The Indiana Law Blog

More problems updating blog! And a Temporary Solution

As a result of yesterday's problems, I have created a spartan, temporary site that will operate until this one can be repaired. Please access the temporary ILB site here.

Environment - Recent stories

The Chicago Tribune has a story last Friday that began:

Gov. Rod Blagojevich ordered a Joliet landfill closed Thursday, two weeks after he found out one of his wife's cousins is alleged to have told construction waste haulers he had clout and they could dump anything at the site without scrutiny from environmental regulators.

A top Blagojevich aide said the governor got involved in a matter normally handled by rank-and-file state employees to send a message that nobody in his family should expect special treatment, in particular his father-in-law, Chicago Ald. Richard Mell (33rd).

Wielding the same rarely used power that led to the quick closing last week of a Joliet landfill run by a relative of First Lady Patti Blagojevich, Gov. Rod Blagojevich has asked state inspectors to visit a controversial south suburban dump with the intent to shut it down, administration sources said Sunday. * * *

The dump near Ford Heights has been operated by John Einoder of Orland Park. Einoder has been facing civil environmental charges lodged by Atty. Gen. Lisa Madigan's office involving the landfill, which last fall encompassed 11 acres. The charges include operating a waste-disposal facility without proper permits and open dumping. * * *

The Ford Heights landfill began operating in 2002 under an agreement with the village aimed at turning the facility into a ski slope once dumping is completed. In August, inspectors from the Illinois EPA reported that the dump appeared to have doubled in size since May 2003, when it was 67 feet high.

Lawmakers during last year's spring legislative session tried to protect the Ford Heights facility from shutdown efforts by Madigan and the state EPA through the passage of a bill that would have exempted the dump from environmental regulations because it was being constructed as a "recreational facility."

But Blagojevich vetoed the legislation in August, and state EPA officials said there was no guarantee the site would ever be turned into a ski slope. Only days before the governor's veto, Madigan, at the request of the EPA, filed a lawsuit against its operator and the case has been slowly making its way through the courts, most recently in arguments over the dump's legal representation.

A former high-ranking official in the EPA during the Reagan administration was sentenced Monday to 15 months in federal prison for wire fraud and making false statements to the FBI.

Rita Marie Lavelle orchestrated a scheme to fraudulently obtain money from a client who had hired her San Diego County company to assist in the cleanup of a Superfund site, federal authorities said.

The Metropolitan Sewer District's plan to turn treated human and industrial waste into fertilizer pellets has been beset by problems with odor, dust and fire.

The fertilizer, called Louisville Green, was so smelly at one Indiana fertilizer and topsoil business that workers threatened to quit, and it caught fire and burned two storage buildings in Arkansas.

"Sometimes (the odor) was awful bad," said Wayne Mannis, an Arkansas fertilizer dealer who lost some of the pellets in the two fires. "Consider the source, then you can understand it."

To fix the problems, MSD has added an iron compound to reduce odors, an oil to dampen dust and a flame retardant to reduce its combustion potential. But these steps bring increased costs that could reduce revenue.

MSD is also studying a potential multimillion-dollar upgrade of its Morris Forman Wastewater Treatment Plant to fully break down sludge — a move that could end Louisville Green odors, but one that would be on top of $70million already spent on a treatment system that produces the pellets.

Despite the problems, which are spelled out in reports and memos obtained by The Courier-Journal under Kentucky's Open Records law, MSD officials and businesses that have tried the product remain optimistic about its potential, saying most new business ventures have hurdles to overcome.

Indiana Decisions - Tomorrow is the one-year anniversary of the same sex marriage argument before the Indiana Court of Appeals panel

Looking through the Indiana Law Blog archives, I found this entry from January 13, 2004, which begins:

Yesterday was the oral argument before the Indiana Court of Appeals in the case of Ruth Morrison, et al., v. Doris Ann Sadler, et al., challenging Indiana's prohibition against same sex marriage, found at IC 31-11-1-1. You may listen to the argument online here via the Indiana Judiciary site. Earlier Indiana Law Blog coverage may be found here and here.

Indiana Government - [Updated] Open the door on votes in committees

"Open the door on votes in committees" is the heading to a letter to the editor today in the Indianapolis Star. The letter:

Opening up Indiana government to the people is a very worthy idea, but I'm not sure that video streaming of House floor activities is the best way for the public to get the most information it needs to decide if legislators are doing the jobs they were elected to do.

The most useful tool would be to post all committee votes on the Internet. I know from experience how hard it is to find out if your lawmaker even showed up to vote in a certain committee, let alone how he or she voted. The way it stands now, a candidate could run for office based on a promise to work hard to get certain legislation passed, have that bill show up in a committee hearing, vote against it and encourage other lawmakers to vote against it, and then blame everyone else for it "dying in committee."

No one would ever know they were scammed because no one keeps records on who votes on what. We need House Speaker Brian Bosma and Gov. Mitch Daniels to establish a system in which all committee votes can be recorded and disseminated to the public in a fashion that is easy to understand.

As an example, look at House Bill 1003, the economic development bill. The bill was passed out of the House committee on 1/5/05; here is a copy of the roll call vote.

Today, according to the Action List, the bill was on Second Reading in the House; it was amended on second reading and ordered engrossed. What were these amendments? Looking at the main HB 1003 page, near the bottom, you will see a list of all House amendments filed, and a much shorter list of those passed. In this case, only one 2nd reading amendment passed - identified as 1003-15. The roll call vote on the second reading amendment that passed, as well as those that failed, also should be available.

Problem. I confess however, that I can't locate the roll call right now. There also seems to be a problem with the General Assembly's software, as the entries on the page are repeated scores of time. Hopefully, this glitch will be corrected quickly.

[Update 1/11/05] A reader has sent a little more information.

This is indeed the first session that committeee vote sheets have been available online (although they have been available in past years from the Legislative Information Center, aka the "bill room").

As for how to tie a house amendment to its proper roll call, it is possible, but not simple right now, according to the writer:

It appears that the roll calls listed at the "Roll Call(s)" bullet are numbered according to the number of roll call that the House has taken this session. You may recall, they start at #1 and keep going to sine die. (I think each chamber does about 600 or 700 a Session.)

Under the "House Amendments passed" bullet, the motions are numbered according to the LSA document number assigned to that motion. In the case of 1003-15 for example, that motion is the 15th motion we processed for HB 1003. That motion may be the first one filed or it may never be filed. If you look at the bottom left corner of the document, you will see MO100315. That is where 1003-15 comes from.

If you look at the top left corner of the document, you see that the motion is HB 1003-1. It was the first motion filed for this bill. Rep. Borror filed it today at 9:45am. This was the motion disposed of on Roll Call #9 (The roll call sheet shows "2nd Reading Amend. #1".)

Indiana Courts - Senior Judge Richard P. Good to be Judge Pro Tem to Juvenile Court

Per a release this afternoon from the Office of the Chief Justice:

Senior Judge Richard P. Good has been appointed as a temporary judge for the Marion Superior Court until Governor Mitchell E. Daniels Jr. names a permanent replacement, Chief Justice Randall T. Shepard announced today.

A vacancy on the Marion Superior Court was created when veteran Juvenile Court Judge James W. Payne resigned today to take a position with the administration of Gov. Daniels. Senior Judge Good will begin work immediately.

Judge Good was previously a judge on the Marion Superior Court until his retirement in 2002 and has been a senior judge since then. In 2004 he served as a senior judge in Marion County more than 60 times. He has also been a chief deputy prosecutor and was the longtime executive director of the Indiana Prosecuting Attorneys Council. In addition, he was a member of the commission that drafted the existing Juvenile Code.

“The members of our Court are grateful Judge Good is willing to serve a senior judge until a permanent replacement for Judge Payne is named. We are confident the Juvenile Court will run smoothly during this transition period. Judge Payne has brought national honor to Indiana for his work with children. While we are sad that he has left the bench, we wish him all success in his new assignment,” said Chief Justice Shepard.

Senior judges typically fill in on as needed basis in courts with high caseloads or where a judge is absent due to circumstances like illness or military service.

Gov. Daniels will select a permanent replacement for Judge Payne for a term that was scheduled to last until December 31, 2008.

Indiana Decisions - 7th Circuit posts one today

Kort, Elizabeth v. Diversified Collection (ND Ill.)

Before POSNER, MANION, and EVANS, Circuit Judges.
MANION, Circuit Judge. Elizabeth Kort, representing a
class of individuals, sued Diversified Collection Services
(“DCS”), claiming that DCS violated the Fair Debt Collec-
tion Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq., by
mailing her and others misleading garnishment notices. The
debts at issue were student loans governed by the Higher
Education Act (“HEA”), 20 U.S.C. §§ 1070, et seq. The text of
the garnishment notice was taken entirely from a form
issued by the Department of Education (“DOE”), which is
the federal agency charged with regulating under the HEA.
Given DCS’s reliance on the DOE form, the district court
ruled that DCS was entitled to an affirmative defense under
the FDCPA known as the “bona fide error” defense and
thus granted DCS summary judgment on this issue. Kort is
no longer prosecuting the case, but Hattie Harris-Alleyne
and Lindsay Miller have intervened to appeal the grant of
summary judgment to DCS on behalf of themselves and the
corresponding class. We affirm. * * *

DCS’s adherence to the DOE form in its garnishment
notice entitles it to the bona fide error defense, and DCS is
thus insulated from FDCPA liability with respect to its
handling of the HEA unemployment exemption.

Indiana Government - Authority of the Governor over Executive Branch appointees

"Members of gaming panel face uncertain future" is the headline to Lesley Stedman Weidenbener's Sunday column in the Louisville Courier Journal. She writes:

Gov.-elect Mitch Daniels, who takes office tomorrow, said last week he expects that Hoosiers serving on state boards and commissions will resign — without his having to ask. That's thousands of people, serving on high-profile boards like the Indiana Utility Regulatory Commission and obscure ones like the Indiana Corn Marketing Council.

If members don't tender their resignations, Daniels says he'll ask for them. Not all of them will be accepted, Daniels said. And in some cases, he's seeking to eliminate the boards anyway.

But there's one agency where the request is already causing some fireworks. Daniels wants members of the Indiana Gaming Commission — which oversees the state's 10 casinos and is contracting the operation of an 11th in French Lick — to resign so he can have his own appointees.

But unlike many of the state's boards, gaming commission members don't by law serve at the pleasure of the governor. That means the governor can't just remove members because he doesn't like them, or because he's found other people he'd rather have fill the spots.

State law specifically establishes four-year terms for members of the gaming commission and says they can be removed for the following reasons: neglect of duty, misfeasance, malfeasance or nonfeasance. Essentially, that means failing to follow state laws.

Contrast that with the law establishing the Indiana Utility Regulatory Commission. It says members "may be removed at any time by the governor for cause." It doesn't define cause, leaving the door wide open for a governor to use just about any reason to remove a member.

Looking at another "commission" for contrast with the gaming commission, the Indiana Utility Regulatory Commission (URC) (IC 8-1-1) has 5 full-time commissioners, no more than three of whom may be of the same party. The members of "shall be appointed by the governor from among persons nominated by the nominating committee in accordance with the provisions of IC 8-1-1.5." The members are appointed by the governor for four-year staggered terms, and "members may be removed at any time by the governor for cause." * * *

Essential, in my opinion, to any effective reorganziation of state government is assuring that the constitutional responsibilities of the governor: (1) in administering the executive branch of state government and (2) in taking care that the laws are faithfully executed, are adequately reflected in the statutory framework.

Over the years, there have been efforts to circumscribe the power of the Governor. This would seem to be an inevitable result of the dynamic tension between the executive and legislative branches of government.

The most notable occurred in 1941, when the General Assembly took away the power of the Governor to appoint the heads of most state agencies, distributing the authority instead among other state elected officials such as the Auditor, Treasurer, Secretary of State and Lieutenant Governor (who was separately elected under the constitutional provisions then in force). In a 1941 decision called Tucker v. State, the Supreme Court threw out the challenged statutes. Tucker and subsequent decisions define the role of the governor and prohibit the Indiana general assembly from encroaching upon the executive branch of state government by (1) appointing its own members to perform executive functions or (2) by enacting laws that dilute the powers of the governor.

In the 60-plus years since Tucker, however, the General Assembly has tried out a number of variations on the basic model, aimed at sharing the Governor's executive power, or limiting it.

The most recent example of an effort at both is found in the Indiana Economic Development Commission (IEDC) law, as originally drafted in 2003. The IEDC was to be headed by the Lieutenant Governor and run by a 23 member board, with twelve board members to be appointed by the General Assembly, and a number of others to be appointed by state university heads. The Governor was given three appointments.

Many of the problems with the IEDC were corected in the 2004 session of the General Assembly, and additional changes are being made this year. (See the ILB entry, "Economic Development and the Indiana Governor," from May 17, 2004.)

Rather than directly removing the Governor's appointment powers, many laws try to circumscribe it. Here are some of the ways this has been done, in no particular order. Some of these examples, either clearly or arguably, limit a governor's authority in making appointments, or otherwise dilute his/her right to select his own people, or dilute the powers of a governor.

Requiring that the Governor make his selection from people nominated by a panel, or from recommendations made by the General Assembly, or from nominees submitted by a university or a trade group.

By provisions that set a fixed term for an appointment, rather than service "at the pleasure of the Governor."

By provisions that provide that the appointee may only be removed by the Governor "for cause" or for certain described reasons (thereby defining "for cause" -- the gaming commission is an example).

[More] This morning's Indianapolis Star has a front-page story by Kevin Corcoran headlined "Kernan rejects request to seek resignations: Daniels' aides sought predecessor's help replacing members on boards, commissions." Some quotes:

"I anticipate asking members of boards of all kinds to tender resignations," said Daniels, who will be sworn into office today. "We think that would be appropriate in the case of very important policymaking bodies. We'd like to be able to change these bodies, just like the rest of state government.

"We hope that current appointees will do the right thing and at least tender those resignations," he said. "Not all will be accepted. I think that if I were a board member under these circumstances, I would offer up my resignation."

Even if Daniels asks, however, nothing in state law requires members of these boards and commissions to comply. Most state boards and commissions involve fixed terms. The new governor can't fire members if their terms aren't up.

Kernan filled vacancies on full- and part-time state boards and commissions at an unprecedented pace last year, meaning his influence over state government could continue for some time. In all, Kernan appointed and reappointed 1,242 people to more than 300 boards and commissions, Kernan spokeswoman Lisa Sirkin said.

The total number of people serving on state boards and commissions is 2,428. Under state law, these board and commission members generally serve terms that overlap those of the state's governors to ensure some continuity. Kernan did not want to disrupt this pattern.

Law - Schwarzenegger's proposal to fold into one agency three state boards that decide workplace issues

"State Panel Plan Assailed: Unions and lawyers for injured workers say a proposal to merge three boards is a power grab that would endanger their independence." That is the headline to a January 7, 2005 story in the LA Times.

Why another Arnold story? Because of the similarities between two new state administrations - California and Indiana - that have vowed to change the ways their states are doing business. Some quotes from today's story:

SACRAMENTO — Labor unions and attorneys for injured workers are slamming Gov. Arnold Schwarzenegger's proposal to fold into one agency three state boards that decide workplace issues.

The plan is part a sweeping government reorganization that the governor proposed in his State of the State speech Wednesday, a plan that would eliminate more than 100 government boards and commissions.

Schwarzenegger wants to combine the Workers' Compensation Appeals Board, the Unemployment Insurance Appeals Board and the Occupational Safety and Health Appeals Board into one, nine-member commission. All of the members of what one administration lobbyist dubbed "the übercommission" would be appointed by the governor and could be dismissed at any time.

The proposal, which could go into effect in 90 days if not rejected by the Legislature, is being touted by Schwarzenegger as a reform measure that would end the long-standing practice by outgoing governors of packing little-known state panels with their political cronies.

The governor wants more control over the appointees, who typically earn six-figure salaries, serve extended terms and sometimes fail to show up for work, said Victoria Bradshaw, secretary of Schwarzenegger's Labor and Work Development Agency.

Indiana Government - Editorial writes new administration should get up to speed on public-access laws

The Evansville Courier&Press writes today:

Because Daniels will be the first Republican in 16 years to head state government, his administrative makeover is extensive. There will be a whole new team of administrators, department heads and policymakers running the executive branch of Indiana government.

Most of these new executives do not have statewide name recognition or extensive state government experience. Of course, in Evansville, we are familiar with insurance agent Harold Calloway, who will become the new commissioner of the Indiana Department of Insurance under Daniels. But others are unknown here and elsewhere in Indiana. That's because many of them have been recruited by Daniels from business and industry, most from outside mainstream government service.

For example, the new head of the Indiana Department of Transportation is Thomas Sharp, a retired Alcoa executive. The new head of the Indiana Department of Environmental Management is Thomas Easterly, president of an environmental consulting firm and a former steel company official.

The new head of the Bureau of Motor Vehicles is the former president and CEO of a sporting-goods company. A businessman was recruited to head the Indiana Economic Development Corp. A retired company president was named to head the Department of Administration, and a popcorn-company executive will head agriculture.

That composite business/industry connection may well serve Daniels' plan to make state government a far more efficient, businesslike operation. It's a worthy goal for a state government that hasn't had a good shakeup in years.

However, because most of their experience is outside of government, it would be understandable if this new corps of executives is found to be less than familiar with Indiana's public-access laws. If so, it will be important that they get up to speed on the state's open-meetings and open-records law. Those laws provide that citizens are entitled to complete information on the activities and business of their government. * * *

One early test occurred this past week, when the Indiana House Economic Development and Small Business Committee voted 9-to-2 to pass a bill pushed by Daniels that shifts responsibility for economic development to the Indiana Economic Development Corp., a quasi-government board.

As staff writer Jennifer Whitson reported, backers of the switch say the board, made up of private-sector representatives appointed by the governor and not hampered by the red tape of normal state regulations, would be able to move quickly to woo new businesses to Indiana.

That description had red flags waving from Indianapolis to Evansville, with some lawmakers expressing concerns about whether the board would acknowledge the open-records laws.

But in approving the bill, the committee included wording that the commission falls under Indiana's public-access laws. That's a good start.

As a candidate, Daniels assured Hoosiers that he is committed to open government. He told a group of newspaper editors in October that, among other steps, he favors more disclosure about the details of state contracts.

As a candidate, Daniels said the right things about open government. It is an attitude we hope he has communicated to his new administration.

Indiana Law - DeLaneys band together

Susan Guyett reports in her column in the Indianapolis Star today:

The law firm of DeLaney & DeLaney just added a new partner. Ed DeLaney, who was a partner at Barnes & Thornburg, has joined the civil litigation firm that his wife and daughter started in 2002.

His daughter, Kathleen DeLaney, is the firm's managing partner; his wife, Ann DeLaney, practices law while serving as executive director of the Julian Center.

Law - Schwarzenegger Proposes Overhaul of Redistricting

Use of the search box reveals that many Indiana Law Blog entries have reported on redistricting. Two particularly appropriate as background to this entry today on California Governor Schwarzenegger's proposal to overhaul his state's redistricting process are this one from Feb. 21, 2004, titled "Elections With No Meaning," and this one from May 23, 2004 titled "Indianapolis Star editorializes against gerrymandering."

Also, this from the end of a Sept. 19th, 2004 ILB entry (unfortunately the Star links now lead only to its pay-for-view archive).

"Drawing the political lines: How gerrymandering affects election results" is the focus of a dual-author opinion piece today in the Star's opinion section. Too complex to summarize, but certainly worth a read, "Craig Ladwig of the Indiana Policy Review Foundation and Rob Richie and Steven Hill of the Center for Voting and Democracy examine this lack of competition [that is the result of gerrymandering] and what can be done about it." Their answer appears to be "not much." This has also been the answer from earlier ILB entries, including this one from May 23, 2004.

In his annual State of the State address on Wednesday night, the governor called on the Democratic-controlled Legislature to enact a fundamental overhaul that would include that most sacred of political cows, the way Congressional and legislative districts are drawn.

Mr. Schwarzenegger proposed turning over the drawing of the state's political map to a panel of retired judges, taking it out of the hands of lawmakers who for decades have used the redistricting process in a cozy bipartisan deal to choose their voters and cement their incumbency. He threatened to take the issue directly to the voters if the Legislature does not act on the plan in a special session he called for.

Mr. Schwarzenegger, a Republican, noted that of the 153 seats in the California Congressional delegation and Legislature that were on the ballot in November, not one changed party hands.

"What kind of a democracy is that?" he asked in his address. "The current system is rigged to benefit the interests of those in office and not those who put them there," he said. "We must reform it." * * *

Mr. Schwarzenegger will find few allies in the Legislature or in the Congressional delegation for his plan to redraw the state's political map. After the 2000 census, Democrats and Republicans joined hands to draw districts in a way that would protect incumbents. Republicans went along out of fear that if they resisted, the Democratic majority would produce an even worse plan. It was much the same picture on the national level. Parties in power in each state employed sophisticated computer models to ensure continued control of their legislative delegations and statehouse contingents. The result was virtual assurance of re-election for incumbents, or at least control of the seat by the same party.

According to The Cook Political Report, 151 Congressional seats were considered competitive after the redistricting that followed the 1990 census. After the 2000 redistricting, only 45 seats were considered competitive. In 2004, only 13 changed party hands and only 7 incumbents lost.

The Santa Cruz Sentinel writes:

In theory, we’re in favor of the way it’s done now, with elected officials deciding how to draw the boundaries. But in practice, the system doesn’t work, and we no longer think office-holders should have the power to establish district lines. They have fouled up the process beyond belief, and they should be stripped of all authority.

The problem with what they’ve done is that they’ve turned virtually all state Senate and Assembly districts into "safe" districts. Today’s map features districts that are either heavily Republican or heavily Democratic.

What that has done is driven away something that California needs badly: moderate voices. With safe districts throughout the state, the main contest for candidates is in the primary — and that encourages Republicans to move to the right and Democrats to move to the left.

It discourages what Santa Cruz had until recently — representation by a middle-of-the-road Republican, former state Sen. Bruce McPherson. Without these moderating voices, elected officials from the far right and the far left argue over everything — and so far have not come up with a plan to get California back to fiscal health.

Beyond the issue of moderation, the blatantly political redistricting has caused communities to be split. Right here in Santa Cruz County, we no longer are represented by one state senator. The county is divided — with senators who are largely responsible to voters outside of the county. The lack of our own district is truly an outrage.

There’s a lot to do to reform the state. But we agree with Schwarzenegger that the first thing that needs to change is a map of legislative districts that will reflect the true California and not the selfish needs of hack politicians who manipulated the entire state for their own good.

A lobbying firm representing traditionally Democratic causes and a political consultant with ties to a Democratic congressman are seeking to qualify a handful of ballot initiatives that exempt members of Congress if Gov. Arnold Schwarzenegger proceeds with a special election to force the redrawing of political districts years ahead of schedule.

Jim Gonzalez and Associates, the Sacramento lobbying firm that submitted the four proposed initiatives to the state attorney general's office for consideration, and John Thiella, a consultant to the firm on the initiative proposals, say they are not working on behalf of specific clients but rather floating proposals that might attract support in the event of a special election to consider midcensus redistricting. * * *

The governor has argued that the current set of districts goes so far to protect the incumbents who agreed to it that it creates a polarized, entrenched system in which elections are decided in primaries, and partisan interest groups who provide campaign money hold too much sway.

The Schwarzenegger administration has denied partisan motives, but many California Democrats don't like the idea of a midcensus redistricting because they fear the goal is to shift congressional seats to Republicans, as was the case in Texas' midcensus redistricting, orchestrated by House Majority Leader Tom DeLay.

Thiella echoed those thoughts. "We want to make sure any plan adopted is not a White House plan to bring a right-wing Texas-style reapportionment to California," he said. "The only way to make sure that's not the case is to have other initiatives available to voters so they can make a choice."

Of California's congressional delegation, 33 seats are Democrat-held, with one now vacant with the death of Rep. Robert Matsui, and 20 are Republican-held.

Meanwhile, some members of the state's Republican congressional delegation also oppose the idea.

They too could become vulnerable if ex-judges drew new districts that pitted them against a same-party incumbent in a primary, or against a stronger Democratic incumbent in a general election. Rep. John Doolittle, R-Roseville, has said his party might lose as many as four seats in such a situation.

Something the Star does not point out in its editorial today is the difficulty of any change. As Vieth v. Jubelirer indicates, the courts are highly unlikely to act against political gerrymandering. This leaves the legistature as the only other alternative. But why would members or candidates with safe seats, such as the 88 out of 100 referenced by the Star, push for a diifferent system?

The Star says: "[V]oters can demand that they be given true choices on Election Day by insisting that legislators put an end to gerrymandering. Fair districts not only prompt more competition and higher turnout but also better government. Incumbents who actually have to work to win votes before Election Day are far more likely to listen and respond to constituents." But the Star does not explain how to get from here to there. The voters' ballots are their weapons, but carefully drawn districts have already made blunted any real possibility of putting the voters back in control of elections.

Indiana Law/Environment - Lawmakers to address environment

"Lawmakers to address environment" is the headline to an informative AP story by Rick Callahan, that appears in the Louisville Courier Journal. Some quotes:

INDIANAPOLIS — With a new governor and a new direction for Indiana's environmental agency on the horizon, lawmakers are preparing to revisit three long-running environmental issues: permits, sewer overflows [CSOs] and underground storage tanks [USTs].

[Permits] Gov.-elect Mitch Daniels, who will take office tomorrow, wants Indiana to follow the lead of states such as Kentucky that allow the advance issuing of permits for industrial sites to make them "shovel-ready" for developers.

Daniels said Indiana's current permit system is complicated and slow and discourages development by costing businesses time and money.

"For a lot of businesses, the question is `Can I go into business in Kentucky in six months or in Indiana in 12 months?' All else being equal, they're going to pick Kentucky," he said.

[USTs] Rep. David Wolkins, who will sponsor the pre-permitting legislation, is also drafting a bill that would retool financing for a state fund that helps pay for the cleanup of leaking underground gasoline tanks.

The Excess Liability Trust Fund, created by lawmakers in 1988, once topped $70million. It has been depleted by payouts for the cleanups of more than 400 old tanks.

As of Dec. 22, the fund had a $12.7million balance, but that is projected to fall to $5million within a few months. At that point, money will be released only for the highest-priority cleanups, said Bruce Palin, the Indiana Department of Environmental Management's deputy assistant commissioner for the Office of Land Quality.

Wolkins' bill could call for fee increases in one or both of the fund's two sources of money — a 40-cent tax on each 50 gallons of gasoline or kerosene entering the state and a $90 annual registration fee for each underground tank. * * *

[CSOs] Sen. Beverly Gard, chairwoman of the Senate Environmental Affairs Committee, is drafting a bill that would give cities and towns with overflow-prone sewers more time to upgrade their outdated systems.

A law passed in 2000 gives communities with IDEM-approved cleanup plans temporary exemptions from water-quality standards to discharge sewage during and after storms. But Gard, R-Greenfield, said the law did not provide them enough flexibility to make costly improvements in sewers that discharge raw sewage into waterways during rainy periods.

"We knew when we passed this initial legislation about four years ago that there was eventually going to have to be some fine-tuning," she said. * * *

Bonnie Nash, spokeswoman for state environmental regulators, said 82 of Indiana's 102 cities with combined sewer systems — those in which storm drains and sanitary sewers empty into the same lines — have submitted state-required plans that call for fixes that will take anywhere from a few years to two decades.

[Lead] Gard also is drafting legislation to improve the state's ability to track childhood lead-poisoning cases. Children who ingest lead-based paint can suffer intelligence-lowering brain damage, behavioral problems, slowed growth and hearing loss.

Indiana Law - Couple's refusal to disclose Social Security numbers proves costly

"Couple's refusal to disclose Social Security numbers proves costly" was the headline to an AP story the Indianapolis Star published on Jan. 3, 2005. Some quotes:

VALPARAISO, IND. -- A northwestern Indiana couple says they have faced hardships for two decades because they refuse to disclose their Social Security numbers. Dave and Pat Wallin live in an old recreational vehicle that has been parked for two years on private property in rural Porter County.

The couple, both in their 50s, lost their home in a tax dispute with the Internal Revenue Service in the 1980s, The Times of Munster reported Sunday. Since 1986, the Wallins have refused to divulge their Social Security numbers to anyone, including government agencies, creditors, employers and police.

That has proven difficult when public agencies and private businesses of all sorts - including public schools, license branches and hospitals - routinely require the numbers for identification. * * *

Officials said she cannot receive a license without providing the number.

"It's the law," said Indiana Bureau of Motor Vehicles spokesman Dan Henkel. The requirement was started in 2001 as a means of tracking deadbeat parents, he said, and the state plans soon to begin using software that will sort through its database matching numbers from various agencies.

The Wallins believe using Social Security numbers as a "tracking number" could threaten individual freedom.

In 1936, the Social Security Administration (SSA) established the Social Security number (SSN) to track workers’ earnings for Social Security benefit purposes. However, the SSN is also used for a myriad of non-Social Security purposes. Today, public and private sector entities view the SSN as a key piece of information that enables them to conduct their business and deliver services. However, given the apparent rise in identity crimes as well as the rapidly increasing availability of information over the Internet, Congress has raised concern over how certain private sector entities obtain, use, and safeguard SSN data. * * *
[emphasis added]

In 1978 the State of Indiana enacted a law providing that "No individual may be compelled by any state agency, board, commission, department, bureau, or other entity of state government to provide the individual's Social Security number to the state agency against the individual's will, absent federal requirements to the contrary." This law was the result of 12/1/76 recommendations of Governor Otis Bowen's Commission on Individual Privacy. This group was charged with investigating and making recommendations on, among other things, "the use of social security numbers, license plate numbers, universal identifiers and other symbols to identify individuals in data bases and to gain access to, integrate or centralize information systems and files."

Take a look at that same law as it exists today, IC 4-1-8-1. Today, twenty-six years later, the law has been amended over and over and now contains a list of dozens of exemptions, which appear to exclude most state government functions from the prohibition against requiring an individual to provide her social security number.

At least six states have enacted their own legislation to restrict private sector uses of SSNs. Based on our review of select legislative documents within 18 states, California, Missouri, Arizona, Georgia, Utah, and Texas had enacted laws to restrict either the display or the use of SSNs.

Law - Kentucky election law standoff in perspective

Yesterday (see the entry immediately below) I tried to put together a summary of the election dispute in Kentucky over "District 37" that is pitting the legislative branch against the judicial branch. I said: "It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again."

The Louisville Courier Journal today has put together a good overview of the story so far.

Details of Indiana's most recent Indiana election dispute, shorthanded at "District 46," that threatened to evolve into a legislature vs. courts standoff, may be found in these two final entries on the matter, from Nov. 5, 2004 and Nov. 10, 2004.

Law - Still more on election law standoff in Kentucky

Just because we haven't reported on it since our Dec. 14th entry (which includes links to a number of earlier entries) doesn't mean the election dispute in Kentucky has been resolved. The impending standoff is between the Kentucky legislature and courts, involving a newly elected Kentucky state senator who may or may not have been a resident of Indiana and may or may not therefore be ineligible to take office. It is relevant not only because it involves a neighboring state, but because such election disputes can and have happened here in Indiana, and may occur again.

Per a Jan. 7th, 2005 story in the Louisville Courier-Journal:

On a 5-4 party-line vote, a state Senate committee recommended last night that Democrat Virginia Woodward be seated to represent Jefferson County's 37th District and said her opponent did not meet constitutional residency requirements.

The recommendation by the Democratic-controlled committee came after a day of meetings and testimony during which some Republicans argued that Woodward's GOP opponent, Dana Seum Stephenson, should be allowed to serve because she received more votes in the Nov. 2 election.

After the vote, Republicans on the committee filed two independent reports — one calling for the Senate to seat Stephenson, the other recommending that neither Stephenson nor Woodward be seated and calling for a special election.

The full Senate — with its 22-15 Republican majority — is expected to act on those recommendations today.

Senate Majority Leader Dan Kelly, R-Springfield, said last night that the Senate can accept the committee report, accept either of the two reports filed by Republicans, or fashion its own remedy. * * *

The race was thrown into disarray the day before the election when Woodward filed suit contending that Stephenson, the daughter of state Sen. Dan Seum, R-Louisville, did not meet Kentucky's residency requirements for the Senate.

Stephenson received about 1,000 votes more than Woodward in the election, but a Jefferson Circuit Court judge ruled that she did not meet residency requirements and ordered the state Board of Elections not to count or certify her votes.

Stephenson lived in Indiana between 1997 and 2001. The Kentucky Constitution requires senators to live in the state for at least six years before their election. * * *

After the judge disqualified her, Stephenson threw the battle to the Republican Senate, which, under the constitution, has the authority to decide the qualifications of its members. The Senate created a nine-member committee to hear the case, and selected its members by lot. Five Democrats and four Republicans were chosen. [See also this 1/5/05 LCJ story.]

"I expect the full Senate to follow suit," said Jennifer Moore, Woodward's attorney.

But it might not. The Senate might decide to seat Republican Dana Seum Stephenson instead, which could send the issue to the state Supreme Court. The Senate could also force a special election.

Senate Majority Leader Dan Kelly, R-Springfield, said the full Senate will consider the report today, but he and other Republicans declined to predict what the chamber will do. Late last night, GOP panel members were filing dissents.

The outcome is being closely watched because seating Stephenson could give the GOP the key 23rd vote it needs to pass budget or tax bills this session.

Republicans used their majority in the Kentucky Senate yesterday to put Dana Seum Stephenson in Jefferson County's 37th District seat.

In doing so, the Senate refused to accept its own committee's recommendation that Stephenson's opponent, Democrat Virginia Woodward, be seated and the ruling of a circuit court judge that ordered her certified as the winner.

Kentucky legal experts said yesterday that they expect the state Supreme Court will decide whether Stephenson, a Republican, is qualified.

"It's the job of the courts to interpret the constitution," said Phillip Shepherd, a Democrat who is a lawyer in Frankfort.

Richard H.C. Clay, a Louisville Republican and former president of the Kentucky Bar Association, agreed, calling the situation a "constitutional crisis." * * *

The battle for the seat and the rancor it has prompted, meanwhile, might cost Senate Republicans one of their own. The only Republican to vote against seating Stephenson, Sen. Bob Leeper of Paducah, threatened to resign.

"I am tired, I am tired of the unhealthy partisanship that too often fills our days," Leeper read from a statement last night.

Leeper, a former Democrat who switched to the Republican Party in 1999, had proposed a special election to decide who should represent the 37th District. But Senate President David Williams, R-Burkesville, refused to allow that action to be considered, saying the Senate had already made its decision.

When he walked off the Senate floor yesterday, Republican state Sen. Bob Leeper said he would resign because leaders of his party had rejected his proposal to solve the 37th District election dispute. * * *

Leeper's threat to quit stunned party leaders who worried they might not have enough GOP lawmakers to pass their versions of budget, tax and constitutional amendment bills when the session resumes Feb. 1.

Senate Republicans asserted their power in a disputed election Friday and seated Dana Seum Stephenson as a senator, acting quickly to swear her in and attach a large bronze nameplate to her desk.

The fallout from the decision, including a threatened resignation by one of their own Republican members, hard feelings among Democrats and a looming court fight by the Democrat who lost, will likely take far longer.

"I refuse to participate in what I believe to be the greatest single act of pure, raw, ugly politics as I have ever seen take place in our Capitol," said Senate Democratic Floor Leader Ed Worley of Richmond.

The decision prompted one Republican, Sen. Bob Leeper of Paducah, to say he would resign in protest. After meeting privately with Senate President David Williams and Gov. Ernie Fletcher, Leeper said late in the day he would take time to consider and did not rule out a future resignation.

Democrat Virginia Woodward went to court right after the vote and will ask a Franklin County Circuit Court judge Monday morning to prohibit Stephenson from taking any action as a senator until the challenge to Stephenson's residency is resolved.

Law - Revolutionary change in New York's General Assembly

Given the improvements instituted by our Indiana House of Representatives this year, including putting the House sessions online, this story from Friday's NY Times seems positively archaic. Some quotes:

ALBANY, Jan. 6 - A revolutionary change is coming to the State Assembly, as odd as it might sound to those uninitiated in Albany's ways: the Assembly is adopting new rules requiring lawmakers to actually be present in the Capitol when they want to vote on bills.

The change alters one of the more curious, and criticized, aspects of the byzantine system of lawmaking in the capital, where legislators use a kind of cruise-control approach to voting: once lawmakers sign in for the day, they are counted as voting yes on all bills unless they signal otherwise.

The Republican-led State Senate, meanwhile, is planning its own changes. The Republicans want to require senators to be present in their seats only when they vote no, which has the added benefit of requiring their opponents, the Democrats, to hang around all day to try to block the bills that the Republicans bring to the floor.

Both houses, which have been under public pressure to change their rules to make the New York State Legislature more open, deliberative and democratic, plan to adopt new rules on Monday that even longtime critics call a significant first step.

The arcana of parliamentary rules are not usually the stuff of high drama, but here in Albany they have become lightning rods for a public outcry in the past year.

The Brennan Center for Justice, a public-interest law center at the New York University School of Law, rated the New York State Legislature the worst in the nation. Newspaper editorials around the state have waxed indignant about it. Private citizens have started Web sites denouncing state government. On the stump before the November elections, lawmakers tried to out-reform one another.

Indiana Law - Future unclear for unbonded official

"Future unclear for unbonded official: Treasurer could be ousted without required backing" is the headline to this story today in the Richmond Palladium-Item. Some quotes:

LIBERTY, Ind. -- State officials agree county treasurers in Indiana must be bonded, but they won't say what should happen if they aren't.

Union County Treasurer Dee Thibaut still isn't covered by an official bond, even though her term began Jan. 1. Thibaut has been unable to get a bond because of a personal bankruptcy. An official bond, which is made payable to the state of Indiana, protects public funds.

The lack of a bond for an elected official who has already taken office is unusual, officials said. Attorneys at the Indiana Attorney General's office researched the bonding laws and found a case from 1911 in which a county official had an insufficient bond. That case didn't deal with the lack of a bond, said deputy press secretary Sarah Rittman.

There is a statute, Indiana code 5-4-4-1, that allows the county clerk or a voter to file an affidavit with the court in the event the security for an official bond has become insufficient. The judge of the circuit court would then be required to hold a hearing on the issue, Rittman said.

The judge could declare the office vacant if a bond isn't presented, according to the law. The Attorney General's office, though, wouldn't say that section of the law is the controlling statute in this case.

"We don't feel comfortable commenting on this case because it might come to us," Rittman said.

The Attorney General's office doesn't take enforcement action on its own, Rittman said. If the State Board of Accounts conducted an audit and found the treasurer had no bond, then it would cite the official in an audit report, she said. The audit could be forwarded to the Attorney General for action, Rittman said.

Indiana Decisions - [Updated] One from Supreme Court, one from Tax Court today

Eric D. Holmes n/k/a Koor An Nur of Mary Katie Brown v. State of Indiana
[ORDER CONCERNING SUCCESSIVE PETITION FOR POST-CONVICTION RELIEF IN CAPITAL CASE]

This matter is before us on a request by petitioner, Eric D. Holmes, to file a successive petition for post-conviction relief from his death sentence pursuant to Indiana Post Conviction Rule 1, Section 12, and the “State’s Verified Response to Holmes’ Successive Petition for Post-Conviction Relief.” As explained below, permission to file a successive petition is denied. * * *

Shepard, C.J., and Dickson and Boehm, JJ., concur.
Sullivan, J., dissents with opinion in which Rucker, J., concurs.
Sullivan, Justice, dissenting.

I respectfully dissent from the Court’s order denying Petitioner Koor An Nur of Mary Katie Brown (formerly known as Eric D. Holmes) permission to file a successive petition for post-conviction relief. * * *

I would grant Petitioner’s request to file a successive petition for post-conviction relief.
Rucker, J., concurs.

Indianapolis Welding Supply, Inc. v. Indiana Dept. of State Revenue (1/6/05 IndTaxCt - NFP) [Sales Tax]
Fisher, Judge

Indianapolis Welding Supply, Inc. (IWS) appeals the final determination of the Indiana Department of State Revenue (Department) which assessed it with unpaid sales and use tax for the 1993, 1994, and 1995 tax years (years at issue). The issue for the Court to decide is whether IWS is entitled to a public transportation exemption. * * *

Accordingly, the Court finds that IWS was required to deliver the gas to its customer’s destination; therefore, IWS owned the gas at the time it was being transported, and it is not entitled to the public transportation exemption. See Sam & Mac, Inc. v. Treat, 783 N.E.2d 760, 765 (Ind. Ct. App. 2003) (court found that when seller did not deliver property to an agreed upon destination point, title did not pass to the buyer).

CONCLUSION. For the aforementioned reasons, the Court AFFIRMS the Department’s final determination.

Indiana Decisions - 7th Circuit posts 5 today

Foelker, Richard v. Outagamie County (ED Wis.)

Winniczek, Hilary M. v. Nagelberg, Sheldon (ND Ill.)

USA v. Swanson, David H. (SD Ind., Sarah Evans Barker, Judge)

Before BAUER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury convicted the defendant, David H. Swanson, of wire fraud, money laundering, interstate transport of converted funds, and tax evasion stemming from a complex scheme of financial manipulations through which Swanson was able to siphon funds for his own personal use as he assisted large agricultural corporations in their various acquisitions and investments. On appeal he challenged the district court’s choice of sentencing guidelines as well as its calculations for amount of loss, restitution, and forfeiture. After the parties submitted their initial briefs to this court, two events altered the landscape of this appeal. First, the government conceded that the district court used the improper sentencing guidelines and second, the Supreme Court accepted certiorari in two cases which question the constitutionality of the current federal sentencing practices allowing judges to enhance sentences based on factual determinations made using the preponderance of the evidence standard. United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 04-105). The parties submitted supplemental briefs as to the applicability of Booker and Fanfan. Because we agree with both parties that the district court used the improper guidelines, we remand the case for resentencing under the proper guidelines and/or in accordance with the forthcoming United States Supreme Court decisions in Booker and Fanfan. We also remand for new findings as to the proper amount of restitution and forfeiture. * * *

In sum, we remand this case to the district court for resentencing in light of the forthcoming United States Supreme Court opinions in Booker and Fanan. This may or may not involve application of the 1998 Sentencing Guidelines Manual, but will certainly require some recalculation and additional findings on restitution and forfeiture.
REVERSED and REMANDED

RIPPLE, Circuit Judge, concurring in part and dissenting in part. I agree entirely with my colleagues with respect to all substantive matters addressed in the opinion of the court. I also agree that the ultimate disposition of sentencing matters in this case must await the Supreme Court’s decisions in United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 125 S. Ct. 11 (U.S. Aug. 2, 2004) (No. 04-104) and United States v. Fanfan, No. 03-47, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 125 S. Ct. 12 (U.S. Aug. 2, 2004) (No. 4-105). I would therefore hold our decision in this case until the Supreme Court decides those matters or, in the alternative, I would issue the opinion, but stay our mandate, until those cases are decided and we can give the district court a more definitive ruling on how it ought to proceed in a resentencing proceeding. I can see no judicial economy in placing this case back on the docket of a busy district court until we can say how that court ought to proceed. To this limited extent, I respectfully dissent from the otherwise thoughtful opinion of the court.

Hoskins, Robert v. Lenear, Connie (ND Ill.)

Indiana Decisions - Transfer list for week ending January 7, 2005

Here is the Indiana Supreme Court's transfer list for the week ending January 7, 2005. For other recent lists, check "Indiana Transfer Lists" under "Categories" in the right column.

Three cases were granted transfer by the Supreme Court: the Court's opinion in Mirtha McHenry v. State of Indiana (granted with opinion) was posted yesterday (see ILB summary here); Tracy Boatwright, et al. v. Celebration Fireworks, and Christina M. Allgood v. Meridian Security Ins. Co., also were granted transfer.

Indiana Courts - Footnotes in Judicial Opinions

Yesterday, in his opinion in Mirtha McHenry v. State of Indiana (1/6/05 IndSCt), Justice Dickson included this very interesting footnote #2:

As an experiment, this opinion departs from the author's usual style of citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering to the footnote recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text are placed in footnotes, and substantive matter that otherwise might appear in footnotes is included in the text. This revised format does not meet with universal approval. See Richard A. Posner, Against Footnotes, 38 Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are invited to comment to the Supreme Court Administrator, 315 State House, Indianapolis, IN 46204.

Here is Bryan A. Garner's 18-page Summer 2001 article titled "Clearing the Cobwebs from Judicial Opinions."

And here is Richard A. Posner's 2-page Summer 2001 article titled "Against Footnotes."

Both of these articles were in the same issue Court Review. Here is the Editor's note to that issue.

Finally, a real treasure, here is a 32-page presentation on Opinion Writing by Virigina Judge Clifford R. Weckstein. Starting on p. 23, he sets out the July 8, 2001 NY Times article on legal footnotes referenced in the Court Review "Editor's note."

Indiana Government - Legislative Investigation into Trump Casino Deal Takes Interesting Turn

Earlier this week a number of papers reported on the legislative interest in the state Gaming Commission's selection of Trump Hotels & Casino Resorts Inc. for a casino in Orange County. Here is a quote from Jennifer Whitson's story Wednesday in the Evansville Courier&Press:

The Indiana Legislature isn't finished with "The Donald" just yet.

The Republican in charge of the Indiana House committee that reviews gambling bills said Tuesday he wants the state Gaming Commission not to sign any agreement with Trump Hotels & Casino Resorts Inc. for a casino in Orange County. Rep. Bob Alderman, R-Fort Wayne, also said he wants to review the entire selection process. * * *

Alderman said he was concerned about Trump's financial situation but also troubled by details of the selection process. Asked if he was alleging wrongdoing, Alderman said he wanted to save some surprises for a committee meeting Thursday, but he promised to ask some "very probing questions." * * *

Alderman said he wants to hold a hearing next week on a bill he is offering to dismiss the current members of the Indiana Gaming Commission on Feb. 1 and allow Gov.-elect Mitch Daniels to immediately fill the key commission with his appointees.

Currently, the seven gaming commissioners are appointed by the governor to staggered three-year terms. Alderman also wants to eliminate the requirement that certain commissioners come from communities that have riverboats. "To me that seems like a conflict in itself," Alderman said.

Daniels also has questioned the selection process that led to Trump winning the right to contract for the Orange County casino, saying it should be more transparent. Alderman said he has invited the two groups who were not chosen, Lost River Development LLC and Orange County Development LLC, to testify at Thursday's hearing.

When Trump announced its bankruptcy in November, Rep. Jerry Denbo, D-French Lick, said all parties knew the bankruptcy was coming and it would not pose a problem.

But Tuesday, Denbo said the bankruptcy filing had bogged down the process, which is in negotiations between Trump and the Historic Hotel Preservation Commission, the group appointed to represent Orange County interests.

Thursday's hearing to review details of the choice of Trump Hotels & Resorts Inc. to run the Orange County casino boiled down to a warning shot to both a local-based commission and Trump. And by the end of the day, Indiana Gov.-elect Mitch Daniels had called for the resignation of all members of the Indiana Gaming Commission and every other commission and board appointed by the governor.

On the same day lawmakers quizzed state officials for two hours on the French Lick casino deal, Gov.-elect Mitch Daniels said he, too, wants to review the decision to let Donald Trump's gambling company run the casino.

In addition, Daniels wants the seven members of the Indiana Gaming Commission, which oversees the regulation of casinos, to submit their resignations. He said he may not accept them all, but he wants to make his own picks for that board.

"Right now I simply want to know, and I think especially citizens in Orange County and the rest of Indiana want to know, is this company solvent or not?" Daniels said. "One thing no one wants is an operator who then fails and leaves us back at square one."

Gov.-elect Mitch Daniels called yesterday for the resignations of the Indiana Gaming Commission's seven members, even though none of their four-year terms are about to expire. At least one member said she probably would resign if asked.

Daniels, a Republican who takes office on Monday, said he wants his own appointees to review the commission's choice of Trump Hotel & Casino Resorts to develop a casino in Orange County. The company has filed for bankruptcy to reorganize its substantial debt. "There are many unanswered questions," Daniels said. * * *

But Daniels doesn't have the authority to simply appoint a new commission — unless the members resign. In fact, he said he hopes that members of all state boards and commissions will offer their resignations. "I think that's the right thing to do," Daniels said. "Not all would be accepted, but we would like to be able to move and bring change to those bodies."

Such resignations would be unusual at the gaming commission. State law specifically allows its members to keep their seats, even when there's a change in the governor's office. The law requires bipartisan membership and permits a governor to remove members only if they neglect their duties or commit fraud or a crime.

That's different from the situation that applies to many boards and commissions, whose members serve at the will of the governor and typically are replaced by a new administration.

Alderman has filed legislation that would change the casino law and allow Daniels to appoint his own commission members. He said he plans to hear the bill in his committee this month.

Gaming Commission Chairman Don Vowels — a member since the group's inception in 1993 — said last month that the current law has helped keep politics out of the agency's deliberations. He said then that he did not plan to resign his position, but did not return calls to his office yesterday.

Two Southern Indiana residents — Norman Melhiser of New Albany and Robert Barlow of Madison — were recently appointed to the commission by Gov. Joe Kernan. They were not available for comment yesterday.

Marya Rose, who has served on the commission since 2002, said she understands why Daniels would want to appoint his own members. Rose — and the other six members of the commission — were appointed by Democratic governors. She said she would likely resign if asked.

Indiana Government - Revised IEDC bill now available

House Bill 1003, the 195-page bill proposing revisions to the current Indiana Economc Development law, is now available as reprinted 1/7/05 to incorporate the amendments made by the House Committee earlier this week. Go to the last page (p. 195) to see precisely what revisions to the introduced bill were made in House Committee.

The bill is now available for 2nd Reading, where it may be subject to amendments from the floor. Given the expedited schedule for this bill, look for it to be scheduled for 2nd Reading in the upcoming week.

Indiana government - Daniels names two more men to state positions

An AP story just posted on the Indianapolis Star website reports that Gov.-elect Mitch Daniels has filled the Commissioner of Labor post and the Workforce Development post with men from Cummins and Lilly, respectively. Some quotes:

Gov.-elect Mitch Daniels has chosen a corporate lawyer for Cummins Inc. as the new commissioner of the Indiana Department of Labor. At a news conference today, Daniels announced Miguel Rivera's appointment first in Spanish before repeating it in English. "Miguel combines a great business and legal background with a heart for working people," Daniels said.

Rivera was deputy attorney general for Indiana from 1994 to 1996, when he was appointed to the Indiana Parole Board. He began working for Cummins in 1999 and is currently senior corporate counsel for global litigation for the Columbus-based maker of diesel engines and power generators.

Rivera said he is not a member of a labor union, but said he was once in high school when he was a bag boy at a grocery store.

"I look forward to joining Gov.-elect Daniels' team and am eager to jump in to public service to bring about the change that will help the people of Indiana," Rivera said in a news release. Rivera, of Greenwood, has lived in Indiana for 14 years..

Also today, Daniels said that an Eli Lilly and Co. manager will head the Department of Workforce Development. Ron Stiver is the company's brand strategy and sales manager for Lilly and has been responsible for developing long-term strategies for the company's osteoporosis business unit.

[Update 1/7/05] Here is the expanded Indianapolis Star coverage today, headlined "Daniels taps pair to fill jobs posts: Lilly manager Stiver picked for Workforce Development; Rivera to take over at Labor."

Indiana Decisions - Court of Appeals posts 2 today

Indiana Department of Natural Resources v. Lick Fork Marina (1/6/05 IndCtApp) [Inverse Condemnation]
Baker, Judge

Appellant-defendant Indiana Department of Natural Resources (DNR) appeals the trial court’s judgment in favor of appellee-plaintiff Lick Fork Marina, Inc. (Lick Fork). Specifically, DNR raises two issues, one of which we find dispositive: whether the trial court erred in determining that DNR inversely condemned Lick Fork’s property. Finding that no taking occurred, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion. * * *

The Lease provided that Lick Fork would pay $3,000 per year in rent, which equates to $250 per month, plus small percentages of the gross income derived from boat sales, boat rental, gas sales, and other business operations conducted on the leased premises. Lick Fork retained 90 to 99 percent of the income generated at the facility, depending on the item from which the income was derived. The Lease further stated:

Title to Property. Title to any and all buildings, structures and other improvements erected or placed on the Leased Real Estate by the Lessee, which are so permanently fixed to the real estate as to become legally a part of the real estate is vested in the United States of America and is leased to the Lessor under the lease attached hereto and marked Exhibit A. All other property placed or erected on the Leased Real Estate by the Lessee shall belong to the Lessee. * * *

On February 23, 2001, counsel for DNR sent a letter to Lick Fork stating its opinion that “the marina building, landscaping, concrete ramps or cement work, pads and stairs, utilities and accessories leading to various docks, in-ground fuel storage with all attachments, utility lines and rip-rap are not personal property. . . .” DNR concluded that these items were considered to be the State’s property and could not be removed. DNR further instructed Lick Fork to remove items of personal property on or before March 31, 2001.

On April 19, 2001, Lick Fork filed a complaint against DNR entitled, “Complaint in Inverse Condemnation,” and the trial court treated the case as one arising under Indiana’s eminent domain statutes. DNR maintained that Lick Fork did not own the property in question and that the dispute regarding the Lease must be handled through application of contract law. On August 30, 2001, the trial court conducted a hearing to determine whether there had been a taking. The trial court adopted Lick Fork’s proposed findings of fact and conclusions of law, thereby ruling that DNR acquired property belonging to Lick Fork without compensation. * * *

DNR argues that the trial court erred in finding that DNR effectuated a taking. Specifically, DNR contends that this case should have been decided under principles of contract law and not eminent domain law, and that under the contract, the property in question did not belong to Lick Fork. * * *

This contract was mutually beneficial to the parties. And Martin Fallon was familiar with the business of operating marina facilities and the laws regulating their operation. Moreover, Martin had former experience in similar enterprises and had been involved in the construction and operation of similar facilities for several years. Thus, it can be said that when he signed the lease on behalf of Lick Fork, he understood the financial implications of the Lease. The contract unambiguously states that fixtures are property of the government and not of Lick Fork. And we must give effect to the intent of the parties in agreeing to this provision. Therefore, we find that any fixtures on the real estate were not the property of Lick Fork, and Lick Fork is not entitled to compensation.
The judgment of the trial court is reversed and remanded for proceedings consistent with this opinion.
SHARPNACK, J., and FRIEDLANDER, J., concur.

This is a case of first impression, where we are called upon to decide the applicability of the rule set forth in Crawford v. Washington, 124 S.Ct. 1354 (2004), as it relates to the State’s method of establishing a proper evidentiary foundation regarding the admissibility of various documents that are used to prove the results of a criminal defendant’s breath test. Appellant-defendant Joseph E. Napier appeals his conviction for Operating a Vehicle With a BAC of .08 Percent Or More, a class C misdemeanor, claiming that his conviction may not stand because admitting breath test results by certification documents and a BAC DataMaster Evidence Ticket (BAC ticket) violates the Confrontation Clause[*] of the United States Constitution. Napier further claims that the admission of the breath test ticket violates the Indiana Rules of Evidence, inasmuch as that evidence is inadmissible hearsay.

We conclude that the admission of the breath test instrument certification documents at issue here did not violate the rule set forth in Crawford. And our legislature has provided that certificates regarding the inspection and compliance with relevant regulations of breath test instruments are admissible in prosecutions for operating a vehicle with a BAC of .08% or greater.

However, we also find that admitting into evidence the BAC ticket purporting to prove the breath test results—absent any “live” testimony that would establish a foundation for its admission—was improperly admitted. Thus, we reverse Napier’s conviction on this basis. * * *

[W]e conclude that the procedures permitted by our supreme court and our legislature for establishing a foundation for the admission of the certifications regarding the breath test machine and the regulations of the Toxicology Department do not run afoul of the rule announced in Crawford and the Confrontation Clause. Thus, Napier does not prevail on this issue. * * *

[W]e were presented with uncontradicted evidence that the breath test operator was, in fact, not properly trained pursuant to the Department Of Toxicology’s regulations. In these circumstances, we are of the view that the State’s manner of proving Napier’s breath test results failed because the State failed to lay an adequate evidentiary foundation for their admission into evidence. We must conclude, therefore, that the State’s failure to present any “live testimony” at trial from the officer who conducted the tests runs afoul of the Confrontation Clause of the Sixth Amendment to the United States Constitution in light of Crawford. That is, the State failed to establish an adequate evidentiary foundation for the admission of the test results into evidence. Hence, we find that the trial court abused its discretion in admitting Napier’s breath test results into evidence, and his conviction is reversed on this basis.
SHARPNACK, J., and FRIEDLANDER, J., concur.
_____
[*] The meaning of “testimonial” evidence has been addressed by this court in two very recent decisions: Hammon v. State, 809 N.E.2d 945 (Ind. Ct. App. 2004), and Fowler v. State, 809 N.E.2d 960 (Ind. Ct. App. 2004), both of which were handed down on the same day. These cases involved domestic battery convictions where the respective victims did not appear to testify, and the State proceeded with its prosecution on the basis of statements that the victims had supplied to the police that were admitted into evidence under the excited utterance exception to the hearsay rule. We recognized the Crawford court’s determination that “testimonial” statements need not be under oath. It is apparent that our supreme court is also wrestling with the definition of “testimonial evidence,” inasmuch as transfer was granted in both Hammon and Fowler on December 9, 2004.

Stories about the young attorney, now nearly legendary, who won two big cases before the U.S. Supreme Court this year, not only Crawford v. Washington but also the even better known Blakely v. Washington, may be found in ILB entries here and here.

Indiana Decisions - Supreme Court posts 2 today

Monica, James & Diane Witte v. Mikayla Mundy, et al. (1/6/05 IndSCt) [Torts]
Boehm, Justice

A child and her mother sued when the child was struck by the defendants’ car. On the eve of trial the mother moved to dismiss her claim. The trial court granted the motion to dismiss but denied the defendants’ motion to add the mother as a nonparty for purposes of comparative fault. The jury then returned a verdict for the defense. We hold that it was error to refuse to add the mother as a nonparty, but because the plaintiffs invited the error, neither plaintiff can obtain a new trial on that basis. * * *

The trial court’s granting a new trial is reversed. This case is remanded with instructions to enter judgment based on the jury verdict.

Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ., concur.

Following a jury trial, the defendant, Mirtha McHenry, a bank teller, was convicted of forgery, a class C felony, and theft, a class D felony, as a result of her actions relating to an unauthorized withdrawal of $6,500 from the account of a bank customer. Concluding that the evidence was insufficient to establish her guilt of either crime, the Court of Appeals reversed the convictions and remanded with instructions that she be discharged. We grant transfer and affirm the trial court.[*]

In her appeal from the convictions, the defendant alleges three grounds for reversal: (1) insufficient evidence; (2) refusal to strike two jurors for cause; and (3) erroneous admission of surveillance videotape.

1. Sufficiency of Evidence * * * In reversing the jury's verdict, the Court of Appeals failed to restrict its consideration to only the evidence and reasonable inferences favorable to the trial court's verdict, but instead r eweighed the evidence, improperly substituting its own judgment for that of the jury. While the jury could have drawn the same inferences as the Court of Appeals, they did not. They returned a unanimous verdict of guilt on each count. * * * Finding that the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt, we conclude that the evidence was sufficient to support the judgment.

2. Failure to Exclude Jurors for Cause * * * In the present case, the jurors were challenged not for their relationship with the State but for their status as depositors in the bank where the alleged crimes occurred. The trial court co nsidered the challenge, questioned the jurors, and then denied the challenge. We decline to find any abuse of discretion in this ruling.

3. Surveillance Videotape * * * Rulings on the admission of evidence are subject to appellate review for abuse of discretion. See footnote We are not persuaded that the trial court abused its discretion in admitting the videotape.

Conclusion. We grant transfer and affirm the judgment of the trial court.

Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
____
[*]As an experiment, this opinion departs from the author's usual style of citation and footnote use. Cf. Indiana Appellate Rule 22. Generally adhering to the footnote recommendations of Bryan Garner, The Winning Brief, 139-47 (2d ed. 2004), all citations unessential to the text are placed in footnotes, and substantive matter that otherwise might appear in footnotes is included in the text. This revised format does not meet with universal approval. See Richard A. Posner, Against Footnotes, 38 Court. Rev. 24 (Summer 2001). The public, the bench, and the bar are invited to comment to the Supreme Court Administrator, 315 State House, Indianapolis, IN 46204.

Indiana Decisions - 7th Circuit posts two today

Garcia, Jose L. v. Ashcroft, John (Petition for Review of an Order of the Board of Immigration Appeals)

Owens, George v. Frank, Matthew J. (ED Wis.)

Before RIPPLE, KANNE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. George Owens was convicted in a
Wisconsin state court of first degree recklessly endangering
safety while armed, a violation of Wisconsin Statutes
§§ 941.30(1) and the former 939.63(1)(A)(3). After pursuing
postconviction remedies in the Wisconsin state courts,
Mr. Owens filed a petition for a writ of habeas corpus in the
United States District Court for the Eastern District of
Wisconsin. Mr. Owens’ petition was denied, and he ap-
pealed. For the reasons set forth in the following opinion, we
affirm the judgment of the district court.

Indiana Law - Hammond Mayor Apparently Concedes Records Access Issue

"Mayor: Information will flow again - McDermott said he was concerned for city's image" is the headline to this story today in the Munster Times, updating our entry yesterday titled "Hammond mayor denies local paper access to police records." A quote:

The mayor imposed an embargo, beginning in late December, on media access to crime reports. Times reporters were told reports wouldn't be available for anywhere from one to three weeks after the crime. They were previously available on a same-day or next-day basis. Public officials within the mayor's administration declined to speak to Times reporters.

McDermott said, "My job as mayor is multifaceted. Part is getting crime statistics out to the public, and that is important. (But,) I felt maybe I was hurting the city by being so accessible.

"There were people who felt strongly I was doing the wrong thing by not providing those crime statistics. I understand how they felt. I took a lot of complaints," he said.

Indiana Government - More on IEDC changes

Yesterday the House Committee on Commerce and Economic Development and Small Business finished its consideration of HB 1003, the proposed revisions to the IEDC law, and voted the bill out Do Pass Amended. A number of papers had reports today on yesterday's action:

• The Louisville CJ published an AP story it headlined "Committee OKs plan on new-job oversight."

• The Evansville C&P ran a story by Jennifer Whitson headed "Committee launches Daniels' economic development plan." Some quotes:

  Backers of the switch say a board made up of private sector representatives appointed by the governor and not hampered by the "red tape" of normal state agency regulations will be able to move quickly to woo businesses considering locating in Indiana.

  In 2003, the legislature passed a measure to create the board, called the Indiana Economic Development Corporation. But now leaders and Daniels want to go back and fine tune the proposal.

  Instead of the 23-member board first envisioned to run the corporation, the bill trims membership to 12. Daniels will be chairman of the board, which will oversee state grants and loans meant to spur the economy.

  And the corporation will be able to accept private donations that it can use to lure new companies and reward those that stay in Indiana.

  The corporation's independent status has raised concerns for some lawmakers. Democrats wanted to add amendments saying that corporation board members could not make campaign donations and that internal rules for running the corporation would have to be open to public hearings. Those amendments were either defeated or not allowed a vote.

  On Wednesday, the committee included a Democratic amendment that clarified that the corporation's actions were subject to Indiana's open records laws.

  Democrats still expressed concerns about openness and accountability and two eventually voted against the measure.

  "(The bill) takes everything out about what's being said about open government," said Rep. Dave Crooks, D-Washington. "It's going to look like a back-room deal."

  Republicans defended the measure saying it would be more transparent than the department it would replace.

  "If you want ultimate accountability, the governor is the chairman of the board," said Rep. Steve Heim, R-Culver. He said that in the current set-up "you can blame bureaucrats" when things go wrong, but with the change, the buck will stop at Daniels' desk.

• "Economic bill clears 1st panel: Commerce secretary creation in legislation" is the headline to Niki Kelly's story today in the Fort Wayne JG. Some quotes:

  “This is a huge concentration of power in a small group of people who can determine their own rules,” said Rep. Carolene Mays, D-Indianapolis.

  The 192-page bill accomplishes a number of critical items advocated by Gov.-elect Mitch Daniels. Foremost, it creates the position of secretary of commerce, which will be filled by Fort Wayne businesswoman Pat Miller.

  Miller – who co-founded the successful handbag company Vera Bradley Designs – would serve as CEO of the Indiana Economic Development Corp. – an entity charged with taking over all business and economic development functions of the soon-to-be-defunct Department of Commerce.

  The bulk of the corporation’s duties would be to raise private money and use that – along with state tax dollars – to entice businesses to locate and create new jobs in Indiana.

  The corporation would have a 12-member board – of which Daniels would be the chairman. He would appoint the rest, as well as a president who would report to Miller.

  Committee members agreed to add language Wednesday making it clear that the corporation must follow Indiana public access and open-door laws. There is an exception for financial negotiations with companies until incentive packages are finalized.

  The corporation will be free from many other state regulations, including those governing hiring, purchasing and bidding – as well as the public process in which administrative rules are made.

  Proponents believe this is necessary to ensure Indiana can move with speed in attracting employers and jobs.

• "Plan for economic development agency passes 1st test: Full House now will take up Daniels' proposal, which includes replacing Department of Commerce," is the headline to this story by J.K. Wall in the business section of the Indy Star. A quote:

  The proposed legislation would replace the Department of Commerce, which has an $82 million budget, with the economic development commission. It would be controlled by Daniels and 11 other board members.

  Nearly half of the Department of Commerce's budget comes from the federal government in money controlled by the community development and economic policy divisions. Those divisions would be separate from a new development commission.

  The development commission would encompass many economic development programs now separate from Commerce, such as the Small Business Development Corp. and the Steel Industry Advisory Commission.

  The proposal is the first major piece of Daniels' legislative agenda brought to the General Assembly. Daniels has indicated he would like the bill enacted before the end of January. Given that his Republican colleagues control both the House and Senate, the bill is likely to pass.

Law - Justice Breyer reports for jury duty

Gina Holland reports today in this AP story:

No one took any notice of the tall, slim man who appeared Tuesday for jury duty. Had he worn his black robe, Supreme Court Justice Stephen Breyer no doubt would have drawn more attention.

Even Marlborough, Mass., District Court Judge Thomas Sullivan Jr. didn't recognize Breyer until he read the justice's name on a document listing potential jurors for cases he was hearing.

"When I looked at the slip I said, 'Oh, my God,'" Sullivan said in a telephone interview with The Associated Press. * * *

According to Sullivan, the defense attorney said, "The last thing I need is two judges on the case."

Indiana Decisions - More on Tuesday's Indiana Supreme Court zoning decision

The Gary Post Tribune has a story today on the Indiana Supreme Court's decision Tuesday in Chester Borsuk v. Town of St. John (1/4/05 IndSCt) [access ILB summary here - 2nd case]. Some quotes from today's story:

The decision by the town of St. John in a zoning case more than four years ago was legal, the Indiana Supreme Court decided this week. The state’s top court upheld the town’s denial of a rezoning at a U.S. 41 intersection.

It said, in a case watched by municipal attorneys around the state, that a town’s comprehensive plan is “an important ground, but not the only ground” for zoning decisions.

David Austgen, St. John’s town attorney, said the decision “protects the process as we know it. All the factors are to be considered (in a zoning case),” he said. “When they are all considered, the discretion of the Town Council is preserved as a decision-maker.” * * *

[Chester Borsuk, the developer who asked for the rezoning] wanted to rezone half a lot at U.S. 41 and 109th Avenue from residential to commercial; the lot’s other half already was zoned for business. A house sits on the lot’s residential-zoned half, but the other half, which fronts U.S. 41, is vacant. A couple of businesses are just north of the lot.

The Town Council rejected a rezoning request in September 2000 after residents of nearby homes said a business there would aggravate traffic congestion at the already-busy corner. They said 109th Avenue was too narrow to handle the traffic.

Borsuk and his attorney, Michael Muenich, contended that the town should have granted the rezoning because the town’s comprehensive plan calls for commercial zoning along U.S. 41.

A Lake County court agreed with the town’s decision, but the Indiana Court of Appeals reversed it last December. The town appealed to the Supreme Court.

The Supreme Court’s unanimous opinion, released Tuesday, was written by Chief Justice Randall Shepard. A comprehensive plan is a blueprint for a community’s development, it said, “but implementing the plan as regards (to) a given piece of real estate may not be the best course of action for the community on a given day.”

Indiana Decisions - Judge Barker issues decision in New Albany adult video store dispute

"New Albany adult video store can open, judge says" is the headline to this story by Ben Zion Hershberg in the Louisville Courier Journal today. Some quotes:

After 11 months of litigation, a federal judge has ordered New Albany to allow an adult video store to operate near downtown. Steve Mason, a lawyer for New Albany DVD, said he expects his clients to open the store at 601 W. Main St. early next week.

The decision, issued Tuesday by U.S. District Judge Sarah Evans Barker, came in a lawsuit filed by the store's owners in which they claimed their constitutional rights were violated when the city shut it down.

Barker issued a preliminary injunction against the city on grounds that its adult-entertainment zoning ordinance — enacted after New Albany DVD had tried to open — was too broadly written. * * * Barker's decision was on the store's request for an order allowing it to operate while the case is considered on its merits.

The legal dispute began last Feb. 19, when the video store opened for a few hours after a city inspector canceled a final inspection of the remodeled building that had been scheduled for that morning.

That evening the City Council adopted a six-month moratorium on the opening of any sexually oriented businesses in town, and city officials ordered the store closed on grounds that the owners hadn't obtained their final inspection and permits.

A few days later, lawyers for New Albany DVD filed suit in U.S. District Court, alleging that their clients' constitutional rights of free expression had been violated. * * *

In her decision, Barker said New Albany has the authority to regulate adult businesses. She also said the city can rely on evidence of the harm that such businesses do to other communities and doesn't have to gather evidence specific to New Albany — a point argued, at length, by lawyers and expert witnesses in the case.

But the city erred in attempting to regulate New Albany DVD through a zoning ordinance that is too broad, Barker said. To protect free-speech rights under the First Amendment, Barker said, restrictions on where adult businesses can operate must be "narrowly tailored."

The language in New Albany's ordinance prohibiting sexually oriented businesses from locating within 1,000 feet of a church is too broad, she said. She said it might be more appropriate for New Albany DVD's owners to agree not to operate on Sundays or at other times when functions are under way at the Main Street United Methodist Church, which is across the street from the store. * * *

Because there are no other adult video stores in the city, Barker said, the city is placing limits that are too restrictive on "constitutionally protected speech" by preventing New Albany DVD from operating. She said there are no "alternative channels" for the sale and rental of such materials in town.

Judge Barker's decision has not yet been posted on the SD Ind. website.

Indiana Government - [Updated] Kentucky Man to Head Corrections

"Kentuckian to lead state prisons" is the headline to a story just posted on the Indianapolis Star website. A quote:

Gov.-elect Mitch Daniels has named a Kentucky prisons official to be Indiana's new commissioner of the Department of Correction.

J. David Donahue, 45, will replace the outgoing commissioner, Evelyn Ridley-Turner, who was paid $100,132.

Donahue currently is deputy commissioner for the Kentucky Department of Corrections in Frankfort, Ky., and is responsible there for supervision of support services in administrative services, corrections training, budget management, correctional industries, offender information and information technology.

He previously worked as senior vice president and chief operating officer for the U.S. Corrections Corp. in Louisville from 1994 to 1998 and was a case management coordinator for the U.S. Department of Justice federal correctional institution in Fort Worth, Texas, from 1988 to 1990.

Daniels said Donahue is the first non-Hoosier appointed to his administration.

"Indiana needs fresh ideas to tackle the problems in this very troubled agency," Daniels said. "The Department of Correction generated the second highest number of critical reports during our 'due diligence' review of state government. Indiana pays Kentucky to guard its prisoners while two new facilities sit virtually empty, and DOC has more managers than guards."

Asked if Daniels would pursue privatization of prisons, Jane Jankowski, Daniels' press secretary, said the governor-elect's orders to Donahue are the same as to all department heads -- "to look at options that would use taxpayer dollars more wisely. What isn't acceptable to him is the status quo, which is paying Kentuckians to operate a private facility when some of our buildings are empty."

She added that given that arrangement, "essentially, we already have privatization."

Donahue -- who has experience working in both public and privately operated corrections systems -- said he "absolutely will evaluate all resources available" for Indiana to provide the best prison system.

Gov.-elect Mitch Daniels has named an official from the Kentucky Department of Corrections to head the agency that oversees prisons in Indiana.

Dave Donahue will leave his post as deputy commissioner of Kentucky's department to be the commissioner of the Indiana Department of Correction.

A native of Bardstown, Ky., Donahue is the first person from outside Indiana appointed by Daniels.

"This is a great opportunity to be involved in the vibrant change that Governor Daniels is bringing to the table," Donahue said yesterday in a telephone interview from his office in Frankfort. "I'm excited about his vision, his message, the fact that he has given me the opportunity."

Indiana Decisions - One today from the Court of Appeals

Fadia Al-Challah v. Barger Packaging Corporation (12/5/05 IndCtApp) [Statute of Limitations]
Sharpnack, Judge

Fadia Al-Challah appeals the trial court’s order granting Barger Packaging Corporation’s (“Barger”) motion to dismiss Al-Challah’s complaint as time barred. Al-Challah raises two issues, which we consolidate and restate as whether the trial court erred by finding that the Journey’s Account Statute was not applicable to Al-Challah’s complaint and by granting Barger’s motion to dismiss Al-Challah’s complaint as time barred. We affirm. * * *

The statute of limitations on employment related actions is governed by Ind. Code § 34-11-2-1 (1998), which provides that such actions “must be brought within two (2) years of the date of the act or omission complained of.” Al-Challah was dismissed from her employment with Barger on October 2, 2001, and she filed a complaint against Barger in federal court and asserted federal law claims under the ADA and state law claims of wrongful discharge in December 2002. Thus, Al-Challah’s wrongful discharge claims were filed within the two-year statute of limitations. See I.C. § 34-11-2-1. On June 6, 2003, Al-Challah filed a motion requesting to voluntarily dismiss her federal claims with prejudice and to dismiss her state claim without prejudice, and that same day, the federal court signed Al-Challah’s proposed order dismissing her federal claims with prejudice and dismissing her state law claims without prejudice. At that time, Al-Challah still had approximately four months remaining before the expiration of the statute of limitations. Al-Challah then filed her state law wrongful discharge claim in the trial court on November 7, 2003, which was one month past the expiration of the two-year statute of limitation for her claim. See I.C. § 34-11-2-1. Barger filed a motion to dismiss Al-Challah’s complaint as time barred, which the trial court granted.

Al-Challah argues the trial court erred by dismissing her complaint as time barred because the Journey’s Account Statute saved her complaint from the expiration of the two-year statute of limitation. We disagree.

As our supreme court explained in Vesolowski v. Repay, 520 N.E.2d 433, 434 (Ind. 1988), reh’g denied:

At common law suits often were dismissed on technical grounds. In such cases, the plaintiff could file another writ known as a Journey’s Account. The renewal suit was deemed to be a continuation of the first. The time to bring another suit was computed theoretically with reference to the time required for the plaintiff to journey to where court was held. * * * Although the common law remedy is no longer recognized, Indiana has created a statutory remedy in its place. The Journey’s Account Statute, Ind. Code § 34-11-8-1 (1998) * * *

* * * A complaint that is voluntarily dismissed is treated as if it never existed and, thus, cannot toll the statute of limitations. Kohlman, 509 N.E.2d at 232. Because Al-Challah voluntarily dismissed her federal lawsuit, her action did not “fail” within the meaning of the Journey’s Account Statute. Therefore, the trial court did not err by finding that the Journey’s Account Statute was not applicable by granting Barger’s motion to dismiss Al-Challah’s complaint as time barred. * * *

For the foregoing reasons, we affirm the trial court’s order granting Barger’s motion to dismiss Al-Challah’s complaint. Affirmed.
BAILEY, J. and MAY, J. concur

Indiana Decisions - 7th Circuit posts one today

Board, Herbert L. v. Farnham, Karl (CD Ill.)

Before COFFEY, RIPPLE, and KANNE, Circuit Judges.
COFFEY, Circuit Judge. Brothers Herbert and Jerome
Board (collectively the “Boards”), along with three other
plaintiffs, filed a sixteen-count complaint against fourteen
defendants in their individual and official capacities alleging
various constitutional injuries pursuant to 42 U.S.C.
§ 1983, as well as state law violations dealing with the Board
brothers’ arrest, incarceration, and subsequent acquittal on
murder charges in Edgar County, Illinois. As a result of a
voluntary dismissal and the district court’s unchallenged
grant of summary judgment in favor of the defendants on a
number of their claims, only three of the Boards’ constitutional
claims survive. On interlocutory appeal, defendantsappellants
claim the district court erred by not granting
them summary judgment on the remaining claims because
they are entitled to qualified immunity. Affirmed.

Indiana Law - More on Hammond mayor denies local paper access to police records

"Hammond mayor denies local paper access to police records" was the title of an entry dated Dec. 29, 2004. Today the Munster Times reports:

HAMMOND | The public can read about crimes in the city only after the reports detailing the allegations lie in a drawer somewhere for seven days.

Mayor Thomas McDermott Jr. enacted the policy Tuesday, making all crime reports public information after a seven-day waiting period.

He did so the same day an attorney with