-page opinion (cites mostly omitted):

[Schmidt] was entitled to criticize the tests and to do that effectively he had to be able to quote from them, just as a parodist has to be able to quote, sometimes very extensively, from the parodied work in order to make the criticism of it that is implicit in parodying it comprehensible. * * *

So where to draw the line? The question cannot be answered precisely. The fair use defense defies codification. As we said in Ty, the four factors that Congress listed when it wrote a fair use defense (a judicial creation) into the Copyright Act in 1976 are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically. The general standard,
however, is clear enough: the fair use copier must copy no more than is reasonably necessary (not strictly necessary — room must be allowed for judgment, and judges must not police criticism with a heavy hand) to enable him to pursue an aim that the law recognizes as proper, in this case the aim of criticizing the copyrighted work effectively. * * *

Schmidt‘s opening brief cites the memorandum that he had filed in the district court—the memorandum the judge had overlooked in rejecting the fair use defense on the pleadings. In the memorandum, Schmidt did offer answers
to these questions. Only the answers are no good, so that even if incorporation by reference were a valid method of bringing facts and arguments to the attention of an appellate court—which it is not, DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999) (“a brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record”); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir. 1986) (“our rules do not permit issues to be preserved by references to documents filed in the district court )— treating the memorandum as if it were a brief in this court would merely confirm that Schmidt has no fair use defense.

Posted by Marcia Oddi at 04:50 PM

Indiana Decisions - 7th Circuit Rules in Thermostat Case

Eco Mfg. LLC v. Honeywell Int'l Inc. (12/31/03 CA 7th Cir.)
Easterbrook, Circuit Judge

The Court here upholds the interlocutory decision of Judge Hamilton, SD Ind:

Thus the district court did not abuse its discretion in holding that Eco may go forward with a round thermostat—at its own risk, of course, should the decision come out otherwise on the merits. Although we have not endorsed all of the district court’s legal analysis, it would be pointless to remand for another hearing on interlocutory relief. The case should proceed expeditiously to final decision; another “preliminary” round would waste everyone’s time. It would be especially inappropriate to direct the district judge to issue a preliminary injunction when issues other than functionality remain to be addressed. Eco contends, for example, that Honeywell bamboozled the Patent and Trademark Office when seeking registration during the 1980s, and material deceit would scotch this enforcement action whether or not the trade dress is functional. We do not express any view on that issue, or any ultimate view about functionality; it is enough to say that the record compiled to date adequately supports the district judge’s interlocutory decision.

Posted by Marcia Oddi at 04:30 PM

Indiana Decisions - Announcement

Since its inception in March of 2003, the Indiana Law Blog has attempted to highlight Indiana Supreme Court and Court of Appeals "decisions of interest" on the same day that they are issued. Of course, not everyone may agree as to what are the "decisions of interest" on any particular day.

New Year's Resolution. Starting this afternoon, the Eve of 2004, the ILB will endeavor to at least list the general category of, and provide a link to, every decision of the Indiana appellate courts in a timely manner.

Today the Indiana Supreme Court issued one opinion, summarized in the last post. The Court of appeals issued four opinions:

Estate of Penzenik v. Penz Products (12/31/03 IndCtApp) - Estates and Trusts

Mark C. Dawson v. Karen A. Dawson (12/31/03 IndCtApp) - Family Law

Michael T. Lewis v. State of Indiana (12/31/03 IndCtApp) - Criminal Law & Procedure

Theodore Alexander v. PSB Lending Corporation (12/31/03 IndCtApp) - UCC, Banking, Lending; Statutory Interpretation (Any opinion with 22 different law firms listed as representing the appellees may be a "decision of interest." Therefore I have converted it to PDF for the readers' convenience.)

Posted by Marcia Oddi at 04:00 PM

Indiana Decisions - Supreme Court adddresses new questions in eminent domain proceeding

State of Indiana v. Stephen Bishop, et al. (12/31/03 IndSCt)
Shepard, Chief Justice

The questions, as set forward by the Court:

This is an eminent domain proceeding in which the State condemned land adjoining an interstate highway in order to build an interchange. We consider two questions we have never addressed before. First, does a party who has filed objections to the report of court-appointed appraisers have an absolute right to withdraw the objections? Second, by what method does one assess the fair market value of a billboard that is taken in condemnation?
The Court rules here that:
a party does not have an absolute right to withdraw exceptions to the appraisers' report; rather, the withdrawal of exceptions is subject to the trial court's discretion. While the court in the exercise of such discretion may ordinarily allow the withdrawal, it may deny the request to withdraw or condition the withdrawal upon such terms and conditions as the court deems necessary to avoid injustice.
As for the method of determining the fair market value of property taken by eminent domain:
Three widely accepted approaches to estimating the fair market value of property taken by eminent domain are: (1) the current cost of reproducing the property less depreciation from all sources; (2) the 'market data' approach or value indicated by recent sales of comparable properties in the market, and (3) the 'income-approach,' or the value which the property's net earning power will support based upon the capitalization of net income. * * * Because this Court has not previously addressed the question of the appropriate way to value billboards in an eminent domain case and because we are remanding this case for a new trial on values, we address the question now.
After setting out rules for assessing the fair market value of a billboard that is taken in condemnation, the Court concludes: "We affirm the trial court’s refusal to permit the State to withdraw its exceptions. We otherwise reverse the judgment and remand for a new trial."

Posted by Marcia Oddi at 02:53 PM

Indiana Law - Standards for Gated Communities

There is an interesting article in today's Fort Wayne Journal Gazette titled: "Living behind gates: Developers discuss the feeling of security that communities like." Some quotes:

In the far western reaches of Aboite Township, just shy of the Whitley County line, two developments are springing up with characteristics foreign to the area. One, Heron Preserve, has been approved as Allen County's first gated community. Virtually next door, The Cliffs sports an equally impressive front entrance, although its status as a gated community is undecided. * * *

Heron Preserve's gatehouse will be staffed continuously with off-duty sheriff's deputies.

Terry Ternet is still seeking approval for gates at The Cliffs, a development adjacent to Heron Preserve on Aboite Center Road. If approved, The Cliffs will have a closed gate in what Ternet calls the "vandalism hours," roughly 8 p.m.-6 a.m. * * *

The Cliffs won't have a person at the gatehouse, and therein lies a problem with the county. Citing emergency access concerns, the Allen County Plan Commission approved the development, but not the gate. Ternet has offered to put in "every backup system we could find" so fire and police personnel would have a way to open the gates should an emergency arise when they're closed.

"A lot of states have gates like this," said Ternet, who has researched the issue.

Kim Bowman, county director of planning, said Ternet needs to go back to the commission to ask for the initial approval to be amended to allow him to put in a gate.

Part of the problem is the county doesn't have standards for gated communities. The commission could make a decision based on precedent, but the only precedent so far is Heron Preserve's 24-hour manned security. Ternet won't go that route and continues to hope for a resolution with the county.

Posted by Marcia Oddi at 09:08 AM

December 30, 2003

Indiana Decisions - Another FSSA case

Governor Joseph Kernan, et al. v. Richard Schindler, et al. (12/30/03 IndCtApp)
Kirsch, Judge

This is a short opinion on a petition for rehearing and would best be appreciated by reading in full. The issue is whether the trial court's order to increase staffing at Logansport State Hospital violated the separation of powers. The Court states: "We grant the Appellees’ petition insofar as is stated in this opinion to clarify our prior holding."

In their petition for rehearing, the Appellees contend that the trial court order merely directed the State to maintain staffing ratios which are mandated by certain federal and state regulations and, therefore, [Logansport State Hospital v. W.S., 655 N.E.2d 588 (Ind. Ct. App. 1995)] does not apply. If that were the effect of the trial court order, we would agree. The trial court order, however, does more than direct the maintenance of staffing ratios which are required by applicable regulations. It mandates staffing levels in absolute terms and without regard to regulatory requirements. It does not provide for the State to reduce staffing in relation to a reduction in patient population as permitted by the regulations. For these reasons, the trial court’s restraining order in its present form contravenes our holding in Logansport State Hospital. Neither this opinion, nor our Opinion in this case should be construed to prevent the trial court from issuing an order that the State shall maintain staffing ratios in accordance with applicable governmental regulations.
Najam, J. concurs.
Hoffman, Sr. J., dissents with separate opinionHere is the dissent, in full:
I respectfully dissent from the majority’s decision to grant rehearing.

The majority’s opinion on rehearing merely agrees with our original opinion that the trial court erred in prohibiting the State from reducing or removing existing staffing levels at Muscatatuck State Development Center. As both our original opinion and the majority on rehearing state, the trial court’s order violates Article III, § 1 of the Indiana Constitution.

The majority’s opinion on rehearing has the sole effect of advising appellate counsel as to how they may word a further request to the trial court. The opinion does not address the issue set forth in this appeal. In effect, the majority’s opinion serves as an advisory opinion. This court “does not and should not issue advisory opinions.” Armstrong v. Federated Mutual Insurance Co., 785 N.E.2d 284, 294 (Ind. Ct. App. 2003) trans. denied.

I would deny the Appellees’ petition.

Note: The last sentence of the concurring opinion in Armstrong, referenced above, reads: "This court does not and should not issue advisory opinions. See Richardson v. Calderon , 713 N.E.2d 856, 863 (Ind. Ct. App. 1999), trans. denied (2000)." And the last sentence of the opinion in Richardson reads: "We do not issue advisory opinions. Hill v. State, 592 N.E.2d 1229 (Ind. 1992)."

Posted by Marcia Oddi at 04:32 PM

Indiana Law - Supreme Court Announces Availability of a Business Counsel License

A release just issued by the Supreme Court of Indiana:

BUSINESS COUNSEL LICENSE FOR ATTORNEYS AVAILABLE JANUARY 1

Indiana residents who are admitted to the bars of other states and who do legal work for their companies will be able to apply for a new “Business Counsel License” beginning January 1, 2004, Chief Justice Randall T. Shepard announced today.

The Business Counsel License will cost $800 and will be good for one year. It can be renewed for four years at the cost of $50 per year. Attorneys with this license can only practice law for their business.

After five years, these lawyer can then apply for the existing out-of-state or “foreign license.” To obtain a foreign license, lawyers must have been actively engaged in the practice of law for at least five or the seven years preceding the application and must fulfill all other requirements. Indiana joins 14 other states which have similar licenses.

Specific admission requirements for the Business Counsel License are set out in Indiana Admission and Discipline Rule 6 and are available on the Board of Law Examiners web site, www.IN.gov/judiciary/ble. After January 1 application forms will be available also from the Board of Law Examiners office. Call 317.232.2552 or email Becky Sutton at bsutton@courts.state.in.us.

Posted by Marcia Oddi at 12:45 PM

Environment - Ruling in DC Circuit decision on CAA

I've been checking the site of the Court of Appeals for the DC Circuit for a copy of the order in their Dec. 24th decision to stay the taking effect of EPA's CAA changes (which were scheduled to go into effect Dec. 27th).

The Indiana Law Blog writeup of the Dec. 24th action is here (or simply scroll down to the 24th).

This morning I contacted the Clerk of the DC CA and asked why the "opinion" was not posted. I was pleased to receive an immediate response from the Clerk, Mark Langer: "That was not an opinion. It was an unpublished order. It should be available, for a fee on the PACER site attached to the docket entry. A copy can also be obtained by coming to the Court."

[Update] Here is the Dec. 24th stay order. Thanks to my friends at B&T.

Posted by Marcia Oddi at 11:23 AM

Law - Supreme Court of United States "opens up" somewhat

Tony Mauro, columnist for Legal Times, has a very interesting article today describing how the Supreme Court:

... which has long resisted many aspects of the Information Age, is beginning to get more comfortable with greater transparency and openness. There were other illustrations of the trend in 2003. An expanded and increasingly useful Web site. More frequent early release of oral argument audiotapes. An end to the ban on note-taking in public sections of the Court. Briefing its Capitol Hill neighbors on courthouse renovation plans. * * *

The Court's unheralded decision to allow public spectators to take notes during its proceedings -- reversing a decades-long policy against it -- has also had a subtle but important impact. Both developments signal that oral arguments are not just for the benefit of the justices, but have a public dimension as well.

The justices still appear far from ready to take the next step: allowing cameras inside the Court. They prize their anonymity and traditions too much, for now. But short of camera access, its actions in 2003 have made it easier for the public to glean and record information on its proceedings -- both inside and outside the courtroom.

Lawyers who practice before the Court are also benefiting from a more public-oriented attitude. Roy Englert Jr. of Robbins, Russell Englert, Orseck & Untereiner says that it has become easier to file briefs and other documents with the Court electronically. * * *

Englert also points to the increasing usefulness of the Court's official Web site, www.supremecourtus.gov, launched in April 2000. It has detailed docket information, and through a new arrangement with the American Bar Association, the site also includes briefs on the merits filed by both sides in all cases docketed for oral argument.

The Supreme Court site now links to an ABA page with the merit briefs. Access it directly here. Use the "Argument Date Menu" on the right to select the month the argument for the case you are interested in is scheduled.

Thanks to How Appealing for the link to the Mauro article.

Posted by Marcia Oddi at 11:12 AM

Indiana Law - Property tax deductions on Indiana returns

The Munster NWI Times has a story today headlined "Tax deductions confusing this year: Reassessment impacts income tax breaks," aimed at clarifying the deduction.

Posted by Marcia Oddi at 08:42 AM

Environment - More on Regulation of Mercury in Coal-Fired Power Plants

"EPA Led Mercury Policy Shift: Agency Scuttled Task Force That Advised Tough Approach," is the headline to this story today in the Washington Post. Some quotes:

The Environmental Protection Agency-sponsored working group had a well-regarded mix of utility industry representatives, state air quality officials and environmentalists. Without settling on specific emission reductions, the panel agreed that all 1,100 of the nation's coal- and oil-fired power plants must use the "maximum achievable control technology" (MACT) to reduce mercury and other hazardous pollutants.

But in April, the EPA abruptly dismantled the panel. John A. Paul, its co-chairman, said members were given no clue why their work was halted -- that is, until late last month, when the Bush administration revealed it was taking an entirely different approach, using a more flexible portion of the Clean Air Act.

The new approach would still cost the industry billions of dollars to meet long-term goals. But it was far cheaper and less onerous than the MACT approach that most experts had assumed the EPA was developing to meet a court-imposed deadline of Dec. 15.

Also of interest is this AP story from 12/27/03, published in the Pioneer Press: "Mercury Regulation: EPA rule could pre-empt stronger state action."

Posted by Marcia Oddi at 08:34 AM

December 29, 2003

Indiana Law - Expand Sex Offender Registry to Include Murderers?

On Tuesday December 16, 2003 the Munster NWIndiana Times had this editorial calling for the Indiana to "Start a registry for violent criminals." Some quotes:

All sorts of alarm bells were going off that raised suspicions about David Edward Maust, the Hammond tenant suspected of killing three teenagers. Maust was acting suspiciously, neighbors and friends of the victims say. There also is the matter of Maust's criminal record. He murdered a 15-year-old Chicago boy in 1981. He served time in Texas for severely injuring a Galveston County child.

A 1986 report from Dr. Matthew Marcos of The Psychiatric Institute of the Circuit Court of Cook County said Maust "has a very long and significant history with multiple suicide attempts and homicidal activities."

It would be difficult for the neighbors to find out about Maust's background on their own, however, because there's no easy way for them to do so.Had he been a registered sex offender, it would have been a different matter. They could have followed up on their suspicions by going to one of the Internet sites that post names, photos and descriptions of registered sex offenders.

Later in the editorial:
Legislators throughout the nation should start thinking about how to make this registry for violent criminals work. Each registry must not only track offenders convicted in that state but also link to those in other states as well.

Porter County's sex offender registry, for instance, tracks not only the criminals living in that county but also those who work there. That's something to keep in mind while designing the violent criminals registry. Porter County's sex offender registry is far superior to that of Lake County, which links to an Indiana Sheriffs Association site that cannot be search geographically, which is what neighbors need.

As Maust's case shows, the ability to keep tabs on violent criminals in our communities, regardless of where they live or were convicted, is necessary.

Here is the Porter County registry; I actually could not find Lake County's.

A day earlier the NWIndiana Times ran this story that began: "David Edward Maust had a criminal history of strangling and stabbing young boys, but because he was never convicted of molesting them, his Hammond neighbors knew nothing of his violent past."

This story in the Chicago Tribune from Dec. 16 reports that Illinois is considering such a law. And this story from today's (12/29/03) Boston Globe reports that both Illinois and Indiana are considering expanding their registries to include murderers. A quote:

Now, officials in both Indiana and Illinois, where Maust spent 17 years in prison for killing a teenager, are considering whether those states should create a registry for convicted murderers. Montana has one for violent offenders, including murderers, but it appears no other state has followed suit.

"I don't understand our laws," said Raganyi, the uncle of James Raganyi, 16, one of the slain boys. "The justice system has me completely baffled now."

Last week, two Indiana representatives, Robert Kuzman and Linda Lawson, Democratic leaders of House Judiciary committee, announced they would introduce a bill or an amendment next month to change the sex-offender registry law to include murderers.

For a good survey of sex offender directories, see this article, titled "Megan's Law," in the excellent LLRX.com. Indianapolis WISH TV did a feature on Indiana's law earlier this month, titled "Compliance spotty for sex offender registry." A taste:

I-Team 8 found compliance levels literally all over the map. Shelby County has photos for all 67 of its registered offenders. Morgan County still doesn't have any of its offenders online yet and while Hamilton County has 109 offenders listed there's not a single photograph posted.
The story includes links to a WISH-TV survey of compliance by 33 counties in central Indiana.

Links to earlier Indiana Law Blog entries regarding the Indiana sex offender registry may be found here.

Posted by Marcia Oddi at 07:25 AM

December 28, 2003

Law - The Election of 1800 and the Slave Vote

Garry Wills' latest book, Negro President, examines the election of 1800, which Thomas Jefferson won over John Adams in the Electorial College. As Wills explains in an article in the New York Review of Books (which appears to have been adopted from his forward to the book itself):

If real votes alone had been counted, Adams would have been returned to office. But, of course, the "vote" did not depend solely on voters. Though Jefferson, admittedly, received eight more votes than Adams in the Electoral College, at least twelve of his votes were not based on the citizenry that could express its will but on the blacks owned by Southern masters. A bargain had been struck at the Constitutional Convention—one of the famous compromises on which the document was formed, this one intended to secure ratification in the South. The negotiated agreement ... decreed that each slave held in the United States would count as three fifths of a person in setting the members of the Electoral College.
The result of this compromise was that slaveholders had additional votes, three for every five slaves they held.
The Federalists predicted that this Negro "representation" would grow year by year so long as the federal ratio was retained. This prospect is what they meant by "the slave power." They did not mean the power that plantation owners exerted over their black slaves, or the power slaves might someday use in retaliation. They meant the power that slave states wielded over nonslave states. The Federalists said that the plantation men were their masters. As William Plumer wrote in a public appeal to his New Hampshire constituents:
Every five of the Negro slaves are accounted equal to three of you.... Those slaves have no voice in the elections; they are mere property; yet a planter possessing a hundred of them may be considered as having sixty votes, while one of you who has equal or greater property is confined to a single vote.
Wills explains that the three-fifths clause affected not only the election of 1800, but it gave disproportionate voting power to the South. * * *

On crucial matters, when several factions were contending, the federal ratio gave the South in Congress a voting majority. Without the federal ratio as the deciding factor in House votes, slavery would have been excluded from Missouri; Andrew Jackson's policy of removing Indians from territories they occupied in several states would have failed; the 1840 gag rule, protecting slavery in the District of Columbia, would not have been imposed; the Wilmot Proviso would have banned slavery from territories won from Mexico. Moreover, the Kansas and Nebraska bill outlawing slavery in Nebraska territory and allowing it in Kansas would have failed. Other votes were close enough to give opposition to the South a better chance, if the federal ratio had not been counted into the calculations from the outset. Elections to key congressional posts were affected continually by the federal ratio, with the result that Southerners held "the Speaker's office for 79 percent of the time [before 1824], Ways and Means for 92 percent." * * *

Even when it did not affect the outcome of congressional votes, it dominated Democratic caucus and convention votes, since the South had a larger majority there than in the larger body. This meant that it guaranteed presidential nominations that would be friendly to the slave interest. When control of the caucus seemed to be slipping from Southern hands, a two-thirds requirement for nominating candidates gave them the power to veto men unacceptable to them. The federal ratio was, therefore, just the starting point for seizing and solidifying positions of influence in the government. It was a force supplemented by other maneuvers.

The NY Times carried a review of Wills' book on Christmas Day. A quote:
Jefferson's reliance on the slave count did not go unobserved by the party he ousted. In New England the Federalist Timothy Pickering labeled Jefferson a Negro president, elected by Negro electors and Negro Congresses. Or as one Boston newspaper put it in 1801, the sage of Monticello, famous for humbly walking through Washington's muddy streets to his own inauguration, had ridden "into the temple of Liberty on the shoulders of slaves."

How could the Constitution set the apportionment of delegates to the national legislature, Mr. Wills asks, so as to allow a man to gain 300 extra votes in Congress by owning 500 human beings? His answer recovers for modern readers the intensity of the debate over the three-fifths clause, as when Gouverneur Morris declared at the Constitutional Convention, "The admission of slaves into the representation, when fairly explained, comes to this: that the inhabitant of Georgia and South Carolina who goes to the coast of Africa and, in defiance of the most sacred laws of humanity, tears away his fellow creatures from their dearest connections and damns them to the most cruel bondage, shall have more votes in a government instituted for protection of the rights of mankind than the citizen of Pennsylvania or New Jersey who views with a laudable horror so nefarious a practice."

Garry Wills appears on BookTV tonight (12/27/03) at 11:00 p.m. discussing his book. The appearance was also broadcast yesterday evening. Presumably starting tomorrow you will be able to view the show online via this link (via the word "Watch" which will appear right under the book title).

Posted by Marcia Oddi at 06:32 PM

Law - 1789 Alien Tort Act Under Review

All in all, this is a slow time for law news. However, this lengthy piece in the Boston Globe today, with the headline "Will an obscure law bring down the global economy?" caught my eye. Some quotes:

What is this dangerous act? The commotion concerns a hitherto obscure provision in the law that created our federal court system, the Judiciary Act of 1789. It reads: ''The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.'' In other words, foreigners can sue in US courts for violations of international law. It is a potentially powerful weapon. And now, more than two centuries after its adoption, the Supreme Court has finally agreed to rule on its use.
Linda Greenhouse of the NY Times had a column on the challenges to this law on December 1. Here is some of what she wrote:
For two centuries, the Alien Tort Statute received little attention, and much about its origins — and even its name — is obscure. It is sometimes called the Alien Tort Act or the Alien Tort Claim Act. A 1980 decision by the federal appeals court in New York allowed a Paraguayan family to sue a Paraguayan police official in Federal District Court in Brooklyn for a kidnapping and murder that occurred in Paraguay and gave the old law a new visibility. It was not until the mid-1990's that the law was used to sue corporations.

The administration's basic argument is that the law provides jurisdiction in a general sense but conveys no specific rights that can be enforced by a private lawsuit. The lawsuits on behalf of those being detained by the United States at Guantánamo Bay, Cuba, included allegations under the Alien Tort Statute, but that question is not before the Supreme Court in the detainees' appeals that the justices accepted three weeks ago.

An interesting perspective on the use of the Alien Tort Act is found in this well-worth-reading report, titled "A New Moral Compass for the Boardroom," that appears in the current issue of Corporate Board Member Magazine. The premise pf the report:
Directors are broadening the horizon of their responsibilities at a growing number of successful companies. But sorting out exactly what to do is not easy. Balancing obligations to workers and shareholders, deciding whether or not to operate in countries that tolerate child labor, assessing a fair share of environmental-cleanup costs—questions like these can tax and divide even the best-motivated businesspeople. Directors’ thoughts on such topics, as expressed to Corporate Board Member—plus the thinking of academics, ethicists, and governance activists—point the way toward a new moral compass for corporations.

Directors are being bumped and prodded from three directions—external pressures, personal values, and changing definitions of corporate success—to increase their focus on social responsibility. “There is a hugely heightened public scrutiny,” notes Steven Shapiro, executive vice president and corporate secretary of First Midwest Bancorp in Itasca, Illinois. “That ratchets up the bar, because now, besides asking themselves all the usual questions, directors are asking themselves, ‘Do we want this on the front page of the New York Times or the Wall Street Journal?’”

About halfway through the review is this paragraph (emphasis added):
Myanmar has some of the worst labor conditions on the planet and the lowest wages, about 4 cents a day. Building that 39 miles—at an estimated cost of $1.2 billion—has generated all kinds of horror stories: of men beaten into working on the project, of women raped by its military guards, of families forcibly relocated to make way for it. EarthRights International, a Washington, D.C.-based group run by Katie Redford, wants to hold Unocal, a 28% investor in the pipeline, accountable for the atrocities directly connected to it. Redford, 35, is working on behalf of a dozen Burmese villagers who are using a 1789 law called the Alien Tort Claims Act—which some people say was originally intended to fight piracy—to sue Unocal in the United States. The law says that foreign citizens can claim violations of international law in U.S. courts. Other plaintiffs are employing it to sue ChevronTexaco for alleged abuses in Nigeria, DynCorp for alleged misdeeds in Ecuador, and Occidental Petroleum for alleged illegalities in Colombia. Unocal maintains that the Yadana project “has brought significant benefits in health care, education, and economic opportunity” to the area. The company says that it “and the other project investors do not defend the actions and policies of the government of Myanmar,” but that it “believes that engagement is by far the more effective way to strengthen economies and promote more open societies.”
Finally, Charles Lane of the Washington Post also wrote here about this law on December 1. Some quotes:
Though rarely invoked throughout most of U.S. history, the law has been interpreted by several federal appeals courts since 1980 to open the federal courts to suits for monetary damages based on alleged violations worldwide of internationally recognized human rights norms.

Among the defendants who have been sued are Radovan Karadzic, the Bosnian Serb leader allegedly responsible for mass killings of Muslim civilians, and Unocal, the petroleum multinational, which is fighting a lawsuit over its alleged collaboration with the use of forced labor by Burma's government on a natural gas pipeline.

That interpretation of the Alien Tort Act is vigorously defended by human rights and environmental activists, who see it as a powerful tool for reining in the unlawful conduct of individuals, companies or government officials that might otherwise escape justice. * * *

The cases are Sosa v. Alvarez-Machain, No. 03-339, and U.S. v. Alvarez-Machain, No. 03-485, consolidated. Oral argument is to take place in the spring, and a decision is expected by July.


Posted by Marcia Oddi at 09:21 AM

December 27, 2003

Indiana Decisions - More on gun ruling

Today's Indianapolis Star has this editorial, headlined "Blame gun dealers, not manufacturers," reacting to the Indiana Supreme Court's ruling of 12/23/03 that Gary may proceed with its 1999 lawsuit against gun manufacturers and dealer. The conclusion:

Unscrupulous dealers may be to blame in part for the city's murder rate, but it makes no sense to indict an entire industry. A bill pending in Congress could make the Gary court case irrelevant. Legislation that would protect companies that make, import or sell guns from civil claims filed by shooting victims has passed the House and appears headed for approval in the Senate.

Unfortunately, the bill goes too far in protecting dealers as well as manufacturers. The nation is confronted with two extremes on this issue. Congress is on the verge of exempting the industry from lawsuits; cities like Gary, meanwhile, are targeting manufacturers as well as dealers. A middle ground is desperately needed.

Indiana Law Blog coverage of the decision may be found here and here (or simply scroll down this page).

Posted by Marcia Oddi at 12:39 PM

December 25, 2003

Law - More on redistricting

"The Supreme Court Considers Sophisticated Political Gerrymandering: Are Voting Rights Preserved If Boundaries are Drawn to Ensure Particular Election Outcomes?" So asks the title of this lengthy opinion piece today at Findlaw.com. Authored by Edward Lazarus, the article begins:

In Isaac Asimov's science fiction classic, The Foundation Trilogy, the science of statistics has become so advanced that the future of government and society can be predicted with terrifying accuracy. Although free will may exist at the individual level, it effectively disappears in every circumstance of group behavior, because the ultimate outcome of all group conduct can be known by statisticians in advance.

Life is once again imitating art. Armed with the data-manipulating power of new computers, political operatives can now effectively predetermine the results of most elections. All they must do to accomplish this, is to re-jigger the boundaries of electoral districts to include certain voters and exclude others.

This improved predictive capability opens the door to at least two kinds of mischief. First, it allows the political party that controls a state legislature at the time of redistricting to reconfigure electoral districts to lock in its partisan majority. Second, it allows incumbent legislators an ability to design safe seats for themselves and, thus, preclude meaningful competition in subsequent elections

Does the Constitution prohibit this kind of outcome-determinative political "gerrymandering" - as the practice is known? That is the question now pending before the U.S. Supreme Court, in the case of Vieth v. Jubelirer.

During the December 10 oral argument in the case, the Justices showed little inclination to curb the practice. However, it would much better for our democracy if they would do so. A pre-decided election is perilously close to no election at all -- no matter who is favored. And incumbents, in particular, already have such a great advantage, that their attempts to amplify that advantage through gerrymandering ought to be especially troubling to us all. [my emphasis]

News of the Texas redistricting case. The trial before a federal three-judge panel has concluded and a ruling is theoretically possible as soon as next week. Here are two stories from the San Antonio Express, this one published 12/25/03, and this one 12/24/03. Here is a Houston Chronicle story from 12/24/03. And here is the Austin American-Statesmen piece from the same date.

Stewart Taylor of National Journal has this opinion piece in The Atlantic Monthly, dateline 12/23/03, titled "Should the Supreme Court Clean Up Its Own Mess? The justices have destroyed all the rules, customs, and traditions that used to restrain gerrymanders."

Posted by Marcia Oddi at 03:31 PM

December 24, 2003

Environment - DC Circuit Blocks CAA Changes; and More

The Washington Post is reporting here this afternoon that the DC Circuit has blocked EPA's NSR changes from going into effect:

The Environmental Protection Agency rule would have made it easier for utilities, refineries and other industrial facilities to make repairs in the name of routine maintenance without installing additional pollution controls.

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia issued an order that blocks the rules from going into effect until the legal challenge from the states and cities is heard, a process likely to last months. * * *

Bringing suit were attorneys general for 12 states - Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and Wisconsin - and legal officers for New York City, Washington, San Francisco, New Haven and a host of other cities in Connecticut. * * *

But the judges also said they found no reason to revisit an earlier decision not to block other of the EPA's changes to the Clean Air Act that were made final in December 2002. Those new rules had already begun to go into effect in some states earlier this year, giving coal-fired power plants and other industrial facilities more flexibility in calculating their pollution levels.

Here is the updated Post story as it appears in the 12/25/03 printed edition. Here is the LA Times coverage and here is the NY Times coverage.

US EPA now has this notice on its New Source Review page:

After EPA issued the final NSR Equipment Replacement rule, 14 states, plus other governmental entities, and several public health/environmental organizations filed suits in the Court of Appeals for the District of Columbia Circuit challenging the rule. Some of these groups asked the Court to prevent the rule from taking effect or "stay the rule" until the challenges they raised in their lawsuits are resolved by the Court. On December 24, 2003, the Court stayed the effective date of the October 2003 Equipment Replacement NSR rules. As a result, the rule will not become effective on December 26, 2003.
I'll post the link to the DC Circuit ruling as soon as it is available. [It looks now like that may not be until next Monday, 12/29/03.]

Also of interest today in the Washington Post is this editorial that begins:

OVER THE PAST several days, the Bush administration has changed its mind about the scientific merits of two environmental issues. For this administration, which has so often preferred to stick to bad ideas rather than admit they are bad, and which has seemed so addicted to political manipulation of science, such changes are worth noting -- particularly as both are still open to further manipulation.

The first change came out of the Environmental Protection Agency, whose new administrator, Mike Leavitt, announced last week his intention to reverse a previous proposed rule that would have removed protections from the nation's rivers, streams and wetlands. The second came out of the U.S. Fish and Wildlife Service, which produced a biological assessment of the Missouri River that concurred, at least in part, with previous assessments.

Finally, the Post's NSR story provided a link to this interesting page, which is the air docket of EarthJustice, a public interest environmental law firm, and gives a kind of overview of environmental air legal issues.

Posted by Marcia Oddi at 04:11 PM

Indiana Decisions - Transfer List for Week Ending Dec. 24, 2003

Here is the Indiana Supreme Court transfer list for the week ending December 24, 2003. (Special thanks goes to the Clerk of the Court's office for making these lists available for posting online.)

I understand the next list will be available January 9, 2004.

A link to earlier Indiana transfer lists is available here. (The lists are also always available via "Categories" in the right column.)

Posted by Marcia Oddi at 09:06 AM

December 23, 2003

Indiana Decisions - More on Gary handgun ruling

City of Gary v. Smith & Wesson Corp. (12/23/03 IndSCt)

Here are some quotes on the case from this release from U.S. Newswire:

In an important legal victory against the gun industry, the Indiana Supreme Court today unanimously ruled that the city of Gary may proceed with its lawsuit against gun manufacturers and sellers. The court reversed a lower court ruling dismissing the city's claims and rejected virtually every argument made by the industry against the suit.

This ruling comes as Congress is considering legislation to ban civil suits by gun violence victims and cities and immunize negligent gun sellers. Currently, 44 states allow suits by victims or cities against negligent gun sellers. The federal immunity bill would override all of these states' laws. Attorneys with the Brady Center to Prevent Gun Violence represent Gary, Ind., in this case. * * *

The Gary suit charges that the industry has designed, marketed and distributed firearms in ways that ensure the widespread accessibility of handguns to prohibited purchasers, including children and criminals. It asserts nuisance, negligence and product liability theories of recovery against the industry, seeking damages for the millions of dollars in costs incurred by the city in combating illegal guns.

The Indiana Supreme Court decision clears the way for the Gary suit to proceed to pretrial discovery and trial.

The background and history of the case is available here, on the Brady Center's anti-gun violence site. Some quotes:
Gary then appealed the case to the Indiana Appellate Court, and the Appellate Court reversed the dismissal against certain gun dealers, allowing the case against those dealers to proceed. In the same decision, the court split 2-1 on whether to allow Gary’s case against gun manufacturers, distributors and other dealers to go forward. In a lengthy, stinging dissent, Judge Patricia A. Riley held that Gary’s entire case should proceed, stating, “The majority cannot reasonably contend that [the gun industry’s alleged] ‘willful, deliberate, reckless, and negligent’ distribution of firearms is legislatively authorized....A city’s foremost concern is the health and welfare of its citizens. Appellees [the gun industry] make and sell a product that is demonstrably devastating to that health and welfare.” City of Gary v. Smith & Wesson, 2002 WL 31100648 (Sept. 20, 2002, Ind. App.).

Gary appealed the decision to the Indiana Supreme Court. On January 23, 2003, the Supreme Court agreed to hear an appeal as to whether Gary's suit against the gun manufacturers can go forward. The decision vacates the appellate decision which found for defendant gun manufacturers. Oral argument on the appeal was held on February 27, 2003 [listen here], at which the Legal Action Project argued on behalf of the city.

[Update 12/24/03] Here is today's story in the Indianapolis Star. Some quotes:
The 5-0 ruling clears the way for a trial in Lake Superior Court unless Congress votes to ban lawsuits against the gun industry by municipalities and the victims of gun violence. Gary is among 33 municipalities that have sued the industry. * * *

Indiana's Supreme Court, in an opinion written by Justice Theodore Boehm, became the second state top court to uphold a municipality's right to sue gun manufacturers to recover taxpayer money spent as a result of gun-related violence. Ohio, in June 2002, became the first to allow such lawsuits.

The story also reports that: "After Gary filed suit, the Indiana General Assembly acted in its 2000 session to ban lawsuits by other municipalities in the state." This story from the Chicago Tribune states:
Indiana passed a law in 2000 barring such lawsuits, but it exempted Gary. The U.S. House in April passed a bill to extend a ban on such suits nationwide, and President Bush has said he would sign it. Senate Democrats have threatened to filibuster the proposal.
Neither House Bill 1064 nor 1081 from 2000, which took separate approaches toward barring such lawsuits, passed out of first house committee. Although I don't doubt that the 2000 General Assembly passed such a law, I am unable to locate it (and I have been working with legislation for about 100 years!). If anyone can direct me to the 2000 law referenced in the stories, I'd appreciate it.

[Updated 12/26/03] Well, I finally found "the 2000 law" -- it is a 2001 law -- in the Indiana Code at IC 34-12-3. Its source is PL 19-2001; the 2001 Enrolled Act is HEA 1043. The enrolled act digest reads:

Legal actions involving firearms. Prohibits the state or a municipal corporation, including a county, municipality, township, school corporation, or any other separate local governmental entity that may sue and be sued, from bringing an action against a firearms or ammunition manufacturer, trade association, or seller for: (1) recovery of damages resulting from, or injunctive relief or abatement of a nuisance relating to, the lawful design, manufacture, marketing, or sale of a firearm or ammunition for a firearm; or (2) recovery of damages resulting from the criminal or unlawful misuse of a firearm or ammunition for a firearm by a third party.
As for "exempting Gary from the ban," HEA 1043 contains a non-codified section (i.e. you won't find it in the Indiana Code) that reads:
SECTION 2. [EFFECTIVE UPON PASSAGE] IC 34-12-3, as
added by this act, applies only to actions filed after the effective date of this act.
The effective date of HEA 1043 was April 18, 2001; the Gary lawsuit was filed on August 27, 1999, according to information found here. The history of the bill, including the authors and sponsors, may be found here.

Posted by Marcia Oddi at 07:22 PM

Indiana Decisions - Municipality can sue handgun manufacturers

The opinion is not yet available online (and probably won't be available until tomorrow, as cases have been posted on the Court site already this afternoon). However, here is the Indianapolis Star's first take:

The Indiana Supreme Court today cleared the way for the city of Gary to sue gun manufacturers, wholesalers and distributors over how they market and distribute handguns.

In a decision that could have broad implications, the high court also ruled the Northwest Indiana city can pursue its claim for monetary damages against manufacturers that certain weapons were negligently designed.

An AP story just published in the Munster NWIndiana Times is available here. "The 5-0 decision said the northwest Indiana city had lawfully stated claims accusing the gun businesses of becoming public nuisances by fueling crime. Justices agreed the city could seek money damages and injunctive relief in state court."

See Indiana Law Blog entries from April 26, 2003 and May 5, 2003 discussing legislation pending in Congress that would absolve gun manufacturers from liability for the "harm caused by the criminal or unlawful misuse" of a firearm.

In a firearms decision issued earlier this year, the Indiana Supreme Court ruled that gun owners must safely store firearms and can be held liable for failing to do. Access the 4/8/03 Indiana Law Blog entry here.

Posted by Marcia Oddi at 03:43 PM

Indiana Decisions - Assignment of legal malpractice claims is contrary to public policy

Rosby Corporation v. Townsend, Yosha, Cline & Price (12/23/03 IndCtApp)
Vaidik, Judge

As stated by the Court:

In this case, we are called upon to determine whether Picadilly, Inc. v. Raikos, 582 N.E.2d 338 (Ind. 1991), bars the assignment of all legal malpractice claims or only those claims where assignment would be to an adversary in the underlying action. Because we determine that Picadilly bars the assignment of all legal malpractice claims in order to protect the unique nature of the client-attorney relationship, we conclude that the legal malpractice assignment in this case is void as against public policy. * * *

Contrary to Rosby’s contention, we find that Picadilly was not limited to cases where a legal malpractice claim is assigned to an adversary. Instead, we conclude that Picadilly bars the assignment of all legal malpractice claims and find void as a matter of law all such assignments. Other jurisdictions also agree that the assignment of legal malpractice claims violates public policy. Recently, in Delaware CWC Liquidation Corp. v. Martin, 584 S.E.2d 473 (W. Va. 2003), the West Virginia Supreme Court had the opportunity to address this same issue. In determining that such assignments were void as against public policy, the court recognized that permitting the assignment of legal malpractice claims would encourage the commercialization of such claims, would lead to baseless and excessive legal malpractice claims, which would burden the legal profession, the court system and the public, and would make insolvent, underinsured, judgment-proof defendants extremely unattractive clients, thereby making it harder for them to obtain legal representation. In addition, allowing such assignments would increase the risk of collusion between the assignor and assignee.

Posted by Marcia Oddi at 01:59 PM

Law - 7th Circuit "Internet Relationship" Ruling

USA v. Mitchell, John (12/23/03 USCA 7th Cir.)
Rovner, Circuit Judge

As stated by the Court:

The Internet has opened the doors for many to transact business and personal affairs with almost complete anonymity. For fifty-year-old John Mitchell, it allowed him to initiate a relationship with fourteen-year-old Dena Hugh. After two weeks of communicating with Dena about a variety of topics, but mostly about sex, he arranged to drive from Indiana to Illinois to meet her at a hotel near her home for the purpose of engaging in sexual activity. But the anonymity of the Internet works in both directions, and unfortunately for Mitchell, “Dena” was actually an undercover Cook County Sheriff’s Detective the Illinois hotel and pled guilty to traveling in interstate commerce with the intent to engage in a sexual act with an undercover agent whom he believed to be a fourteen-yearold girl.

During sentencing the district court increased his offense level by two based on the United States Sentencing Commission Guidelines Manual (U.S.S.G.) § 2A3.2(b)(2)(B) (2001)1 which provides for a two-level enhancement where the defendant unduly influenced a minor under the age of sixteen to engage in prohibited sexual conduct. Mitchell argues that this enhancement cannot apply when the victim is an imaginary teenager and where no sexual conduct has occurred. Because we agree that the plain language of the sentencing guideline cannot apply in the case of an attempt where the victim is an undercover police officer, we reverse and remand for re-sentencing.

Posted by Marcia Oddi at 01:53 PM

Law & Technology - Good survey of 2003 high-tech legal issues

"Internet law in 2003 was full of surprises, with Congress passing an antispam bill, the courts blessing pop-up advertising, the music industry losing lawsuits and the Supreme Court finally upholding an Internet law." So reads the headline to this C/NET 2003 review by copyright attorney Doug Isenberg.

Posted by Marcia Oddi at 08:56 AM

Happy Holidays to All! Season's Greetings!

Check out the hypnotic Holiday Snow Globe -- and be sure to shake it!

Season's Greetings!

(Postings will continue over the holidays - I expect to do several longer analysis pieces.)

Posted by Marcia Oddi at 07:20 AM

December 22, 2003

Environment - Reliability of Federal ECHO Database of Environmental Polluters

The Hoosier Times-Mail had an important story Sunday (access it here) on the accuracy of the EPA's ECHO database. The lead:

They are companies that threaten your health, reckless polluters consistently out of compliance with state and federal law. Or are they?

A search of the Environmental Protection Agency's new computer compliance database known as ECHO (Enforcement and Compliance History Online) reveals seven companies in the Hoosier Times circulation area classified as High Priority Violators. Scan through the facility data and you'll see indications that they are current offenders and have been out of compliance for each of the last eight quarters. The companies dispute this.

The reporter, Michael Koryta, takes seven south central Indiana companies designed as High Priority Violators by the ECHO database, and tracks down their enforcement history though Indiana's Department of Environmental Management. Of the seven companies Koryta selected, six have had air violations. The seventh, the Martinsville sewage treatment plant, has had water compliance problems. After reviewing the histories, Koryta continues:
While each facility has a history of problems, they all appear to be in physical compliance for now. So why the High Priority Violator status?

According to the EPA's Michael Barrett, project manager for the ECHO database, there's more to it than just correcting the physical problem.

"Within the air program, the basic way a facility comes off the HPV list is that they get into compliance with their enforcement order and pay all the penalties," Barrett said. "All of those things have to come into place before the facility is released." * * *

According to Dan Hottle, director of media and communications for IDEM, the state regularly updates the EPA on cases involving Indiana facilities, and it is ultimately the EPA's responsibility to remove the high priority status.

Barrett said that if a company does not feel it belongs on the ECHO High Priority Violator list, it can file a challenge and the situation will be reviewed quickly.

Here is a link to EPA's Enforcement & Compliance History Online (ECHO) homepage.

The Frequently Asked Questions section of ECHO contains this Q&A:

Can I request that an old violation be designated as resolved in the database because it has been corrected?

Yes. In many cases, violations that have been corrected by the facility can be designated as resolved if the proper documentation is provided. The best way to go about requesting a change is to report an error on the Detailed Facility Report. To do this, click on the red “Report Error” button on the top right of the report. This will bring a similar report up on the screen that allows you to select the line of data with the error. Locate the line with the error, click on the "<" sign in the right-hand box, then follow the prompts. In the message text, specify that you are a responsible party at the facility, and that you have knowledge that the violation has been corrected and should be designated as resolved in the database. After you submit the comment, you will receive an email with the name and email address of the person handling your request. This person will contact you about what is needed to document that the violation is no longer present.

Bottom Line. One could interpret all this to mean that, under the current system, companies must take the initiative to check ECHO regularly to see if their status is correct, contact EPA if it isn't, go through the EPA's hoops, and then follow-up until the information is current and correct.

Posted by Marcia Oddi at 04:10 PM

Law - Trademark case re "Beanie Babies"

TY, INCORPORATED v. SOFTBELLY'S INC. (12/22/03 USCA 7th Cir.)
Posner, Circuit Judge

As stated by the Court:

The issues at the trial were three. The first was whether “Beanies,” which Ty claims to be a common law trademark owned by it (it has a registered trademark on “Beanie Babies”), has become a generic term for small plush toys, in the shape of animals, that are filled with bean-like materials to give the toys a soft and floppy feel. If “Beanies” has become a generic term—has become, that is, beanies— it cannot be a legally protected trademark. The second issue is whether, if “Beanies” has not become generic, the designation “Screenie Beanies” is likely to make consumers think that Softbelly’s product is actually a Ty brand. The third issue is whether “Screenie Beanies” dilutes the Beanies or Beanie Babies trademarks.

Posted by Marcia Oddi at 03:14 PM

Law - More on Interstate Wine Sales

Updating earlier Indiana Law Blog coverage of challenges to prohibitions against the interstate sales of wine (including, of course, online sales and shipment), is this story, "Winemakers want direct Internet sales; distributors say no," from the San Francisco Chronicle and this story, "Eased state restrictions help uncork online wine sales," from the Chicago Tribune. A quote from the Chronicle story:

But federal judges don't necessarily agree with Bork. In fact, federal appeals courts have recently struck down bans on out-of-state wine shipments in Michigan, Texas and Virginia. But another appeals court upheld Indiana's ban. One or more of those cases may be appealed to the Supreme Court.
Interestingly, the Tribune story, which is based on an earlier NY Times story, continues an inaccuracy in that story:
Labyrinthine state restrictions on the sale of wine that date from Prohibition are gradually changing, creating an opportunity for interstate sales to customers in as many as 26 states, including Illinois and Wisconsin (but not Indiana or Michigan).
As reported earlier in the IBL, the 6th Circuit ruled in this matter on 8/28/03, holding Michigan's ban on direct-to-consumer wine shipments unconstitutional. Here is the direct link to that decision, Heald, et al. v. Engler; et al.

Here are links to the earlier Indiana Law Blog entries.

[Update] Already an update. This story this morning in the Washington Post talks about a new law in Virginia "designed to ease restrictions on shipping wine in and out of the state." Some quotes:

Confusion is rampant among the states' 80 or so vineyards about what the law really allows, and a potentially lucrative national market for Virginia wines lies largely untapped.

Gordon W. Murchie, executive director of the Virginia Wineries Association, said the law may have to be amended as early as the coming General Assembly. "It did not achieve the original goal set for the legislation," Murchie said. "It is more restrictive than anticipated. We are trying to consider how to amend it to make it more acceptable."

According to Murchie and others, the problem is that the law doesn't address the issue of shipping wine out of the state. It deals only with wine that is shipped into Virginia from elsewhere or is shipped within the commonwealth.

Liquor laws vary widely from state to state. The wine industry is engulfed in a battle royal between an alliance of winemakers and oenophiles -- who want to lessen controls on direct shipping to consumers -- and state liquor boards and wholesalers. Some industry analysts believe that the issue, the subject of several federal court cases, eventually will end up in the Supreme Court.

Virginia lawmakers had hoped that in addition to setting up a license and permitting system, the new law would allow the region's small wineries and retailers to export wines to 13 states with "reciprocal" shipping agreements, including major wine-producing states such as California and Oregon. Twenty-four states do not allow direct shipping to consumers. In five, including Maryland, it is a felony.

More from the Post story:
Many Virginia vintners assumed that when the law took effect July 1, they could immediately begin shipping to those 13 states. But Virginia's Department of Alcoholic Beverage Control has complicated matters by soliciting agreement letters from each of the 13 states, according to Steve Gross, state relations director for the Wine Institute, the trade association for California wineries. "The intent was obviously not to confuse the issue, but to gain clarification," said Shawn Walker, a special agent in charge at the Virginia ABC. California is the only state that has agreed officially on reciprocal shipment, and many of the others have said no, Murchie said.
And here is more on the 6th Circuit ruling, from the Oakland (Michigan) Press:
The Michigan Attorney General's office plans to appeal to the U.S. Supreme Court by Feb. 2 a recent ruling overturning a long-standing ban on direct wine shipments to consumers, said Matt Davis, spokesman for Attorney General Mike Cox.

In August, the 6th U.S. Circuit Court of Appeals overturned the state's ban, saying it violated the commerce clause of the 21st Amendment since Michigan currently allows residents to order wine directly from in-state winemakers but not from wineries in other states. Enacted in 1933, the 21st Amendment ended Prohibition. Davis said the Supreme Court must first agree to hear the case. If it doesn't, then the controlling opinion becomes that of the August ruling.

Posted by Marcia Oddi at 06:38 AM

December 21, 2003

Law - Texas Redistricting Suit

The Department of Justice has tentatively approved the Texas Republicans' congressional redistricting plan, according to a story on News 24 Houston:

"This is one of several important steps in this whole redistricting process," Texas Attorney General Greg Abbott says. Abbott says the tentative approval from the Department of Justice supports what the state has said all along, that redistricting does not violate the Voter Rights Act. * * *

A three judge panel has yet to rule on a federal lawsuit filed by Democrats and minorities challenging the redistricting map. Next Tuesday, a three judge federal panel will hear closing arguments on the lawsuit brought by Democrats and minorities.

However, the federal court panel did rule Friday that mid-decade redistricting is permissible under state law. A comprehensive story can be found today here in the Fort Worth Star Telegram. Unlike Colorado, the Texas Constitution apparently does not limit the number of times in a decade redistrcting may be performed. (See the Dec. 1 ILB entry regarding the Colorado resdricting decision here.)

Here are NPR's Scott Simon and New Yorker magazine staff writer Jeffrey Toobin talking about redistricting on 12/20/03's Weekend Edition. Toobin's 12/8/03 New Yorker article, "The Great Election Grab," is here. And here is what looks to be an excellent resource site on Texas congressional redistricting (LocalVoter.com), with links to the latest proposed maps and the relvant law.

Access a list of earlier Indiana Law Blog entries on redistricting here.

[Update] Today's Indianapolis Star has this editorial stating its position that "Legislative gerrymandering is destroying the political process and demands reform." A quote:

In modern politics, voters no longer choose their representatives. Politicians choose their voters.

Posted by Marcia Oddi at 08:11 PM

Indiana Decisions - Unauthorized practice of law

Levy v. State (11/26/03 IndCtApp)
Sullivan, Judge

As stated by the Court:

Levy was charged with the unauthorized practice of law for his part in a real estate transaction. At the time, Levy was neither an attorney nor a real estate agent. After he was charged, Levy filed a motion seeking dismissal of the charges. That motion was denied. He subsequently sought and received certification for an interlocutory appeal. This court accepted jurisdiction of his appeal. Thereafter, the State petitioned the Supreme Court, requesting that it assume jurisdiction over the matter because it dealt with the issue of the Supreme Court’s jurisdiction. Our Supreme Court denied the State’s petition.

Upon appeal, Levy specifically claims that the Supreme Court is granted exclusive and original jurisdiction of matters concerning the unauthorized practice of law by Article 7, Section 4 of the Indiana Constitution. Consequently, he asserts that the Marion Superior Court has no jurisdiction to try him for a violation of I.C. § 33-1-5-1. Further, he claims that the enactment of I.C. § 33-1-5-1 by the General Assembly amounts to a violation of the separation of powers between the legislative and judicial branches of government, in contravention of Article 3, Section 1of the Indiana Constitution.

I. Jurisdiction. * * * [W]e must conclude that the grant of original jurisdiction in Article 7, Section 4 of the Constitution did one thing and one thing alone—it gave the Supreme Court the power to entertain and decide all cases involving the issue of unauthorized practice of law. However, it did not give the Supreme Court the power to hear cases concerning the unauthorized practice of law to the exclusion of other courts. From this, we hold that trial courts appropriately have jurisdiction to conduct trials in which an individual is charged with the unauthorized practice of law under I.C. § 33-1-5-1. This result is consistent with our Supreme Court’s most clear pronouncement of its jurisdiction, as stated in Appellate Rule 4(B).

II. Separation of Powers. The second issue which Levy presents is whether the General Assembly may appropriately criminalize the unauthorized practice of law, or whether its enactment of I.C. § 33-1-5-1 violates the separation of powers doctrine contained in Article 3, Section 1 of the Indiana Constitution. In large part, Levy’s argument is based upon his belief that our Supreme Court has exclusive jurisdiction over all matters pertaining to the unauthorized practice of law. As we have determined, such is not the case. The other support upon which Levy relies is his view that by passing the statute, the General Assembly has usurped some of the authority of the Supreme Court in regulating the practice of law. This too is incorrect. * * *

The General Assembly simply characterized an act to be criminal. In so doing, it provided a mechanism to punish individuals who engage in the unauthorized practice of law, much the same as it provided a mechanism to punish theft or speeding. That it regulates the “unauthorized practice of law,” an area which may fall within the exclusive jurisdiction of the Supreme Court in some cases does not render it unconstitutional. Indiana Code § 33-1-5-1 is the sole means to punish an individual’s criminal act when that person is not a member of the Bar unless the Supreme Court has taken steps to enjoin or restrain that individual’s actions pursuant to its authority under I.C. § 33-2-3-1. Without I.C. § 33-1-5-1, the ability of the State to protect its citizens from those masquerading as attorneys would be diminished and possibly lost in some instances.

Posted by Marcia Oddi at 07:34 PM

December 19, 2003

Law - Everything on Electronic Voting

This is cool - a whole collection of links covering many aspects of the electronic voting issue: Electronic Voting in Depth.

Scroll down to Dec. 16th for earlier Indiana Law Blog coverage of this issue.

And one more: "E-Voting Undermined by Sloppiness," is the headline from this Wired article from Wednesday [link via ElectionLaw.blog]. The lead:

SACRAMENTO, California -- An audit of Diebold Election Systems voting machines in California has revealed that the company installed uncertified software in all 17 counties that use its electronic voting equipment. While 14 counties used software that had been qualified by federal authorities but not certified by state authorities, three counties, including Los Angeles, used software that had never been certified by the state or qualified by federal authorities for use in any election.

Posted by Marcia Oddi at 11:48 AM

Indiana Decisions - Transfer List for Week Ending Dec. 19, 2003

Here is the Indiana Supreme Court transfer list for the week ending December 19, 2003. I understand the next list will be available January 9, 2004.

A link to earlier Indiana transfer lists is available here. (The lists are also always available via "Categories" in the right column.)

Posted by Marcia Oddi at 11:18 AM

Environment - I-69 Impact Plan Completed

"State releases plan to limit I-69 damage: $77 million would ease environmental destruction caused by the extension," is the headline to this story today in the Indianapolis Star.

Here is the link to access The Final Environmental Impact (FEIS). (Apparently this is a State of Indiana site, although it is marked "Copyright © 2000-2003 BERNARDIN LOCHMUELLER & ASSOCIATES, INC.")

Also interesting is the site's "Question of the Month" -- "Why was the Preferred Corridor for I-69 announced months in advance of issuing the Final Environmental Impact Statement? Isn’t this 'jumping the gun?'"

The State of Indiana's Department of Transportation also has a page devoted to "I-69 Evansville to Indy," but it may be somewhat out of date. It links to "The Official Study Website," which is the same copyrighted site mentioned above.

Posted by Marcia Oddi at 08:08 AM

Administrative Law - Fascinating Look at Environmental Review in Massachusetts

I just happened on to this story in the Boston Globe, headlined: "Romney shifting caseloads to close environmental court: Judges file suit to block change." It begins:

The administration of Governor Mitt Romney has begun dissolving the state's environmental appeals court, which is run by five union judges, and handing the cases to a body of nonunion magistrates who have little or no expertise in environmental law.

Romney officials say eliminating the Office of Administrative Appeals and giving its cases to the Division of Administrative Law Appeals, an independent judicial body that hears appeals of retirement board cases and medicine license suspensions, is crucial to bolster the court's independence and efficiency. * * *

[E]nvironmentalists yesterday said they are wary of any proposal that would require judges with no experience in the field to hear appeals of state Department of Environmental Protection permit issues, which are often extremely complicated.

"Are they going to structure it so that there is a single group of people who hear environmental appeals, or are they going to hear a wetlands case at 11 a.m. and a doctor's license case at 2 p.m.?" said Stephanie Pollack, senior vice president of the Conservation Law Foundation, an environmental advocacy group that has filed scores of appeals to the administrative tribunal over the years. "As we said earlier this year, we are open to the move, but it's important that these people have expertise."

Earlier this year, Romney proposed a large new independent judicial agency that would hear all of the state's administrative appeals as part of his massive government overhaul proposal, but the Legislature thwarted that plan.

Posted by Marcia Oddi at 07:46 AM

Indiana Law - Same-sex Indiana couple takes different approach to dissolution

As this story today in the Indianapolis Star, headlined "Same-sex pair seek breakup of 'partnership'" reports:

Two Hoosier women joined in a Vermont civil union have split up and might face off in court in Kosciusko County over jointly owned property and palimony. However, that legal battle won't bring the civil union issue to Indiana and amounts to the same kind of legal domestic disputes that unmarried heterosexual couples encounter, said the attorney for one of the women.
Instead, the civil complaint filed by one of the parties against the other "is seeking to have their 'nonmarital partnership and/or joint venture' dissolved." More:
The women's certificate of the civil union is offered as evidence of the commitment they had made and their intent to forge a lifelong relationship, but the Indiana courts don't have to accept that union as valid to handle the women's legal dispute, [Attorney David C.] Cates said. In a recent Iowa case, a judge apparently inadvertently approved the dissolution of a Vermont civil union, and some suggest the Indiana case could trigger a similar review.

However, Ken Falk, an attorney with the Indiana Civil Liberties Union, said it appears Cates has structured his legal argument to end the women's partnership much as though it was a business relationship, not dependent on the civil union. "A court does not have to recognize it as valid to consider it as evidence," he said. Falk said it's his understanding that residents of Vermont must dissolve Vermont civil unions in that state. Nonresidents can have civil unions in Vermont, but they are not recognized in any other state or by the federal government.

Comprehensive Indiana Law Blog coverage of the same sex marriage issue may be found here (or scroll down to the 12/14/03 entries).

In a related story, the Boston Globe reported Wednesday that:

The Supreme Judicial Court is soliciting legal briefs from "interested persons" as it considers the Massachusetts Senate's request for an advisory opinion on the constitutionality of a civil unions bill.

The court, a month after its explosive 4-3 decision on gay marriages, posted notices Monday that the briefs must be submitted by Jan. 12, four weeks before the Legislature, meeting as a constitutional convention, will take up an agenda that includes a proposed constitutional amendment to ban same-sex marriages. * * *

In its ruling, the state's high court said that "barring an individual from the protections, benefits, and obligations of civil marriage solely because that person would marry a person of the same sex violates the Massachusetts Constitution." It stayed the order 180 days "to permit the Legislature to take such action as it may deem appropriate in light of this opinion."

Since then, the state's politicians have struggled to interpret the decision. It was seen by some legal specialists as a clear ruling that would make Massachusetts the first state in the nation to legalize same-sex marriages. But, with the Catholic Church and other opponents of gay marriage lobbying against the ruling, some lawmakers are reluctant to grant full- fledged marital rights to gay and lesbian couples.

The Supreme Judicial Court of Massachusetts' Amicus Announcement may be accessed here.

It is interesting to note that the solicitation of amicus briefs is apparently common for the Massachusetts Court. This entire page is devoted to the Court's "Amicus Invitations."

Posted by Marcia Oddi at 07:16 AM

December 18, 2003

Indiana Decisions - Applicability of Medical Malpractice Act and Child Wrongful Death Act

James B. Breece, et al. v. Stephen Lugo, et al. (12/18/03)
Ratliff, Senior Judge

As stated by the Court, the issues in this case are two:

I. Whether the trial court erred in determining as a matter of law that Indiana does not recognize a cause of action for the in utero death of a fetus and that the Medical Malpractice Act does not create a separate cause of action for child wrongful death.

II. Whether the trial court erred in determining as a matter of law that the Breeces do not have a claim for negligent infliction of emotional distress arising from the fetal demise of their daughter.

The Court affirmed in part and reversed in part, ruling:
The trial court was correct in granting summary judgment on the issue of whether the Medical Malpractice Act creates an action not available under the Child Wrongful Death Act. The trial court erred, however, in granting summary judgment on the issue pertaining to the extent of Geneva’s recovery of intangible damages.

ROBB, J., and VAIDIK, J., concur.

Posted by Marcia Oddi at 08:21 PM

Indiana Decisions - Denial of rezoning was arbitrary and capricious

Chester Borsuk, et al. v. Town of St. John (12/18/03 IndCtApp)
Baker, Judge

The western half of Borsuk's parcel is zoned for residential use, while the eastern half is zoned for commercial use. The entire block on which Borsuk’s land is situated is zoned for commercial use. He petitioned the St. John Plan Commission to rezone the entire parcel to a commercial designation. Rezoning was denied by the Plan Commission, and by the Town Council. The trial court entered summary judgment for the Town.

Borsuk claims that the Town’s decision to deny his zoning request was arbitrary and capricious and, thus, must be reversed. Specifically, Borsuk points out that even though the Town’s Comprehensive Plan indicated that the area where his property was located was to be zoned for commercial use and that his property was the only lot on the block that was restricted to non-commercial use, the Town denied his application. Thus, Borsuk argues that the Town ignored statutory authority when it denied his rezoning request. * * *

In this unique situation, the Town’s Comprehensive Plan called for the area to be zoned commercial at some point in the future. Borsuk’s parcel was the only plot of land on the entire block that was not zoned in such a manner. In such a circumstance, the municipality must—absent a compelling reason—comply with its comprehensive plan’s vision and rezone the area for commercial use. Failure to do so would be equivalent to ignoring the provisions of Indiana Code section 36-7-4-603 and, moreover, would render a comprehensive plan meaningless.
In sum, the Town’s decision to deny Borsuk’s request was arbitrary and capricious because it ignored two factors of Indiana Code section 36-7-4-603. Consequently, the Town’s decision must be reversed.

The judgment of the trial court is reversed, and we remand this cause to the trial court with instructions that it remand this cause to the Town with instructions to rezone the parcel.

Posted by Marcia Oddi at 08:07 PM

Indiana Decisions - Prescriptive easements and easements of necessity

Dustin Todd Wolfe v. Brooke Wolfe Gregory, et al. (12/18/03 IndCtApp)
Najam, Judge

This decision has a good discussion of prescriptive easements and easements of necessity. A quote:

Wolfe’s convenience is not relevant in determining whether to imply an easement of necessity. Indeed, "[a] way of necessity must be more than convenient and beneficial, for if the owner of the land can use another way, he cannot claim by implication the right to pass over that of another to get to his own."

Posted by Marcia Oddi at 07:50 PM

Law - 7th Circuit ruling re location of cellphone towers

PrimeCo Personal Communications d/b/a Verizon v. City of Mequon (12/18/03 CA 7th Cir)
Posner, Circuit Judge

This is an instructive analysis, as are most of Judge Posner's decisions. To set the stage:

One of the concerns that led up to the enactment of the Telecommunications Act of 1996 * * * was that zoning decisions by local governments were unreasonably retarding the growth of cellphone and other wireless services. Congress decided not to preempt local regulation entirely, but instead (so far as bears on this case) to require that the denial by a zoning board or other state or local government body of a permit to construct “personal wireless service facilities,” such as an antenna high enough to be in the line of sight of cellphone users, as required for cellphone service, “shall be in writing and supported by substantial evidence contained in a written record.”

Turned down by the planning commission of the City of Mequon, a suburb of Milwaukee, and on appeal by the City’s board of zoning appeals (without opinion, so that the only written record of the evidence and reasoning supporting denial is the transcript of the planning commission’s deliberations), for a permit to build an antenna in its preferred location, Verizon sued the City in the federal district court in Milwaukee.

A sample from Posner's analysis (citations omitted):
Several commissioners expressed “slippery slope” fears. They worried that if they approved Verizon’s application, soon Mequon would be covered by a forest of telecommunications towers. Such fears are not completely groundless, though “forest” grossly overstates what lies at the bottom of the slippery slope. True, the more towers there are, the less the measurable effect of another tower on the character of the neighborhood—which may in any event have changed in the direction of commercial uses as the result of previous installation of towers. But at the same time, the more towers there are, and therefore the more comprehensive the cellphone service available in Mequon, the weaker the argument for another tower based on a claimed need for wider coverage or greater competition. There is no evidence of how many telecommunications towers there are in Mequon, however, and so the “slippery slope” argument can’t get off the ground.

Posted by Marcia Oddi at 07:32 PM

Environment - Legendary Cartoonist Dies

This article in the Washington Post is an appreciation for an Arkansas editorial cartoonist who did battle with the Army Corps of Engineers. It begins:

In George Fisher's world, the dam-building, river-straightening, concrete-addicted nature destroyers of the Army Corps of Engineers wore dark sunglasses, knee boots, impossibly tight pants and dorky pith helmets emblazoned with his unofficial motto for the agency: "Keep Busy." They carried rolled-up blueprints, drove menacing dredges with ferociously pointy teeth and drooled over free-flowing streams like dirty old men ogling young virgins. When they died, they arrived at the Pearly Gates armed with channelization plans for the Kingdom of Heaven and recoiled at the picturesque river valleys God had let fester there.

"Where is your drafting department?" a Corpsman sneered at St. Peter, eyeing the celestial wilderness of waterfalls and woodlands behind the gates. "This place is a mess!"

Fisher, the legendary cartoonist for the now-defunct Arkansas Gazette and then the Arkansas Times, died at his drafting board Monday night at the age of 80.

The Army Corps Mississippi Valley Division now has an on-line gallery of editorial cartoons about the Army Corp, with a number of Davis cartoons. Access it here. The "Army Corps Parting the Red Seas" is about halfway down the page.

Posted by Marcia Oddi at 10:02 AM

Indiana Decisions - Court of Appeals Names Sent to Governor

Now there are three, according to this release from Chief Justice Shepard's office:

Three finalists have been selected for the upcoming Court of Appeals vacancy created by Judge Sanford Brook’ resignation, Chief Justice Randall T. Shepard announced today.
Six candidates were interviewed in a public meeting of the Indiana Judicial Nominating Commission held Wednesday and chaired by Chief Justice Shepard. The Commission then narrowed the field to three candidates. They are:

Gary attorney Bessie Taylor, Judge Jeffrey Dywan of the Lake Superior Court and Judge Terry Crone of the St. Joseph Circuit Court.

The Commission will now send those three names to Gov. Joseph E. Kernan. He will have 60 days to make his selection.

A Court of Appeals candidate must have been an Indiana attorney for ten years or a trial judge for five years and must live in the Third Judicial District in the northern part of Indiana. Salary and allowances for a Court of Appeals judge is $113,000 annually.

Posted by Marcia Oddi at 08:17 AM

December 17, 2003

Sports Law - Coaches who prey on female athletes

"Coaches Who Prey: The Abuse of Girls and the System that Allows It," is the title of this multi-part series running this week in the Seattle Times. We've had a number of stories over the years here in Indiana, but never a chilling overview such as has been produced by this Seattle paper.

Thanks to Women's Hoops Blog -- by Sara & Ted, an excellent (albeit non-law) blog, for their entry linking to the Seattle series.

Posted by Marcia Oddi at 04:13 PM

Indiana Decisions - Opinion in D&M Healthcare Veto Challenge

D & M Healthcare, Inc., et al. v. Joseph E. Kernan (12/17/03 IndSCt)
Boehm, Justice

I have converted the 28-page opinion to PDF; it is available via the above link. This is useful because of the counsel list and the tables beginning on page 21 of the opinion, which do not format right otherwise. The HTML version from the Court's website may be accessed here.

Here is Governor Kernan's statement re the Court's opinion:

I am gratified by the unanimous decision today by the Indiana Supreme Court, which holds that the veto return practices of at least the last three governors are consistent with the Indiana Constitution.

Writing that "common sense has driven our constitution from the earliest time," the court decided that immediately returning bills when they have been vetoed, even when the legislature is not in session, is permitted by our constitution as well as being "eminently practical."

I want to thank the court for dealing with this matter promptly, so that doubt about the validity of bills vetoed in the past is eliminated. Also, the state has made many fiscal decisions based on the assumption that these past vetoes were valid, thus the court’s decision removes another cloud over the state’s financial horizon.

One of the vetoes at issue in this case addressed a legislative and judicial pay raise, and the court properly addressed the need for pay increases in the Judicial Branch. We should address judicial pay in a fiscally responsible manner as soon as possible.

The last paragraph of the Governor's statement is directed to the Chief Justice Shepard's concurring opinion, which reads in full:
Connected as it is to the vetoed pay bill, this appeal has been a painful experience. Judges and prosecutors and their families have now gone seven years without so much as a cost-of-living adjustment, even as social workers, teachers, university professors, prison guards, and state employees generally have received several such adjustments. This differential treatment has been ruinous to the state’s judiciary. Passing through the cloud of this calamity to decide this appeal on the basis of our best judgment about the law, however, is the job we have chosen and been chosen to do. While I place more value on the available legislative history than Justice Boehm does, in the end, I have decided he is right about what is the correct decision in this case.
A summary and analysis of the Court's opinion will follow later this week.

[Update 12/18/03] The Indianapolis Star had two stories today on the decision: "In justices' opinion, they need a raise: In ruling on dispute over vetoes, Indiana's top court delivers plea for increase in salary," is available here; and "Decision on early veto averts rewriting of laws: State's highest court says an earlier ruling was based on 'wholly trivial' considerations," is available here.

Posted by Marcia Oddi at 02:03 PM

Indiana Law - Bureau of Motor Vehicles False Identity Ring

The Indianapolis Star has had stories nearly daily for several weeks now, with headlines including "ID-fraud rings' scope called 'staggering': Probe launched with a BMV sting continues to expand" from 12/14/03 and "7 arrested in ID sting at BMV site: Suspects are charged with trying to use phony documents at a license branch," from 12/13/03.

The earliest story located was this from November 25, 2003: "License fraud linked to unpaid volunteer - Police: Woman somehow obtained classified BMV records." The most recent is this AP story in the Chicago Tribune today (12/17/03), headlined "Indiana license system under scrutiny: 1,000 foreign nationals used fake documents to obtain IDs."

Today Governor Kernan has announced

"an independent review of the Indiana Bureau of Motor Vehicles' fraud detection procedures. Michael Carrington, who served for eight years as the marshal for Northern Indiana, will head the review team. Carrington will be assisted in his efforts by Penny Davis, superintendent of the State Excise Police, the state agency that most frequently addresses fraudulent document issues. The two will enlist additional assistance as necessary, and will work in cooperation with BMV Commissioner Gerald Coleman and the Indiana Counter-Terrorism and Security Council, chaired by Lt. Gov. Kathy Davis."
The entire press release is available here.

[Update] The Star now has posted this coverage of the appointments on its site, along with links to its earlier stories. A later (12/18/03) story is here.

Posted by Marcia Oddi at 01:45 PM

Indiana Decisions - D&M Healthcare

The Supreme Court has issued its decision in D&M Healthcare, ruling that Governor O'Bannon's post-session veto and return of the bill at issue (HEA 1866) to the House of Representatives prior to the "first day" of the next convening of the General Assembly, as prescribed by the Indiana Constitution, did not invalidate the veto action. Here is the posting on the Clerk's Docket:

12/17/03 ISSUED THE ENCLOSED OPINION:

12/17/03 2003 TERM
WE HOLD THAT THE GOVERNOR'S VETO OF HOUSE ENROLLED ACT 1866 WAS VALID. BECAUSE THE HOUSE THEN SUSTAINED THE VETO, THE BILL DID NOT BECOME LAW. THE PLAINTIFFS REQUESTED THAT THE TRIAL COURT ENJOIN THE IMPLEMENTATION AND ENFORCEMENT OF THE RULES ADOPTED BY FSSA AS CONFLICTING WITH HOUSE ENROLLED ACT 1866. BECAUSE WE CONCLUDE THAT HOUSE ENROLLED ACT 1866 DID NOT BECOME LAW, THE RULES ARE NOT SUBJECT TO THE FLAW ON WHICH THE PLAINTIFFS RELY. ----- BOEHM, J.
DICKSON AND RUCKER, JJ., CONCUR, AND SHEPARD, C.J., CONCURS WITH SEPARATE OPINION.
SULLIVAN, J., IS NOT PARTICIPATING
28 PAGES MS

The Indianapolis Star has posted a brief story on its online site, access it here. Some quotes:
The Indiana Supreme Court upheld two decades worth of vetoes in a ruling today, declaring that it's okay if the governor returns a veto early to the legislature. The state's high court overturned a controversial decision from mid-August by the Indiana Court of Appeals, which sided with the Indiana Health Care Association and the owners of 50 nursing homes. * * * The Indiana Constitution states that a bill vetoed after the conclusion of one legislative session shall be returned on the first day of the next session. In its unanimous ruling today, the court said any departure from the prescribed procedure was "wholly trivial."
Check back for more when the "enclosed opinion" is posted, probably in mid-afternoon.

For earlier Indiana Law Blog entries on this important case, check here.

Posted by Marcia Oddi at 09:50 AM

Environment - Wetlands; Yellowstone

There are two big national environmental stories this morning. Felicity Barringer, newly assigned to the NY Times environmental beat, covers them both. "U.S. Won't Narrow Wetlands Protection," is the headline of this story, which begins:

Making an abrupt change in its approach to the Clean Water Act, the Environmental Protection Agency announced Tuesday that it would jettison plans to remove federal protection from millions of acres of wetlands. * * * The change effectively repudiated an internal draft regulation that proposed withdrawing federal protections from many isolated wetlands and intermittent streams, including many small waterways in the arid West. * * * The legal underpinnings of a regulation narrowing the scope of the Clean Water Act would also have been shaky, [Leavitt] indicated, since recent federal court decisions, including two from the often-conservative United States Court of Appeals for the Fourth Circuit, rejected arguments that in many respects paralleled the lines of argument that the agency had discussed.
The story also addresses a guidance issue:
In conjunction with the original E.P.A. notice that the extent of protected wetlands might be curbed, the agency's Washington headquarters sent a notice to staff members and Army Corps of Engineers offices around the country to check with the central office before asserting jurisdiction over a wetland. Asked if that guidance to the national staff remained in effect, G. Tracy Mehan III, the assistant administrator, said, "The guidance is still in effect, although we have been engaged with the Army Corps of Engineers to make sure that we track not just caes where we assert jurisdiction but questions of how we decline jurisdiction."
The second Barringer story this morning, "Judge Voids New Rule Allowing Snowmobiles in Yellowstone," begins with this lead:
On the eve of the winter snowmobile season in Yellowstone National Park, a federal district judge on Tuesday evening struck down the Bush administration's regulations permitting more than 950 snowmobiles a day in the park. The judge, Emmet G. Sullivan, said the Clinton administration's decision to phase out snowmobile use in that sweeping landscape of canyons, geysers and jagged horizons had been arbitrarily reversed. * * *

The ruling bristled with sharp characterizations of the Bush administration's actions.

"The gap between the decision made in 2001, and the decision made in 2003 is stark," Judge Sullivan wrote. "In 2001, the rule-making process culminated in a finding that snowmobiling so adversely impacted the wildlife and resources of the parks that all snowmobile use must be halted."

Judge Sullivan continued, "A scant three years later, the rule-making process culminated in the conclusion that nearly 1,000 snowmobiles will be allowed to enter the park each day."

The ruling included a footnote saying that "there is evidence in the record that there isn't an explanation for this change," and that the revised environmental impact statement "was completely politically driven and result oriented."

Other stories on the Clean Water Act/wetlands change in approach include this one from the LA Times. Some quotes:
The decision came after a majority of states, 218 members of the House of Representatives and many groups representing anglers, hunters and conservationists urged the administration to abandon its rulemaking effort. * * *

The EPA received 133,000 comments on its proposed rulemaking, most of them urging the administration not to go forward. A copy of a draft rule that administration officials were considering, which was given to The Times last month by a senior government official, would have stripped many wetlands and streams of federal protection, opening them to being filled for commercial development and possibly polluted.

State and federal officials estimated that up to 20 million acres of wetlands, or 20% of the wetlands outside of Alaska, could lose protection under such a rule. While praising the decision to drop the rulemaking effort, environmental activists urged the administration to go one step further and rescind a guidance sent to the Corps of Engineers last January. * * *

Construction industry officials said that without a new rule that clearly defines which wetlands and streams are no longer protected, the Corps would continue to inconsistently apply the Supreme Court ruling. But they stressed that the Supreme Court may soon have more to say. It has been asked to hear four cases on the subject.

The LA Times story, "Expanded Snowmobile Use in Yellowstone Halted: Judge scraps a Bush administration policy to block a Clinton-era ban on the machines," may be accessed here.

The Washington Post story on the EPA wetlands plan is available here. It too includes this mention of the existing guidance:

While praising the administration for scrapping its rulemaking, some environmentalists said they remain concerned that the EPA and Army Corps have not withdrawn a directive issued to their staffs in January, which if fully implemented could result in withdrawing federal protection from as many as 20 million acres of wetlands.

"In order to fully enforce the Clean Water Act and protect all waters, the Bush administration must not only stop the proposed rulemaking, but must rescind the guidance policy," said Joan Mulhern, senior legislative counsel for Earthjustice. * * *

Some lawmakers, developers and homebuilding industry officials pressed the administration to redefine protected and unprotected waterways and wetlands. But the public and congressional response to those efforts was overwhelmingly negative.

G. Tracy Mehan III, assistant EPA administrator for the office of water, noted that many recent lower court rulings have favored maintaining federal protections for wetlands. "We are reading the [Supreme Court ruling] narrowly," he said, "and right now we see no compelling reason to go forward with a rule."

Yesterday's Yellowstone snowmobile decision, The Fund for Animals v. Gale Norton, from the USDC for the District of Columbia, may be found here.

The EPA page -- Advance Notice of Proposed Rulemaking on the Clean Water Act definition of "Waters of the United States" - January 10, 2003, currently is available here. The Federal Register document is here. The U.S. Army Corps of Engineers January 10, 2003 news release, discussing both the proposed rulemaking and the transitional guidance, is available here. Here is a copy of the 16-page Corps Dec. 24, 2002 regulatory guidance letter. And here, from the EPA site, is a list (updated as of 1/21/03) of post-SWANNCC cases on "waters of the United States."

For earlier Indiana Law Blog coverage of wetlands issues, check here.

Posted by Marcia Oddi at 07:50 AM

December 16, 2003

LAW - More on Electronic Voting Machine Issues

This article, "Considering Computer Voting," in Monday's NY Times, is a good supplement to The Indiana Law Blog's roundup on electronic voting published Dec. 9.

In addition, here is an editorial titled "New Voting Machines for New York State: Promise or Peril?" And Ireland has its own computetr voting problems, as seen in this story from the Irish Examiner, which reports: "But Deputy Allen says that if the Government can't get electronic voting right in a small closed system involving just the votes of 166 TDs, then the public cannot have confidence in the ability to provide a secure system for a national election."

Wired has a story today that begins: "The National Institute of Standards and Technology, or NIST, the keepers of the atomic clock and the official arbiters of time in the United States, will attempt to restore trust and confidence in voting systems."

And finally, the SW Florida Herald Tribune has an AP story today, datelined San Francisco, with this lead:

At least five convicted felons secured management positions at a manufacturer of electronic voting machines, according to critics demanding more stringent background checks for people responsible for voting machine software.

Voter advocate Bev Harris alleged Tuesday that managers of a subsidiary of Diebold Inc., one of the country's largest voting equipment vendors, included a cocaine trafficker, a man who conducted fraudulent stock transactions, and a programmer jailed for falsifying computer records.

The programmer, Jeffrey Dean, wrote and maintained proprietary code used to count hundreds of thousands of votes as senior vice president of Global Election Systems Inc. Diebold purchased GES in January 2002.

This Diebold story made me go back and read again the final paragraph of the NY Times story cited at the beginning of this entry. It reads:
Professor Rubin said he was heartened by the increasing demand for a paper trail, but said it was only the first step toward ensuring that election security moved forward instead of backward. "We still don't have a process for ensuring that the people writing the code of those machines know what they are doing, or are not malicious," he said.
For earlier Indiana Law Blog coverage of voting machine issues, check here.

Posted by Marcia Oddi at 08:47 PM

Law - 7th Circuit Denies Law Firm's FOIA Request

The Larkin Law Firm, P.C. v. Federal Trade Commission (12/16/03 USCA 7th Cir.)
Evans, Circuit Judge

People who are burglarized often receive a barrage of calls from alarm companies. Similarly, as recorded in this 7th Circuit opinion:

When people feel so strongly about something that they actually complain about it to a federal agency, they probably think their names and addresses will not be released to a firm of private lawyers seeking fuel to propel a possible class-action lawsuit. And so it is with this case which deals with “cramming”—the shady practice of putting bogus charges on a person’s bill (usually a monthly credit card statement) in the hope that the consumer will pay the inflated balance without noticing that he has been duped.

The Lakin Law Firm, a small band of lawyers operating out of Wood River, Illinois, filed a Freedom of Information Act (FOIA) request with the Federal Trade Commission (FTC) seeking “[a]ny consumer complaints” about charges “ ‘crammed’ . . . onto credit card bills, phone bills, or mortgage statements,” * * *

The FTC released some 1,400 pages of complaints, but withheld the names and addresses of the complainants, claiming an exemption under FOIA. The Court of Appeals here upheld the district court's upholding the FTC's denial, ruling:
Compelling disclosure of the identity of consumers’ complaints about cramming would not further the core purpose of the FOIA. Lakin has failed to carry its burden of “identify[ing] with reasonable specificity the public interest that would be served by release” of the withheld identifying information.

Posted by Marcia Oddi at 01:51 PM

Environment - Lead Paint, Environmental Crimes, and How Clean is Clean?

Three separate envirnmental stories today of interest.

The first, a local New York City story, is titled "Council, Ignoring Veto Threat, Approves Tough Lead-Paint Bill." Some quotes:

The City Council yesterday approved lead-paint legislation that proponents say would be among the most stringent in the country, disregarding a likely veto from Mayor Michael R. Bloomberg and strong opposition from landlords and advocates for low-income housing. * * * [T]hree of his commissioners, those overseeing Homeless Services, Health and Mental Hygiene, and Housing Preservation and Development, wrote to the Council on Friday expressing their reservations about the bill. * * *

"This misguided legislation would divert precious resources away from the programs which have reduced lead poisoning cases by 80 percent in recent years, stifle our efforts to build more affordable housing and force people into homelessness by driving up housing costs," Mr. Skyler said. "The administration proposed several changes to make it effective, but the Council refused to adopt them, so we are left with something that sacrifices our children's health for public relations."

The problem of how to balance the needs of children and the need for more housing for low- and middle-income residents provided a subtext for the lead-paint debate for months, sometimes placing politicians and advocacy groups normally allied on the subject at opposite poles. * * *

The debate took on an inflection of urgency in July, after the state's highest court, the Court of Appeals, overturned a lead abatement law that the Council adopted in 1999. The court said that the old law, Local Law 38, was invalid because the Council failed to identify and explain its potential effects on the environment and public health.

Second is this story, also from the NY Times, titled "Officials at Foundry Face Health and Safety Charges." The lead:
TRENTON, Dec. 15 — Senior managers of a New Jersey foundry owned by McWane Inc., the nation's largest manufacturer of cast-iron pipe, conspired for years to violate workplace safety and environmental laws and then obstructed repeated government inquiries by lying, intimidating workers into silence and systematically altering accident scenes, according to a sweeping federal indictment unsealed here on Monday.

The motive, the indictment said, was to enrich the foundry, Atlantic States Cast Iron Pipe in Phillipsburg, N.J., and its managers by maximizing production "without concern to environmental pollution and worker safety risks."

The foundry's managers routinely dumped thousands of gallons of contaminated wastewater into the Delaware River, repeatedly exposed workers to unsafe conditions and regularly deceived environmental and workplace safety regulators, the indictment charges.

The headline of the third story, from the LA Times, sounds a familiar theme: "Cleanups Fuel Debate: How Much Is Enough?" Some quotes from this lengthy story:
As director of the nonprofit Concerned Citizens of South Central Los Angeles, Tate's goal is to revive an area that was the center of unrest during the city's 1992 riots by filling in a checkerboard of vacant lots and old factories with housing and soccer fields.

But Tate's revitalization plans are repeatedly being held up by a problem common in urban areas throughout California: toxic chemicals lingering in the land, left behind by decades of industrial use. California has more brownfields, as the tainted sites are known, than any other state, and has been slower than most in cleaning them up. At the heart of the delays is a question that divides regulators, environmentalists and developers: How clean is clean enough?

The question often comes down to the equivalent of a few grains of sand -- toxic residue measured in parts per billion. Many of the chemicals California considers dangerous have only been scientifically proven to cause health problems in laboratory animals. But the state, ever careful to reduce the risk of harm, often requires contaminant levels to be reduced far below the threshold. For a builder trying to redevelop a large contaminated lot, parts per million can add up to millions of dollars in cleanup costs.

Posted by Marcia Oddi at 08:59 AM

Environment - New mercury rules revealed today

There are a number of different takes today on the mercury story. This story in the Twin Cities Pioneer Press titled "EPA relaxes mercury proposal," begins:

The Bush administration on Monday proposed giving power plants up to 15 years to install new technology aimed solely at reducing mercury pollution, a week after science advisers said the government should be issuing stronger mercury warnings to pregnant women.

The Environmental Protection Agency's first-ever proposed controls on mercury pollution from power plants would require immediate action in some cases once they took effect by the end of 2004, senior EPA officials say.

But the administration's new proposal to regulate mercury pollution from coal-fired power plants is essentially the same as one discussed and rejected by the Clinton White House, former Clinton Environmental Protection Agency officials said Monday.

This AP story from the Salt Lake Tribune, titled "EPA proposes its first mercury controls on power plants," begins:
The Bush administration on Monday proposed giving power plants up to 15 years to install new technology aimed solely at reducing mercury pollution, a week after science advisers said the government should be issuing stronger mercury warnings to pregnant women.
In the midwest, the Chicago Tribune has this brief story, while the Munster NWITimes has this story, headlined "New mercury regulations unveiled: Critics claim first proposal for coal-fired power plants not enough.""New Policy on Mercury Pollution Was Rejected by Clinton E.P.A.", reads the headline to this story in the NY Times. The LA Times story, available here, is titled "EPA Plans 'Cap-and-Trade' Mercury Emission Reduction." A quote:
The Bush administration on Monday proposed a market-based system of pollution controls designed to reduce mercury emissions from coal-fired power plants by nearly 70% over the next 15 years.

The administration simultaneously proposed an alternative approach that would reduce the emissions by 29% by the end of 2007 using a traditional regulatory system requiring all plants to install pollution controls.

But the administration expressed its clear preference for the "cap-and-trade" approach, which would create a market-based trading system that would set pollution control targets for individual power plants and give each plant a corresponding number of pollution credits. Plants that cut their mercury emissions faster than their targets could sell their excess pollution credits to those that lagged.

This comprehensive story, headlined "EPA Announces 'Cap and Trade' Plan to Cut Mercury Pollution: Agency Bowed to Utility Industry Pressure, Critics Charge," appears in today's Washington Post.

This press release announces:

Michael Leavitt, Administrator of the U.S. Environmental Protection Agency, will be in Atlanta on Tuesday, December 16, 2003 to address the Environmental Policy Committee of the Metro Atlanta Chamber of Commerce. Administrator Leavitt will introduce a pair of innovative clean air regulations that will bring Georgians the most rapid and significant air quality improvement in more than a decade. Taken together, these new rules, which regulate sulfur dioxide, nitrogen oxide and mercury (first ever for coal-fired power plants) represent the largest single industry investment in any clean air program in U.S. history.
Perhaps in anticipation of the EPA Administrator's visit, the Atlanta Journal-Constitution published this lengthy background story yesterday on the new source review revisions and the Atlanta-based Southern Co.

Another mercury story yesterday was this one, titled "Everglades Cleanup Offers Path for Nation, Scientists Say: Florida's reduction of mercury levels makes a case for forceful federal action, they say. Today, the EPA will announce emissions proposals," from the LA Times.

Posted by Marcia Oddi at 08:42 AM

December 15, 2003

Indiana Decisions - Huffman v. IDEM to be argued Thursday

As reported in this Nov. 25th entry, 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.

The case is set for argument before the Supreme Court this Thursday, Dec. 18, at 9:45 a.m. The oral argument will be available for viewing online in real time. The webcasts are also archived and may be viewed later on demand. Here is the link to the Court's webcast page. Here is the summary of Huffman posted on the Court site:

The Marion Superior Court affirmed a decision by the Indiana Office of Environmental Adjudication that the plaintiff lacks standing to challenge the renewal of a permit issued by the Indiana Department of Environmental Management. The Court of Appeals reversed and remanded. See Huffman v. Indiana Dept. of Envtl. Mgmt., 788 N.E.2d 505 (Ind. Ct. App. 2003), vacated. The Supreme Court has granted transfer, vacating the opinion of Court of Appeals, and has assumed jurisdiction over this appeal.

Posted by Marcia Oddi at 05:28 PM

Law - Even More on Redistricting

Today's Washington Post has several redistricting opinion pieces. This editorial, relating to the oral argument before the Supreme Court in Vieth v. Jubelirer, opines:

Vieth asks the Supreme Court to consider some of the most basic ground rules for democratic government in America: in this instance, whether the Constitution imposes any meaningful restraint on state legislatures' rigging of congressional elections by manipulating legislative districts. The court has hesitated to intervene in such matters, but redistricting is so out of control that court action is warranted.

Gerrymandering is nothing new. States are required to use the decennial census to redraw districts, and parties in power long have used the opportunity to give themselves every advantage. But sophisticated computer technology now makes it possible to draw lines with unprecedented precision. As a result, elections for the House of Representatives have become something of a farce; results of almost all of them can be predicted the day the districts get drawn. Voting is little more than a formality. * * * In 1986 the Supreme Court said [in Davis v. Bandemer, an Indiana case] that partisan gerrymandering might be unconstitutional if it were so bald as to effectively foreclose political participation by one side or the other. Since then, though, no gerrymandering has been found to sink to that level. Courts have taken a hands-off approach, regarding the steady erosion of democracy as merely the rough-and-tumble of electoral politics. While race-conscious gerrymandering has received probing judicial scrutiny, grossly partisan gerrymandering has not.

William Raspberry's column takes a different tack on the same case:
The court, which has long held that it's perfectly fine to take politics into account in drawing congressional and other districts, is being asked by Democrats to say the Pennsylvania plan is too political. It is, of course, but it's hard to see how the court could bring itself to do anything about it. Which doesn't mean it won't try. * * *

Some of the justices, to judge from their questions during oral argument, seemed to think there should be. Justices Stephen G. Breyer and John Paul Stevens seemed uncomfortable with the inability of a party with a clear majority to win a majority of the seats. Florida, for instance, has enough of a Democratic edge that it can elect two Democratic senators. But Republicans, who drew the district maps, hold an 18-7 advantage in the congressional delegation.

Unfair? Arguably. But as Justice Antonin Scalia put it, "How unfair is unfair?" Is it finally a matter of politics, and no concern of the courts? Can the Supreme Court deliver itself of an opinion that reasonable people can follow, or will it get stuck in the role of supreme mapmaker?

The Nation has a lengthy article, titled "The Redistricting Wars," that concludes:
Some strategists believe that the Democrats, when they still controlled the legislature and governorship in California, should have broken up the Republican voting bloc in conservative Orange County by extending the boundaries of overwhelmingly Democratic districts from Los Angeles southward. "The Democrats had the chance to do in California what Tom DeLay is doing in Texas," states Steve Hill. "The Democrats didn't leave themselves enough opportunities to retake the House. They're going to suffer that problem now throughout the rest of the decade. This is the winner-take-all system. That's the game." Now, in the states they still control, the Democrats will likely face tremendous pressure to try to counteract the Republican seat grab in Texas and Colorado. With both Democrats and Republicans scrambling to redraw Congressional lines after each election, a downward cycle of political one-upmanship has now become a virtual certainty.

Posted by Marcia Oddi at 02:34 PM

December 14, 2003

Environment - Stories this weekend

"Florida Greenpeace Case Hinges on 1872 Law," is the headline to this 12/12/03 story in the Washington Post. Here is how it starts:

The saucy boardinghouse owners of the 1800s were such aggressive marketers that Congress passed a law to stop them from jumping on board harbor-bound ships and luring away sailors with booze and prostitutes. The 1872 law, which bans unauthorized boarding of ships about to arrive in port, never got much of a workout. It was used twice -- the last time in 1890 -- then disappeared from courtrooms for more than a century.

But now, after a 113-year respite, the law is back in action in an unusual case that pits the Bush administration against one of its peskiest foes: the environmental group Greenpeace. The U.S. Attorney's Office in Miami filed criminal charges against Greenpeace and a federal grand jury returned an indictment in July, more than a year after two of the group's supporters scrambled onto a ship bound for the Port of Miami-Dade that they suspected of illegally importing 70 tons of Brazilian mahogany.

This story Saturday in the LA Times reports that:
A federal judge struck down a key provision of the Endangered Species Act, ruling that an incentive for landowners to participate in conservation planning was adopted without adequate public consultation and must be reconsidered.

Emmet Sullivan, U.S. District judge for the District of Columbia, struck down the "no surprises" rule that helped secure protection of nearly 40 million acres of wildlife habitat around the country under agreements known as habitat conservation plans.

The decision, Spirit of the Sage Council, et al v. Gale Norton, Secretary, Department of the Interior, et al (12/11/03), is available here.

The Sunday Chicago Tribune has this story, headlined "Mercury in water, air a growing concern: EPA coal plant plans, fish linked," tha begins:

Chris Taglieri said he eats about 130 fish out of Illinois waters each year. He likes his fillets battered and deep-fried. "They're better than restaurant fish," he said. "Because they're fresher."

They may be savory, but Illinois is recommending that women and children, and in some cases even men, limit their intake of predatory fish from state waters to as little as one meal a month because of possible mercury contamination.

Posted by Marcia Oddi at 07:40 PM

Law - Same sex marriage, and divorce

The NY Times had a story this spring about the Vermont civil union law, noting that the Vermont law requires that only persons who have resided in the state for at least year can dissolve civil unions; 85 percent of 5,400 gay and lesbian couples granted civil unions in Vermont are from out of state and Vermont had, at that point, dissolved 15. (This 4/6/03 NY Times story is accessible only via the Times archive.) The Times story reported on a same sex Texas couple who entered into a civil union in Vermont, then within a year sought a divorce in Beaumont, Texas, where they lived.

[T]hey were granted one on March 3 by a state District Court judge. But the attorney general of Texas, Greg Abbott, asked the judge to withdraw it. "A divorce cannot be granted where a marriage never existed," Mr. Abbott declared. The judge agreed to rehear the case, but Mr. Smith, who said he couldn't afford to fight the attorney general, withdrew his divorce petition. * * *

When Vermont created its civil union law, legislators modeled it after the state's marriage statute, which has a one-year residency requirement for divorce. The restriction dates from an era when the state offered no-fault divorces and some neighboring states did not, and Vermont lawmakers didn't want the state to become a divorce mill.

"It's part of the divorce culture for us to say, `You thought enough of each other to get married; now we want to make sure you've thought enough before you get divorced,' " said William Dalton, deputy secretary of state for Vermont. "It might be nice if you could face the east and say three times, `I'm divorced, I'm divorced, I'm divorced,' but that's not how we do it."

Today, divorce is readily available to married couples in almost every state, and so Vermont's residency rule has few consequences for heterosexual couples. But no state legislature or court has extended the benefits and burdens of a civil union beyond Vermont. Gay and lesbian partners — and former partners — who have registered for civil unions exist in a legal gray area outside Vermont, experts say. Some observers foresee legal complications over joint property, child custody and health care benefits.

Nearly 10 months later, this issue is in the news again. An AP story in the 12/12/03 NY Times reports on a divorce decree to a same sex couple granted by an Iowa judge. The story begins:
An Iowa judge's divorce decree for two women has sparked a legal challenge that could help decide whether some states can bar same-sex unions while others permit it. Gay rights activists say the divorce between Kimberly J. Brown, 31, and Jennifer S. Perez, 26, does not open the door to recognition of same-sex relationships, but a conservative group said Friday it will ask the Iowa Supreme Court to overturn the decree. "We believe the judge exceeded his authority,'' said Chuck Hurley, president of the Iowa Family Policy Center, a family advocacy group. Hurley and other conservatives fear the judge's decree, which refers to the union as a marriage, could be a step toward legitimizing same-sex unions, which are not permitted under an Iowa law passed in 1997.
The Boston Globe, in a story yesterday headlined reports that:
In Massachusetts, where the state's highest court ruled last month that homosexual couples have the legal right to wed, analysts predict that married same-sex couples could face the same legal obstacles if they move away and wish to divorce. * * *
"Iowa judge causes stir in granting gay divorce,"
Neary's [the Iowa judge's] order was not the first time a judge has granted a dissolution of a civil union from Vermont. In Texas earlier this year, a judge agreed to grant a divorce to a couple who wanted to end a Vermont civil union. But when the state attorney general intervened, the judge reversed his decision. In Connecticut, courts faced a similar problem, and a case filed by a Connecticut man to legally end his civil union was thrown out. After the state's highest court agreed to hear the case, the man died, and the issue became moot.

Lawyers see similar problems ahead if Massachusetts allows same-sex couples to wed. Last month, the Supreme Judicial Court ruled that banning gay and lesbian couples from marrying violates the equal protection and due process provisions of the Massachusetts Constitution. Courts will eventually sort out whether gay marriages must be recognized in other states -- and if same-sex couples who marry in Massachusetts but move away can divorce in their new home states.

Charles Lane, legal reporter for the Washington Post, had an excellent article last month (Nov. 19) touching on many legal aspects of civil union and same sex marriage laws. Some quotes:
Alarmed by a 1996 Hawaii court case that raised the prospect of legalized same-sex marriage, Congress and 37 states enacted laws designed to keep the phenomenon from spreading across the country. It was a kind of legal flood-control system, built from statutes that defined marriage as the union of one man and one woman, designed so that no state would have to recognize a same-sex marriage from another state. * * *

The post-1996 legislation, known in its federal version as the Defense of Marriage Act (DOMA) [access the text of the DOMA here], reinforced Supreme Court doctrine, which interprets the U.S. Constitution to require states to give "full faith and credit" to one another's court judgments -- but not necessarily to their legislative or administrative acts. If Kansas started issuing driver's licenses to 14-year-olds, for example, police in next-door Missouri still could order drivers younger than 16 off the roads.

"It is settled that states are not required to recognize every marriage performed in every other state," Carpenter said. "And they're not required to do so when they have a public policy contrary to recognizing that marriage." This is why most of the state versions of DOMA include explicit language declaring that same-sex marriage is contrary to their public policy. * * *

Another line of attack against the federal and state DOMA legislation would be to argue that, by denying those who wish to form same-sex couples a right that is enjoyed by opposite-sex couples, they violate the constitutional guarantee of equal treatment under the law. The ACLU is currently pressing such a claim in a Nebraska federal court, arguing against the state's constitutional amendment on marriage, adopted by referendum in 2000, which prohibits the legislature from adopting any measure that would recognize same-sex marriage, civil unions or domestic partnerships.

The ACLU believes it has a strong case based on a 1996 Supreme Court ruling that invalidated a Colorado constitutional amendment. The amendment would have abolished state anti-discrimination laws benefiting gay men and lesbians, Coles said. * * *

Mathew D. Staver, president and general counsel of Liberty Counsel, which opposes same-sex marriage in courts and legislatures nationwide, noted that trial and appeals courts in Arizona, New Jersey and Indiana have recently dismissed equal-protection claims in same-sex marriage cases. But those cases will be appealed.

Indiana's prohibition against same sex marriage is found at IC 31-11-1-1. A report on the appeal of the Indiana same sex union case may be found in this earlier entry. Many of the documents from this case, Morrison v. Sadler, may be found here. The recent Massassachutts Supreme Court decision is reported in this entry. Access more on the DOMA here.

[Update] A review of the Court Docket shows that the Indiana Court of Appeals has scheduled oral argument in the Morrison v. Sadler appeal for Monday, January 12, 2004 at 11 a.m.

Posted by Marcia Oddi at 07:30 PM

December 13, 2003

Law - Justice Breyer on Regulatory Reform

Tonight on C-Span:

Justice Stephen Breyer. Last week, in a lecture hosted by the American Enterprise Institute and the Brookings Institution, Supreme Court Justice Stephen Breyer discussed regulatory reform and the judicial review of economic issues. Breyer's speech is featured on this week's America and the Courts.
SATURDAY ON C-SPAN AT 7PM ET

Posted by Marcia Oddi at 09:12 AM

December 12, 2003

Indiana Decisions - Transfer List for Week Ending Dec. 12, 2003

Here is the Indiana Supreme Court transfer list for the week ending December 12, 2003.

A link to earlier Indiana transfer lists is available here. (The lists are also always available via "Categories" in the right column.)

Posted by Marcia Oddi at 09:37 AM

Law - More on Redistricting

Linda Greenhouse, award-winning NY Times Supreme Court reporter, appeared for one-half hour on C-Span's Washington Journal this morning in the 8 a.m. segment. I believe you will be able to watch it here via RealVideo. In answer to a question, Greenhouse said that the Court may have agreed to hear the Pennsylvania reapportionment case of Vieth et al. v. Jubelirer et al in order to narrow or even overrule its 1986 decision in Davis v. Bandemer, the Indiana case where the Court ruled that partisan gerrymandering could violate the Equal Protection Clause of the 14th Amendment. For links to these cases, and further coverage, scroll down to Wednesday's ILB entry titled "Law - Supreme Court hears arguments in Pennsylvania redistricting case," or jump directly to the earlier entry via this link.

Greenhouse has an analysis piece in today's NY Times titled "A Supreme Court Infused With Pragmatism." The lead:

The Supreme Court that upheld the new campaign finance law on Wednesday was a pragmatic court, concerned less with the fine points of constitutional doctrine than with the real-world context and consequences of the intensely awaited decision.

Although the outcome was unexpected — few people had predicted that the court would uphold all the law's major provisions so unequivocally — the majority's approach to its task should probably have come as no surprise.

It was the same 5-to-4 majority that barely six months ago navigated the court's encounter with an even more contentious issue in American life, affirmative action, and produced a decision that was similar in important ways.

[More]This morning's Washington Post has a story on the challenge to the recent Texas congressional redistricting titled: "Redistricting Battle Moves To U.S. Court: GOP Plan for Texas Could Shift As Many as 7 Seats to Republicans." Access it here. Some quotes:
The great Texas redistricting brawl shifted into a federal court here Thursday when the state's ascendant Republicans, whose redrawn electoral map could yield as many as seven new congressional seats for the GOP, squared off against aggrieved Democrats. Lawyers for the state -- which in Texas's case is nearly synonymous with the Republicans, who hold every statewide elected office -- conceded the partisan nature of the exercise while insisting that no state or federal law or constitutional provision had been violated by adopting a new electoral map two years after one was imposed by a federal court.

"Restrictions on redistricting may or may not be a good policy idea," said Ted Cruz, the Texas solicitor general, who represented the state. "But . . . you can't add that to the Constitution." The Democrats' lawyers, representing congressmen, voters and minority groups, portrayed the new map as an offense to black and Hispanic voting rights, a brazen partisan power grab and an unprecedented exercise in mid-decade redistricting.

Posted by Marcia Oddi at 09:17 AM

December 11, 2003

Technology - Is U.S. patent system broken?

That is the question asked in this lengthy Washington Post story today. Some quotes:

The Acacia case highlights why a growing chorus of corporate and government officials is warning that the U.S. patent system is broken, threatening to stunt technological innovation.

They argue that an overwhelmed U.S. Patent and Trademark Office is simply approving too many dubious and overly broad patents, especially in the software and Internet realms.

The potential result: a digital world carved up into so many pieces that it loses its power to easily link people, communities and ideas.

The country "needs to revamp not just the patent system, but the entire system of intellectual property law," said Andrew S. Grove, chairman of Intel Corp. "It needs to redefine it for an era that is the information age as compared to the industrial age."

Information on the FTC's "Report on How to Promote Innovation Through Balancing Competition with Patent Law and Policy," is available here.

Posted by Marcia Oddi at 04:10 PM

Indiana Decisions - Validity of consent is contested in adoption case

In Re: The Adoption of the Infant Child Baxter, Joseph & Jana Robbins v. Stephanie Baxter & Decoby Askew (12/9/03 IndSCt)
Sullivan, Justice

As related by the Court:

After signing consents to the adoption of their baby, the biological parents attempted to withdraw their consents on grounds that they had not been properly notarized in accordance with the provisions of the Indiana adoption statute. We hold that if the written consent is not properly notarized, the validity of the consent may nevertheless be satisfied by evidence that the signatures are authentic and genuine in all respects and manifest a present intention to give the child up for adoption. * * *

The biological mother, the biological father, and the maternal grandparents signed the Consents on or about July 24, 2000. Joe Robbins took the already-signed Consents to the Hamilton County Sheriff’s Department where a Notary Public, Kathy J. Gordon, notarized all of the Consents. But, as noted above, the Consents had already been executed; none of them were actually signed in the Notary’s presence. * * *

All of the foregoing took place while the biological mother was still pregnant. In early September, the adoptive parents were contacted by the maternal grandmother who advised them that the biological mother was going into labor. The adoptive parents went to the hospital and on September 7, 2000, the baby was born.

At the hospital, the biological parents delivered the infant Baxter into the custody of the adoptive parents. (The trial court found that a video made at the hospital showed that these events occurred knowingly and voluntarily.)

On or before September 20, 2000, the biological mother and the maternal grandmother contacted the adoptive parents to revoke their consent and reclaim custody of the infant. * * *

In this case, the Consents did not conform to the requirements of the Consent Statute because they were not executed in the presence of any one of six specified entities. The trial court held that this rendered the Consents invalid and void. However, as discussed above, the validity of a consent may be satisfied by evidence that the signatures are authentic and genuine in all respects and manifest a present intention to give the child up for adoption. The trial court made no explicit finding in this respect.

There appears to be sufficient evidence in the record to warrant returning this case to the trial court for a determination as to whether the signatures are authentic and genuine in all respects and manifest a present intention to give the child up for adoption. For example, the trial court found that the biological mother, biological father, and maternal grandparents knowingly and voluntarily signed the Consents. The biological parents do not appear to have contested that they intended to consent to the adoption of their unborn child at the time that they signed the Consents.

Given this evidence of record, we remand this case to the trial court for a determination of whether the Consents are authentic and valid even though they were not executed in the presence of any one of six entities specified in the Consent Statute.

Conclusion. The judgment of the trial court is reversed. This case is remanded to the trial court for further proceedings consistent with this opinion.

Shepard, C.J., Dickson, and Boehm, JJ., concur.
Rucker, J., dissents with separate opinion.

Posted by Marcia Oddi at 05:50 AM

December 10, 2003

Law - Supreme Court hears arguments in Pennsylvania redistricting case

The NY Times had an editorial this morning titled "Time to Draw the Line," which begins:

The Supreme Court hears arguments today in a Congressional redistricting case that could have a significant impact on the state of our democracy. The case, a challenge of district lines in Pennsylvania, raises the question of whether Congressional districts can ever be drawn in such a politically partisan way that they are unconstitutional. The court should reaffirm that they can be.

After the 2000 census, Pennsylvania redrew its Congressional districts to reflect population changes in the past decade. Leaders of the Republican-controlled legislature openly admitted that their goal was to elect as many Republicans as possible, while eliminating Democratic incumbents. The legislature adopted lines that divided communities and formed shapes that were given names like "upside-down Chinese dragon." And in a state where Democrats have an enrollment edge of 500,000, it managed to end up with 12 Republican seats and just 7 Democratic ones.

The case is Vieth et al. v. Jubelirer et al. A summary of the issues in the case and links to the briefs and earlier decisions is available here.

The Fort Worth Star-Telegram had a story Sunday, Dec. 7 headlined "Pennsylvania redistricting case could affect one in Texas." Some quotes:

Just like in Texas, districts in Pennsylvania were carved up to give Republicans an advantage. After the elections, the state's House delegation went from 11 Republicans and 10 Democrats to 12 Republicans and 7 Democrats. Pennsylvania lost two seats in the national reapportionment; Texas gained two.

The case is being brought under the 14th Amendment and revisits the high court's ruling in 1986 that made partisan gerrymandering illegal, but set such a high standard that plaintiffs haven't succeeded in challenging reapportionment on those grounds. Plaintiffs have effectively been required to show not only that the districts were drawn against them, but also that they were "shut out" of the political process as a whole.

In 1986, the Supreme Court ruled in Davis v. Bandemer, an Indiana case, that partisan gerrymandering could violate the Equal Protection Clause of the 14th Amendment.

Here is a link to Davis v. Bandemer and what follows is a quote from the synopsis to the case:
In 1981, the [Indiana] legislature reapportioned the districts pursuant to the 1980 census. At that time, there were Republican majorities in both the House and the Senate. The reapportionment plan provided 50 single-member districts for the Senate and 7 triple-member, 9 double-member, and 61 single-member districts for the House. The multimember districts generally included the State's metropolitan areas. In 1982, appellee Indiana Democrats filed suit in Federal District Court against appellant state officials, alleging that the 1981 reapportionment plan constituted a political gerrymander intended to disadvantage Democrats, and that the particular district lines that were drawn and the mix of single-member and multimember districts were intended to and did violate their right, as Democrats, to equal protection under the Fourteenth Amendment.
The NY Times editorial referred to earlier has this to say about the Supreme Court's 1986 decision:
In a 1986 case, Davis v. Bandemer, the Supreme Court held that partisan gerrymandering can violate the Equal Protection Clause. But that fractured decision gave little guidance to lower courts on how to apply it. In the nearly two decades since, the equal-protection problems raised by partisan gerrymandering have increased because of the growing partisanship of the line drawers, and the sophistication of the computers they use. The court should forcefully reaffirm the core holding of Bandemer and give it life by setting clear standards for when partisan gerrymandering is unconstitutional.
[Update 12/11/03]

Here is the first of the stories reporting on the oral argument - Knight Ridder reports:

A skeptical Supreme Court on Wednesday seemed unlikely to fully back either side's position in arguments over Pennsylvania's oddly drawn congressional map.

Lawyers for the state's Republican lawmakers said there was no such thing as too much partisan influence when creating the boundaries for congressional districts, and urged the justices to do away with rules prohibiting even the most brazen political gerrymandering. Democrats said courts should ensure that maps were drawn to reflect the party split among voters in a state, rather than to maximize one party's advantage.

Here is the Boston Globe coverage. And the Washington Post story.

More stories: The Houston Chronicle; the Pittsburgh Post-Gazette; and good coverage from The Legal Intelligencer, including these quotes re the argument of the plaintiff:

Smith said he conceded that politics will always play a role in redistricting, but urged the Court to adopt new rules that would prohibit "the most extreme cases" of partisan gerrymandering.

In his brief, Smith proposed a two-prong test requiring proof of both a discriminatory "intent" and "effects." Under the intent prong, he argued, challengers of a redistricting plan would be required to show that "achieving partisan advantage was the predominant motivation" behind the plan.

And under the effects prong, the challengers would have to prove that the plan "systematically 'packs' and 'cracks' one party's voters," and would "consistently prevent that party from winning a majority of seats even if its candidates repeatedly earned a narrow majority of votes statewide."

But within the first few minutes of his remarks, Smith was peppered with skeptical questions and comments that suggested few of the justices were on his side. By the end of the hour-long argument, only one justice -- John Paul Stevens -- emerged as a strong supporter of Smith's positions, with somewhat tepid support coming from Justices William Kennedy and David Souter. "Maybe the way to go is to just stay hands off these things," Justice Sandra Day O'Connor said early in the argument.

Posted by Marcia Oddi at 07:55 PM

Law - McCain-Feingold upheld by Supreme Court, to the surprise of many

The Supreme Court today issued its opinion (298 pages) in MCCONNELL, UNITED STATES SENATOR, ET AL. v. FEDERAL ELECTION COMMISSION ET AL., upholding in most parts the Bipartisan Campaign Reform Act of 2002 (BCRA), aka McCain-Feingold, including the bans on unlimited donations (soft money) and issue ads broadcast before an election. I recommend you to Professor Rick Hasen's excellent Election Law Blog for analysis and links to other coverage.

Posted by Marcia Oddi at 02:20 PM

Law - Yesterday's Miranda arguments before the Supreme Court

Updating our entry from this weekend on the Miranda cases to be argued before the Supreme Court yesterday are two stories this morning. This story, by Linda Greenhouse of the NY Times, begins:

Three years after the Supreme Court reaffirmed its landmark Miranda decision as having "announced a constitutional rule," it was apparent during arguments at the court in two cases on Tuesday that the practical meaning of Miranda and the continued utility of its famous warnings for criminal suspects remain very much in question. At issue was what use prosecutors may make of evidence obtained after an initial failure by the police to read suspects their Miranda rights before the start of questioning.
And this story, from David Savage of the LA Times, reports:
Two public defenders called on the court to maintain the Miranda decision as a constitutional requirement for the police. They relied heavily on comments in the court's earlier opinions. But on several occasions, the justices interrupted to say that that was not what had been intended.
The headline of the story was "High Court Points to Possibly Scaling Back Miranda Right."

Posted by Marcia Oddi at 08:19 AM

Environment - Indiana ranks near the top in mercury emissions

"Report Cites 10 States' Mercury Pollution: Environmental Advocacy Group Uses EPA Data to Pinpoint 'Hot Spots,'" reads the headline to this story this morning in the Washington Post. A quote:

The Electric Power Research Institute, an industry group, estimates that on average 70 percent of mercury deposits come from global sources. But in nine of the 10 states with the worst mercury concentrations, power plants or other facilities within those states contributed 50 to 80 percent of the mercury, according to the Environmental Defense study. The EPA did not dispute the report's findings but said it is pursuing its own methods to reduce mercury emissions.

The annual mercury concentrations ranged from a low of 65 grams of mercury per square kilometer in Pennsylvania and Tennessee to 125 to 127 grams per square kilometer in Indiana and Michigan. Maryland registered 95 grams per square kilometer. Other states with mercury problems are Florida, Illinois, South Carolina, North Carolina and Texas, the report said. By comparison, relatively safe states with few local sources of mercury pollution registered mercury deposits of 10 to 15 grams per square kilometer.

The Munster NW Indiana Times' story this morning has this headline: "Mercury fallout equals rising health risk: Indiana leads U.S. 'hot spots' of power plant mercury emissions; Illinois ranks fifth."

The report, titled "Out of Control and Close to Home: Mercury Pollution From Power Plants," written by Environmental Defense, is available here. The organization's overview of the problem is here.

Posted by Marcia Oddi at 07:57 AM

December 09, 2003

Indiana Decisions - Ordinance held invalid as not a sufficiently definite standard

Another interesting civil law case is up for oral argument this week before the Indiana Supreme Court, this one set for 9 a.m. on Thursday, Dec. 11. You may watch it in person or online at that time, or later via the Court's Oral Arguments Online site. Here is a summary of the Court of Appeals opinion:

Fulton County Advisory Plan Comm. v. Gregory Groniger (6/23/03 IndCtApp)
Mathias, Judge

The appellate court affirmed the trial court, finding "that the Fulton County Zoning Ordinance Vision Clearance Standard at issue is not sufficiently definite and that the Groningers met the standards of the Zoning Ordinance that are sufficiently definite."

After distinguishing three other cases, the court stated:

In the present case, after the Groningers contended that the plat application met the first two criteria, the Plan Commission hired Wightman Petrie, an engineering firm, to take measurements of the location of the entrance and make a report on the safety of its location. Wightman Petrie submitted a report of their findings to the Plan Commission and determined that although the entrance indeed met the first two criteria, it created hazardous driving conditions because it did not comply with the AASHTO Design Standards. However, no reference to AASHTO Design Standards appears anywhere in the Zoning Ordinance, and therefore, neither the Groningers nor the general public were given any, much less sufficient, notice that those standards would be used in the review of a primary plat application. * * * Because the third criterion of the Vision Clearance Standards is the only criterion upon which the Groningers’ plat was rejected and because it does not contain sufficiently definite standards to give fair warning of the standards the Plan Commission would consider in its decision, it is not valid. Therefore, the trial court did not err when it granted the Groningers’ motion for summary judgment.

Posted by Marcia Oddi at 06:08 PM

Indiana Law - Bah, Humbug!

This entry in the SW Virginia Law Blog, headlined "Ignorant Grinch of a law school dean," certainly caught my eye. It links to the Dec. 5 Indianapolis Star story titled "Tree display vexes law school: Changing evergreen to winter scene fails to quiet IU controversy."

What got my attention was the statement "Perhaps Marcia Oddi of Indiana Law Blog will add details to this story." And perhaps not!

Posted by Marcia Oddi at 05:52 PM

Indiana Decisions - Does AOPA apply to quasi-state entities?

The Court of Appeals decision in M-Plan v. ICHIA was issued 3/7/03, only days before the Indiana Law Blog went into operation (on 3/16/03). As a result, I had no summary to turn to when I read this morning that the case was being argued today before the Indiana Supreme Court. Below is a summary of the now vacated [as of 12/10/03] Court of Appeals opinion. The argument before the Indiana Supreme Court will be available for listening tomorrow (12/10/03) via this link.

M-Plan, Inc. v. Indiana Comprehensive Health Insurance Ass'n (ICHIA). (3/7/03 IndCtApp)
Bailey, Judge

Three HMOs sued ICHIA and the Insurance Commissioner, challenging as illegal and unconstitutional the assessment methodology utilized by ICHIA. The trial court dismissed the complaint for lack of subject matter jurisdiction due to a failure to exhaust administrative remedies. The Court of Appeals reversed the dismissal.

When the legislature has provided a statutory scheme with an exclusive administrative remedy, our courts lack jurisdiction to hear the matter until the administrative procedures have been exhausted or request for relief has been denied. State v. Sproles, 672 N.E.2d 1353 (Ind. 1996). Exclusivity is typically expressed in either of two forms: the statute will state that its provisions constitute the exclusive remedy for such actions, or the statute provides that judicial review is available only after the remedies provided in the statute are exhausted. Romine v. Gagle, No. 48A04-0202-CV-66 (Ind. Ct. App. Jan. 14, 2003) slip op. at 12. The exhaustion rule assumes an available statutory remedy at the time the challenged judicial relief is sought. Ind. State Dep’t. of Welfare, Medicaid Div. v. Stagner, 410 N.E.2d 1348, 1351 (Ind. Ct. App. 1980).
ICHIA sought dismissal on failure to exhaust administrative remedies under AOPA.:
ICHIA relies upon Article II, Paragraph C of its Plan of Operation, adopted by the ICHIA Board, providing that a member aggrieved by an act of the Association shall appeal to the Board of Directors before appealing to the Commissioner of the Indiana Department of Insurance. The HMOs contend that the Plan of Operations prescribes only an internal appeal procedure, rather than an exclusive statutory administrative remedy, precluding an ICHIA member from bringing a complaint directly to the trial court.

ICHIA is a legislatively created health insurance provider whose essential purpose is to provide health insurance coverage for certain high risk individuals. Indiana Code section 27-8-10-2.1. * * *

[T]he dispositive inquiry is whether ICHIA is an administrative agency, within the province of the [AOPA]. Administrative entities are creatures of statute and cannot exercise power beyond that given in their creation. Moreover, the law resolves ambiguous grants of power against administrative entities. Title 4 of the Indiana Code governs State Offices and Administration. Indiana Code section 4-21.5-2-3 provides that the Administrative Act applies to an agency, except to the extent that a statute clearly and specifically provides otherwise. The Administrative Act defines an agency as “any officer, board, commission, department division, bureau, or committee of state government that is responsible for any stage of a proceeding under this article.” Ind. Code § 4-21.5-1-3.

Here, the hallmarks of an administrative agency under the Administrative Act are absent. ICHIA is defined as “a nonprofit legal entity to be referred to as the comprehensive health insurance association,” Indiana Code section 27-8-10-2.1, a definition inconsistent with that of an administrative agency, an entity “that is responsible for any stage of a proceeding under (the Administrative Act).” ICHIA is an involuntary association comprised of all health insurers and health maintenance organizations doing business in the State of Indiana. It has “the general powers and authority granted under the laws of Indiana to carriers licensed to transact the kinds of health care services or health insurance described in (the preceding section).” Ind. Code § 27-8-10-2.1(e).

ICHIA creation was not accompanied by a regulatory scheme whereby the association is entrusted with enforcement of law. Rather, its purpose is to ensure health insurance availability for the otherwise uninsurable. Its essential function beyond policy provision is cost allocation. Pursuant to Indiana Code section 27-8-10-2.1(j), policies issued by ICHIA, like those issued by commercial insurers, must be approved by the Insurance Commissioner. ICHIA is empowered to develop an internal Plan of Operation – to be submitted for approval to the Insurance Commissioner - but is not vested with rule-making power having the force of law. ICHIA is not required to promulgate rules according to the public procedures of the Administrative Act. Finally, the statutory scheme under which ICHIA operates does not provide an exclusive administrative remedy.

As such, the HMOs were not required to exhaust a statutory administrative remedy before filing their complaint for declaratory relief. Reversed.

ROBB, J., and BARNES, J., concur.

Posted by Marcia Oddi at 01:38 PM

Indiana Decisions - Measure of damages in real estate fraud case

Juan L. Sanchez v. Gerald B. Benkie, et al. (12/8/03 IndCtApp)
Bailey, Judge

The facts in this case:

In late 1996 or early 1997, Sanchez purchased 27.4 acres of land in LaPorte County, Indiana for $30,000.00. There was a high water table in that area. Sanchez intended to subdivide the land into ten parcels, to be known as Twin Acres Estates Subdivision. Sanchez submitted site plans to the LaPorte County Health Department indicating that a subsurface drain line was installed in the proposed subdivision, and, based upon that representation, received approval for septic installation.

Sanchez presented his subdivision plan to the LaPorte County Plat Committee, indicating that he held an easement over adjoining property to facilitate a subsurface drain line. However, no subsurface drain line was installed and adjoining landowner Obed Kalwitz refused to grant a land easement to facilitate the proposed drain line. The LaPorte County Health Department rescinded all septic permits for the subdivision. Nevertheless, Sanchez sold three lots in the subdivision, marketed as “septic approved.”

The lower court awarded compensatory damages to three purchasers of property from Sanchez. The Buyers elected to affirm rather than rescind their contracts. As the court states here: "The Buyers did not seek to be placed back in their original position. Rather, the Buyers retained the real estate, but nevertheless sought to recover the entire purchase price of each parcel and all expenses of retaining the parcels. They sought, and obtained, more than the 'benefit of their bargain.'" The court here ruled:
Regardless of whether the trial court awarded damages under the theory of breach of contract or the theory of fraudulent inducement to enter a contract, the applicable measure of damages is the “benefit of the bargain” or difference between the value of the property conveyed and the value of the property as it was warranted to be. Each of the Buyers is entitled to the difference between a parcel of land suitable for a conventional septic system and a parcel of land suitable only for a non-conventional septic system.

Posted by Marcia Oddi at 01:09 PM

Law - Homeless man may argue before Supreme Court

A really fascinating human-interest story in today's LA Times, is headlined: "A Most Unusual Lawyer: A homeless man with psychological scars is challenging Texas over a Ten Commandments statue. The Supreme Court may take his case." Some quotes:

A former defense attorney whose career collapsed under the weight of a debilitating psychological condition, Thomas Van Orden sued the state of Texas two years ago in federal court. His lawsuit contends a 5-foot-tall monolith to the Ten Commandments, erected on the grounds of the Capitol, violates the 1st Amendment's ban on "establishment of religion."

Earlier this month, an appeals court ruled that the monument constitutes a "secular message" and can stay. Today, Van Orden is piecing together a last appeal to the U.S. Supreme Court. A growing chorus of state officials and legal analysts, many of whom initially dismissed Van Orden as an amusement at best, now believe the Supreme Court might take the case in an effort to reconcile a conflicting pile of lower court decisions. * * *

[L]ast summer, Van Orden appealed to the U.S. 5th Circuit Court of Appeals. He prepared for the hearing by delivering arguments in a University of Texas classroom, with law students sitting as a mock jury. The hearing was in New Orleans, 500 miles east of Austin. Trevor Rosson, 32, the student most involved in his case, gave him a ride.

"The man knows his law," Rosson said. "He was so well prepared it was unbelievable. He'd been working on this for so long it was just implanted in his brain."

In November, the U.S. 5th Circuit agreed that the monument could remain, saying a "reasonable viewer" would not "conclude that the state is endorsing the religious rather than secular message." The ruling puts the court at direct odds with other courts around the country — the scenario when the Supreme Court is most likely to step in. * * *

He survives on food stamps and sleeps in his tent in the woods, nestled in a well-heeled Austin neighborhood that he travels to by bus. He won't discuss its location, saying he must protect himself from his unwitting neighbors and drug addicts who would steal his tent.

Here is the 5th Circuit's opinion in the case of Thomas Van Orden v. Rick Perry, Governor of Texas (11/12/03).

Posted by Marcia Oddi at 12:01 PM

Law - Electronic voting machine issues

A story today in the Washington Post gives a good overview of the challenges facing electronic-voting-machine manufacturers. A quote:

Although less than 20 percent of the nation's counties use electronic voting machines, their use is growing in the wake of the problems with punch-card ballots in Florida that threw the 2000 presidential election into turmoil. Last year Congress passed the Help America Vote Act, which provides funds for states and localities to modernize their election systems. But several academic and cyber-security experts argue that the new machines, which let voters make their choices on video screens, have disturbing security flaws.
A Q&A on voting machines from the Boston Globe Sunday included this intro and exchange:
Computerized voting machines were supposed to prevent a repeat of the 2000 Florida election fiasco. Instead, the high-tech ballot boxes have ignited a firestorm of their own. Critics say they're unreliable, and can actually make it easier to rig elections than old-fashioned paper ballots. The state of Ohio last week said it would delay the introduction of computerized voting machines until manufacturers solve security and reliability problems. Mark Radke, director of marketing for Diebold Election Systems, a leading maker of digital touch-screen voting machines, defended the performance of his company's systems in an interview with Globe business reporter Hiawatha Bray.

Q. Where are Diebold's voting machines in use?

A. We have the entire state of Georgia, 159 counties around Georgia, and we are now implementing phase two in Maryland, where we have four counties and we're now implementing it in the rest of the state. We're also in California, Indiana, and Kansas.

This story from Fox News dated 11/25/03 reports that:
Perhaps the most controversial of all the election reforms so far is the institution of electronic touch-screen voting machines (search). Each state must replace all manual systems with these machines by 2006. Recent studies have indicated that the machines — run by computers — can lose votes, are not tamper-proof and do not provide a "paper trail" if a recount is necessary.

An estimated 20 percent of towns and counties are using the touch-screen machines, despite problems that emerged during the 2002 and 2003 elections and warnings from computer experts that the machines are untrustworthy and could pose new problems in 2004.

The story also mentions Indiana: "Indiana has been grappling with continued fraud in state and local elections — most recently resulting in several indictments and prosecutions in East Chicago, Lake County."

Here, from the Office of the Indiana Secretary of State, are pages showing the Voting Systems in use in Indiana, and the Voting Systems Certified for Use in Indiana.

Posted by Marcia Oddi at 11:48 AM

Environment - Interesting I-69 editorial

There is an interesting I-69 editorial today in the Evansville Courier&Press.

Posted by Marcia Oddi at 10:53 AM

December 08, 2003

Law - NY federal judges protest the Feeney amendment

New York federal judges protest "a new sentencing law that they say represents a breach in the separation of powers and bullies them into handing down harsher sentences," according to this story today in the NY Times. A quote:

"It's a serious breach of the separation of powers to have the executive looking over the judiciary's decisions," Judge Robert P. Patterson Jr. of Federal District Court in Manhattan said. "It also certainly looks like a possible blacklist."

After Minnesota's chief federal judge, James Rosenbaum, testified against the new restrictions before the House Judiciary Committee last May, the committee fired back. Citing a pattern of hostility by Judge Rosenbaum, members threatened to subpoena his records in all cases in which he departed from the sentencing guidelines.

The vocal dissent against Feeney is not limited to judges who are generally thought to be more liberal sentencers. "Even I recognize that this administration has taken a step too far," said Judge John F. Keenan of Federal District Court in Manhattan, who is a Reagan appointee, a Republican and a former prosecutor.

For all their concerns about the law, many judges are adamant that they will not be intimidated. "They can have their blacklist," said Chief Judge Michael B. Mukasey of United States District Court in Manhattan. "But we have life tenure."

Here is a Washington Times report on Supreme Court Justice Anthony M. Kennedy's August 9, 2003 urging shorter sentences. In addition the story notes:
By also commenting on federal sentencing guidelines — an issue separate from federal minimum sentences — Justice Kennedy seemed to join the growing debate over Attorney General John Ashcroft's directive that federal prosecutors report to him data on judges who levy sentences lower than federal guidelines dictate.

Posted by Marcia Oddi at 05:43 PM

Indiana Decisions - More on Candidates for Court of Appeals Opening

Now there are six, according to this release from Chief Justice Shepard's office:

The Indiana Judicial Nominating Commission has identified six candidates who will return for a second round of interview for the upcoming vacancy on the Indiana Court of Appeals, the state’s intermediate appellate court, Chief Justice Randall T. Shepard announced today.

The opening is for the seat now held by Judge Sandy Brook, who has announced his resignation. An applicant must have been a member of the Indiana bar for at least ten years or have served as a judge for at least five years, and must be an Indiana resident of the Third District in Northern Indiana. Pay and allowances for judges on the Court of Appeals is about $113,000.

On Monday, the seven-member Judicial Nominating Commission conducted public interviews with 12 candidates. Six of the candidates were selected to return for another interview on December 17, 2003. Those who will return for second interviews are: Hon. Terry A. Crone, St. Joseph Circuit Court; Hon. Jeffery J. Dywan, Lake Superior Court; Hon. David P. Matsey, Starke Circuit Court; Hon. William E. Davis, Lake Superior Court; David L. Abel, II, Merrillville; Bessie M. Taylor, Gary.

After the second round of interviews is complete, the Commission, which is chaired by Chief Justice Shepard, will send the names of three candidates to Governor Joseph E. Kernan. He will make the final selection.

Posted by Marcia Oddi at 05:23 PM

Environment - Even more on new ozone standards

This editorial in the Evansville Courier-Press, headlined "The Absurd EPA - The Issue: Federal agency penalizes Vanderburgh, Warrick counties. Our View: Application of ozone policy is puzzling," includes this:

The federal Environmental Protection Agency's absurd action last week placing Vanderburgh and Warrick counties in noncompliance of ozone standards defies explanation. * * *

First, not six months ago, it was reported that federal and state governments now view air pollution from a regional perspective. That is a sensible proposition which acknowledges that air currents which move pollution along do not stop at any one county or state line. Yet, here is the EPA, taking the region apart, county by county.

Second, air quality has been improving in the three-county region, and any noncompliance of ozone standards is marginal, at worst. Yet, here is the EPA penalizing two of the three counties. Assistant Commissioner Janet McCabe of the Indiana Department of Environmental Management's Office of Air Quality said that of the air quality monitors in the three counties, the only one that did not meet the standard was in Warrick, "and it was right at the standard."

So it is a puzzle, how the EPA arrived at those two counties. It is as if the EPA drew names from a hat. For example, there is no doubt that emissions from Vectren's A.B. Brown power plant west of Evansville contribute to ozone in Vanderburgh County. But of course, the Brown plant is in Posey County.

We found it a bit ironic that on the same day the federal government was naming the counties in noncompliance - 25 in Indiana - for ozone violations, news was breaking about the Bush Administration's scandalously loose proposed rules for the regulation of mercury. On one hand, the federal government is cracking down hard on counties barely in violation of standards for ozone - a respiratory irritant - while allowing coal-fired power plants to continue putting mercury - a significant risk to the health of children and pregnant women - into the air by trading for mercury credits with other polluters.

For a NW Indiana reaction to changes in power plant rules, there is this article in the NWIndiana Times, headlined "EPA rule eases restrictions on coal plants -- CHICAGO: Report: Sulfur dioxide could increase up to 63 percent in the Chicago area."

Posted by Marcia Oddi at 12:08 PM

Law - Miranda focus of Supreme Court arguments this week

This story in today's LA Times is headlined "High Court to Consider Rights Within Miranda: Some experts fear the landmark ruling is in peril as justices prepare to hear three cases on possible penalties for its violation by police." The lead:

Just three years after the Supreme Court affirmed its landmark Miranda decision, the rule that police must warn crime suspects of their "right to remain silent" is in danger of being effectively repealed, longtime defenders of the decision say.

This week, the justices are scheduled to hear three cases — from Colorado, Missouri and Nebraska — that will determine whether there is a penalty when police fail to warn suspects of their rights before questioning them.

Charles Lane has this story in the Washington Post Some quotes:
A key question is whether, after the 2000 case, Miranda includes a "fruit of the poisonous tree" doctrine, which would exclude not only a statement a defendant gave without a Miranda warning, but also any information police derive from such a statement. Both of tomorrow's cases turn on that issue. In the Seibert case, the question is whether a voluntary confession produced as a result of a first statement without a Miranda advisory should be excluded. In the second case, U.S. v. Patane, No. 02-1183, the issue is whether physical evidence -- in this instance, a handgun -- gathered because of a statement made without a Miranda warning should be excluded.
This link provides information, including lower court opinions, in the Seibert case; this link provides the same for Patane.


Posted by Marcia Oddi at 06:28 AM

December 07, 2003

Law - Access to noncopyrighted data in copyrighted program

Assessment Technologies of WI, LLC v. WIREdata, Inc. (11/25/03 USCA 7th Cir.)
Posner, Circuit Judge

This opinion, that I just had the opportunity to read, is a tutorial in copyright law, particularly as it applies to databases. Several municipalities in Wisconsin contract with Assessment Technologies (AT) to take the data collected by their property tax assessors and, using a copyrighted program, compile it into a database that the municipalities' tax officials can query to answer various tax questions. WIREdata, a multiple listing service, wants the raw data for its own purposes. The data itself is not copyrightable and is in the public domain, but the only way to get it, apparently, is from the database. AT claims the data cannot be extracted without infringement of its copyright; the property tax assessors appear to enter it via handhelds directly into the AP program.

The copyright case seeks to block WIREdata from obtaining noncopyrighted data. AT claims that the data can’t be extracted without infringement of its copyright. The copyright is of a compilation, and the general issue that the appeal presents is the right of the owner of such a copyright to prevent his customers (that is, the copyright licensees) from disclosing the compiled data even if the data are in the public domain.
The Court here reverses and remands, listing at least four ways that WIREdata can obtain the data it seeks without infringing AT's copyright. There is a lot of fascinating dicta in this opinion, touching on matters such as the past and pending legislative proposals for database protection.

Tech Law Journal has a good summary of the opinion here (although I'm not sure how long it will be accessible). The briefs are here; the oral argument is here. Finally, Slashdot had an entry 12/1/03 on this year's version of the legislative proposal to protect databases, HR 3261. (Judge Posner, in his opinion, cites a number of law review analyses of the database protection proposals.)

Posted by Marcia Oddi at 05:11 PM

Indiana Law - State contract "cancellation for convenience" clause

An editorial in the Dec. 8-14 Indiana Business Journal, discusses Governor Kernan's decision to cancel the State's $15.2 million, four-year contract with a company in Bombay, India. THE IBJ notes that "the governor canceled the TCS contract and announced Opportunity Indiana. The new program is intended, he said, to help local companies gain better access to the state's bidding process." The editorial concludes:

A better approach, and one hoped for from Kernan's Opportunity Indiana, is to demystify the bidding process. It should be the state's top priority to make plain the requirements necessary to bid on a project. It should be the state's next priority to make sure those requirements, such as performance bonds and hiring levels, are reasonable and consistent. Many familiar with the [cancelled] contract believe the state should produce proposals on a reduced scale more likely to draw smaller firms here into the bidding process.
Here is the link to the text of Governor Kernan's November 20, 2003 announcement of the contract cancellation. Some quotes:
Gov. Kernan will charge Department of Administration Commissioner Chuck Martindale with leading the working group, which will provide recommendations for sensible reforms and help ensure that Indiana businesses have every opportunity to obtain state government contracts. Martindale will organize the effort to obtain feedback from customers, vendors and purchasing officials about what changes can be made to create a streamlined procurement system. The working group will bring together state agencies, vendors, and universities in a collaborative initiative to improve the way the state does its business.

In reviewing the current state procurement process, Kernan determined that one of the first issues to address was a contract between the Indiana Department of Workforce Development (DWD) and TCS America to upgrade its unemployment insurance computer system. DWD terminated the contract with TCS this morning. “The difficulty we had with this contract was not with the company itself,” said Kernan. “After having a chance to discuss our vision of how the state should do business, and how we can provide better opportunities to Indiana companies and workers, we concluded that this contract did not fit in that framework. The procedures we had in place virtually knocked Indiana companies out of the running.”

In the earlier (11/21/03) Indiana Law Blog entry on this contract cancellation, Alan Degner, the state's workforce development commissioner, was reported as saying: "a 'convenience clause' in the contract allowed the state to cancel it without financial penalty." At the time, I noted that it would be interesting to review the "convenience clause."

I've now obtained a copy - my understanding is that it is a part of the standard, non-negotiable boilplate the State requires in all its contracts:

3. TERMINATION FOR CONVENIENCE: This contract may be terminated, in whole or in part, by the State whenever, for any reason, the State determines that such termination is in the best interest of the State of Indiana. Termination of services shall be affected by delivery to the contractor of a Termination Notice at least thirty (30) days prior to termination effective date, specifying the extent to which performance of services under which such termination becomes effective. The contractor shall be compensated for services rendered prior to the effective date of termination. The Contractor shall be compensated for services herein provided but in no case shall total payment made to contractor exceed the original contract price due on contract or any price increase be allowed on individual line items if canceled only in part prior to the original termination date.
Some questions: Has the existence of the unilateral cancellation clause discouraged some vendors in the past from bidding on State projects? Will the State's recent well-publicized exercise of its "cancellation for convenience" clause discourage prospective contractors in the future?

[Update 12/8/03] Years back, perhaps in the 80s', a clause was added to the standard state contract boilerplate permitting cancellation of a multi-year contract if it turned out, for instance, that in the second or a subsequent contract year, funding no longer would be available. Maybe a grant was pulled, or the General Assembly did not provide an anticipated appropriation for the later year. This clause made sense, given our state constitutional debt prohibition. If the second year of a contract had to be terminated for lack of funds, the contract would be cancelled via this clause, and the project itself died with it.

At some point, it appears that the "lack of funds" clause has morphed into the "cancellation for convenience" language. Among the problems this language may present are: (1) Changes in leadership may lead to a desire to make changes in state contractors - the convenience clause would appear to facillitate that. (2) Athough the law requires that a formal bidding process be followed and the best bidder be selected, the convenience clause would appear to allow a winning bidder's contract to be cancelled at will at any point and the contract rebid, with or without revised specifications.

Posted by Marcia Oddi at 03:30 PM

December 06, 2003

Environment - More on new 8-hour ozone standards

Here is a copy of the letter U.S. EPA sent to Indiana, designating the nonattainment areas for the 8-hour ozone standards in Indiana, along with EPA's fact sheet that accompanied the announcement. These materials supplement yesterday's ILB entry on EPA's air initiative.

This story, headlined "25 counties may violate ozone limits," may be found in today's Indianapolis Star.

Posted by Marcia Oddi at 10:58 AM

December 05, 2003

Indiana Decisions - Regional water and sewage districts jurisdiction

City of North Vernon v. Jennings Northwest Regional Utilities (12/5/03 IndCtApp)
Najam, Judge

This case involves a jurisdictional dispute over who was authorized to provide sewer services to Sand Creek Elementary School, the Jennings Northwest Regional Utilities (JNRU) or the City of North Vernon.

Posted by Marcia Oddi at 02:37 PM

Indiana Decisions - 7th Circuit Vacates Ind. District Court in Gambling Decision and Cites Sanction Rule

WILLIAMS, DAVID N. v. AZTAR INDIANA GAMING (12/5/03 USCA 7th Cir.)
Flaum, Chief Judge

In the words of the Court:

David M. Williams is a compulsive
gambler who gambled away his life savings at Casino Aztar. He sued defendants in federal court, alleging violations of the Racketeer Influenced and Corrupt Organizations (RICO) statute and other state law claims. The district court granted summary judgment to defendants on all of his claims and Williams appeals one aspect of the ruling. Because we find his RICO claim to be frivolous and alleged solely to invoke the jurisdiction of the federal courts, we vacate the district court’s judgment and dismiss his lawsuit for want of subject-matter jurisdiction. * * *

CONCLUSION: For the foregoing reasons, the judgment of the district court is VACATED and the case is REMANDED to the district court with instructions to dismiss the complaint for want of subject-matter jurisdiction. Because this court concludes that Williams’s RICO claim was frivolously filed solely to invoke the jurisdiction of the federal courts, we declare this appeal is also frivolous, and we direct plaintiff to show cause within 14 days why he should not be sanctioned under our Rule 38.

Briefs of the parties may be found here; the oral argument is here.

Posted by Marcia Oddi at 01:39 PM

Indiana Decisions - Transfer List for Week Ending Dec. 5, 2003

Here is the Indiana Supreme Court transfer list for the week ending December 5, 2003.

Posted by Marcia Oddi at 09:53 AM

Environment - EPA formally announces proposed air rules

This story from the Washington Post this morning:

The Bush administration yesterday proposed rules that would set new targets for the utility industry to reduce overall air pollution in the next 15 years. Under the plan, major polluters could buy credits from cleaner-operating plants as long as the overall industry targets were met. * * *

The proposed rules, largely targeted to 30 northeastern and midwestern states with the greatest problems of smog and acid rain, closely match provisions of President Bush's "Clear Skies" legislation, which has languished in Congress for a year. With dim hopes of getting any action on that plan before the 2004 election, Leavitt and White House officials have decided to take a regulatory approach. * * *

Yesterday's announcement consolidates key elements of the administration's clean-air efforts, which are certain to become hot issues in the presidential campaign. While some environmental groups support the general thrust of the proposals for combating nitrogen oxide and sulfur dioxide -- major sources of smog and dangerous fine particles that contribute to asthma and lung disease -- they overwhelmingly oppose administration plans for dealing with highly toxic mercury emissions, which cause severe neurological and developmental damage in humans. * * * By reclassifying its category, mercury emissions would be subject to a mandatory "cap and trade" program, similar to the successful program to combat acid rain that was begun in 1990. It would allow utilities to buy emission "credits" from cleaner-operating plants to meet an overall industry target.

The LA Times today has comprehensive coverage of the plan in this story, including these quotes:
The Environmental Protection Agency announced regulatory proposals Thursday for controlling air pollution, taking a major step toward making market-based trading systems the tool of choice for addressing air quality problems caused by power plants. The agency identified 534 counties in 32 states that have air pollution levels that exceed new eight-hour health-based standards for ground-level ozone or smog. After this proposed program is made final early next year, states will be required to adopt pollution control strategies to meet the new standards in these counties, many of which have never before have been required to regulate air emissions. * * *

The administration's plan includes two systems of controlling power plant emissions by giving each plant a permit to emit a fixed amount of pollution and allowing the cleaner plants to sell their excess allowances to plants that throw off more than their share of pollutants. One such "cap and trade" system would govern nitrogen oxides and sulfur oxide; the other would limit mercury. * * * EPA officials said the cap-and-trade system for sulfur dioxide and nitrogen oxides would help state officials meet the new air-quality standards for ground-level ozone because it would cut the pollution that blows in from other states. By gradually reducing the pollution permits in circulation, EPA would cut sulfur dioxide emissions by 70% and nitrogen oxide emissions by 50%.

The proposed mercury cap-and-trade system, which focuses on coal-burning power plants, would use a similar mechanism to reduce emissions from 48 tons to 15 tons by 2018, officials said. Public health officials, state regulators and environmental advocates applauded the designations of areas that need to improve their air quality. "EPA has recommended protective smog boundaries that will help establish the framework for states to put in place effective pollution cleanup plans to protect children with asthma and other vulnerable populations from harmful smog," said Vickie Patton, an attorney for Environmental Defense, an environmental group. * * * But activists warned that the mercury initiative would not push power plants to cut emissions fast or far enough. They said EPA failed to analyze the costs and benefits of a more stringent rule for mercury, despite requests from an EPA-appointed advisory group and members of Congress. * * *

The new eight-hour ozone standards, required by the 1990 Clean Air Act amendments, were set in 1997 but delayed by challenges from industry until the Supreme Court upheld them in 2001. States had recommended that 427 counties be listed as exceeding the standards, short of the 534 identified by the EPA. Counties are reluctant to be on the list of ozone non-attainment areas because their businesses know they will face tighter regulation. "It's a stigma," said Bill Kovacs, vice president for environment, technology and regulatory affairs at the U.S. Chamber of Commerce. "In a non-attainment area, bringing in new business is much more difficult."

The Louisville Courier-Journal today has two stories, focusing on how the proposal impacts the midwest, particulalry Indiana and Kentucky. First, this story, headlined "SMOG STANDARDS: 8 Kentucky, 25 Indiana counties exceed EPA ozone limits," reports:
Eight counties in Kentucky, including Jefferson County, and 25 in Indiana exceed new federal ozone limits and could face tough air pollution sanctions, according to a U.S. Environmental Protection Agency list released yesterday. That's two fewer Kentucky counties and five more in Indiana than the states themselves had recommended. Indiana officials yesterday disputed the EPA findings, while Kentucky officials expressed relief. * * *

INDIANA OFFICIALS had recommended Lake, Porter, LaPorte, Elkhart, St. Joseph, Clark, Floyd, Allen, Marion, Boone, Hendricks, Morgan, Johnson, Shelby, Hancock, Madison, Hamilton, Delaware, Warrick and Vigo. All were on the list.

Indiana officials, however, were angry that the EPA had added five counties: Huntington, Dearborn, Greene, Jackson and Vanderburgh. Janet McCabe, assistant commissioner of Indiana's Office of Air Quality, said there are no monitors in Dearborn County to determine the pollution level, and Huntington was included because it's near Allen County and Fort Wayne, which is out of compliance with ozone standards. McCabe said Greene and Jackson counties produce little pollution, but wind currents carry ozone-causing agents into those counties, and Vanderburgh County is affected by industry in adjoining counties.

She predicts that a number of counties, including Clark and Floyd, will fall off the list next summer after regional efforts to reduce the amount of ozone-causing nitrogen oxides are fully implemented. How Kentucky, Indiana and other states begin to meet the new ozone limits hasn't been determined because the EPA has not decided how it will implement the new rules.

[For more on Indiana's recommendations to EPA, see this IDEM page, and this EPA Region 5 page.]

The second Courier-Journal story, available here, deals with the mercury emissions aspect of the new EPA proposal. A quote:

Using the EPA's Toxics Release Inventory, the group [U.S. Public Interest Research Group] found that Indiana power plants emitted 5,728 pounds of mercury in 2001, while Kentucky plants emitted 3,796 pounds that year. Texas ranked first with 8,992 pounds of mercury emissions.

Arnita Gadson, executive director of the West Jefferson County Community Task Force, said she fears an emissions trading system would allow some plants to avoid reducing mercury by paying another plant in another area that has already done so. "This is a major concern," she said.

Frank Maisano, spokesman for the Electric Reliability Coordinating Council, a coalition of utilities, said local and state governments would have the option of going beyond the EPA rule. Kentucky, however, has a law prohibiting state environmental regulators from enacting any rules more stringent than those of the federal government.

[Update: The Indianapolis Star has now posted this AP story, headed "Feds cite pollution in 25 Indiana counties," on its website.]

Posted by Marcia Oddi at 08:21 AM

December 04, 2003

Indiana Decisions - 7th Circuit decides Indiana bankruptcy appeal

Mellon Bank v. Dick Corporation (12/4/03 USCA 7th Cir)
Easterbrook, Circuit Judge

The Court here reversed and remanded the opinion of the SD Ind in a bankruptcy dispute involving Qualitech Steel.

Bankruptcy law entitles debtors’ estates to recover preferential transfers, including payments on account of antecedent debts made during the Bankruptcy law entitles debtors’ estates to recover preferential transfers, including payments on account of antecedent debts made during the 90 days before the commencement of the proceeding. 11 U.S.C. §547(b). Preferences are recovered “for the benefit of the estate” (11 U.S.C. §550(a)) and thus profit all creditors according to their statutory and contractual entitlements. We must decide whether the right to recover a preference is an asset of the estate that may be assigned or distributed to a particular class of creditors to satisfy their entitlements. A different way to put the same question is whether a suit on behalf of all creditors in the money is “for the benefit of the estate”. Either way the issue is characterized, our answer is “yes.”

Posted by Marcia Oddi at 01:28 PM

Law - Reapportionment featured on Diane Rehm Show

The Diane Rehm Show this morning (12/4/03) features a very good discussion of the various aspects of reappointment. Here is the link. I plan to listen again, and this time take notes.

Posted by Marcia Oddi at 10:51 AM

Law - Constitutional interpretation problem in South Carolina

We have our Indiana constitutional interpretation problem with whether the post-session gubernatorial vetoes going back decades were valid (see D&M Healthcare links). In South Carolina, the question is "whether Governor Mark Sanford can legally hold a commission in the U.S. Air Force while he is governor." The contention is that "state constitutions since 1776 have allowed governors only to serve in and command a state-run militia, not federal military reserve units." The constitutional dispute "could undo all of his official actions since taking office in January," according to an AP report. The South Carolina Constitution provides:

ARTICLE IV. EXECUTIVE DEPARTMENT

SECTION 1. Chief Magistrate.
The supreme executive authority of this State shall be vested in a Chief Magistrate, who shall be styled "The Governor of the State of South Carolina."

SECTION 2. Qualifications of Governor.
No person shall be eligible to the office of Governor who denies the existence of the Supreme Being; and who on the date of such election has not attained the age of thirty years; and who shall not have been a citizen of the United States and a citizen and resident of this State for five years next preceding the day of election. No person while Governor shall hold any office or other commission (except in the militia) under the authority of this State, or of any other power.

The story is reported by the AP in today's TheState.com (link via How Appealing). Earlier stories are here and here.

Posted by Marcia Oddi at 07:47 AM

December 03, 2003

Indiana Decisions - Candidates for Court of Appeals Opening

"The Indiana Judicial Nominating Commission will interview 12 candidates for the upcoming vacancy on the Indiana Court of Appeals, the state’s intermediate appellate court, Chief Justice Randall T. Shepard announced today. The opening is for the seat now held by Judge Sandy Brook, who has announced his resignation."

Access the entire press release, including the list of candidates, here.

Posted by Marcia Oddi at 05:31 PM

Law - More on Punitive Damages

A very interesting article today on punitive damages, from the LA Times. Here is the lead:

In 1994, it was the biggest punitive damages judgment in history: $5.3 billion that an Alaskan federal jury awarded to fishermen and others whose livelihoods had been devastated by the Exxon Valdez oil tanker spill.

Three years later, as Exxon waged its appeal, a new line of research began to appear in several respected academic journals and Ivy League law reviews. Some articles challenged the competence of juries to fairly set punitive damages. Others suggested that such awards are ultimately bad for society.

Exxon cited several of the articles in the appeal. What it did not say in court filings is that it had funded the research.

The article reports that Exxon "hired at least nine esteemed psychologists, economists and law and business school faculty members, giving them research funding that most social scientists can only dream about."
Now, the 13 papers they published — several of them rewritten and reissued in a book that came out last year — are popping up in legal arguments in other punitive damages cases cited both by companies defending themselves and by judges issuing opinions. And they are ruffling the feathers of competing professors who dispute their conclusions and complain about the difficulty of raising money for independent research.
Furthermore, the Times contiinues:
The Exxon-funded research became the backbone of "Punitive Damages: How Juries Decide," published last year by the University of Chicago Press. The authors conclude that juries are erratic and unpredictable in awarding punitive damages. Calling the Exxon-funded book a "path-breaking multidisciplinary study," another judge invoked it in a discussion of a class-action suit against cigarette makers, but ultimately decided to let the case proceed.

"Individual articles don't make a difference," said Theodore Eisenberg, a Cornell law professor who has written extensively about the Exxon-funded work. [See "Juries, Judges, and Punitive Damages: An Empirical Study"] "But when the same story is repeated over and over — judges are part of society. Whatever shapes your beliefs will shape theirs."

This story ties in with our November 29, 2003 Indiana Law Blog entry titled "Punitive Damages, Bedbugs, and the 7th Circuit." Access it here.

Here is a link to a blurb for the University of Chicago book, Punitive Damages, How Juries Decide, referred to in the LA Times article. And as a counter-point, here is the link to the working draft of a recent article by Professor Catherine Sharkey of Columbia University (who was cited in the earlier ILB entry), titled "Punitive Damages: Should Juries Decide?" (Forthcoming, 82 Tex. L. Rev., December 2003.) The article critically reviews the University of Chicago publication.

And more from California. This report from Nov. 26, 2003 in Law.Com, that begins:

A state appeals court stunned California plaintiffs lawyers Tuesday by issuing a bombshell ruling that completely alters the long-established process judges and juries use to determine punitive damages. Lawyers on both sides of the issue say the ruling -- which reduced the largest punitive damage judgment ever upheld by a California appellate court from $290 million to about $23.7 million -- could eliminate most multimillion-dollar punitive awards.
[Updated 12/4/03] The decision, from the California 5th Appellate District, is Romo v. Ford Motor Company (11/25/03) [names of counsel include Erwin Chemerinsky for plaintiff and Miguel Estrada for defendant]. The Law.com article concludes:
The 5th District also released an unpublished companion ruling Tuesday. In Johnson v. Ford Motor Co., F040188 and F040529, the court used its reasoning in regard to the State Farm case to reduce a punitive damages award of $10 million in a lemon law case to about $53,000.

Posted by Marcia Oddi at 04:47 PM

Indiana Decisions - Restrictive covenants against "trailers"

Charles Renfro v. Nancy McGuyer, et al. (12/3/03 IndCtApp)
Sullivan, Judge

The lower court concluded that Homeowners were entitled to summary judgment as a matter of law upon their claim that Renfro violated a restrictive covenant for the subdivision in which he placed his home. The Court of Appeals here affrims.

Renfro purchased a lot in the Shady Hills No. 5 subdivision. He then purchased a manufactured home to place upon the lot. The home was transported to the property in two sections to be put together and finished on-site. This included the addition of some siding, wooden roof structural members, decking, and shingles. The home was placed upon a concrete block foundation. A cooling system was installed and the home was hooked up to utilities.

Other homeowners in the subdivision filed a complaint against Renfro, requesting that the trial court find that Renfro’s actions were in violation of a restrictive covenant placed upon his lot and to order him to remove the manufactured home. Specifically, the restrictive covenant stated,

“No structure shall be moved onto any of said lots. All structures shall be newly erected thereon.”
The Homeowners asserted that the manufactured home was moved upon the property and remained mobile, and further, that it was not newly erected upon the lot. In reaching its decision in favor of the Homeowners, the trial court adopted nearly verbatim the proposed findings of fact and conclusions of law submitted by the Homeowners. In so doing, the trial court accepted the Homeowners’ assertions that the manufactured home was a structure which was moved onto the lot and that it was not newly erected thereon.
The Court concluded:
A manufactured home is defined under the National Manufactured Housing Construction and Safety Standards Act of 1974 as “a structure, transportable in one or more sections . . . which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities . . . .” 42 U.S.C. § 5402(6) (2003). From this definition, it is clear that the critical issue when discussing manufactured housing is that the structure is transportable. In this case, there are no genuine issues of material fact which preclude the determination that Renfro’s home was a “manufactured home” within the definition established by the federal government. It was constructed off-site and transported to the lot in two sections. These facts are admitted by Renfro. Additionally, Renfro acknowledges that his home is called a “manufactured home,” although he makes no reference to the definition of manufactured home cited above.

Taken as a whole, it is apparent that the home which Renfro moved to the lot was the type of structure which the covenant sought to exclude. Renfro’s home was built off-site, transported to the lot, and the two sections put together. Clearly, then, it was a structure moved onto the property. While this may seem to be a simple reading of the covenant, it is the logical reading of the covenant. Were we to adopt Renfro’s argument and determine that his home did not violate the covenant, the only types of structures which would be excluded from the lot would be one section “trailers.”[ftn] Though there is no doubt that such structures are excluded, the language employed in the covenant evinces a clear intent that the covenant be interpreted more broadly. Had the homeowners in this case sought to exclude something less than all movable structures, and just sought to exclude “trailers” as Renfro claims, such could have been easily done by stating that “trailers” are excluded. No more is necessary.* Therefore, we conclude that as a matter of law, Renfro’s home violates the restrictive covenant placed upon his lot.

Our decision is supported by this court’s decision in Highland [v. Williams (1975)]. In that case, this court determined that the homeowner had violated the restrictive covenant, which contained language similar to that at issue here, by moving a structure onto his lot. The structure was a two section, steel-roofed and steel-framed unit which was generally described as a “trailer.” This court noted that the testimony established that the residence was a “trailer” and that it violated the covenant prohibiting “trailers.” Nonetheless, this court also concluded that the trial court’s judgment did not depend upon whether the structure was a “trailer” because the evidence established that the structure was moved onto the lot, which violated a separate covenant. And just as in this case, the concern was not when or if the home was a structure when moved onto the lot, but that it was moved onto the lot. The judgment of the trial court is affirmed.

FRIEDLANDER, J., and RILEY, J., concur.

[ftn] One of the underlying problems in this case is the existence of a stigma upon the type of residence which Renfro purchased. It is apparent that the Homeowners view the residence with disdain, and much of the concern of the parties seems to be focused upon whether the home is a “trailer.” That term has no real legal significance in this case. We use the term in this decision because it is likely a term which triggers a nearly universal response in readers’ minds.

[Other footnotes omitted]

Posted by Marcia Oddi at 02:48 PM

Law - Bidding Issues: New York Erie Canal project

I saw the first reports on this then developing story in September in the NY Times. That coverage is now longer available online (although you may purchase it from the NY Times here) but the headline was "Selling Off Access to the Erie Canal; Developer's $30,000 Purchase Raises Concerns About the Process." However, this story from NewMax.com reports the basics:

The ambitious developing project was announced in a whisper: A 250-word notice seeking bidders, right below the notices for mops, shop towels and coveralls, on page 62 of a booklet available to vendors for $175 a year. The state was asking $30,000 for the rights to build up to 40 prime waterfront communities along New York's historic Erie Canal system with the full support of New York's resources and political might.

So, in 1999, New York got just one bid, from a Buffalo developer named Richard Hutchens who had been working with the state on a canal proposal since 1996. Now, some of New York's top Democrats say Hutchens got a sweetheart deal like few others in New York's political history. Probes by the Assembly, attorney general and inspector general could lead to criminal charges.

Today the LA Times has this major story, headlined, "Hopes for Erie Canal Stuck in Political Bog: A deal cut in private to revive the historic waterway has led to inquiries into possible criminal acts." Some quotes from the lengthy story:
The trouble couldn't come at a worse time for upstate New York, which has been one of the regions hardest hit by the nation's sagging economy. The area, home to 7 million people, has been battered by a loss of manufacturing jobs and a steady exodus of young workers.

Unlike other Rust Belt regions, upstate New York has not shared in the nation's periodic economic booms, and it has been victimized by a development process saddled with questionable ethics and bureaucratic stonewalling.

In the beginning, state officials envisioned an Erie Canal region energized by a construction boom and waves of upscale residents snapping up canal-front homes for $300,000 to $700,000. Now, the officials have frozen the canal development plan in its tracks. Gov. George E. Pataki and Atty. Gen. Eliot Spitzer have launched investigations into possible criminal acts.

"What happened here is stunning," said Jeffrey Stonecash, a professor of political science at Syracuse University. "Is this a classic case of corruption, or did someone screw up big time?" * * *

For some observers, the Erie Canal story is just one more example of the loose ethics and rank favoritism that have long flourished in Albany under Democratic and Republican administrations.

The governor recently nominated Manhattan attorney Robert S. Smith to the state Court of Appeals, New York state's highest court, amid disclosures that Smith and his wife had raised $140,000 in recent years for Pataki and the state GOP. Several months ago, Pataki promoted Daniel Wiese, his former bodyguard, to state inspector general, a powerful post that pays $160,000 annually.

In October, it became public that a former U.S. senator from New York, Republican Alfonse M. D'Amato, now a lobbyist, had received $500,000 for a phone call he made to a state official on behalf of a client with a major real estate deal that was in jeopardy.

Unlike many other states, New York lacks tough ethics guidelines that regulate the full scope of political lobbying. Albany lobbyists who represent clients attempting to win lucrative contracts from state agencies are not required to divulge their activities — unlike those who lobby state lawmakers for their votes. Amid heavy criticism from newspaper editorial pages, the Legislature failed this year to close the loophole.


Posted by Marcia Oddi at 11:26 AM

Environment - Trading in Mercury Credits Proposed

This story today in the Washington Post reports:

Now, the White House and EPA Administrator Mike Leavitt are considering rescinding a December 2000 EPA ruling, which concluded that mercury emissions are a public health menace that requires power plants to meet a "maximum achievable control technology" (MACT) standard to sharply reduce toxic pollutants.

Last night Leavitt confirmed that the EPA is considering reversing the Clinton administration's finding in favor of a more flexible enforcement system. The alternative, the document says, would be a mandatory "cap and trade" program, similar to the successful program to combat acid rain that was begun in 1990. It would allow utilities to buy emissions "credits" from cleaner-operating plants to meet an overall industry target.

The NY Times reports in this story:
The Bush administration is proposing that mercury emissions from coal-burning power plants should not be regulated in the same way as some of the most toxic air pollutants, reversing a stance on air pollution control taken by the Clinton administration in 2000.

The change in planned regulations for mercury emissions from power plants is summarized in documents from the Environmental Protection Agency and is the first big policy decision by Michael O. Leavitt, who took over as the agency's administrator last month. The agency is suggesting that mercury emissions be removed from the most stringent regulations of the Clean Air Act that have been used to limit the most toxic air pollutants. Among those are asbestos, chromium and lead, which have been known to cause cancers and neurological disorders.

The administration proposal would make legally mandated mercury regulation fall under a less stringent section of the Clean Air Act that governs pollutants like those that cause smog and acid rain, which are not as toxic to humans. The administration says this would be a more efficient and faster way to reduce mercury in the environment.

Chicago Tribune coverage is here and LA Times coverage is here.

Finally, NPR's Morning Edition has a story this morning: "The White House and the Environmental Protection Agency prepare to release a controversial plan to regulate mercury emissions from power plants. The plan would relax Clinton-era emission rules and allow plants to buy and sell the right to emit mercury, a potent neurotoxin. Opponents call the plan a threat to public health." Listen to it here.

Posted by Marcia Oddi at 10:39 AM

December 02, 2003

Indiana Decisions - Actions on Petitions to Transfer

The Office of the Clerk of the Courts prepares, at the end of each week, the Clerk's Transfer List, summarizing the actions the Supreme Court of Indiana has taken that week on pending petitions for transfer. Here are links to the Transfer Lists for the past two weeks. Thanks to the cooperation of the Office of the Clerk of the Courts, I expect to be posting these lists each week.

Transfer List for the week ending Nov. 21, 2003

Transfer List for the week ending Nov. 26, 2003

[A new category in the "Categories List" in the right-hand column of this page will provide links to all the Transfer Lists posted here.]

Indiana Appellate Rule 57 governs Petitions to Transfer an appeal from the Court of Appeals to Supreme Court after an adverse decision by the Court of Appeals. As detailed in Rule 57(H):

The grant of transfer is a matter of judicial discretion. The following provisions articulate the principal considerations governing the Supreme Court’s decision whether to grant transfer.

(1) Conflict in Court of Appeals’ Decisions. The Court of Appeals has entered a decision in conflict with another decision of the Court of Appeals on the same important issue.

(2) Conflict with Supreme Court Decision. The Court of Appeals has entered a decision in conflict with a decision of the Supreme Court on an important issue.

(3) Conflict with Federal Appellate Decision. The Court of Appeals has decided an important federal question in a way that conflicts with a decision of the Supreme Court of the United States or a United States Court of Appeals.

(4) Undecided Question of Law. The Court of Appeals has decided an important question of law or a case of great public importance that has not been, but should be, decided by the Supreme Court.

(5) Precedent in Need of Reconsideration. The Court of Appeals has correctly followed ruling precedent of the Supreme Court but such precedent is erroneous or in need of clarification or modification in some specific respect.

(6) Significant Departure From Law or Practice. The Court of Appeals has so significantly departed from accepted law or practice or has sanctioned such a departure by a trial court or Administrative Agency as to warrant the exercise of Supreme Court jurisdiction.

The effect of a Denial of Transfer is stated in Rule 58(B): "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." The effect of a Grant of Transfer is stated in Rule 58(A):
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.

Posted by Marcia Oddi at 12:57 PM

Law - Supreme Court to clarify Ring v. Arizona

"High Court to Clarify Ruling on Capital Punishment: Justices Take Up Cases on Judge-Only Sentencing and a Death Row Inmate's Civil Rights," is the headline this morning to this story in the Washington Post. The lead:

The Supreme Court announced yesterday that it will clarify the practical applications of one of its most important recent rulings on the death penalty.

In a brief order, the court said it will consider the key issue left unresolved by its 2002 decision in Ring v. Arizona, which requires juries rather than judges to choose between life imprisonment and capital punishment: whether the ruling applies not only to future cases but also retroactively.

The case is Schriro v. Summerlin, No. 03-526. More:
In its appeal petition, Arizona argued that the 9th Circuit ruling would affect not only the 88 people on death row in Arizona who were sentenced under its pre-Ring laws but also death row inmates in three other 9th Circuit states -- Nevada, Idaho and Montana -- that formerly had provisions for judge-only capital sentencing.

A Supreme Court ruling would also directly affect the law in Colorado and Nebraska, which are not in the 9th Circuit but had judge-only death sentencing before the Ring decision. It could also have repercussions for Delaware, Florida, Alabama and Indiana, where juries recommended a sentence but judges make the final decision. In those states, 529 people were sentenced to death pre-Ring.

See earlier Indiana Law Blog coverage of this issue here and here.

Linda Greenhouse of the NY Times has an excellant analysis of the issues. Some quotes:

The question for the Supreme Court now is whether inmates who have exhausted their direct appeals in state courts can bring habeas corpus petitions in federal courts to challenge the constitutionality of their death sentences. Underlying that question is one that the new case, also from Arizona, does not directly raise, the retroactivity of the Supreme Court decision three years ago in Apprendi v. New Jersey that ushered in what has amounted to a revolution in criminal sentencing. That ruling, which led directly to the Ring decision, held that juries, and not judges, have to determine any fact that increases a sentence above the statutory minimum. Both decisions were based on the Sixth Amendment right to trial by jury.

Sorting out the implications of that decision, which overturned a hate-crime statute in New Jersey, has proved a daunting task for the entire criminal justice system. The Supreme Court itself has already decided several follow-up cases, and had earlier this term scheduled another new one, Blakeley v. Washington, on the implications of the Apprendi and Ring decisions for states' sentencing-guideline systems.

But the court has never said whether the Apprendi ruling is retroactive. If the Ring decision — a kind of "son of Apprendi" — is determined to be retroactive, logic would suggest that the Apprendi ruling itself is retroactive, as well, an outcome that would be even more unsettling.

The new case, Schriro v. Summerlin, No. 03-526, is an appeal by the State of Arizona from a ruling in September by the United States Court of Appeals for the Ninth Circuit, in San Francisco. The appeals court adopted two alternative theories for applying the Ring decision retroactively.

Supreme Court precedents strongly disfavoring the retroactive application of new constitutional interpretations, along with the restrictive approach to habeas corpus in a 1996 federal law, have made the retroactivity question an elusive and technically difficult one. Essentially, a ruling must make a substantive rather than merely procedural change in the law, or if it is procedural, it must make such a drastic change as to be considered a "watershed." The Ninth Circuit found the Ring decision to meet each of these tests.

Posted by Marcia Oddi at 07:02 AM

December 01, 2003

Environment - Jane Dustin dies

This story on well-known Indiana environmentalist Jane Dustin, who died November 30, 2003, appeared today in the Fort Wayne Journal Gazette. The lead:

Jane H. Dustin, a passionate environmental advocate celebrated for her tenacity and her broad knowledge of water quality issues, died Friday at her home in Huntertown. She was 74.

Beginning in the mid-1950s, Dustin and her husband, Tom, were involved in scores of local and national conservation campaigns, including opposing a federal plan to flood Dinosaur National Monument in Utah and the drive to create the Indiana Dunes National Lakeshore in the 1960s.

And here is an AP story from the IndyStar site.

Posted by Marcia Oddi at 04:24 PM

Law - Colorado Redistricting Decision

The Colorado redistricting decision is now available. I had such trouble with the 92-page Word document that I have converted it to pdf and posted it here.

From pages 62-63 of the majority opinion:

Under our holding today, the General Assembly may only create a redistricting plan after the federal census (and the resulting congressional apportionment to the states) and before the ensuing general election. In this case, that would have been between April 1, 2001, when the U.S. Congress notified Colorado that it would gain an additional representative, and March 11, 2002, when the election process began. As we know, the General Assembly failed to act within this time frame. The fact that the courts were forced to create the 2002 redistricting plan in the absence of a valid legislative plan makes no difference. Congressional districts created by a court are equally effective as those created by the General Assembly and disruption of those districts triggers the same policy concerns. Consequently, the General Assembly’s 2003 redistricting plan is not permitted by Article V, Section 44, of the Colorado Constitution because it is the second redistricting plan after the 2000 census. Hence, Senate Bill 03-352 is unconstitutional and void.

VII. Conclusion

We make our rule to show cause absolute in case number 03SA133, and discharge our rule to show cause in case number 03SA147. Until Congress apportions seats to Colorado after the next federal census, the Secretary of State is ordered to conduct congressional elections according to the plan approved in Beauprez v. Avalos.

Access the earlier ILB entry (11/29/03) on the Colorado case here (or simply scroll down to it). The Tobin article I've linked there is recommended. It deals with a Pennsylvania case the U.S. Supreme Court will hear next week.

[Update] Read Rick Hasen's (Election Law Blog) commentary on the Colorado decision here.

[Update 12/2/03] Here is today's Washington Post coverage. And here is the LA Times coverage, and here is the NY Times report.

Posted by Marcia Oddi at 10:56 AM