Boy, appellee’s counsel did a good job here.

Conner Prairie is a 40 year old living history museum in Fishers, Indiana (just outside of Indianapolis). It is run by Earlham College (my alma mater), a small Quaker school in Richmond, Indiana.

Mr. Eli Lilly, (heir of the family responsible for the drug company) in 1963 gave Earlham the entire land and complex of buildings and equipment that made up the Conner farm, with the provision that approximately 58 acres, the Conner homestead, would be preserved in perpetuity as a historical monument, but with the remaining 1,370 acres transferred “free of any restrictions so that the property may be held or sold at the discretion of the Earlham governing board and the proceeds used to assist in the maintenance of its educational establishments.” The Museum was supported by subsequent gifts from Mr. Lilly. Sometimes the gifts we generally to Earlham, and sometime restricted to the Museum. Earlham was left to determine how to preserve and administer the home, which over time has developed into a rather huge cultural-educational tourist-attraction.

The ultimate goal was to present a representation of an Indiana village of the mid-1830s. Through the ongoing gifts, Earlham’s endowment has grown with the popularity of the Museum. As the Museum grew, Earlham began to give its management more control over its functions, and eventually, the Museum has come to be run by a separate president and 31 member board.

The problems (as I see it) started when the Museum began to seek more autonomy, and specifically, a greater share of income from the Lilly gifts to Earlham. Then, last June, Earlham fired the president and 27 of the board members. This is when the dispute went public.

The fired management has sued the college and basically charged Earlham with improperly using money that Mr. Lilly intended to go to Conner Prairie for its educational purposes. Earlham has a very different interpretation of these gifts and the intended role Earlham was to have in overseeing Conner Prairie.

Indiana Attorney General Steve Carter got involved and tried to help the parties broker a deal. And today, the Palladium-Item reports that Carter has now taken legal action to force Earlham to turn over records relating to the management and funds involved in the dispute.

Landrum Bolling, President of Earlham when the gift was made, good friend of Mr. Lilly, and former director of the Lilly Endowment (the large foundation created by the Lilly family for charitable purposes), has posted his reflections of the true intent of Mr. Lilly in creating the museum.

Mr. Carter and the fired management team are all members of Indiana’s political elite, based in Indianapolis. Earlham has come under lots of bad press (Indiana’s paper of record, the Indianapolis Star, is located in the power center), and has taken some blows to its image. The true story line here is yet to be established, but I cannot help feeling that a small school of the edge of Indiana might be getting shoved around by some powerful folks in the capitol.

The uncivil litigator has responded to my reflections on the practice of law in small vs. large firms. I cannot dispute his comments. My view of the practice in large firms is weakened by that fact that I have never worked in a large firm. Uncivil has seen both, working as an associate in a large firm now, and having worked in a small firm before graduating from law school. His superior view of the difference brings up a key piece of advice for anyone considering a career in the law: try to get experience working in as many diverse areas of the law as you can before you graduate and make the leap into one of them.

When I was in law school, I interned with a federal magistrate and worked in the criminal law clinic, representing indigent defendants in the huge Marion County public defense system (under the competent supervision of a pair of seasoned veterans). Both of these experiences helped me formulate my view of the practice of law and how I wanted to do it. Coming out of law school is like being at Kennedy Airport: you can go just about anywhere, but once you hop on the plane (take a position) your options suddenly disappear, and changing destinations can only be accomplished with much difficulty and sacrifice.

Uncivil points to an aspect of the practice in big firms that is certainly appealing: In small firms, attorneys tend to do much of the grunt work themselves, while in big firms, with extensive staffs and infrastructure, attorneys are freed to focus on the true work of a lawyer. I must admit this rings true to me. I don’t run paperwork down to the courthouse myself. I have a secretary and a paralegal to handle most of the true grunt work, but my job entails many tasks that have nothing to do with the law. I am the tech support person for the office. I had to set up and maintain the accounting package. Often, I end up running my own copies, sending faxes, and doing other tasks that are easier to do myself than wait for someone else to get the time to do it. I know local attorneys who even clean their offices themselves (although I think it has to do with being cheap).

Lawyers like me, who handle a variety of legal matters for their clients, in many areas of practice, are a disappearing bread. Being a “generalist” can leave you on unequal footing with the specialists in the big firms. One of my client’s operates a business that is of a type where he often gets sued by his customers. He has insurance for this risk, so I frequently get to work with an attorney at a big firm retained by the insurance company whose major focus in life is defending people in my client’s business from this particular type of claim. His experience and skill in this area is impressive (they have not had to pay a claim yet). What I give my client is affordable access to legal assistance with more mundane concerns (leases, licencing, employees, etc.) plus a contact when he, his family or friends need help with a family law issue, bankruptcy (or maybe a criminal matter).

According to a piece in the Star Press, Indiana attorney Bruce McLaren was sentenced to a five month term in prison for running a real estate scam that left mortgage lenders holding almost worthless paper. The scam was summarized as follows:

According to federal authorities, McLaren, real estate agent Cindy Hickey, 45, and appraiser Danny R. King, 37, conducted 25 fraudulent real estate transactions between 1998 and July 2001. Most of the homes involved were on Muncie’s south side, investigators said. McLaren bought homes at low cost to resell. Then he and Hickey provided mortgage lenders false information about buyers’ assets in order to get the buyers to qualify for mortgages. King allegedly provided numerous appraisals that corroborated the grossly inflated sales prices to mortgage lenders. Based on the bogus information, the buyers obtained loans that were sometimes twice as much as McLaren had paid for the houses, investigators said. McLaren and Hickey shared the profits from the transactions, authorities alleged, and paid King a fee for his appraisals. In most instances, the buyers defaulted on their mortgages, prompting loan companies to foreclose on the properties.

I wish this type of scam was rare, but it has become increasingly common in some form or another. What is rare is the prosecution.

Marcia J. Oddi of the Indiana Law Blog points to a decision issued by the Seventh Circuit today: “Noteworthy among the opinions issued today by the USCA for the 7th Circuit is an immigration case, GUCHSHENKOV, IVAN v. ASHCROFT, JOHN D., where Judge Posner writes about the immigration judge”:

Her analysis fell far below the minimum required to support an administrative decision. It is one more indication of systemic failure by the judicial officers of the immigration service to provide reasoned analysis for the denial of applications for asylum. We are mindful that immigration judges, and the members of the Board of Immigration Appeals, have heavy caseloads. The same is true, however, of federal district judges, and we have never heard it argued that busy judges should be excused from having to deliver reasoned judgments because they are too busy to think. The two cases under review, like the other cases in which we have reversed the board of late, are not so difficult that it is unreasonable for a reviewing court to expect and require reasoned judgments at the administrative level. The errors that have compelled us to reverse in these cases despite the deferential standard of judicial review of agency action are not subtle. Asylum seekers should not bear the entire burden of adjudicative inadequacy at the administrative level.

James Edward Maule, from the Villanova School of Law, posts a great review of exactly how Congress “abolished” the marriage penalty with recent legislation, and opens up a window on why every time Congress acts to “fix” the tax code, the result is more complexity, more confusion, in short chaos.

UPDATE:

On this subject, Paul L. Caron, from the Univ. of Cincinnati College of Law, points to a study by the Tax Foundation regarding the pending expiration of the marriage penalty relief provision (most of the recent federal tax reforms were “sunsetted” i.e. set to expire, over the 4 to 10 years following 2001. Once the revision expire, the old law goes back into effect (unless Congress passes the President’s initiative to make the changes permanent)). Prof. Caron notes:

They conclude that the failure to enact the pending legislation would have the biggest impact on lower-income couples. For example:

Income Range…………..% Increase in Tax Burden If No Marriage Penalty Relief

$10,000-$15,000……………..563%
$15,000-$20,000………………..69%
$20,000-$25,000………………..21%

One of the frequent tasks in the practice of law is finding people. Rarely, I have the occasion to dig someone up to give them good news, like some distant relative has died, leaving them money. Most often, I need to find someone who owes a client money, or they were a witness to something and I need to find them and drag them into court to testify. To accomplish this, I rely on commercial databases that provide leads on contact information. Most people expect that personal information they give to the government will not be displayed to the world at large. To some extent this is true (the IRS discloses information regarding each federal tax return an average of about thirty times). The trend in government is to limit access to personal information. However, people freely give out information about themselves all the time to private businesses without giving it a second thought. This information is then sold off so that people like me can use it. One of the most reliable sources of contact information comes from an unexpected place:

David Coplen, the state office’s budget director, said he discovered that pizza delivery lists are one of the best sources such companies use to locate people. “There are literally millions of dollars of uncollected fines, fees and court costs out there,” Coplen said. [...] Databases compiled by private companies and government agencies are a key tool for firms such as ACS, Coplen said, and “one of the databases they find to be most helpful are pizza delivery databases.” “When you call to order a pizza, you usually give them your correct name, your correct address and your correct phone number,” he said.

Link to IP via boingboing.

The moral? If you owe people money, you might consider picking up your pizza.

The Indiana Law Blog posted a good collection of information on the ongoing dispute between the local towns of College Corner (basically one town, half in Indiana, half in Ohio, so they are legally separate). The towns are basically playing “hot potato” with their sewage. Nice.

This seems like a good idea. A high school in Columbus, Indiana has a school newspaper, and permits students to determine its contents. There is a school board election coming up, and the opinion editor at the paper went to a question and answer session with the candidates. The editor, Griffen Foster, contributed an opinion piece detailing his reactions to the candidates. All sounds pretty good so far. Students learning about writing, publishing, politics, the governing body of their school. But the candidates who did not get a good review called foul and tried to get the school to pull the paper. From the AP via the Indy Star:

The opinion piece in Columbus East High School’s student paper endorsed three school board candidates and criticized five others running for spots on the Bartholomew Consolidated School Corp. Board.

One current board member and two candidates say the column, written by 18-year-old Griffen Foster, the opinions editor at The Oracle, was insulting and illegal.

Board member Russell Barnard and candidate Paul Boaz have requested that the newspaper be removed from East High School on the basis that it is illegal, although experts and school officials have disagreed.

Doug Wilson, the husband of candidate Kathy Wilson, filed a formal complaint with school administrators requesting an apology and more faculty supervision over newspaper content.

“Children cannot be left free to humiliate people in print,” the complaint reads.

In the column, Foster criticized candidates for their responses during a recent public forum. He referred to Kate Brown’s performance as “completely without substance” and said Kathy Wilson’s answers were “circular and, at times, belligerent in response to innocuous questions.”

The school, to its credit, and despite the fact that some of the complainers might be heading the school soon, declined to take action. I think that Mark Goodman, executive director of the Student Press Law Center, had the response right:

“Anyone who believes students shouldn’t be expressing views shouldn’t be a school board member,” he said. “My guess is they wouldn’t have objected if they were the ones endorsed.”

Ernie The Attorney notes that he is starting to get popup that have gotten around his Google popup blocker (contained in the Google Toolbar). I started my defensive battle against popups with the Google Toolbar and found it to be a must have for browsing the web. But then I figured out the real problem: IE is just a poor piece of software.

As I must use Windows at work, I have long suffered from the onslaught of attacks that hackers send Microsoft’s way. My solution in the browsing and email areas was to stop using Explorer and Outlook. I browse with Mozilla Foxfire and I use Mozilla Thunderbird. I have found both programs do their jobs well, are full featured, and do not cause the headaches I constantly ran into with Microsoft’s “solutions.”

Foxfire’s tabbed browsing experience is something not to be missed. I have 28 web sites that I check over every morning. I have these sites in a folder on my Foxfire toolbar. I hit the “Open in tabs” button in that folder, fill up my coffee cup, and all 28 sites are loaded and ready. Browsing through the sites is reduced to closing one tab at a time. What I miss out on is waiting for each page to load, making this morning task ridiculously short.

When Dallis and Marla Tirey divorced in 1994, they had two children living with them. Their child and Marla’s brother’s child, over whom they has assumed custody. In the divorce, Dallis agreed to pay support for both kids. Much later, Dallis filed to modify the support order to drop support for the child that was not his, claiming that the child’s father had the responsibility to support the child, not him. The court of appeals said “no:”

This case, on the other hand, involves a valid agreement between the parties establishing what might be described as gratuitous child support. We are persuaded that in such circumstances, the rules of contracts come into play in a way that is not the case with respect to court-imposed support. In this situation, we are guided not only by the relevant statutory guidelines, but also by contract principles. When parties enter into a valid agreement with adequate consideration, the terms of the agreement are mutually and permanently binding on the parties if the court approves the agreement. This principle applies with respect to child support obligations in a dissolution action. Moreover, the court can include in its support order an obligation that the obligated party voluntarily agreed to, but that the court would not have had authority to impose in the first place without such agreement. (Citations omitted)

This is a cautionary tale in many respects. The basic lesson is that if you agree to do something in a divorce that the court could not order you to do, you will likely find the court unwilling to step in later and relieve you of this burden. This includes paying for extra children, as in the case above, but also in paying more than what the law requires in child support. Also, although not at issue in this case, the time to determine the paternity of children born in the marriage is at the divorce. After the child is deemed to be “a child of the marriage” in the divorce, a later challenge to the child’s paternity is likely to fail.

As I have noted before, the child protective system in Indiana, as in many states, has come under heavy criticism for the way business is conducted. In other states, there have been children actually lost, several taken from parents and put into abusive foster care homes. The system does perform a valuable and needed service of providing protection to children, but it is an area where the abuse and neglect of a few can have catastrophic consequences. Some parents who have been through the system feel they have been mistreated. Some kids who have been through the system question in what respects they were “protected.” I have seen several situations where the system got involved when it shouldn’t have, but I have also seen where the system sat back and did not get involved when they should have. I have seen foster homes where the foster children represented little more than a paycheck to the foster parents. I once ran into a foster home where the parent kept the fridge and cabinets under lock and key to control costs. But I have also know several dedicated couples in the foster home system who opened their homes and hearts to kids that no one appeared to want.

It is by no means easy job, and think the jury is still out on whether the system needs drastic restructuring in Indiana. The systems in Florida and New Jersey are clearly worse off. Just the same, there is a movement in Indiana to reform the system: (from attorney Mark W. Rutherford)

“Parents For the Reform of Abusive Child Protection Agencies. This group is the starting block of an organization to change the laws in regard to cps (child protective services). They have abused their power and target innocent parents, taking their children and putting them in unsafe situations. It’s time we put a stop to it.” They have a yahoo group identified as Parents against CPS - “parentsagainstcps“

Hmmm. I did not notice this, but in the last session, the Indiana Legislature passed through a provision that gives custodial parents the right to intercept tax refunds from a parent who is delinquent in their child support obligation in private cases. This starts as of July 1, 2004. In the past, only the state through the IV-D prosecutor, could institute this remedy. This levels the playing field between us private attorneys and the child support division of the local prosecutor’s office. It should also provide some parents with some incentive to double check their withholding status. . . .

So much of what is written about practicing law comes from lawyers working in the big firms. So much so, that this perspective has come to define the quintessential legal experience. As I practice on my own, it is not an experience that I can relate to much. I certainly see the up side of big firm work. When an attorney in a big firm comes up with an idea of how to proceed in a case, chances are this idea will be reviewed, critiqued and modified by at least one and maybe several other attorneys with varying levels of experience before it ends up on paper, down at the courthouse. With me, the ideas the creep of of my head, fall directly to the paper. I can take the time to review it, maybe let it stew for a couple of days, but rarely can I bounce the idea off another attorney before sending it out the door. My paralegal can, and generally does, catch my most blatant errors, but in the area of subtle legal tactics, she is out of her depths. But because of this, I have to be extra careful. There is no blame game to be played here, the buck starts and stops with me. On the other hand, when I do get the chance to talk to another lawyer “off the clock,” it is experience I value. Several of us solo’s maintain the habit of taking time out, not every day, maybe not even every month, but from time to time, just to chat about the law, the business, the personal lives that sometimes compete for attention with the law and the business.

Life in the big firms, with tiers of associates operating under tiers of partners, operating under tiers of senior partners, and miscellaneous legal staff scurrying about underneath all of that, often strikes me as a little unproductive. Yes, they have resources, they have collaboration, they have back up, but they also have interoffice politics, competition, and backstabbing. Reading some of the other legal blogs, I get the sense that a significant amount of the talented lawyers’ time is spent on these interoffice rivalries, conflicts, and competitions.

Here I sit, tapping away on my pda, wondering if this entry will make it
on my blog, and wondering more, why should I care if it doesn’t.
blogging on the road seems like an unnecessary convenience. I guess
this is what an unhealthy passion for technology can get you.

Although, I must say that the capcity to create web content anywhere I
can get cell coverage is intriguing. Now, I just need to find an email
client for my pda that has a spellchecker.

Child support obligations should be simple to figure out. Each week the support obligation is incurred, and each week either payment is made or not. Figuring out whether someone is current in his or her support should be a simple matter of totalling up the obligation and payments and subtracting the former from the latter. This might have been the way it worked a few decades ago, when mom and dad would continue to live in the same town, but in today’s more mobile society, it is far from simple. Several years ago, some parent found that they could move to a distant state and avoid support obligations and enforcement efforts. In response, states passed “uniform” laws facilitating the enforcement of support obligations across state lines. States also created centralized units to track support obligations and payments, and gave these units varying degrees of authority.

States have a vested interest in collecting on support obligations as they are entitled to unpaid support obligations to the extent that they have paid out state benefits to these children. Now, even the feds are putting their sloppy footprints over the child support system, making demands on the states, in the name of cleaning the system up, but in fact, just creating more bureaucracies to complicate the field. Now we have local county records, state records, and federal records to coordinate and sort through. In some cases, you have one county that created the support obligation keeping track of it, a second county in another state where the support payor lives enforcing the obligation and keeping a second set of records on it, plus the central agencies of both states keeping separate records of it. The chances that the parent’s support obligation will be reported similarly across all of these databases is slim, and often the records are several thousands of dollars off.

I ran into one poor gentleman who had his wife run off to another state, leaving him with four young children to raise. He put his nose to the grindstone, raised all four kids, got them off to college, each of them, all with no support, or even a phone call from the other parent. Then he gets a bill in the mail from a distant state, informing him that he owed over $50,000. in back support. Shocked, he struggled to learn from the distant state’s support system how this could be. He was finally (after over a year) able to determine that his former spouse had fled to this state and proceeded to collect benefits from the state for the children she had left back in Indiana. She did this for over twenty years with no one figuring out that she had nothing to do with these children. We figured that when we proved to this state that they had been ripped off, they would apologize to this poor father and look to the mother to get their money back. To our surprise, this state’s support office maintained that, as they had extended cash benefits to the mother on behalf of the father’s children, the law of this state permitted them to hold him responsible, without regard to the fraud. That was their position, lame as it was. The father was left with the choice of paying over $50,000 (again) for this ficticious raising of his kids, or incurring a few thousand dollars in a legal battle in a distant state to try to clear this mess up.

At least in Indiana, we know where the support money is going. From the Indianapolis Star today:

Prosecutor Carl Brizzi said Kathleen Crumpton, who worked for the Indiana Family and Social Services Administration from 1998 until last year, used her authority to redirect and steal child support checks. Crumpton, 38, is charged with two felonies.

“She diverted money that was intended to help support children in single-parent homes,” Brizzi said. “Who knows what these children had to go without?”

From September 2002 to March 2003, Crumpton had about 25 child support payments mailed to her mother’s home and other addresses, and she then falsely endorsed and cashed them, according to the charges filed Friday in Marion Superior Court.

. . . .

The Family and Social Services Administration, according to court records, was tipped to the scheme in February 2003 by a liquor store owner who became suspicious when he was asked to cash one of the stolen checks.

When the state can show that a child is at risk or uncared for by his or her parents, it has the power to step in, under the authority of a court, and take custody of the children. Often the children are placed in the foster care system. When the state takes over for the parents, the state is responsible for providing them with the care children deserve. Unfortunate, if the state does a poor job of supervising the temporary placements, the children may be out of the frying pan and into the fire. The vast majority of the children case workers I have ever dealt with in my job have been competent and committed. However, there are always exceptions, and, like everything else in government, when money gets tight, government services suffer.

In one county in Indiana, the county prosecutor was critical of the local Division of Family and Children when a child under its supervision died. Now the same department is in the news again:

Child welfare officials turned over to a prosecutor evidence that a Madison County caseworker falsified records of visits with children whom she was assigned to monitor.

Caseworker Tracy Morrison claimed in reports to have visited children on five occasions when her daily activity log did not indicate any such visits, said Steve DeMougin, director of the state’s Division of Family and Children.

. . . .

Among other findings, officials said that Morrison claimed to have met with two children at a school in Elwood, but supervisor Barbara Johnson later learned that the children were being home-schooled.

The family members of children in the state’s care can only hope that the state is doing a better job than this.

You should always be careful who you select as your designated driver. From the Indianapolis star today:

   A 24-year-old Indianapolis man was killed early today when, believing he was too drunk to drive, he gave his car keys to a friend who drove over him, authorities said.

   Liza Besser, 22, 900 block of English Avenue, was arrested on preliminary charges of driving while intoxicated, causing a death.

Marcia J. Oddi points to an interesting site run by the University of Minnesota on manure and odor that includes reference to a program called OFFSET designed to gauge the amount of odor produced by livestock operations. In rural Indiana, residents and local zoning boards are struggling with a n onslaught of confined feeding operations. Read her post here. She has put up lots of material on land use issues in Indiana on her Indiana Law Blog.

Ken Lammers is a virginia criminal defense attorney and frequently contributes to his blog. While many attorneys blog, I have not seen it done quite so well and thoroughly.

Mr. Lammers captures the day to day slogging that goes into criminal defense work, detailing a series of short hearings prefaced by idle waiting and long drives across his region of operation. In the mix he demonstrates what I personally like about this job: those occassions when you can step back and think big thoughts about the law and the people who enforce, practice and violate it. It is worth a daily read.