I'm pleased to announce that the Indiana Law Blog has had over 10,000* visits during the month of June!
Also, I've received several nice notes. Madonna F. MCGrath of Baker & Daniels wrote to say "Marcia, Just wanted to let you know I really enjoy the Blog and think you are doing a terrific job."
And George T. Patton of Bose McKinney & Evans' Washington Office sent this note back to his "home base":
Thanks for forwarding this on to me. Marcia Oddi is doing a great service to the bench, bar and public by "blawging" Indiana appellate law. A national "blawg" that I read regularly called "How Appealing" has pointed to her efforts on a couple of occasions. Also, I have read a law review article or two that she has written on administrative law and other matters. By copy of this message, I am encouraging her to keep up the good work.______
Good news! This afternoon I was able to access the sex offender registry decision I posed an entry on last Thursday, 6/26/03. You can now access that entry along with the opinion here.
Also, the decision holding that school districts not immune from liability for violent acts committed at schools can now be accessed here.
The Indana Supreme Court also posted several other interesting opinions this afternoon that I hope to have time to blog later today.
Follwing up on our entry yesterday, this article titled "Death Penalty Law in Limbo Again" appears on the front page (albeit "below the fold") of the Sunday Indianapolis Star. Some quotes:
For the second time in two years, a Marion Superior Court judge found Indiana's death penalty law unconstitutional, throwing out the death penalty in two cases. Judge Grant Hawkins' rulings Friday could put the death penalty back in the hands of the state Supreme Court, if Marion County Prosecutor Carl Brizzi appeals the decision. And if the state's highest court reverses Hawkins' rulings, it would be the second time he has been overturned on one of those two cases.The earlier case was State v. Barker, decided by the Indiana Supreme Court on 4/26/02 (access it here via Findlaw.com). Per the Star story:Hawkins said he found that Indiana's death penalty law violates a U.S. Supreme Court ruling issued last year. He ordered Charles E. Barker and Chijoike Bomani Ben-Yisrayl to face prison terms instead of the death penalty. Resentencing hearings are pending for both men.
Hawkins found that Indiana's death penalty law is unconstitutional because it allows a judge to impose death when jurors cannot reach a decision. He also said that while jurors must decide that aggravating circumstances outweigh mitigating circumstances before a death sentence can be imposed, the law does not require proof beyond a reasonable doubt.Here are some quotes from the 2002 decision:
Barker stands convicted, by jury, of two murders, kidnapping, confinement, burglary, and carrying a handgun without a license. At the completion of the penalty phase of the trial, the jury recommended the death penalty be imposed. The trial court followed the jury's recommendation and imposed a death sentence. The convictions were affirmed on direct appeal, but the death sentence was reversed because the jury had not been instructed that life without parole was a possible sentence. Barker v. State, 695 N.E.2d 925, 934 (Ind. 1998). The case was remanded for a new penalty phase proceeding. Id.Before the new penalty phase was scheduled to begin, the United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 [available here via Findlaw.com]. Barker moved to dismiss the death penalty request. He argued that Indiana’s death penalty statute was unconstitutional in light of Apprendi because the statute allowed a person to be sentenced to death in instances where a jury did not find that the State had proved an aggravating circumstance that rendered a defendant eligible for the death penalty beyond a reasonable doubt. See footnote The trial court agreed that this component of the statute rendered it unconstitutional after Apprendi, and granted Barker’s motion to dismiss the death penalty request.
We addressed the effect of Apprendi in Saylor, and concluded that Indiana’s death penalty statute remains constitutional. [Saylor v. State, a 72-page Indiana Supreme Court opinion dated 3/20/02, is available here via The Indiana Law Blog]. Accordingly, the trial court’s order declaring Indiana’s death penalty scheme unconstitutional is reversed. This case is remanded for a new penalty phase as we previously directed in Barker v. State, 695 N.E.2d at 934.
A nice wrapup and analysis of the just ended term of the Supreme Court, by Charles Lane, on the front page of Sunday's Washington Post, headlined "Minority Rights Were Term's Big Winner: Supreme Court's Moderate Rulings a Surprise."
Another "don't miss" from the Sunday Post is this column on Justice Antonin Scalia from the usually low-key and measured David Broder.
A very powerful front-page article on inheritance, environment, and the roots of violent criminal behavior in today's LA Times. Here are just a few quotes from this lengthy story:
With new gene sequencers, researchers can study the action of tens of thousands of genes in an afternoon, compared with one or two genes a month a few years ago. With brain scanners, researchers can also measure the blood flow and metabolic energy of thought in action — and link it to the activity of genes.Fifty years after scientists discovered the structure of DNA, researchers have launched a comprehensive search for the biological roots of human behavior, an effort that promises to dominate scientific research for decades. Scientists in five countries are cataloging the millions of variations in that human biochemical text that sets people apart one from another, including those that may affect behavior and emotion.
After a century of false starts, the effort to dissect human nature is entering a new era, said Yale University science historian Daniel Kevles. It may be only a matter of time before genes involved in human behavior can be identified, patented and, perhaps, altered. Research is revealing that the workings of genes are more complex than scientists had thought, that the brain itself is more open to change, and that the effects of everyday experience are more powerful.
Indeed, growing evidence suggests that what happens in life controls the activity of many genes. "The new way of looking at this is that different experiences turn different genes on and off," said psychologist Seth Pollak at the University of Wisconsin. "Experience matters." * * *
By altering a single gene that affects vasopressin, scientists can turn philandering mice into faithful, devoted mates. Eliminate four genes that affect levels of oxytocin and estrogen, and mice cannot recognize their friends or their enemies. Make just one genetic change in how a brain hormone such as serotonin is controlled and researchers also can eliminate or elevate some kinds of aggression — at least in mice. * * *
"The quality of maternal interaction may override the genetic predisposition to criminal behavior," Gabbard said. Such biochemical changes in how a gene behaves can, in turn, be inherited, even though they do not actually change the structure of the gene itself.
Molecular biologists at the University of Wisconsin and King's College London last year discovered a gene linked to antisocial behavior whose activity seems to be controlled by the intersection of heredity and home life. One variant of this gene, which can affect levels of serotonin, appears to be triggered by the experience of child abuse.
"We have come to the realization that there is no dichotomy between genes and environment," said UCLA clinical psychiatrist Regina Palley. "They both interact at a biological level."
I don't try to cover the Supreme Court of the United States, as two blogs focusing on federal appellate law, How Appealing and SCOTUSblog, cover the territory very well indeed. However, in case you missed it, How Appealing provided a link today to a very nice one-page summary from the AP and appearing in the Washington Post, of the major ruling of this Supreme Court term.
"Judge strikes down state death penalty" is the headline in this story in today's Indianapolis Star. A quote:
Superior Court Judge Grant Hawkins found Indiana's law governing capital punishment unconstitutional and dismissed the death penalty against [the defendants]. In his rulings, Hawkins struck down the state's death penalty law because it gives judges the authority to impose death when jurors cannot make a decision. He ruled that the law violates a U.S. Supreme Court decision requiring that juries, not judges, make the final decision on whether a person is put to death.A second Star story, titled "Bingo halls sue state over new regulations: Rule enforcement will be suspended until court hearing set for next month," may especially intrigue those of us with an interest in state administrative rulemaking. Some quotes:
Seven bingo halls are suing the Indiana Department of Revenue, claiming that new charity gaming regulations overstep legal boundaries, violate interstate commerce laws and will devastate the state's charities. * * *Access the statute at issue (IC 4-32-7-3) here. The rules at issue appear to be 45 IAC 18-3 (Charitable Gaming) and particularly 45 IAC 18-3-7 (Use of Proceeds), available here.Late Friday, the Revenue Department and the Indiana attorney general's office agreed to stop enforcing the new regulations until a July 25 court hearing, said Kenneth L. Miller, commissioner of the Revenue Department. Aimed at stopping illegal cash-skimming operations, the new rules require that each bingo operation give a set percentage of its gross revenue to charity, regardless of expenses. For example, any bingo hall that takes in more than $500,000 each year must give 10 percent of that to charity. * * *
The lawsuit alleges that the Revenue Department overstepped its authority by telling bingo operators how to donate those proceeds. It also alleges that the department bypassed the state's Legislative Services Agency in getting the rules approved. "The statute says the Department of Revenue is allowed to review the allowed expenses at an allowable event, not what people can do with their profits," said Marilyn Moores, an Indianapolis attorney representing the bingo halls. "They don't have the authority to do that."
The federal Court of Appeals for the 7th Circuit has issued rulings in three Indiana cases. As reported here in this morning's Indianapolis Star:
Lafayette may not ban a convicted sex offender from its parks because of his immoral thoughts, a divided federal appeals court ruled Friday. The Lafayette Parks Department had permanently barred the former inmate after discovering he had visited a park in January 2000 and thought about having sexual contact with children playing.Access the opinion, John Doe v. City of Lafayette Indiana, here.The Indiana Civil Liberties Union filed suit in District Court in Hammond on his behalf. The 7th U.S. Circuit Court of Appeals in Chicago reversed a district judge's decision and found that the ban violated the First Amendment.
"Presumably, untold numbers of Lafayette residents wander the city's parks every day, many of them potentially thinking offensive or objectionable thoughts," Judge Ann Claire Williams wrote. "(He) may not be punished for merely thinking perverted thoughts about children."
The two other decisions involve questions of discrimination against individuals because of their religious beliefs. The first, Benjamin Endris v. Indiana State Police, concerns a former state trooper who was was dismissed after refusing to work on a riverboat casino because of his religious beliefs. Access it here.
The second involves a woman who, according to the Star story: "had to remove her head wrap, called a geles. If she failed to do so, she was told, she would be written up for insubordination for violating the dress code." The case is Holmes, Patricia v. Marion County Office of Public Welfare (02-1377). A request to the docket reports "It is not in the system yet." Check back here.
Access the Indianapolis Star coverage ("Ex-welfare worker's lawsuit gets OK: 2 who said they were victims of religious discrimination by state get different results") here. According to the Star story:
Benjamin P. Endres Jr., who refused to work at the Blue Chip Casino in Michigan City in 2000, lost his lawsuit. Patricia Holmes, however, was allowed to proceed with her suit.
Nicholas S. King v. Northeast Security, Inc. (Ind.S.Ct. 6/27/03)
Rucker, Justice
"Victims can go after schools: Indiana Supreme Court clears way for suits by those who are assaulted." This is the headline this morning in a story in the Indianapolis Star about an opinion issued yesterday by the Indiana Supreme Court. Here is some of what this morning's Star story has to say.
The Indiana Supreme Court cleared the way Friday for victims of violent crimes on school grounds to sue school districts. Indiana law protects most government agencies from being sued in similar cases, but the high court determined that protection does not extend to the state's 293 public school districts.They are not immune, the court said, from liability for violent acts committed at schools. The decision means schools could face soaring security costs and liability insurance premiums as they work to offer a safe place for children to learn. "A school has no immunity for failing to prevent an assault and battery. It has the obligation to take reasonable steps to provide security on its premises, even if it has not adopted any rules or regulations prohibiting assaults," the court said in a 22-page opinion.
Stroud v. Lints (6/25/03)
Boehm, Justice
This decision follows on the Court's 5/3/30 opinion in Cheatham v. Poole, upholding the constitutionality of Indiana's punitive damages allocation statute, IC 34-51-3-6, which provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. Cheatham, decided on a 3-2 vote, was also authored by Justice Boehm.
In the current case, the court held, on a 5-0 vote, that "the amount of punitive damages awarded by a trial court is subject to appellate review de novo."
After the Court of Appeals decision in this case, the United States Supreme Court handed down its decision in State Farm Mut. Auto. Ins. Co. v. Campbell, 123 S. Ct. 1513 (2003). State Farm * * * addressed a claim that the amount of punitive damages awarded constituted deprivation of property without due process of law in violation of the Fourteenth Amendment. State Farm made clear that, in reviewing such a claim, all courts, state and federal, are required to consider: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” * * * State Farm reaffirmed that an appellate court is required to review de novo a trial court’s ruling on a due process challenge to a punitive award.However, there is no federal constitutional requirement that a state law challenge to the amount of an award be reviewed de novo. "Thus, we must resolve the standard Indiana courts are to apply in reviewing a claim of an excessive punitive damages award under state law. We conclude as a matter of state law that review of the amount of a punitive damage award should be de novo."
II. Considering the Defendant’s Wealth. Given (defendant) Stroud’s financial circumstances, we conclude that the $500,000 award is far beyond the appropriate amount. We base that conclusion largely on what the law is trying to do in allowing punitive damages awards. First, and most importantly, it is not to compensate the victim or the victim’s attorney. Neither the plaintiff nor the plaintiff’s counsel has a right to an award of punitive damages in addition to compensatory damages. Cheatham v. Pohle, 789 N.E.2d 467 (Ind. 2003) [other citations omitted] * * *We agree that punitive damages are intended both to deter others and to punish the wrongdoer. However, the common law has long held that the ability of a defendant to pay a punitive damages award is an important consideration. This doctrine is grounded in sound policy. It not only justifies upholding high awards when the defendant’s resources render a lesser amount inconsequential, it also means that in cases such as this, where the defendant is a teenager with no assets and no apparent ability to pay in the future, an award this substantial must be modified. * * * In Stroud’s case, the punitive damages award passed the point of deterrence and punishment long before it reached the $500,000 mark. * * * We remand so that the trial court may enter an award of punitive damages in an amount reflecting proper consideration of the defendant’s financial status.
According to a NY Times story:
The Environmental Protection Agency's No. 2 official, who had been considered a possible successor to Christie Whitman, unexpectedly resigned today. Although the official, Linda J. Fisher, will serve as acting administrator for the next two weeks after Mrs. Whitman steps down as the agency's administrator on Friday, her departure will leave the agency without its top two officials until a permanent successor is nominated and approved, a process that could last until the fall.The LA Times has a similar story from the AP, headlined: "Whitman's Deputy at EPA Also Quits: Like the administrator, Linda Fisher says she wants to spend more time with her family. Bush may wait until fall to suggest replacements."Ms. Fisher was among a handful of people who were interviewed by the White House in recent weeks as potential E.P.A. administrators. But officials said the White House had ultimately focused the search on Dirk Kempthorne, the Republican governor of Idaho. Ms. Fisher's resignation was a clear signal that she was not pleased about being passed over and had no interest in helping a new administrator settle into the job.
View our earlier entry speculating on a new EPA Chief here.
John Doe v. Catherine O'Connor (Ind.S.Ct. 6/26/03)
Sullivan, Justice
According to a story posted late this afternoon on the Indianapolis Star website, the Indiana Supreme Court has issued an opinion "clear[ing] the way for launching an online sex offender registry, complete with photos and addresses of convicted offenders."
Advocates hailed it as a major victory, while critics say the postings would violate Indiana privacy and reputation-protection laws. Indiana is among 34 states that publish information about sex offenders online.The Hoosier list is a product of Zachary's Law, named for 10-year-old Zachary Snider of Cloverdale, who was killed by a convicted child molester in 1993.
Access the Indiana Criminal Justice Institute's Sex and Violent Offender Directory here and the Indiana Sheriffs' Sex Offender Registry here.
[Update 6/27/03] Here is today's story in the IndyStar, headlined: "Court OKs sex offender photos: State's online list to show faces, addresses."
Here are links to the U.S. Supreme Court cases this term that: (1) ruled that an Alaska registry law did not violate the constitutional guarantee against ex post facto, or punishment after the fact (Smith v. Doe), and (2) held that Connecticut's sex offender registration law did not violate due process although offenders are not allowed hearings re current "dangerousness" (Connecticut Dept. of Public Safety v. Doe).
Cittadine v. Indiana Department of Transportation (INDOT) et al (6/24/03)
Dickson, Justice
This appears to be an opinion of major significance in Indiana. Relator-appellant Jack Cittadine appealed from the trial court's denial of his petition for emergency and permanent writ of mandamus to require INDOT to enforce Indiana's Clear View Statute against various railroads in violation of the statute. The Court of Appeals affirmed the denial, finding that Cittadine lacked standing to bring the action. The Supreme Court here states: "We grant standing to acknowledge the availability of the public standing doctrine in Indiana courts."
Under the general rule of standing in Indiana, "only those persons who have a personal stake in the outcome of the litigation and who show that they have suffered or were in immediate danger of suffering a direct injury as a result of the complained-of conduct will be found to have standing. Absent this showing, complainants may not invoke the jurisdiction of the court. It is generally insufficient that a plaintiff merely had a general interest common to all members of the public." [citations omitted, emphasis added]
The Court states: "The public standing doctrine has been recognized in Indiana case law for more than one hundred fifty years." It cites to language in an 1852 decision where it had said: "[This] is a case for the enforcement, not of a private, but of a public right; and it is not necessary, in such cases, that the relator should have a special interest in the matter, or that he should be a public officer." The [2003] Court continues: "In addition to cases involving the enforcement of a public right or duty, the principles embodied in the public standing doctrine have also frequently been applied in cases challenging the constitutionality of governmental actions, statutes, or ordinances." [It was at this point in reading that I, and perhaps you, exclaimed "What about Pence?] On page 9 of the 12-page opinion:
In the present case, the appellees INDOT and Michigan Southern urge that Cittadine's claim of public standing is foreclosed by Pence v. State, 652 N.E.2d 486 (Ind. 1995). Our Court of Appeals agreed, believing that Pence had "revisited" and adopted a "change in emphasis" regarding the public standing doctrine. Cittadine, 750 N.E.2d at 895. * * *The Court continues: "However, persons availing themselves of the public standing doctrine nevertheless remain subject to various limitations." For example, the doctrine does not presvent application of the Indiana Public Lawsuit Act, or the requirement of exhaustion of administrative remedies, and:Significantly, the majority opinion in Pence did not expressly discuss the public standing doctrine, but observed:
While the availability of taxpayer or citizen standing may not be foreclosed in extreme circumstances, it is clear that such status will rarely be sufficient. For a private individual to invoke the exercise of judicial power, such person must ordinarily show that some direct injury has or will immediately be sustained.Id. (emphasis added). This language clearly does not abrogate but rather acknowledges the public standing doctrine. We view application of the standing rule in Pence merely to express our exercise of judicial discretion with cautious restraint under the circumstances. We hold that Pence did not alter the public standing doctrine in Indiana.The public standing doctrine, which applies in cases where public rather than private rights are at issue and in cases which involve the enforcement of a public rather than a private right, continues to be a viable exception to the general standing requirement. The public standing doctrine permits the assertion of all proper legal challenges, including claims that government action is unconstitutional.
Similarly, although the Indiana Declaratory Judgment Act expressly authorizes Indiana courts to "declare rights, status, and other legal relations whether or not further relief is or could be claimed," Ind. Code § 34-14-1-1, to the extent that persons claiming public standing may be seeking only declaratory relief, they must be persons "whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise . . . ."Finally, as for Cittadine's claim in the case at bar:
We conclude that Cittadine's claim, which involves the enforcement of a public right, qualifies for the public standing doctrine. His action is thus not prevented by the requirement that he have an interest in the outcome of the litigation different from that of the general public. See Higgins, 476 N.E.2d at 101.Some background. A brief examination of Pence v. State may serve to indicate the significance of this clarification by the Court. Pence, a 1995 Indiana Supreme Court decision, challenged a 1992 law that both amended sections of the Indiana Code to conform it to the requirements of the Americans with Disabilities Act, and included provisions defining the salary of members of defendant Indiana General Assembly. The claim was that the law violated the provisions of Art. 4, Sec. 19, in that: (1) it contained more than one subject, and (2) it increased the pay of members of the General Assembly while they were in session. The Court, as noted above, stated: "While the availability of taxpayer or citizen standing may not be foreclosed in extreme circumstances * * * ", and continued: "Fortunately, no such weighty issues are presented in this case." The court ruled that "appellant has failed to demonstrate any interest beyond that of the general public. In this case, such a lack of standing negates court jurisdiction." Justice Dickson dissented in the Pence opinion, stating in part:We note, however, that the challenged statute was amended effective July 1, 2001, to grant INDOT the authority to adopt rules, based on certain factors, that vary the unobstructed view requirement. The amended statute also reduces the unobstructed-view requirement for crossings with train-activated crossing gates. [cite omitted] Because the relief sought by Cittadine's petition for a writ of mandamus is the enforcement of statutory provisions that no longer exist but have since been substantially amended, his claim is now moot.
On grounds of mootness, we affirm the trial court's denial of Cittadine's petition for permanent writ of mandamus.
The openness of Indiana courts is a foundational policy objective expressly recognized in Article I, Section 12 of the Indiana Constitution. The majority's decision today erects an enormous, if not a prohibitive, obstacle to citizens seeking access to the courts upon claims that the General Assembly has exceeded the limits of its constitutional powers. Abandoning to the legislature essentially free reign to act without heeding constitutional requirements surely defeats---rather than follows---Indiana's Distribution of Powers Clause. Ind. Const. art. III, § 1. As this Court opined in 1912, "Whether legislative action is void for want of power in that body, or because the constitutional forms or conditions have not been followed or have been violated, may become a judicial question, and upon the courts the inevasible duty to determine it falls." Ellingham, 178 Ind. at 391, 99 N.E. at 21. By refusing to allow the plaintiffs access to the courts for resolution of their claims of constitutional violation, the majority appears to relinquish to the legislative branch a portion of this Court's judicial responsibility.The current issue (6/18/03-7/1/03) of the Indiana Lawyer has an article ("More Civil Cases on the Court Docket")about the annual analysis of the Court's docket done by Kevin Betz of Betz & Associates, and Jason Stephenson, of Barnes & Thornburg. A quote from that story may indicate the import of yesterday's decision:I further dissent from the majority opinion because of its failure to address the merits of the issue presented by the parties on appeal: whether the annexation of statutory provisions concerning the legislators' pension plan to a bill on state compliance with the federal Americans with Disabilities Act violated Article IV, Section 19 of the Indiana Constitution, which generally requires that an act "shall be confined to one subject and matters properly connected therewith."
Bose McKinney & Evans partner George Patton, who works out of the firm's Washington, D.C., office, said he keeps an eye on trends in Indiana's appellate courts. He said the constitutional change in 2001 has had a significant effect on the Supreme Court's docket, and has made it much easier for civil practitioners to bring their cases before the court. * * * Citing cases such as Peterson v. Borst, a case in which the judges addressed redistricting in Marion County, Patton said the court is becoming stronger and more comfortable in taking a judicial role. "It's a function of judges serving longer terms and being more comfortable in the role," Patton said. In Peterson, Patton said it was clear in the opinion that the court would have preferred not to be drawn into the matter, and that the justices were only involved because efforts in the lower court had failed. While that case was an anomaly in the court's docket, Patton said it's becoming increasing common to see matters involving the Indiana Constitution before the court. "I think that is an important power, that the court is protecting the state constitution," he said. "State constitutional law is an area that most of the justices have an interest in," Patton said, noting that this pattern has been emerging since the 1980s.Both the Pence decision and the one-subject matter requirement are discussed extensively in "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," an article I authored in 2001 (available via the link to my publications in the right column).
"Court Curbs EPA's Cleanup Order Powers" is the headline in an AP story to appear in the papers tomorrow. Access it here via the Washington Post.
The decision from a three-judge panel of the 11th Circuit Court of Appeals in Atlanta came in a test case challenging an aggressive initiative by the Clinton administration and states to reduce smokestack emissions from aging coal-fired power plants.Access the opinion, TVA v. Whitman, here.Judge Gerald Tjoflat wrote that EPA must first prove its claims in a federal district court that TVA violated the Clean Air Act when it revamped nine coal-fired electric power plants without permits. EPA had instead issued an "administrative compliance order" (ACO) to make expensive pollution control improvements at the plants, prompting TVA's challenge in court.
Tjoflat said the appeals court lacks jurisdiction to review the EPA order because it is not a final agency action. Until EPA proves a violation in court, he wrote, "TVA is free to ignore the ACO without risking" penalties for not complying. The judge also wrote that EPA "manufactured the procedures they employed on the fly, entirely ignoring the concept of the rule of law" in some instances.
[Update 6/26/03] See this story from the Atlanta Journal-Constitution, and this story ("TVA says ruling won't change how it operates power plants") from the Knoxville News Sentinel.
Humphries v. Ables (Ind.Ct.App. 6/16/03)
Sullivan, Judge
One of the issues in this case was whether the presence of contamnation affected marketable title. The court said it was "aware of no Indiana case addressing the issue of whether marketable title may be transferred when there is a possibility that contamination from pollutants is present upon the real property to be transferred."
The grounds for the Buyers’ claim that they could not receive marketable title is that they cannot transfer the property without a clean Phase I environmental inspection and that they may be exposed to litigation due to contamination. While it may be true that it will be more difficult to sell the property without a clean Phase I environmental inspection because of the inability of potential buyers to receive bank financing, we cannot agree with Buyers’ claim that the property cannot be sold without a clean Phase I report. There are alternative means of financing available, such as those utilized here between the Sellers and the Buyers. Moreover, we are reluctant to hold that marketable title cannot be conveyed because one potential buyer could not receive financing without a clean Phase I report.The court notes in a footnote that this holding "should not be read to condone activity by a seller who conceals the fact that property may be contaminated. Indeed, other remedies such as fraud are available to purchasers who are mislead into purchasing real property which is contaminated."Addressing the Buyers’ claim that they would be subject to litigation because of the potential contamination, it would be a stretch to declare that title was not marketable because of the future potential of litigation resulting from contamination. We recognize that the definition of marketable title upon which Indiana courts have traditionally relied include that a purchaser will “not [be] bound to accept a doubtful title, or one that would likely be involved in litigation.” Staley, 404 N.E.2d at 635 (emphasis supplied). However, this does not mean that property is transferred free of the risk of any potential litigation, but from litigation arising out of problems of unclear title. As stated in Kenefick, when addressing marketable title, we are to concern ourselves with issues that affect the possessory title of the owner. 64 Ind.App. at 565, 116 N.E. at 323. This most likely encompasses issues such as covenants, easements, leases, liens, boundary disputes, gaps in the chain of title, and adverse possession. See e.g., Wilson v. Elliott, 589 N.E.2d 259, 261 (Ind. Ct. App. 1992) (noting that oil and gas leases generally affect marketable title); Staley, 404 N.E.2d at 635-6 (discussing violation of restrictive covenant and effect on marketable title). To expand this list to include contamination, we would be moving away from protecting buyers who may not get the full use of the property because of someone else’s claim to it to protecting every buyer who learns that the value of their newly acquired property is less than hoped for. Indeed, every piece of real property could be subject to litigation for some reason irrespective of title. We will not create a rule which allows buyers to avoid honoring a contract solely because the purchase is no longer economically feasible or wise because of the potential for litigation which does not affect a possessory interest. To protect themselves, buyers should utilize all resources available, including inspections, legal representation, and contingency clauses in contracts, in order to prevent harm to themselves from a property later being discovered to have a problem of contamination.
Based upon these considerations, and recognizing that the authorities from other states are not consistent, we hold that marketable title may be transferred even if there is contamination upon the property which is to be conveyed. While the presence or likelihood of contamination may affect the market value of the property, it does not affect title to the property.
Indiana Attorney General Steven Carter has announced:
Attorney General Carter revives publication of official opinions following more than decade lapse. The official opinions of the Attorney General's Office will again be published according to state statute (IC 4-6-2-4). Opinions by an Indiana Attorney General are difficult to find in any public resource search because they have not been published since 1987.This is very good news. Those of us who practice in the administrative/statutory area consult Attorney General's Opinions frequently. I have consulted two opinions issued by AG Steers (from the 1960s) within the past week, accessing the copies of the bound volumes in the Indiana Supreme Court library. AG Carter is publishing "110 books," meaning he is using print-on-demand technology to make these volumes available, a very cost-effective approach to insuring the availability of the Opinions."Official opinions should be available to the public and not be sitting in a state agency office filing cabinet" Attorney General Steve Carter said. "The opinions provided to state officials can provide guidance about state law to Indiana citizens who are researching an issue of state law that may affect them or their community."
Carter has issued numerous informal unpublished and formal published opinions on topics ranging from state charter school funding to local ordinances involving seat belt use since his term began Jan. 8, 2001. Official opinions of the Carter administration are posted on the Attorney General Web site at www.in.gov/attorneygeneral.
State law states that one duty of the Indiana Attorney General is to give his legal opinion to certain state officers. The Governor may request an opinion on any question or point of law in which the interests of the state may be involved. Additionally, the Attorney General must provide other state officers with legal opinions concerning their statutory duties. Members of either the House of Representatives or the Senate or any agency may request an opinion on the constitutionality of any existing or proposed law.
Indiana Attorney General Frances T. Hord appears to have published the first official opinion in 1886. There will be 110 books published that will include official opinions of Steve Carter between Jan. 8, 2001 and Dec. 31, 2002. The books will be available in libraries statewide.
I will say more about this at some later point, but in my opinion, in recent years our state government hasn't been taking adequate care that the laws and regulations that affect the citizens of Indiana are adequately available. I spent the morning reviewing the Acts of 1941 and Indiana Supreme Court volumes from the late 1890s for a paper I am working on. Yet I can't go to my local library anymore (unless it is a federal depository) and leaf through a copy of the current Indiana Code, much less look at a copy of the Acts of 1999. Even local courthouses no longer receive printed copies of the laws. They receive CDs. And the copies of the Acts I have accessed recently (in a depository library) are practically unusable, as they no longer contain tables or an index.
In my experience, there are two things you can count on -- books will be preserved; electronic media will be misplaced or become unplayable. Remember the Betamax and the 8-Track? Electronic media certainly has its place, but so do bound volumes of our laws, accessible throughout the State and for sale at cost to anyone who wishes to purchase them.
Saxton v. State of Indiana (Ind.S.Ct. 6/20/03)
Shepard, Chief Justice
Can a trial court infer that someone caught standing on an air conditioner staring into a woman’s bathroom at 5 a.m. who runs off rather forcefully when challenged was a person peeping without the permission of the target?
Scott Saxton got arrested for voyeurism after he was caught standing on a home air conditioner staring into a woman’s bathroom one morning at 5 a.m. Saxton was on probation at the time, and the trial court revoked his probation and ordered the balance of his sentence as executed time. Voyeurism only occurs in the absence of permission, of course, and Saxton says the State failed to prove that the victim did not give permission. * * *The State sought to revoke Saxton’s probation by alleging that he had committed the crime of voyeurism, which is defined as peeping into an occupied dwelling of another person without the consent of the other person. Ind. Code Ann. § 35-45-4-5(a) (West 1998). “Peeping” is “any looking of a clandestine, surreptitious, prying, or secretive nature.” Ind. Code Ann. § 35-45-4-5(b) (West 1998).
Saxton urges on appeal that the State did not establish that his peeping was without permission, largely relying on the fact that there was no direct evidence from Ms. Jones offered during the hearing. The Court of Appeals agreed and reversed. * * *
We conclude that the evidence was sufficient. Davenport’s housemate testified about suspecting there was a peeping tom in the neighborhood as the result of observing tracks in the snow from her home to Jones’ air conditioner, apparently sometime before May 13th. More probative, really, were the time of day and Saxton’s reaction to being discovered. Put in terms of sufficiency of the evidence, the question becomes: can a trial court infer that someone caught standing on an air conditioner staring into a woman’s bathroom at 5 a.m. who runs off rather forcefully when challenged was a person peeping without the permission of the target? We say yes, and affirm the judgment of the trial court.
Indiana Family & Social Services Adm. v. Amhealth (Ind.Ct.App. 6/19/03)
Mattingly-May, Judge
The question here was whether the emergency rule was properly promulgated. The trial court held the regulations were not adopted in conformity with IC 4-22-2-19.5, or PL 291-2001, section 48. Section 48 is a noncode provision that gives the state budget director broad authority to cut Medicaid expenditures to match appropriated funds in certain circumstances. If the conditions are met, "the budget director may, after review by the budget committee, direct the secretary [of FSSA] to adopt emergency rules". [emphasis supplied in court's opinion]
The legislature explicitly provided that this statute would supplant all others. Therefore, if the statute's provisions were met, the emergency rule would be valid. Walgreen, 769 NE 2d at 164.
The Court here reversed and remanded, ruling that the "emergency rules were properly promulgated under the Walgreen standard."
Adequate "review" under the Walgreen standard does not explicitly require that the budget committee be aware of the content of the proposed rule but only that it have "advance notice of agency actions." Nor does it require actual discussion, but only "an opportunity for the members to participate in the deliberations."Access Walgreen and earlier Indiana Law Blog analysis here.
Essany v. Bower (Ind.Ct.App. 6/19/03)
Najam, Judge
The Court reversed and remanded this decision. Essany had sought a protective order for stalking. Although her attorney requested that Essany be allowed to take the stand, the trial court did not allow this and in its bench ruling said that he did not think Essany had made out a case for stalking, noting that the protective order statute recently had been rewritten: "It's much more restrictive in what it will allow."
Essany appealed on the basis that when the trial court denied her the opportunity to present testimony and cross-examine Bower, it denied her a "hearing", not in the due process sense, but based on the plain and ordinary meaning of that term. The Court on appeal concluded that the hearing "did not comport with the type of hearing intended by our legislature."
Further, as to the trial court's statement that the law was now "more restrictive," the Court here pointed to its recent decision in Parkhurst v. Van Winkle: "[A] person who alleges she is a victim of stalking, even where the alleged stalker is a stranger to the victim, may seek a protective order against the alleged stalker under [IC 34-26-5-2(a)(2)]."
Access Parkhurst and the Indiana Law Blog report in it here.
The June 2003 issue of Res Gestae, the Journal of the Indiana State Bar Association, includes an interesting discussion by Daniel E. Roy of Baker & Daniels titled "How political turf battle morphed into legal contest before state's highest court." The case reviewed is Peterson v. Borst (Ind.S.Ct. 3/19/03); you may access the opinion itself, the appendices, and the 3/28/03 Indiana Law Blog coverge of the decision here.
(Res Gestae unfortunately is not freely available online.)
"In Ohio, a Test for Eminent Domain: Rights vs. Renewal at Stake in Case," is the headline of a story today in the Washington Post.
The mayor and the city council want the house razed, along with about 50 other houses and four apartment buildings, to make way for a $151 million shopping, movie and townhouse complex. If they get their way, a Wild Oats organic market will rise on the Saleet's bulldozed memories, and pay taxes that Lakewood desperately needs.This Ohio story echos those identified in our entry May 11, 2003."No one wants to see people lose their homes, but this is absolutely necessary for our future," Cain said. Echoing the views of many national experts on urban development, Cain said suburbs such as Lakewood can either break a few hearts by using the power of eminent domain or they can go the dismal way of Cleveland, the overtaxed, depopulated city next door.
Lakewood's scheme to deepen its future tax base, however, is up against more than just the heart-rending tale of Jim and Joann Saleet and their little house. This suburb of 58,000 people is locking legal horns with a Washington-based libertarian think tank that is leading a nationwide crusade against eminent domain. The Institute for Justice, fortified with $6 million to pursue the case, has jumped on the Lakewood development plan as a test case to challenge what the institute describes as a growing national outrage: Towns using eminent domain to take private property from middle-class homeowners and businesses to turn it over to rich private developers.
The libertarian Institute for Justice report, Public Power, Private Gain, is available here. To go directly to the entries on Indiana, click here.
Shades of Rumpole of the Bailey - The Old Bailey Online. And this is the OLD Bailey: The Proceedings of the Old Bailey London 1674 to 1834.
Currently available online are 22,000 trials, from December 1714 to December 1759. The release of the remaining 78,000 trials will occur in batches, roughly according to the following timetable:
1760 to 1799: July 2003This is really an incredibly rich resource. And in addition there are links to other (mostly off-line) research resources:
1674 to October 1714: Autumn 2003
1800 to 1834: Spring 2004
The accounts of trials in the Proceedings are the most accessible information available about the crimes described, but they often represent only the tip of an iceberg of surviving evidence about the case. Over 25,000 additional records have been identified as relating to the trials held at the Old Bailey and recorded in the Proceedings. This page describes some of these other richly detailed sources. They can be consulted to find more information about the circumstances of the case, the individuals involved, and the defendant's subsequent history.
From a press release issued today by the Indiana Supreme Court:
Former Indiana Court of Appeals Judge Betty Barteau, who has labored in Russia for several years in an effort to improve that country’s judicial system, has become the first American to be awarded the prestigious “Femida” award, Chief Justice Randall T. Shepard announced today.
In 1996, the Moscow Club of Lawyers established an award called Femdia, which stands for “lady justice.” Considered to be the highest legal recognition awarded in Russia, it is presented annually to Russian and foreign lawyers and to state and public figures for their contribution to the development of the rule of law.
“Judge Barteau was a vital contributor to the Indiana and national judiciary when she was on the Court of Appeals. It is no surprise to me she has been recognized by a country she has grown to appreciate immensely,” said Chief Justice Shepard
This year the Femida was awarded to eleven persons for their work in various areas of the law. Judge Barteau is the first American to receive such an award.
In making the award, the representative of the Moscow Lawyers Club stated:
“In the history of relations between American and Russia, we have had difficult times, but thanks to such people as Judge Barteau, we are building cooperation between our countries. Even without speaking our language, Judge Barteau has found a way to communicate and find a way out of difficult situations in order to build relationships. She received this award for her cooperation in the implementation of the ideas of judicial reform into practice. Her organization of seminars on international standards of morality and justice and on urgent themes on selection and discipline of judges have established a new page in the realization of openness in the judicial community. Judge Barteau and her staff for the first time in the history of Russia published the disciplinary decisions of the Supreme Qualifying Collegia and the Supreme Court of the Federation, an informational pamphlet for prospective jurors, and a bench book for the use of judges when conducting jury trials. She has had approximately 3000 Russian judges participate in her workshops and seminars since she began work here in 1998.”Judge Barteau is a native of Boonville, Indiana, where she practiced law for 5 years prior to moving to Indianapolis. She was the first woman elected to the Marion Superior Court where she served for 16 years. Gov. Evan Bayh appointed Barteau to the Indiana Court of Appeals, where she served for over seven years. She retired from that Court in 1998 to work in Moscow Russia as Director of the Russian American Judicial Partnership, a USAID-funded organization dedicated to assisting in the development of the rule of law in Russia.
See also this entry from the IU Law-Indianapolis Alumnae Network, with a photo of the 2002 Outstanding Alumna of the Year: Hon. Betty Barteau '65.
"Troubled hog farm has a new owner: Iowa buyer of Pohlmann operation, which has own problems, vows to be a good neighbor." So reads the headline to the story today in the Indianapolis Star.
To access a number of recent stories about hog farms across the nation, access this Google search. To access The Indiana Law Blog's earlier coverage of this issue, use the search box in the right column. Enter "confined feeding".
"Code Cracked on Genes that Make Men 'Men,'" a story broadcast on NPR this morning. NPR has more details, including chromosome photos and a link to the broadcast itself, here.
For more, see this story ("Male Chromosome Seriously Weird") from Wired News. Also this story from the San Jose Mercury News; this story from the NY Times, and the original news release from Whitehead Institute for Biomedical Research in Cambridge, Mass.
Today's Indianapolis Star had coverage of the oral argument before the Indiana Court of Appeals yesterday in the case of City of Indianapolis v. Campbell. Here is the background from the Star:
Three appellate judges on Tuesday heard arguments from attorneys for the city of Indianapolis and Cary Campbell Realty Alliance, which publishes the Renter's Gazette, in a case that will help decide just who can plunk down written materials on your doorstep. Under a city ordinance, no one can distribute a "handbill" -- which includes almost any published material -- on private property if the owners object, with two exceptions: the U.S. mail and newspapers.You can listen to and watch the entire 45 minute oral argument before the Court of Appeals, via this link.It's a loophole Campbell seized on back in 2001, when the Marion County environmental court granted the city an injunction against Campbell Realty, which had been hanging cards on apartment doors to advertise homes. To fit through the loophole, it became a "newspaper," the Renter's Gazette.
The court still didn't buy the transformation. But Campbell continued to evolve his publication, including publishing it weekly, on newsprint, and adding a masthead -- with a newspaper's name printed boldly at the top of every front page. And in July 2002, Marion Superior Court Judge Michael D. Keele decided the Renter's Gazette was a newspaper, after all, entitled to all the First Amendment privileges of every other newspaper. Including the right to toss it on folks' doorsteps. Tuesday, though, city attorney Jeff McQuary argued the Gazette is just an unwanted advertisement masquerading as news.
Also today the June 18 - July 1, 2003 issue of the Indiana Lawyer went on the news stands. This issue contains a front page story titled "High Court upholds damages statute: Supreme Court rules state has authority to take 75% from punitive damage awards." The case is Cheatham v. Pohle, which was reported in The Indiana Law Blog on 6/2/03. Access our opinion and summary here, to read in conjunction with the Indiana Lawyer's coverage. Although it is not available online yet, the Indiana Lawyer's coverage of their front page stories should be available shortly at this link (for two weeks).
A second story in the Indiana Lawyer (page 3) is titled "Contractors protected by statute of repose: Court of Appeals limits targets of asbestos suits." The case covered in this story is J.M. Foster, et al. v. Spriggs, which was reported in The Indiana Law Blog on 6/6/03. Access our opinion and summary here via The Indiana Law Blog.
On page 11, the Indiana Lawyer covers Oneida Kelly v. Estate of Jimmie Johnson, with the headline "Defining decision issued for furniture: Court of Appeals turns to online dictionaries to decide estate case." You may recall reading this decison via our 5/30/2003 posting, headed "Indiana Decisions - Construction of will; Court cites to internet dictionary." You can, of course. still access the decision and our coverage here on The Indiana Law Blog. It appears right before our next entry, "Every good dog gets one bite in Indiana."
Finally, the Indiana Lawyer has a story on page 8 titled "State wades toward wetlands policies." Read this story in conjunction with The Indiana Law Blog's coverage of SWANCC and the Twin Eagle cases, and the wetlands rulemaking and legislative issues, posted 5/16/03 and available here. Use our Search Form (type in "wetlands") for additional wetlands coverage we have done.
Heading the "short list" for the EPA top spot is Idaho Gov. Dirk Kempthorne, according to this story today in the Washington Post. A quote:
Kempthorne received a near-zero rating from the League of Conservation Voters during his one term as a senator (1993 through 1998), but environmental advocates said his Senate background would probably help ease his confirmation process. "Gov. Kempthorne is a very nice, personable and noncombative person, which are some of the features the Bush administration is looking for and which will help in confirmation," said Roger Singer, Idaho chapter director of the Sierra Club. "But his record on environmental issues is quite abysmal."Here is another take, this one from the Idaho Statesman:Kempthorne, as governor, senator and former mayor of Boise, has frequently raised the ire of advocacy groups because of his desire to reduce the role of the federal government -- and EPA -- in environmental policy, and replace it with state and local authority. This was a prevailing theme during his Senate years, when he championed changes to laws on safe drinking water and unfunded mandates, and has carried over in his opposition to the EPA's effort to expand a Superfund cleanup site at Idaho's Coeur d'Alene Lake.
Gov. Dirk Kempthorne´s environmental record is under the microscope as he remains on the short list of candidates for administrator of the Environmental Protection Agency. National environmental groups largely portray Kempthorne as an anti-regulatory, pro-business conservative with a poor voting record on the environment. But Steve Allred who leads Idaho´s Department of Environmental Quality, said his boss is a problem solver who would make a good administrator of the 18,000 employee agency that enforces the nation´s environmental laws. * * *Kempthorne´s aggressive jousting with the EPA over cleaning up the Silver Valley in North Idaho after a century of heavy metal mining contamination also has been frustrating to environmental critics. They worry that Kempthorne and the state´s cleanup program won´t protect public health. In his 2002 State of the State address, Kempthorne said the state, not the EPA, should clean up the basin. “I told the EPA that I am so frustrated with them that I am on the verge of inviting them to leave the state,” he said.
That kind of rhetoric makes environmental groups uneasy, said Roger Singer, Northern Rockies representative of the Sierra Club in Boise, a national environmental group. “When it comes to cleaning up the Coeur d´Alene basin, all the governor has done is to actively work to remove the EPA from the cleanup, reduce the budget of the state DEQ to clean up the lake, and to support delisting of the region as a Superfund site.”
Allred, who was Kempthorne´s point man in the Silver Valley, said no one but the governor had been able to resolve the cleanup problems in the Silver Valley for 20 years. He pulled the issue out of the courts, organized the Basin Environmental Improvement Commission and got people working together on a long term cleanup plan.
Not to be missed -- this Flash video produced by the Democratic National Commitee on the creation of "the perfect" Bush Supreme Court nominee. Regardless of your politics, I think you will find it entertaining.
Lae v. Householder (Ind S.Ct 6/9/03)
Boehm, Justice
This is a case where a controversy over a $500 apartment security deposit started in Allen County small claims court and ended before the Indiana Supreme Court. Under the Security Deposits statute, IC 32-31-3, the landlord must refund the deposit, net of damage claims, within 45 days, and supply an itemized list of any damages claimed to reduce the amount to be refunded. Failure to do so results in a waiver of any claim for damages and exposes the landlord to liabiity for the tenant's attorney fees. Justice Boehm stated that:
The issue here is the effect of the tenant's delivery of a forwarding address more than forty-five days after termination. *** However, the landlord's obligation cannot begin to run until after the tenant has suppplied a forwarding address. [cites omitted] The issue here is the effect of the tenant's delivery of a forwarding address more than forty-five days after termination.The Court here agrees with the trial court that the effect was to delay but not eliminate the landlord's statutory obligations:
Assuming there is some point at which the tenant’s ability to invoke the statute expires, either by passage of time or by detrimental reliance by the landlord, we need not address that question here. The Householders furnished their address only two days after expiration of the forty-five-day period, and there is no claim that the intervening period in any way prejudiced the landlord’s interests.
Indiana-based medical device maker Guidant Corp. will:
stop making its abdominal aortic graft and close the California subsidiary that pleaded guilty in federal court last week to covering up device malfunctions.This quote is from a front-page story this morning in the Indianapolis Star. Earlier Star stories may be accessed here. The Star's somewhat outdated factsheet on Guidant is available here.
Copies of the now unsealed federal charges against the subsidiary, EndoVascular Technologies, based in Menlo Park, California, and the plea agreement, are available here and here, respectively, via Findlaw.Com.
Today's How Appealing has this useful list of the ten argued cases still pending on the U.S. Supreme Court's docket.
And SCOTUSblog has summaries of the four decisions handed down this morning by the Court.
"Fast forward into trouble" is the headline of this really disheartening story about the civilization of Bhutan, published yesterday, 6/14/03, in The Guardian. James Mitchner's paradise in the South Pacific succumbed, over time, to the corruptions introduced by WW II; Bhutan, near the "roof of the world" as Lowell Thomas used to say, appears to have fallen to the world portrayed by cable TV. Here are some quotes:
Four years ago, Bhutan, the fabled Himalayan Shangri-la, became the last nation on earth to introduce television. Suddenly a culture, barely changed in centuries, was bombarded by 46 cable channels. And all too soon came Bhutan's first crime wave - murder, fraud, drug offences. Cathy Scott-Clark and Adrian Levy report from a country crash-landing in the 21st century.Here is the conclusion of this very long, but excellent (for instance, the concluding sentence) piece:
Bhutan's isolation has made the impact of television all the clearer, even if the government chooses to ignore it. Consider the results of the unofficial impact study. One third of girls now want to look more American (whiter skin, blond hair). A similar proportion have new approaches to relationships (boyfriends not husbands, sex not marriage). More than 35% of parents prefer to watch TV than talk to their children. Almost 50% of the children watch for up to 12 hours a day. Is this how we came to live in our Big Brother society, mesmerised by the fate of minor celebrities fighting in the jungle?Thanks to Slashdot for bringing this article to my attention through this entry. Slashpoint also points to this multimedia PBS Frontline site which "explores the impact of television on a remote Buddhist kingdom in the Himalayas."Everyone is as yet too polite to say it, but, like all of us, the Dragon King underestimated the power of TV, perceiving it as a benign and controllable force, allowing it free rein, believing that his kingdom's culture was strong enough to resist its messages. But television is a portal, and in Bhutan it is systematically replacing one culture with another, skewing the notion of Gross National Happiness, persuading a nation of novice Buddhist consumers to become preoccupied with themselves, rather than searching for their self.
This article in today's Indianapolis Star, "Foundations fear proposal on spending may backfire," reports:
Indiana's charitable foundations have joined a national fight over legislation they say could force some philanthropic groups to spend themselves out of existence. At issue is the U.S. House of Representatives' version of the Charitable Giving Act, which would prevent private foundations from including administrative costs in the 5 percent of their assets they are required to give away each year.Although supporters say "the change could mean more money for charities at a time when donations from other sources are lagging," opponents, "including an Indiana group that has urged the state's congressional delegation to strike the language -- fear it will have a chilling effect on smaller-giving groups, which make up the bulk of the 1,050 foundations in Indiana."
The Indiana Law Blog published a lengthy and still very timely entry on this issue 5/28/03. Access it here.
"Early Greenie was an industrial poisoner." This teriffic headline, from Independent Newspapers in South Africa (wwww.iol.co.za), introduces a fascinating story about William Morris, well-known 19th century artist:
Paris - William Morris, a British utopian who was a forerunner of the green movement, had shares in the world's biggest arsenic maker and dismissed a mountain of evidence that an arsenic-based product he sold could cause ill health. Morris (1834-1896), a Romantic writer, early socialist, poet, designer and pre-Raphaelite artist, is a revered figure among environmentalists for his belief that the industrial revolution had polluted the countryside and turned individual craftsmen into automatons. He is also an icon among fashionistas for wallpaper and textiles that are reproduced and sold in expensive shops even today, and for his pithy edicts on good taste. * * *The story is based on an article in the 6/12/03 issue of Nature by Andy Meharg, a biologist at Aberdeen University. Unfortunately, Meharg's article can not be accessed without a subscription, but a Nature report on the article may be accessed here. Headlined "William Morris made poisonous wallpaper: Arts and Crafts traditionalist manufactured and used arsenic-based greens," the report begins:One of the biggest hazards that came to light was from wallpaper, which for Morris, the fashion designer, was a huge seller. Doctors found that in damp rooms, fungi living on the wallpaper paste turned the copper arsenite salts in the printed paper into a highly toxic compound, trimethylarsine, and their fears were taken up by the press. But Morris dismissed this as a mindless "scare." "A greater folly is hard to imagine: the doctors were being bitten by witch fever," he told his dye manufacturer, who had been approached by a concerned customer, in 1885. If lots of people had been poisoned by their wallpaper, "we should be sure to hear of it," he added later.
William Morris (1834-1896) was a poet, artist, designer, Romantic, socialist, advocate of a return to traditional craft styles and materials - and a peddler of poisonous wallpaper, according to a new study.Wired News also has a report, titled "This Artist Painted with Poison."Andy Meharg of the University of Aberdeen in Scotland has found arsenic in the green pigment in an early sample of Morris's patterned wallpaper, produced some time between 1864 and 1875. Such pigments were suspected even in the mid-nineteenth century of releasing toxic fumes if they become damp.
Morris was not ignorant of the health hazard. He was a shareholder and sometime director of his father's mining company, Devon Great Consols (DGC), the largest arsenic producer of the age. DGC workers were plagued by arsenic-related illnesses, and many died from lung disease. The company's activities caused immense environmental damage.
As reported: in today's Washington Post
The Nature Conservancy announced last night that it is permanently abandoning a range of practices, from drilling for oil to lending employees money to selling undeveloped land to its trustees as home sites. The board's actions followed a day-long, closed-door meeting at the charity's Arlington headquarters, during which it weighed issues and criticisms raised over the past month by two U.S. senators and by some of the nonprofit organization's 1 million members.The Nature Conservancy's announcement yesterday includes this statement:
In May, The Nature Conservancy announced the suspension of certain activities until its next regularly-scheduled Board meeting on June 13, 2003. At that meeting, held today, the Board discussed changes to policies affecting the suspended activities, as well as its commitment to governance best practices. As a result, a number of decisions were made today, including:For background on this story, access the Washington Post's investigative series on the Nature Conservancy, which began May 4, 2003, via this Post index page. Among the items linked on the Post page is this important column on nonprofits and transparency. A sample:
- The Board prohibited buying or selling land in transactions with Board members, trustees and employees and their immediate families.
- All charitable gifts associated with a conservation buyer transaction must be legally documented as part of the transaction.
- The Conservancy will make no new loans to employees.
- The Conservancy will not initiate new oil and gas drilling or mining of hard rock minerals on its preserves unless required by existing contracts.
- The Board will enlist independent, outside advisors to assist it in achieving its aspiration of making the Conservancy a recognized leader in governance and oversight.
To me, however, the most disturbing revelation of The Post's series was that even a large and well-respected nonprofit -- a pioneer in adopting corporate best practices -- turns out to be no more open or transparent than most money-grubbing corporations.A review of the Conservancy's annual reports and other public materials, for example, finds no mention of the costly failure involved in trying to bring eco-business to the Eastern Shore of Virginia, or of the legal trouble it got into drilling for gas under somebody else's land. There is no annual listing of business dealings with trustees, directors and members of their families, or much detail on executive compensation, both of which are required of all public corporations.
Truth be told, the Nature Conservancy is probably better than most nonprofits in terms of transparency and disclosure, which is precisely the point. This remains a sector in which the first instinct is to reveal only what is flattering while keeping bad news from donors, the public and even from boards of directors, which tend to be every bit as compliant and clueless as those at Enron and WorldCom.
In a story today headlined "Ehrlich Eases Liability For Big Chicken Firms: Md. Drops Policy on Manure Runoff in Bay," the Washington Post reports:
Maryland Gov. Robert L. Ehrlich Jr. announced yesterday that the state would abandon rules that hold such poultry giants as Tyson Foods and Perdue Farms Inc. accountable for pollution caused by chicken waste flushing into the Chesapeake Bay. * * *Here is a quote from another report, from Delmarva Newspapers Daily Times, headed "Maryland co-permitting rule rejected: Ruling by MDE official deals final blow to controversial poultry waste regulation":His announcement came after a staff member in his Department of the Environment ruled that the state had overstepped its authority in tying poultry processors' permits to the practices of the farmers growing their chickens. Maryland farmers still must meet requirements to deal with the chicken waste in an environmentally safe fashion. * * *
[Former governor] Glendening sought to have Maryland become the first state to hold poultry processors responsible for overseeing disposal of the birds' waste. Virginia enacted similar legislation in 1999. The U.S. Environmental Protection Agency has called livestock pollution the greatest threat to American waterways, and in the late 1990s, it began regulating large livestock farms as factories. The Bush administration rolled back those efforts in January.
The poultry industry has said that states, including Maryland, do not have the authority to link their permits to the operations of other businesses, namely the growers. "If the state could say to the chicken companies, 'Your environmental permits are tied to the practices of businesses that supply you,' what would be next?" said William Satterfield, executive director of Delmarva Poultry Industry Inc., an industry group. "Service stations responsible for what oil companies do at their refineries? Newspapers being responsible for how ink manufacturers handle their waste products?
A controversial state environmental regulation imposed during the administration of former Gov. Parris Glendening was struck down Friday, relieving Lower Shore poultry companies of the burden of sharing waste disposal responsibilities with their contract chicken growers. The ruling by Kathrine Hart, final decision-maker for the Maryland Department of the Environment, said the state agency overstepped its authority when it proposed the rule in 2001.
United States v. Deaton (US CA 4th Cir. 6/12/03)
Michael, Judge
As the opinion relates, this is the second appeal by the Deatons, who were sued by the government under the Clean Water Act (CWA) for failing to obtain a permit from the U.S. Army Corps of Engineers (the Corps) before digging a ditch and depositing excavated dirt in wetlands on their property. The Corps asserts jurisdiction because the Deatons’ wetlands are adjacent to, and drain into, a roadside ditch whose waters eventually flow into the navigable Wicomico River and Chesapeake Bay. The Deatons’ main argument is that the Corps has no authority over the roadside ditch, and thus the agency cannot regulate their wetlands:
First, we hold that Congress’s power under the Commerce Clause to protect navigable waters allows it to regulate the discharge of pollutants that flow into the ditch. Congress delegated part of this authority to the Corps in the Clean Water Act. The Corps, in turn, has promulgated a regulation, 33 C.F.R. § 328.3(a)(5), that extends CWA jurisdiction to tributaries of navigable waters. This regulation represents a reasonable interpretation of the CWA that is entitled to deference. The Corps interprets its regulation to cover the roadside ditch, and we also defer to that interpretation. Second, we hold that the district court did not err when it decided that the Corps used an appropriate indicator for wetland hydrology (prescribed by its Wetlands Delineation Manual) in designating parts of the Deatons’ property as wetlands. Finally, we affirm the district court’s remediation order, which requires the Deatons to fill in the ditch and restore their wetlands to their pre-violation condition.Shortly after the Court's ruling in the Deatons' first appeal, the Supreme Court decided Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC):
SWANCC held that the Corps exceeded its statutory authority under § 404(a) of the Clean Water Act when it interpreted the Act (through 33 C.F.R. § 328.3(a)(3) and the Migratory Bird Rule, 51 Fed. Reg. 41,217 (1986)) to cover an isolated, intrastate gravel pit that was filled with water and used by migratory birds. Id. at 162-63, 174. Because SWANCC provides new guidance for analyzing the Corps’s jurisdiction under the Clean Water Act, the Deatons filed a motion on September 10, 2001, asking the district court to reconsider the issue of CWA jurisdiction in this case. The Deatons argued that under SWANCC the Clean Water Act cannot be read to extend Corps jurisdiction to their wetlands or the roadside ditch ... .The district court denied the motion to reconsider. In arriving at this decision affirming the district court, the appeals court here relates:
The Corps asserts jurisdiction over the Deatons’ wetlands because they are adjacent to the roadside ditch, which is a tributary of the Wicomico River, a traditional navigable water. In United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), the Supreme Court upheld Corps regulations "requir[ing] permits for the discharge of fill material into wetlands adjacent to the ‘waters of the United States.’" Id. at 139. Several courts have held that SWANCC limited this holding to wetlands adjacent to traditional navigable waters. E.g., Rice v. Harken Energy Co., 250 F.3d 264, 268-69 (5th Cir. 2001); United States v. RGM Corp, 222 F.Supp. 2d 780, 785-86 (E.D. Va. 2002); United States v. Newdunn Assocs., 195 F. Supp. 2d 751, 763, 767-68 (E.D. Va. 2002), appeal pending sub nom. Treacy v. Newdunn Assocs., No. 02-1480(L) (4th Cir.); United States v. Rapanos, 190 F.Supp. 2d 1011, 1015-16 (E.D. Mich. 2002). The Deatons do not press for that limitation here. They argue instead that the roadside ditch is not covered by the Clean Water Act, which means that their wetlands are not adjacent to any covered water. As a result, the Deatons say, they did not need a permit to discharge fill material into their wetlands. It is undisputed that the Deatons’ wetlands are adjacent to the roadside ditch. Thus, if the ditch is covered, so are the wetlands. Our analysis, then, will focus on whether the Corps has jurisdiction over the roadside ditch. * * *Access earlier Indiana Law Blog SWANCC-related coverage here.In Riverside Bayview the Supreme Court concluded that the Corps regulation extending jurisdiction to adjacent wetlands was a reasonable interpretation in part because of what SWANCC described as "the significant nexus between the wetlands and ‘navigable waters.’" SWANCC, 531 U.S. at 167. There is also a nexus between a navigable waterway and its nonnavigable tributaries. The Corps argues, with supporting evidence, that discharges into nonnavigable tributaries and adjacent wetlands have a substantial effect on water quality in navigable waters. The Deatons do not suggest that this effect is overstated. This nexus, in light of the "breadth of congressional concern for protection of water quality and aquatic ecosystems," Riverside Bayview, 474 U.S. at 133, is sufficient to allow the Corps to determine reasonably that its jurisdiction over the whole tributary system of any navigable waterway is warranted. The regulation, as the Corps reads it, reflects a reasonable interpretation of the Clean Water Act. The Act thus reaches to the roadside ditch and its adjacent wetlands.
(The above link to the 20-page opinion is courtesy of the SW Virginia Law Blog, which posted info on this decision earlier this afternoon.)
For a recent story on wetlands regulation, see "Senate Panel Wades Into Wetlands Debate," published 6/11/03 by the Environmental News Service (ENS).
"The current situation has created confusion and chaos," said Senator Mike Crapo, the chairman of the Senate Environment and Public Works Subcommittee on Fisheries, Wildlife, and Water. "This confusion that has festered for the last two years is not only detrimental to individuals in the regulated community, but is also detrimental to the environment," said Crapo, an Idaho Republican. Crapo spoke today during a hearing he orchestrated to examine the regulation of wetlands and the issues raised by the 2001 Supreme Court decision of what is commonly referred to as the SWANCC ruling. In its ruling, the Supreme Court decided that the U.S. Army Corps of Engineers had overstepped its authority under Section 404 of the Clean Water Act, which requires anyone planning to discharge dredged or fill material into navigable waters must first obtain a permit from the Corps.
"U.S. Judge Rejects Wrestling Coaches' Challenge to Title IX: They have no standing to claim their profession and teams were harmed in favor of women's sports, he rules." This is the headline to the LA Times law reporter, David Savage's story this morning:
A federal judge on Wednesday threw out a lawsuit brought by college wrestling coaches who said their profession and their teams were threatened by a government quota policy that favors women's collegiate sports. The decision amounted to a technical disqualification.Access National Wrestling Coaches Ass'n. v. U.S. Dept. of Education, the 119-page opinion of the US District Court for D.C., here. Access the Washington Post coverage ("Lawsuit Against Title IX Dismissed") here.U.S. District Judge Emmet Sullivan said the coaches do not have standing to demand that the Department of Education drop its regulations enforcing Title IX, the 1972 law that opened a new era in sports for women and girls. But the case is far from over, said a lawyer for the National Wrestling Coaches Assn. "We're very confident of our chances in the Court of Appeals," said Lawrence J. Joseph, the group's Washington lawyer. "We believe proportionality rule is a quota" and deserves to be struck down, he said.
Not directly law-related, but too important to pass by is this review by Jonathan Yardly in this morning's Washington Post of Diane Ravitch's book, THE LANGUAGE POLICE: How Pressure Groups Restrict What Students Learn. Yardly's lead:
It's difficult to exaggerate the importance of this book. Whether "The Language Police" will turn out to be one of those rare books that actually influence the way we live -- Upton Sinclair's "The Jungle," John Steinbeck's "The Grapes of Wrath," Rachel Carson's "Silent Spring," Ralph Nader's "Unsafe at Any Speed" -- remains to be seen, but surely one must pray that it does. Meticulously researched and forcefully argued, it makes appallingly plain that the textbooks American schoolchildren read and the tests that measure their academic progress have been corrupted by a bizarre de facto alliance of the far left and the far right. * * *A check of the current C-Span 2 BookTV schedule shows Ms. Ravitch will be on at 3 p.m. eastern time on Saturday, June 14. (Here is a BookNotes interview on an earlier book, "Left Back: A Century of Failed School Reforms.")Textbook publishers' thirst for the vast amounts of money to be earned when their publications are adopted by California, Texas and a few other disproportionately influential states obviously is far greater than their interest in educating schoolchildren, so they have merrily capitulated to the pressure groups. They give the right-wingers control of topics and content -- nothing about abortion, evolution, divorce, crime -- and the left-wingers control of language, i.e., the weasel words of political correctness. Ravitch writes: "The pressure groups of left and right have important points of convergence. Both right-wingers and left-wingers demand that publishers shield children from words and ideas that contain what they deem the 'wrong' models for living. Both assume that by limiting what children read, they can change society to reflect their worldview."
In addition, the NY Times review and First Chapter are also available.
[Update 6/16/03] Today's Indianapolis Star editorial, titled "Keep politics out of textbook selection," recommends that the Ravitch book "should be on the summer reading list of every school board member, teacher, principal, superintendent and parent." More:
Ravitch praised Indiana as being among a handful of states that have adopted serious U.S. history standards for students and also cited Indiana as one of only four states that have compiled recommended reading lists that include classical literature. None of the four states, including Indiana, requires that any of the recommended books be read.Ravitch urges states to stick to setting broad educational standards, while letting teachers and schools pick the books and materials used for teaching. She says that approach will help break up a cartel of four publishing companies -- three of them foreign-owned -- along with pressure groups in just two states, Texas and California, which largely control the content of textbooks everywhere.
In Indiana, textbook adoption is a costly bureaucratic process whose only real benefit is to leverage better prices for schools. What schools desperately need, but have to seek on their own, is longitudinal research comparing the content and effectiveness of the various materials on the adoption list.
Ravitch's book should spur reform in this critical area. Children deserve the highest quality instructional material and literature, not the pablum textbook publishers have become accustomed to serving.
Stockberger v. United States (US CA 7th Cir. 6/11/03)
Posner, Judge
How Appealing reports this afternoon on a decision today by the 7th Circuit affirming a decision by Judge McKinney (US DC SD Ind.). The Court: "The claim invites consideration of the broader question of the tort duty if any to rescue a person in distress. The common law traditionally took a hard line, rejecting any legal duty to be a good Samaritan." The Court examines the three types of cases that may provide an exception from the common law. The first type of case, the Court explains, is where the rescuer had either assumed, explicitly or implicitly, a contractual duty to rescue the victim, or had created in the victim a reasonable expectation that he had assumed such a duty. In the second type of case, the victim was in the rescuer’s custody and thus without access to alternative rescuers. Typical cases of this type are ones in which the victim is a prison inmate or a patient in a mental hospital. And the third class consists of cases in which the victim’s peril had been caused by the putative rescuer himself—even if he had caused it nonnegligently. Among the cases cited here is L.S. Ayres & Co. v. Hicks, 40 N.E.2d 334 (Ind. 1942). (This will be particuarly memorable to all of you who has Dean Cleon Faust for Wrongs.) Read the opinion, you'll enjoy it.
Today's Indianapolis Star has a very fine article on sand and gravel mining in developed or developing areas. Titled "A developing issue: Mines' neighbors ready for a dust-up: Some landowners complain they don't have a chance to protest before building begins", the story points out that most problems arise in areas that lack planning and zoning:
DNR (Indiana Department of Natural Resources) spokesman Steve Sellers said state law allows the agency to consider only the impact that construction or development of an aggregate mine would have on the river, flood plain and wildlife. "Air, noise, trucks and dust are for local review," he said. A DNR permit to mine in the flood plain does not relieve the mine operator of the need to get all other permits from federal, state and local agencies, including planning and zoning and local drainage boards, he said. * * *And here, by chance, is a story from the 6/2/03 edition of the Northwest Indiana Times (nwitimes.com), titled "Industrial plants propose to replace quarry," reporting "The owner of two adjacent limestone quarries south of Lowell wants to use a portion of one to construct three plants for related industrial uses in the manufacture of road construction materials." It is clear from the story that this change would not be popular with everyone:Residents of the Legendary Hills subdivision south of Martinsville recently discovered a gravel mine was planned on a 352-acre farm next to their homes -- but not until the bulldozers started to work. DNR rules required adjoining landowners to be notified of the pit proposed by Lebanon-based Rockmakers, but the only public notice is posted on the DNR's Web site. No adjoining farm property owners complained, so no public hearing was held before the DNR granted a permit April 15 to work in the White River flood plain. Legendary Hills residents complained last month to the city's Plan Commission and were promised an investigation, but the commission president warned that local authorities may be powerless because pits are regulated by the state.
The mines were carved out of agricultural land about 10 years ago after bitter legal battles between residents and developers. At that time, the zoning was changed from agricultural to conditional development district in order to allow for the industrial mining use of the property. Since then, the county planning department has adopted a new comprehensive plan for unincorporated Lake County that calls for the preservation of farmland, a point Lake County Plan Commission Director Ned Kovachevich said will be considered when the commission makes its recommendation Tuesday to the Board of Zoning Appeals."A conditional development district allows one use only, so he would need to get a use variance for the three plants," Kovachevich said. "I think using recycled tires is a great idea, but my problem with this is our comprehensive plan calls for that area to remain agricultural. "The people who live down there always thought they were protected by that agricultural zoning," Kovachevich said. "But there was a deposit of limestone there that turned out to be the ideal site for a quarry. We learned that legally we couldn't prohibit them from mining their stone." Kovachevich said that although the proposed plants "are complementary to the quarry, the staff doesn't think that is the proper location for any of those uses." However, the county's planning staff can only make recommendations to the Plan Commission and Board of Zoning Appeals, Kovachevich said.
Hannoy v. State of Indiana (Ind.Ct.App. 6/10/03)
Barnes, Judge
The Indianapolis Star headline this morning on its story reporting the Court's ruling: "Taking blood samples by force is illegal, court rules: Decision striking down sheriff's policy overturns conviction of man in crash that killed woman, son."
A repeated drunken driver accused of killing two people in a crash may go free, after a court ruled that an aggressive policy by the Marion County Sheriff's Department flouts the U.S. Constitution. Deputies cannot force drivers in serious crashes to submit to blood tests, the Indiana Court of Appeals ruled Tuesday, a decision that overturned the conviction of Eli Hannoy. * * * "The requirements of the Fourth Amendment cannot be lowered based upon the heinousness of the particular crime," Judge Michael Barnes wrote for the court. The ruling said that legally obtaining blood is a "relatively simple matter" that would require officers to ask drivers to voluntarily give blood or obtain a warrant from a judge.What follows are a few quotes from the ruling itself (which is well worth reviewing in full):
Pursuant to the standard policy of the Marion County Sheriff’s Department, Deputy Brian Dixon was dispatched to Community North Hospital, where Hannoy had been transported, to request hospital staff to draw Hannoy’s blood for purposes of testing it for alcohol. Deputy Dixon did not ask for Hannoy’s consent before a nurse performed the draw; nor did any law enforcement officer have probable cause to believe Hannoy was intoxicated at the time the draw was involved in an accident resulting in serious bodily injury or death would be obtained by force, if necessary. App. p. 662.The Court's holding with regard to the first blood draw (from p. 19 of the opinion):Testing of the blood obtained at Deputy Dixon’s request indicated that Hannoy had a blood alcohol content between .194 and .206 percent. The hospital performed a second blood draw on Hannoy for its own purposes approximately one hour after the draw requested by Deputy Dixon. Testing of this blood sample indicated a blood alcohol content of between .182 and .193 percent.
The withdrawal of Hannoy’s blood was not obtained pursuant to the guidelines in the implied consent statutes and cannot be justified as being drawn in accordance with those statutes. The withdrawal was not accomplished in accordance with the Fourth Amendment and Schmerber because there was no probable cause to believe Hannoy was intoxicated at the time his blood was drawn and no actual, knowing, and voluntary consent to the withdrawal. The “special needs” exception to the probable cause requirement cannot be applied in the context of a criminal investigation by law enforcement. Therefore, the blood alcohol content evidence obtained from the blood draw performed at the request of law enforcement was illegally obtained and should not have been admitted into evidence by the trial court.The Court's discussion with respect to the second blood draw (beginning on p. 21):
Because the issue may arise again on remand, we now consider whether the trial court abused its discretion in admitting into evidence the blood test results obtained by Community North Hospital on blood it drew from Hannoy for its own purposes approximately one hour after the sample drawn at Deputy Dixon’s request. The essence of Hannoy’s argument is that Indiana Code Section 9-30-6-6(a) is unconstitutional because it allows police to acquire indirectly what we have held they cannot acquire directly: blood alcohol test results without probable cause, a warrant, or actual consent. Section 9-30-6-6(a) requires a physician or other person who has obtained the results of a chemical test on a person’s blood or urine, or a blood or urine sample, to deliver the results or the sample itself to a law enforcement officer who requests them as part of a criminal investigation. We need not rule today on the facial constitutionality of all of Indiana Code Section 9-30-6-6(a)’s mandatory disclosure requirements, however. We will only consider whether Deputy Baker’s obtaining of Hannoy’s blood test results performed by the hospital was reasonable under the Fourth Amendment under the particular facts and circumstances of this case: where Deputy Baker requested and received the results of a blood alcohol test performed by the hospital for its own treatment purposes. * * *"[F]ishing expeditions," as this opinion phrased it, or "mass sweeps" or "dragnets" for, particularly, DNA samples, is a growing concern in this biotech age, as the Hannoy court indicates it recognizes. A look at recent stories includes, from the 6/1/03 USAToday (as reprinted in the Arizona Republic), "Case triggers battle over DNA database," involving:Hannoy argues . . . that he had a reasonable expectation of privacy in his blood test results maintained in the hospital’s records and that police could not obtain those results in the absence of probable cause, Hannoy’s consent to their release, and/or a court order of some kind. To the extent Hannoy does have an expectation of privacy in his medical records generally, we conclude that in Indiana at least, society does not recognize a reasonable expectation of privacy in blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient, where those results are requested by law enforcement for law enforcement purposes only in the investigation of an automobile accident. * * *
We do not want to be misunderstood as holding that Indiana Code Section 9-30-6- 6(a) authorizes the release of toxicological test results or bodily fluid samples to law enforcement anytime it is requested in relation to any criminal investigation. We do not believe Section 9-30-6-6 authorizes broad “fishing expeditions” by law enforcement searching for evidence that some person has committed some crime. First, the placement of Section 9-30-6-6 in the Traffic Code clearly indicates that it applies only to criminal investigations concerning operating while intoxicated and its related crimes. Second, Hannoy was one of two drivers involved in a fatal motor vehicle accident, and we assume that law enforcement officers will limit their requests for toxicological test results specifically to drivers who have been hospitalized following an accident rather than requesting test results from patients at random for no reason whatsoever. This makes the request reasonable under the Fourth Amendment. * * * Therefore, the blood alcohol test results that law enforcement obtained from Community North Hospital may be admitted in the event Hannoy is retried. [Emphasis added]
. . . one of more than 600 men in southern Louisiana who voluntarily gave DNA samples to police in an attempt to identify the serial killer of five women from September 2001 through March. It was part of a "DNA dragnet" police conducted, one of nearly a dozen such sweeps performed by American police since the early 1990s. "There's just too much you can learn about a person from their DNA," says Kohler, a welder who filed a lawsuit last week to recover his sample. "If we're innocent, if we don't match (DNA drawn from) the crime scene, what do you need my DNA for?"The Louisiana dragnet didn't catch Lee. That was done by alert detectives who picked up a lead from an unrelated case. But it did give the task force investigating the murders the DNA of hundreds of innocent men. These samples provide a DNA databank apparently unregulated by law. Police in other dragnet cases have argued that they have the right to retain the genetic samples and use them in other investigations. Privacy advocates counter that DNA, which contains an individual's unique genetic code, could be subject to abuse and should be returned. They question whether the DNA sampling is truly voluntary, arguing that people may feel coerced into giving samples. Law enforcement specialists also question the value of mass collections of DNA, which often do little to solve crimes. "The dragnets give police a private database, which they love, but they cause many kinds of other problems," says James Alan Fox, a criminology professor at Northeastern University in Boston. [Emphasis added]
An interesting 4-page bankruptcy opinion was issued yesterday, 6/9/03, by a three-judge panel of the 7th Circuit. Written by Judge Easterbrook, and titled In the matter of Fred E. Schoonover, the case deals with the time available for lienholders:
The upshot is that lienholders have more time than general unsecured creditors, a dispensation essential if lienholders are to enjoy any chance to watch the proceedings from afar and enforce their liens later. Just as §522(l) and Rule 4003(b) put the onus of timely objection on general unsecured creditors, so §522(f) and Rules 4003(d) and 9014 put the onus of contesting a lien on debtors; the clock for lienholders runs from the motion under §522(f) and not from the meeting of unsecured creditors. To the extent that In re Chinosorn, 248 B.R. 324, 327-28 (N.D. Ill. 2000), reaches a different conclusion, it is disapproved. (As far as we can tell, this is the first appellate consideration of the question whether Rule 4003(b) and Taylor affect the time available to lienholders.) Karr’s objection was timely.[Note: "Taylor" is Taylor v. Freeland & Kronz, 503 U.S. 638 (1992).]
Young v. Indiana Department of Natural Resources (Ind.Ct.App. 6/9/03
Robb, Judge
The facts set out by the decision are as follows: Young became a conservation officer for the DNR in October 1979. From 1979 through 1990, Young and the other officers of the DNR relied upon the Elkhart County Communications Center for dispatching and emergency communications. In October 1990, the Communications Center made the decision to cease dispatching for the DNR. After the Communications Center made that decision, Young began communicating with the DNR’s chain of command about his concerns regarding the lack of communications posed to his safety, the safety of his fellow officers, and the safety of the public. Young continued to write letters to the chain of command for almost seven years in an attempt to address the problems with communications. After receiving no response from the chain of command, Young began contacting his state representatives in 1996 regarding the safety of the DNR officers without dispatch from the Communications Center. Approximately one month after Young began contacting the representatives, Young became the subject of an internal investigation. As a result of the investigation, the officers terminated Young’s employment.
Following his termination, Young filed a complaint against the DNR and several DNR employees and officers in their individual and official capacities. The basis of Young’s complaint was that he was terminated in retaliation for exercising his constitutional right to petition the government for redress of grievances and freedom of speech. It was Young’s position that the officers became upset and terminated his employment when he went outside the chain of command by speaking with his state representatives. During the jury trial, at the close of Young’s case, the DNR and the officers filed a Motion for Directed Verdict on the basis that Young failed to exhaust administrative remedies.
On appeal, the court found that "[a]lthough Young raises constitutional issues which may be beyond the scope of the agency, there are factual issues relating to his termination which may have been resolved by the agency's administrative procedures."
The heart of Young’s case is that the DNR and the officers should not have terminated his employment. Therefore, Young’s failure to exhaust administrative proceedings divested the trial court of
subject matter jurisdiction over his state law claims. [citation omitted] Therefore, we hold that the trial court should not have asserted jurisdiction over Young’s state law claims. Consequently, Young’s state law claims are dismissed and the jury award thereon is vacated. * * * Because Young was afforded the opportunity to object to the jury verdicts as being inconsistent before the jury was dismissed and he failed to do so, his objections to the jury verdicts are waived. Additionally, because Young failed to exhaust the administrative remedies available to him, we hold that the trial court did not have jurisdiction over the state law claims and vacate the jury verdicts for those claims. Finally, because Young did not alter the legal relationship between himself and the DNR or the officers, we hold that the trial court correctly denied attorney’s fees and costs.
Check this story in today's Washington Post about a "coal-miner's daughter" that begins:
At a May stockholders' meeting of one of the nation's largest coal companies, one-time convenience store clerk and Pizza Hut waitress Julia Bonds rose and gave its CEO a dressing-down. Facing Massey Energy Co. chief Don Blankenship at the nearby podium, she accused Massey's mining operations of trampling on the people and environment of southern West Virginia.For background, see the Indiana Law Blog 6/2/03 entry.
[Update 6/14/03] Mountaintop mining in Kentucky is the focus of this story from the Louisville Courier-Journal.
A story today in the Washington Post titled "The Noses Didn't Notice: Bomb Dog Trainer Faces Fraud Trial," begins:
There are plenty of characters in the matter of United States of America v. Russell Lee Ebersole, but among the most crucial is a German shepherd named Peace. The government alleges that Peace had trouble recognizing the smell of explosives -- hardly a handicap, unless you are a dog whose job is to sniff around government buildings for dangerous materials planted by people intent on doing harm. And that's what Peace, Dublin, Hunter, Ivan, Bear, Rocky, Sadie, Molly Brown and other dogs trained by Ebersole were supposed to do.Ebersole, a 43-year-old Hagerstown, Md., kennel owner, is scheduled to go on trial today in U.S. District Court in Alexandria, charged with defrauding the government of more than $700,000 and putting at risk the lives of thousands of federal workers whose workplaces his canines guarded. Prosecutors, in court documents, claim that in the security-conscious months after the Sept. 11, 2001, terrorist attacks, Ebersole provided bomb dogs in the nation's capital that couldn't find bombs.
Hinojosa v. Hammond Board of Public Works (Ind.Ct.App. 6/3/03)
Riley, Judge
Plaintiff appeals the trial court's finding that the Board's final action of firing him should not be voided. Plaintiff claims the Board's action should be voided as a result of the Board's violations of the Indiana Open Door Law (IODL).
The Court here agrees with the trial court's determination that the burden of proof is on the plaintiff, not the Board, to prove that the Board's final action to terminate should be voided in light of the Board's violations of the IODL. Affirming the trial court, the Court here holds "that public policy would not be served by voiding the Board's decision because of the Board's IODL violations."
However, the Court affirms the trial court's grant of attorney fees to plaintiff: "Because the trial court found that Hirojosa's filing of this action was necessary to prevent current and future violations of the IOLD, we find that the trial court properly awarded attorney fees to Hinojosa."
Finaly, the Court rejects the Board's contention that the trial court erred in finding that the Board committed a violation of the IODL when it conferred with its legal counsel in the course of administrative disciplinary hearings:
Our review of the record shows that the Board violated the IODL when it conferred with its legal counsel off-record [emphasis in original] during the course of an administrative hearing. The record indicates that the Board took several recesses and off-record conferences during these hearings. As shown above, the purpose of the IODL is to assure that the business of Indiana and its political subdivisions is conducted openly so that the general public may be fully informed. See Baker, 753 N.E.2d at 70. Here, the record reflects that the public was not allowed to attend, record, or participate in any of the premeetings, off-record proceedings, or recesses taken by the Board to confer with its legal counsel. Moreover, the record reveals that Hinojosa’s counsel repeatedly objected to the holding of executive sessions, off-record proceedings or going into recess for the purpose of discussing, considering, or deciding matters relating to Hinojosa.Additionally, the record shows that the trial court properly acknowledged that the Board has the right to confer with legal counsel during a duly noticed meeting, on the record and in public to promote the IODL. Nevertheless, in the instant case, the Board violated the IODL by failing to comply with the express requirements or meeting in executive session under the express exceptions contained in I.C. § 5-14-1.5-6.1, when it conferred with its attorney for pre-meetings before its regularly scheduled public meetings. Specifically, I.C. § 5-14-1.5-6.1(b)(2)(B) states, “Executive sessions may be held only for discussion of strategy with respect to the initiation of litigation or litigation that is either pending or has been threatened specifically in writing.” The Board also violated I.C. § 5-14-1.5-6.1(e) by recessing and reconvening its regularly scheduled meetings on August 24, 2000, September 7, 2000, September 14, 2000, and September 21, 2000. The trial court did not violate attorney-client privilege [sic]; rather, the Board’s actions violated the IODL. Accordingly, we find that the trial court properly found that the Board violated the IODL when it conferred with legal counsel off the record during administrative law proceedings. See Baker, 753 N.E.2d at 70; I.C. § 5-14-1.5-6.1(b)(2)(B); I.C. § 5-14-1.5-6.1(e).
CONCLUSION. Based on the foregoing, we conclude that the trial court properly decided not to declare the Board’s final action void despite the Board’s violations of the IODL. Further, we conclude that the trial court properly awarded attorney fees to Hinojosa. We also conclude that the trial court did not err in finding that the Board violated the IODL when it conferred with its legal counsel off the record in the course of administrative disciplinary hearings.
The U.S. Court of Appeals for the Federal Circuit ruled yesterday in the case of Integra LifeSciences v. Merck that "Because the language and context of the safe harbor [of 35 U.S.C. § 271(e)(1)] do not embrace the Scripps-Merck general biomedical experimentation * * * this court affirms that aspect of the district court's decision."
Re the statutory "safe harbor" of 35 U.S.C. §271(e)(1), the Court states that "35 U.S.C. §271(e)(1) defines a safe harbor against patent infringement" and quotes the statute:
It shall not be an act of infringement to make, use, offer to sell, or sell within the United States or import into the United States a patented invention (other than a new animal drug or veterinary biological product (as those terms are used in the Federal Food, Drug, and Cosmetic Act and the Act of March 4, 1913) which is primarily manufactured using recombinant DNA, recombinant RNA, hybridoma technology, or other processes involving site specific genetic manipulation techniques) solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs or veterinary biological products.The court notes that this case poses a new question for this court:
This court has not considered the question arising in this case, namely, whether the pre-clinical research conducted under the Scripps-Merck agreement is exempt from liability for infringement of Integra's patents under § 271(e)(1). The Scripps-Merck experiments did not supply information for submission to the United States Food and Drug Administration (FDA), but instead identified the best drug candidate to subject to future clinical testing under the FDA processes. Thus, this court must determine whether the § 271(e)(1) safe harbor reaches back down the chain of experimentation to embrace development and identification of new drugs that will, in turn, be subject to FDA approval. [emphasis added]The court's answer is "no."
[T]he district court correctly confined the § 271(e)(1) exemption to activity that would contribute (relatively directly) to information the FDA considers in approving a drug. Intermedics, 775 F. Supp. at 1280.Footnote 2 of the majority opinion of Circuit Judges Rader and Prost responds to the dissent of Circuit Judge Newman:The exemption viewed in this context does not endorse an interpretation of §271(e)(1) that would encompass drug development activities far beyond those necessary to acquire information for FDA approval of a patented pioneer drug already on the market. It does not, for instance, expand the phrase "reasonably related" to embrace the development of new drugs because those new products will also need FDA approval. Thus, § 271(e)(1) simply does not globally embrace all experimental activity that at some point, however attenuated, may lead to an FDA approval process. The safe harbor does not reach any exploratory research that may rationally form a predicate for future FDA clinical tests.
As noted, the text of § 271(e)(1) limits the exemption "solely" to activities "reasonably related to the development and submission of information" to the FDA. Moreover, the context of this safe harbor keys its use to facilitating expedited approval of patented pioneer drugs already on the market. Extending § 271(e)(1) to embrace new drug development activities would ignore its language and context with respect to the 1984 Act in an attempt to exonerate infringing uses only potentially related to information for FDA approval. Moreover, such an extension would not confine the scope of § 271(e)(1) to de minimis encroachment on the rights of the patentee. For example, expansion of § 271(e)(1) to include the Scripps-Merck activities would effectively vitiate the exclusive rights of patentees owning biotechnology tool patents. After all, patented tools often facilitate general research to identify candidate drugs, as well as downstream safety-related experiments on those new drugs. Because the downstream clinical testing for FDA approval falls within the safe harbor, these patented tools would only supply some commercial benefit to the inventor when applied to general research.
Thus, exaggerating § 271(e)(1) out of context would swallow the whole benefit of the Patent Act for some categories of biotechnological inventions. Needless to say, the 1984 Act was meant to reverse the effects of Roche under limited circumstances, not to deprive entire categories of inventions of patent protection.
In her dissent, Judge Newman takes this opportunity to restate her dissatisfaction with this court's decision in Madey v. Duke. * * * However, the common law experimental use exception is not before the court in the instant case. The issue before the jury was whether the infringing pre-clinical experiments are immunized from liability via the "FDA exemption," i.e., 35 U.S.C. § 271(e)(1). The district court did not instruct the jury on the common law research exemption with respect to the Merck"s infringing activities. On appeal, Merck does not contend that the common law research exemption should apply to any of the infringing activities evaluated by the jury. Neither party has briefed this issue to this court. Moreover, during oral arguments, counsel for Merck expressly stated that the common law research exemption is not relevant to its appeal. Judge Newman's dissent, however, does not mention that the Patent Act does not include the word "experimental," let alone an experimental use exemption from infringement. See 35 U.S.C. § 271 (2000). * * *Thanks to How Appealing for the pointer. Currently the opinion appears to be accessible only in MS Word format via the link provided in How Appealing's entry.
Here is a link to a 3/24/03 writeup on the threatened expansion of the research exemption that gives some context to this decision. It cites two other cases, one from the Southern District of New York, and one from The District Court for Deleware, that have held that "in certain circumstances, research on new drugs using U.S. patented tools does not infringe those patents under the 'research exemption.'"
Updating my entry of 6/3/03 titled "Reading the law" allowed in 7 states, but not Indiana is information that the "First Net-schooled lawyers pass bar," from a MSNBC.com story, available here. This interesting story on the Concord Law School reports:
In the prestige-conscious arena of law, it’s unclear whether Internet-based degrees will carry some kind of stigma, and put a ceiling on the group’s legal careers. But the Concord graduates say no — in part because none of them aspire to make partner at a high-brow firm. And they claim to have received equal treatment during internships. “When I got my internship, it never came up that I went to a cyberspace school during two interviews,” Zouboulakis said. He said he did feel some skepticism from fellow interns from more prestigious schools. “I never felt like one of them,” he said, but added that had as much to do with his age, 40, as his school.Also see "First Graduates of Online Law School Achieve 60% Pass Rate on California Bar Exam," from the Silicon Valley Biz Ink (svbizinc.com).Concord is not perfect: To begin with, the school isn’t approved by the American Bar Association. The ABA has no provision for approving schools that offer their entire curriculum online, a spokeswoman said. That might hurt some graduates’ careers, as some jobs require applicants to hold a degree from an ABA-approved law school, and some states insist on the ABA seal of approval before graduates can take the bar exam.
Concord is accredited by the California Bureau of Private Post-Secondary and Vocational Education, which is only recognized by the California State Bar. So while interested students can earn a law degree from virtually anywhere, they can initially practice law only in California. A few states, such as New Hampshire, have reciprocity agreements with California — meaning those who pass the California bar are automatically entitled to sit for the Vermont exam. Jascob, who lives in New Hampshire, said he might take that route so that he can practice law in his neighboring state. [emphasis added]
And of course, not all Concord graduates passed the bar exam on their first try, though 6 out of 10 compares favorably with percentages at other law schools. Overall, 50.2 percent of first-time takers passed the California test, which was administered in February.
A story today in the Miami Herald reports "UM ready to defend itself against Big East lawsuit."
The University of Miami is prepared to defend itself in response to a lawsuit filed Friday by five Big East universities to prevent UM and Boston College from defecting to the Atlantic Coast Conference, said UM Athletic Director Paul Dee. The lawsuit, which was filed in state Superior Court in Hartford, Conn., says Miami and Boston College professed loyalty to their conference while conspiring a "deliberate scheme to destroy the Big East and abscond with the collective value of all that has been invested and created in the Big East.'' * * * The lawsuit came on the heels of a Herald report in Friday's newspaper that UM President Donna Shalala has indicated to ACC officials that if a formal invitation were extended, UM would leave the Big East to join the ACC. ACC officials had made campus visits to Miami, Boston College and Syracuse as part of the process. An invitation was expected to come as early as Monday.Bloomburg.com gives this background about the suit:
It says the schools publicly expressed a commitment to the Big East, which convinced other schools in the conference to spend millions to upgrade their football programs. The suit seeks "hundreds of millions of dollars" in damages and a court order barring Miami and Boston College from joining the ACC. * * * The ACC, which is composed of Florida State, Duke, North Carolina and six other universities, announced last month that it wanted to add three schools and probably would ask Miami, Boston College and Syracuse to leave the Big East. The expansion would enable the ACC to split into two divisions and have a lucrative championship game in football. The addition of Miami, which has won five football national titles in 20 years, also probably would bring a more valuable television contract to the ACC. The loss of the three schools would leave the Big East with only the five plaintiffs playing Division I-A football. The suit claims Miami and Boston College "have abandoned their contractual and fiduciary obligations to their partner schools in the Big East ... based on their desire to make more money irrespective of the cost to their partners."And, from TheInsiders.com, "Here is [the link to] part one of the complete text of the lawsuit filed by five Big East schools against the University of Miami, Boston College and the Atlantic Coast Conference." Part 2 of the complaint is here.
Another sports law story today, from the Washington Post, reports on the number of high school coaches facing lawsuits from disappointed parents.
Intensely involved parents are nothing new in sports. But the emergence and earning power of young phenoms such as Tiger Woods and Venus and Serena Williams, who were pushed by their parents to succeed, and Ohio high school basketball standout LeBron James, who raised the bar for players everywhere, have forced a shift in focus at the high school level. Decisions made on the high school field today could have an impact on an athlete's professional career, parents say.
Driver's license photo: national security matter or religious freedom issue? A Florida circuit court judge answered this question today. A story published at CBSNews.com reports:
A Florida judge ruled Friday that a Muslim woman cannot wear a veil in her driver's license photo. Prosecutors had argued that allowing people to cover all but their eyes in their ID pictures could allow potential terrorists to hide their identities. After hearing three days of testimony last week, Circuit Judge Janet C. Thorpe ruled that the state has a compelling interest in protecting the public, and that having photo identification was essential to that interest. Thorpe also said Sultaana Freeman's right to free exercise of religion would not be infringed by having to show her face on her license.Access The Indiana Law Blog's earlier coverage of the story here. Also, apologies are in order. In the earlier story I referred to the author of the law blog, The Niqabi Paralegal, as "he." In a note from Al-Muhajabah, she mentions: "I noticed that you described me as 'he'. Actually, I am a woman. Al-Muhajabah means 'she who wears Islamic dress'. The term 'niqabi' in The Niqabi Paralegal refers to the style of veiling that I wear." Thanks, I appreciate the correction!
Update. Here is a link to the 19-page judge's opinion in the case of Freeman v. State of Florida, via CourtTV.com. Thanks to How Appealing for the pointer.
This interesting entry was just published in the SW Virginia Law Blog. "The Virginia Supreme Court has this amended rule effective July 1, 2004, requiring all lawyers working in the Commonwealth as corporate counsel to either be licensed Virginia lawyers or to have obtained a 'Corporate Counsel certificate' or to have registered with the Virginia State Bar as a 'Corporate Counsel registrant.'"
J.M. Foster, et al. v. Spriggs (Ind.Ct.App. 6/5/03)
Mattingly-May, J.
The Court ruled that plaintiff's action "is barred by the construction statute of respose, as the contractors did not mine and sell asbestos and [plaintiff's] alleged injury arose out of a deficiency in the contractors' workmanship that caused a release into the air of asbestos fibers." The facts in the case:
Spriggs worked as a pipefitter at various sites in Northwest Indiana beginning in 1963. He was allegedly exposed to asbestos at a number of those jobsites. He contracted lung cancer, allegedly as a result of his inhalation of asbestos, and died of the disease on July 1, 1998. Foster and Morrison are industrial mechanical contractors. CBI is an industrial engineering and construction company. None has ever manufactured or sold asbestos or any products that contain asbestos. However, Plaintiff contends Spriggs was exposed to asbestos-containing products the Contractors installed or removed. At least ten years has passed since the Contractors completed their work at any of the sites where Spriggs might have been exposed to asbestos.The construction statute of repose cited in the Court's opinion is IC 32-15-1-2. Footnote 6 notes that the section was replaced in 2002 by "IC 32-30-2-5." However, the footnote is incorrect: the correct cite is "IC 32-30-1-5." Plaintiff relied on Covalt v. Carey-Canada (Ind. 1989) as holding "statutes of repose or limitations do not apply in asbestos cases." The Court here finds that Covalt was more limited than that, and continues:
Covalt appears to have been further limited, and has in fact been overruled to an extent, by AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068 (Ind. 2003). The Ott decision does not address the construction statute of repose, but does strictly limit the class of defendants subject to that section of the products liability statute of repose for asbestos-related actions. We must accordingly decline Plaintiff’s invitation to hold that “any statute of repose violates the constitutional rights of asbestos victims,” and we find the construction statute of repose bars the Plaintiff’s action.Check the Court's footnote 5, listing three of its prior decisions that "had interpreted [the] statute of respose as applicable to actions against entities that mined or entities that sold asbestos. The Ott court held that the statute was applicable only to entities that both mined and sold asbestos. The Ott decision thus reversed those decisions."
Note: The Indiana Law Blog 3/27/03 entry on Allied Signal, Inc. v. Ott is available here.
Predrag Vukovitch v. Donald R. Coleman and International Magnaproducts, Inc. (Ind.Ct.App. 6/5/03)
Mattingly-May, J.
The Court's introduction here really sums up the decision:
Predrag Vukovich appeals the grant of a preliminary injunction prohibiting him from competing against International Magnaproducts, Inc. (“IMI”) and its owner Donald Coleman pursuant to a covenant not to compete Vukovich and IMI had executed some two years previously. Vukovich asserts the injunction was improperly granted for a number of reasons, of which we find one dispositive: the covenant enforced by the injunction is unreasonable in the absence of a geographic limitation. We reverse and remand.The Court's conclusion:
"A covenant not to compete that contains no geographic limitation is presumptively void. See, e.g., Struever v. Monitor Coach Co., 156 Ind. App. 6, 8, 294 N.E.2d 654, 655 (1973) (“It has long been the law in Indiana that a covenant not to compete containing no spatial limitations is void and unenforceable.”). * * *A covenant without a geographic limitation may be reasonable if its reach is adequately limited by other means. In Seach v. Richards, Dieterle & Co., 439 N.E.2d 208, 213 (Ind. Ct. App. 1982), we noted that as the specificity of limitation regarding the class of person with whom contact is prohibited increases, the need for limitation expressed in territorial terms decreases. There, the covenant prohibited Seach from contacting past, present, or prospective clients of the firm. We rejected as unenforceable the portions of the covenant concerning past and prospective clients, but determined the non-competition agreement was valid as to present customers of the firm. We noted we need not reject the entire contract because when objectionable and non-objectionable terms appear in a contract, the contract may be held divisible and the restriction as to the reasonable limits expressed could be enforced. Id. at 215.
The covenant IMI and Vukovich entered into contains no such additional limitation that might reduce or eliminate the need for a territorial limitation. It purports to prohibit direct or indirect competition with IMI and to prohibit Vukovich from owning, managing, operating, or consulting with “a business substantially similar to or competitive with” IMI’s business. Because the covenant before us as written “could apply to the entire world,” Struever, 156 Ind. App. at 10, 294 N.E.2d at 656, and includes no provision otherwise limiting its scope, the covenant is invalid and the injunction enforcing it was improperly granted.
Senator Trent Lott, now chair of the Senate Rules Committee, is holding a hearing today on Senate Rule XXII and proposals to amend the rule. Access the witness list here. The hearing is set for 2:00 p.m. You can listen to the hearing at that time via this link. [Update: C-Span now reports you can also watch/listen to the hearing here via C-Span3 at 2:00 pm EDT.]
The NY Times today, in a story titled "From One Esteemed Corner, a Lesson About the Senate's Filibuster Rule," reports:
In a letter sent this week, Robert A. Caro, a biographer of Lyndon Baines Johnson and author of "Master of the Senate," which won a Pulitzer Prize this year, warned lawmakers against diluting the rights of the minority even as he noted the filibuster was a potent tool used against the civil rights legislation championed by Senator Johnson. * * * Mr. Caro noted that a filibuster cuts both ways. "If it is being used against you, it is a vicious weapon of obstruction, whose use in a democracy is unconscionable," he wrote. "If it is you who are using that weapon, it is a great one to have in your arsenal."Also check The Hill's 5/21/03 story on "Lott's new goal: Changing some Senate rules."
Here are the links to the Indiana Law Blog's two-part series (published in early May, 2003) on: Part 1. The Filibuster (comparing U.S. Senate procedures on limiting debate to Indiana Senate procedures), and Part 2. Cloture.
[Update 6/6/03] Here are reports on yesterday's Rule's Committee hearing on limiting the filibuster from the New York Times, Washington Post, and Washington Times.
CNET News.com published an interesting story yesterday titled "Computers replace petri dishes in biological labs." This is not new news, but the article has some interesting points:
With biosciences research advancing at breakneck pace, scientists are looking for ways to better manage the mushrooming quantities of biomedical data reaching their desks. In addition, pharmaceutical companies need to develop new therapies quickly and efficiently as drug patents expire and R&D costs escalate. External pressures are also contributing to the trend. The Food and Drug Administration is re-examining and may revise a set of rules for companies that submit or maintain information electronically. The "Pharma Y2K" guidelines, as some call them, dictate things such as the use of digital signatures. All this is giving birth to a new approach whereby computer technology and "in silico," or simulated, experiments will largely replace painstaking, traditional petri-dish research. "We'll see over the next decade the complete transformation (of the industry) to very database-intensive as opposed to wet-lab intensive," says Debra Goldfarb, a group vice president and life sciences specialist at IDC.Here is a great article from the 11/25/02 issue of The Scientist titled "Coding with Life's Code: Applications and developments in DNA-based computing." The article begins:
A multidisciplinary group of researchers is trying to change the way people think about computers. Why rely solely on silicon-based hardware, they say, when there is so much promise in * * * "bioware"--nucleic acids and enzymes? It's not as far-fetched as it sounds: A computer is nothing more than a device that computes--that is, it performs a defined series of operations on a set of input data to produce an answer. * * * Ordinary biological processes, they say, are simply glorified computational algorithms, or sets of instructions for operating on data. But instead of crunching binary numbers (0 and 1), the DNA computer uses base-four math, as it were--A, C, G, and T.And this story from last 12/12/02's issue of The Economist titled "The race to computerize biology," which begins:
FOR centuries, biology has been an empirical field that featured mostly specimens and Petri dishes. Over the past five years, however, computers have changed the discipline—as they have harnessed the data on genetics for the pursuit of cures for disease. Wet lab processes that took weeks to complete are giving way to digital research done in silico. Notebooks with jotted comments, measurements and drawings have yielded to terabyte storehouses of genetic and chemical data. And empirical estimates are being replaced by mathematical exactness.Finally, for now, is this not-quite-related but fascinating article from the 1/7/03 issue of Fortune, more on the industrial technology side of things, titled "Biotech Gets Productive: Biopharma companies know how to make cool stuff. Now they are learning how to make a lot of it."The problem:
Unlike traditional drug companies, which make their products using lab-style chemical synthesis conducted on a large scale, biopharma grows its medicines in living cells--mammalian, bacterial, or fungal. * * * About 60 years ago scientists began using fungal cultures to make penicillin and the succeeding generations of lifesaving antibiotics in wide use today. And during the past 20 years researchers figured out how to insert human genes into the DNA of bacteria and animal cells, thereby inducing them to produce therapeutic protein medicines by so-called recombinant means. * * * With dozens of new biotech protein drugs now in the development pipeline, the industry is in a bit of a panic about how to produce them once they clear the FDA's licensing hurdles. The obvious answer is to build more plants full of bioreactors. But these gleaming, aseptic facilities don't come cheap. Charles Cooney, an MIT professor who is an expert in bioprocesses, says it costs about $1,200 per square foot to build and equip a new biotech plant, which adds up to $300 million for a typical 250,000-square-foot facility. What's more, getting a plant designed, built, and approved by the FDA can take four or five years. So rather than just throw more money at the problem by building new plants, the biotech industry is investing a lot of brainpower to make its processes more productive.The answer, it turns out, is to "tune" or "optimize" the drug molecule for manufacturability:
Cooney at MIT thinks disciplines like design for manufacturability will help biotech companies as much as they have other manufacturers. "If you think about this early enough in product development, it can offer big economic gains," he observes. "Purification is probably the most expensive and difficult part of the manufacturing process, so why not try to design drug molecules that have fewer impurities associated with them?" * * * Cooney thinks biotechnology is entering a period in which scientists will be able to manipulate cells in increasingly profound ways. "We're just seeing the early examples now, and the number will increase dramatically," he predicts. What a welcome concept for the biopharma people: making more drugs without buying more hardware.[Many thanks to The Economist, The Scientist, and Fortune, who retain their archives online and freely accessible, so that people may continue to reference their valuable work -- unlike the NY Times, which incredibly (to me) now removes their stories from free access after only one week.]
The May 2003 issue of Res Gestae, the Journal of the Indiana State Bar Association, arrived yesterday in my mailbox and includes the article Elizabeth L. DuSold and I authored: "Assuring Adequate Notice and Enforceability of Environmental Covenants: A Key to Brownfields Redevelopment." Res Gestae unfortunately is not available online. However, an earlier version of the brownfields article is available via my publications page.
Also in this May issue of Res Gestae is a fine article by Jon Laramore titled "The Demise of Special Laws? Dispelling the Myths Generated by Kimsey." The case referred to is, of course, City of South Bend v. Kimsey (Ind.S.Ct. 1/15/03). The Indiana Law Blog also published a feature on the Kimsey decision, on March 30, 2003 -- access it here. Hopefully those who read my entry back then are not among those who fell subject to the myths the Laramore article is aimed at dispelling. Here is his first paragraph:
The Indiana Supreme Court's recent decision invalidating a special law in Civil City of South Bend v. Kimsey already has generated two myths. The first is that Kimsey represents a new direction for the Indiana Supreme Court. The second is that it forecasts the demise of all special laws, that is, statutes applying to particular geographic areas rather than the entire state. Both of these propositions are wrong.
The Christian Science Monitor published an interesting story yesterday on how it is still possible, in seven states (not including Indiana), to "read for the bar" as Abraham Lincoln did, rather than graduating from law school. Access the story here. Titled "The self-made lawyer," this very interesting story reports:
Stonier is one of a few hundred students in seven states - including 43 in Vermont - who aim to become lawyers without ever having enrolled in law school. Like many of them, she works side-by-side with a practicing lawyer, learning by day in a real-life laboratory and by night in the solitude afforded by dim lighting and open textbooks on torts and property.Our Indiana Board of Law Examiners website states: "It is required that you be a graduate of an ABA approved law school in order to be eligible to sit for the Indiana bar examination." Of course that wasn't always so. Our 1851 Indiana Constitution originally guaranteed, at Art. 7, Sec. 21:Law-office study programs, also known as "reading the law," defy a national trend in recent decades to standardize education requirements for licensed professionals. They do so despite pressure from the American Bar Association, which tells all 50 states in its 2003 Code of Recommended Standards for Bar Examiners: "Neither private study, correspondence study or law office training, or age or experience should be substituted for law-school education." * * *
Only seven states - Vermont, New York, Washington, Virginia, California, Maine, and Wyoming - offer law office study as a road to the bar exam. States offering this path seldom have more than 50 students pursuing it at any given time. Correspondence study or learning law on-line have attracted more than 1,000 participants at a time, but only California, New Mexico, and Washington, DC, will administer the bar exam to someone with this training.
Every person of good moral character, being a voter, shall be entitled to admission to practice law in all Courts of justice.When and why that provision was eliminated proves to be an interesting story, set out in my well-worn copy of The Centennial History of the Indiana General Assembly, 1816-1976 (Justin E. Walsh, 1978, p. 479). In 1931 the General Assembly submitted two amendments for approval by the voters at the general election of 1932:
One authorized the state to tax incomes; the other stipulated that educational requirements would be established for admission to the bar. The legal profession, a powerful influence in the legislature, had sought since the 1890s to substitute formal legal training for the Constitution's simple requirement that anyone of "good moral character" could practice law.Although both amendments were approved by the electorate by a majority of those voting on the amendment, neither passed by the then required "margin equal to a majorty of the votes cast in the election." (In other words, then as now, a number of people skipped over any constitutional amendment questions on the ballot.)
In 1935, in the landmark case In re Todd, the court reversed nearly fifty years of precedent with a ruling that the lawyers amendment was part of the Constitution because a majority of those who voted on the proposition had favored it. The reasoning in the Todd case also applied to the income tax amendment and meant that after 1935 it would be less difficult to amend the state Constitution." (emphasis added)(Thanks to the SW Virginia Law Blog for the pointer on the Christian Science Monitor story.)
Doris Cheatham v. Michael Pohle (Ind.S.Ct. 5/30/03)
Boehm, J. (Shepard and Sullivan concur; Dickson dissents with separate opinion, in which Rucker concurs)
Indiana's punitive damages allocation statute, IC 34-51-3-6, provides that an award of punitive damages is to be paid to the clerk of the court, who is then to pay 75% to the State's Violent Crime Victims' Compensation Fund and 25% to the plaintiff. In this case the statute was challenged: (1) as an unconstitutional taking of property; and (2) as demanding an attorney's "particular services" without just compensation under Art. 1, Sec. 21 of the Ind. Const. and as imposing a tax upon the plaintiff and her attorney in violation of Art. X, Sec. 1 of the Ind. Const.
In his opinion, J. Boehm first reviewed punitive damages in Indiana:
In assessing the claim that the allocation statute takes property without just compensation, it is essential to understand the nature of a claim for punitive damages. The purpose of punitive damages is not to make the plaintiff whole or to attempt to value the injuries of the plaintiff. Rather, punitive damages, sometimes designated “private fines” or “exemplary damages,” have historically been viewed as designed to deter and punish wrongful activity. As such, they are quasicriminal in nature. * * * As a matter of federal law, state legislatures have broad discretion in authorizing and limiting the award of punitive damages, just as they do in fashioning criminal sanctions. * * * To the extent punitive damages are recoverable, they are a creature of the common law. * * * As we have repeatedly held in other contexts, the legislature is free to create, modify, or abolish common law causes of action. * * * And, as a matter of federal constitutional law, no person has a vested interest or property right in any rule of common law. * * * As a result, the General Assembly is free to eliminate punitive damages completely, as other states have done, and also has wide discretion in modifying this “quasi-criminal” sanction.The Court concluded this portion of its analysis by stating that because, unlike compensatory damages, "punitive damages do not compensate the plaintiff, the plaintiff has no right or entitlement to an award of punitive damages in any amount." As for the taking claim, the Court found that:
[A]ny interest the plaintiff has in a punitive damages award is a creation of state law. The plaintiff has no property to be taken except to the extent state law creates a property right. * * * The Indiana legislature has chosen to define the plaintiff’s interest in a punitive damages award as only twenty-five percent of any award, and the remainder is to go to the Violent Crime Victims’ Compensation Fund. The award to the Fund is not the property of the plaintiff. Nor is her prejudgment claim a property interest. Rather, the claim she had before satisfaction was, pursuant to statute, a claim to only one fourth of any award of punitive damages. As a result, there is no taking of any property by the statutory directive that the clerk transfer a percentage of the punitive damages award to the Fund.The Court observed that "[s]everal states have statutes that allocate punitive damages to the state in some form similar to the Indiana version."
Of the state courts that have addressed the issue, only the Colorado Supreme Court has found an unconstitutional taking of property, while statutes in Alaska, Oregon, Georgia, Florida and Iowa have been upheld.The Court dismissed the "uniform and equal taxation" claim on the basis that only the taxation of "property" is governed by the constitutional provison and "[f]or the reasons stated above, Cheatham has not property interest in the punitive damages award." Re the plaintiff's claim that under Ind. Const. Art. 1, Sec. 21, which provides that "no person's particular services shall be demanded, without just compensation," the Court said that "this provision applies only if both a 'person's particular services' are rendered and they have been 'demanded' by the State." Here, the Court concluded, "the attorney was free to accept or reject representing Cheatham on whatever terms the two would agree." In sum:
Section 34-51-3-6 does not exact a taking of private property or place a demand on any attorney to undertake any representation. As a result, any judgment for an amount awarded as punitive damages is subject to the allocation required by section 34-51-3-6. The judgment of the trial court is affirmed.Dickson, J. (dissenting):
In declaring that the allocation required by Indiana Code § 34-51-3-6 does not constitute a taking of private property in violation of the Takings Clauses of our federal and state constitutions, the majority relies primarily upon its contention that punitive damage plaintiffs have no property right in a judgment awarding punitive damages. I disagree. A person's property interest in a judgment vests upon the entry of that judgment by the trial court, not upon the eventual payment of the judgment by the judgment debtor.The dissent points to IC 34-51-3-3, which "requires that the statutory cap and allocation be concealed from every jury considering a claim for punitive damages." The dissent asserts that although plaintiff's prejudgment claim of punitive damages is not a property interest, it becomes a vested property interest upon the entry of a final judgment, and it is not within the power of a legislature to take away rights once they have been vested by a judgment.
At the conclusion of the trial in this case, the jury here returned a verdict in favor of Doris Cheatham awarding her $100,000 in compensatory damages and $100,000 in punitive damages. The trial court thereafter entered judgment "in favor of the Plaintiff Doris Cheatham and against the Defendant Michael Pohle in the amount of Two Hundred Thousand ($200,000.00) Dollars." Record at 88. Upon this entry by the trial court, the judgment became the property of Doris Cheatham. I am convinced that Indiana's statutory punitive damage scheme, which attempts thereafter to confiscate this property at the point the judgment is paid, inescapably violates the Takings Clauses in both the Fifth Amendment to the United States Constitution ("nor shall private property be taken for public use, without just compensation") and Article 1, Section 21, of the Indiana Constitution ("No person's property shall be taken by law").
There were several stories this weekend on a new government study of the effects of mountaintop mining. The Washington Post reported on Friday, 5/30/03:
A study examining the regulation of mountaintop coal mining says the government needs to do a better job of overseeing the practice in which ridges are blasted away and rocks and dirt are dumped in valleys and streams. Environmentalists said they expected more from the report by five government agencies -- four federal and one in West Virginia. "It says nothing about protecting the environment and the communities nearby," said West Virginia environmental lawyer Joe Lovett.The LA Times reported, also on Friday, in a story headed "Mining Damage in Appalachia Extensive, U.S. Finds":
For two decades, mining companies have extracted coal from Appalachia's steep peaks by lopping off the tops of mountains and discarding the leftover rock and earth in stream valleys. Bush administration officials reported Thursday that the practice had cost the region 7% of its forests and 724 miles of its streams. To reduce future harm, the administration proposed better coordinating the state and federal agencies that regulate "mountaintop removal mining" and developing better procedures for monitoring its effect.According to the Times story, the report was issued by the "Office of Surface Mining, an agency of the Interior Department. ... In addition to the Office of Surface Mining, the other agencies involved in the draft were the Environmental Protection Agency, the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service and the West Virginia Department of Environmental Protection."
A press release issued 5/29/03 by the Office of Surface Mining clarifies that the "report" or "study" referred to is a draft environmental impact statement. The 7-page press release begins:
WASHINGTON D.C. -- Federal and state agencies released today for public review a draft environmental impact statement (EIS) recommending new actions to further enhance protection for Appalachian streams from effects associated with mountaintop coal mining. “The draft EIS recommends actions designed specifically to ensure more effective protection for human health and the environment while enabling the Nation to continue to receive the energy benefits of cleaner burning Appalachian coal,” according to a joint statement released by the agencies. The statement goes on to say that, “The additional steps recommended in the draft EIS build upon Federal and State actions undertaken in recent years that are effectively reducing mountaintop coal mining related environmental impacts.”The entire press release may be downloaded here from the government site (note that it is only available as a Word document).
Access the index page for the "Mountaintop Mining Environmental Impact Statement" to review the report itself. (Note that the public comment period for this Draft EIS closes on August 29, 2003.) Or go directly to the Executive Summary. The Summary notes that: "The agreement to prepare the Draft EIS is contained in a settlement agreement that resolved the Federal claims of the coal mining court case known as Bragg v. Robertson, Civ. No. 2:98-0636 (S.D. W.V.)."
Also of interest is the 55-page opinion of the US CA for the 4th Circuit (1/29/03) in the case of Kentuckians v. Rivenburgh (Army Corps), which begins:
This appeal presents the issue of whether the U.S. Army Corps of Engineers has authority under the Clean Water Act and under its now-superseded 1977 regulation implementing the Act to issue permits for valley fills in connection with mountaintop coal mining. It does not present the question of whether mountaintop coal mining is useful, desirable, or wise.The 4th Circuit opinion concludes:
In sum, we vacate the injunction issued by the district court on May 8, 2002, as modified on June 17, 2002; we reverse the district court's declarations that "fill material" as used in § 404 of the Clean Water Act is limited to mean "material deposited forThe 5/8/02 opinion of Judge Hayden of the USDC, SD Va, is available here.
some beneficial primary purpose . . . , not waste material discharged solely to dispose of waste" and that the Corps has acted ultra vires in issuing valley fill permits, particularly the authorization to Martin Coal in this case; we vacate the district court's memorandums and orders of May 8 and June 17, 2002; and we remand for further proceedings not inconsistent with this opinion.
A story published the Sunday after the 4th Circuit opinion was released (2/2/03) in the Charleston Sunday Gazette-Mail gives some context to the opinions. The story, headed "Ruling will not end coal mining battle," begins:
In the first paragraph of his opinion last week on mountaintop removal, Judge Paul V. Niemeyer made one thing clear. The 4th U.S. Circuit Court of Appeals’ decision, Niemeyer wrote, does not decide the broader questions about the practice. “It does not present the question of whether mountaintop coal mining is useful, desirable or wise,” Niemeyer wrote.The "formal draft" referred to in the last paragraph of the story is the draft environmental impact statement released 5/30/03.In Niemeyer’s decision, the 4th Circuit threw out a May 2002 ruling by U.S. District Judge Charles H. Haden II that strictly limited mountaintop removal valley fills. Coal industry officials proclaimed the 4th Circuit’s action to be a victory for them and their employees. “The livelihoods of thousands of hard-working people throughout Central Appalachia have been safeguarded by today’s decision, and millions of homes and businesses that rely on coal-based electricity are once again assured of reliable and affordable energy,” said National Mining Association President Jack Gerard.
Environmental groups and coalfield citizens criticized the appeals court decision. “While the judges and lawyers argue the technicalities and interpretations of the law, strip mining is destroying our mountains and streams and taking away a future for our children,” said Patty Wallace, a member of Kentuckians for the Commonwealth, a citizens group that had sought Haden’s ruling. Citizen groups are likely to advance a number of efforts to continue to try to limit or ban mountaintop removal.
Later this month, federal regulators are expected to release a formal draft of a four-year study of mountaintop removal. Information from previous drafts, obtained under the Freedom of Information Act, indicates that investigators found serious and long-term environmental problems.
The Indiana Supreme Court granted transfer on 5/20/03 for: Estate of Samuel J. Dellinger, Sr., Deceased v. 1st Source Bank. For background, you may access our May 11, 2003 entry on the appellate court opinions: As we noted then:
The issue, as stated by the Court, is: "Whether the witness signatures in a will’s self-proving clause also suffice as attesting witness signatures." The Court's decision turns upon its construction of the statute: IC 29-1-5-3.Oral argument before the Supreme Court is set for Thursday, June 12, 2003 at 9:45 a.m. You may watch a webcast of the argument from this Court web page live or later via Real Video.
The 7th Circuit Court of Appeals, in the case of Brian Majors et al. v. Marsha Abell, et al., decided 1/23/03, reversed the federal District Court's decision dismissing the case for lack of subject matter jurisdiction. Judge Posner wrote the opinion:
An Indiana statute, challenged in this suit as an infringement of free speech, requires that political advertising that “expressly advocat[es] the election or defeat of a clearly identified candidate” include “adequate notice of the identity of persons who paid for . . . the communication,” Ind. Code §§ 3-9-3-2.5(b)(1), (d), and makes violation a misdemeanor. * * * On its face, the Indiana statute applies to all persons who pay for political advertising that expressly advocates the election or defeat of a particular candidate. The defendants (various state and local election officials) argue to us as they did to the district judge that a proper interpretation of “persons” limits the term to candidates, their committees, and the committees’ agents. But no Indiana court has so interpreted the statute—nor did the district judge, who said only that “apparently” it was so limited. The website of the Indiana Election Commission, http://www.in.gov/sos/pdfs/Disclaim.pdf (May 2002), does not contain the limiting interpretation, but on the contrary says that the statute applies to “individuals, organizations, or committees who purchase advertisement time or space or circulate or publish material in support of or in opposition to a candidate, a political party, or a public question” and indeed to “all individuals and political organizations” who do any of these things (emphasis added).Finding that the suit should not have been dismised on jurisdictional grounds, the court turned to its merits:
Although the parties prudently have briefed the merits, we think it would be premature for us to decide them. For they may depend on the meaning of the challenged statute, which only the Indiana courts can determine authoritatively. If the statute is as narrow as the defendants claim it is, it is a straightforward antifraud statute unlikely to present serious constitutional problems. For on their interpretation it merely forbids the candidate and his organization to create the impression that independent voices support him or oppose his opponent, when in fact the voices are those of the candidate himself, playing ventriloquist. * * * But if instead as the plaintiffs argue the statute reaches all persons, then it is a blanket prohibition of anonymous campaign-related speech (unless the speech is costless, for it is only the identity of the payor of political advertising that is required to be disclosed), and thus puts a crimp in political speech by exposing persons who want to express themselves for or against a particular candidate to the risk of retaliation. * * * Several courts have * * * upheld statutes materially identical to the Indiana statute broadly interpreted to reach “all persons.” * * *This certified question was argued before the Indiana Supreme Court on 5/29/03 (last Thursday). Thanks to the Indiana Court's Oral Arguments Online feature, you may watch the argument via Real Video. Click here to go to the Court's list of May 2003 webcasts, then scroll down to Brian Majors v. Marsha Abell.The fact that the state in our case is advocating the narrow reading of its statute indicates its awareness that if broadly interpreted, * * * the statute may be unconstitutional. The statutory language supports the broad interpretation, but literal interpretations are often rejected when necessary to save a statute from being held unconstitutional.
We therefore certify to the Indiana Supreme Court, pursuant to 7th Cir. R. 52 and Ind. Code § 33-2-4-1, the following question, upon the answer to which the further proceedings in this appeal will depend:
Is the term “persons” in Ind. Code §§ 3-9-3-2.5(b)(1), (d) limited to candidates, authorized political committees or subcommittees of candidates, and the agents of such committees or subcommittees, or does it have a broader scope, and, if so, how much broader?
Today's Indianapolis Star had comprehensive coverage of this issue in a story by the Star's political reporter, Mary Beth Schneider, titled "What's a person? Court must decide in political-ads suit: Definition will help determine disclosure rules for buying political ads." The story begins:
You may think you know what "a person" is. You may think everyone knows what "a person" is. But right now, Indiana's five Supreme Court justices are debating it, and the answer -- which eventually could come from the U.S. Supreme Court -- could have far-reaching consequences for elections in Indiana and across the nation.The state's highest court got into the definition business at the request of the U.S. Circuit Court of Appeals in Chicago. Under Indiana law, a person who spends money on political advertising must disclose his or her identity. At issue is whether that applies to everybody, or just to candidates and political committees.
If the state Supreme Court decides that a person is, well, any person, the federal court may be poised to declare Indiana's entire law an unconstitutional restriction of free speech. If the state court decides that, at least in this statute, a person is a political candidate and the committee trying to elect him or her, Indiana's law would be gutted, said Julia Vaughn, policy director for the citizens lobbying group Common Cause/Indiana.