The always excellent Stark County Law Library Blog has an excellent post up today covering the ChoicePoint/identity theft issue, noting that scrutiny will likely also fall on Westlaw Accurint and LexisNexis. As someone who both fears the damage that identity theft can inflict on me, and uses ChoicePoint on a regular basis to track down people in my business, these developments have left me divided.

Link.

I did not like ChoicePoints’ reaction to the scandal, basically saying they would solve the problem by cutting off access to “small businesses,” unless a big business would vouch for them. I guess I would be considered a “small business,” whereas large firms would not.

With concerns about electronic security, privacy protection, and now terrorism, the basic framework of our civil life is being altered, bit by bit. The Bill of Rights, the document that sets out the rights we enjoy as citizens in this Country, is undergoing changes, not in the text, but in interpretation.

These changes can be seen in the court battle between the government, airlines and software millionaire John Gilmore about Gilmore’s refusal to display a government issued ID to board an airplane (a fight over the application of a rule that is so secret, Gilmore’s attorneys have been denied access to. Link via BoingBoing.

You can also note the trend in new laws, like Indiana’s House Bill 1439, which would require a voter to present a government ID to vote. Link, discussed here by Doug Masson.

I believe we are coming to a point in our society where we will have multiple levels of citizenship: A basic “I live here so I’m a citizen” level, a “certified citizen” who has been checked out and credentialed and can do things like rent a car, get on an airplane, vote, enter public buildings, etc, and maybe even a “super certified citizen” who is permitted to do things like access public information from information vendors and the government.

Jerry Flores, an 18 year old man from Lufkin Texas, and his 16 year old girlfriend were about to become the parents of twin boys. His girlfriend did not like this fact, and was trying to terminate the pregnancies on her own. Unsuccessful, she enlisted Jerry’s help, and he successfully ended the pregnancy by standing on his girlfriend’s abdomen.

Now, the girlfriend is out and about (Texas law permits the mother to terminate a pregnancy), but Jerry stands charged with capitol murder under a new Texas law protecting unborn children. The disparity in treatment for the crime that both parents conspired in has not been lost on the prosecutor, who is reported to have misgivings about the resulting application of the abortion and fetal homicide laws.

Link.

There is a good piece up on the Star Tribune from yesterday on the divergent interpretations of the Real Estate Settlement and Procedures Act (RESPA), the law the controls real estate closings, and specifically, the charges lenders impose on the buyer and seller:

That sharp divergence in the interpretation of federal law is the result of conflicting federal appellate court decisions about markups, which can add hundreds of dollars of extra costs to a home purchase. Late last year, the issue appeared to be headed for final resolution by the Supreme Court after an appellate court in New York ruled against giant Wells Fargo Mortgage Corp. in a markup class-action case.

But now Wells Fargo has decided not to appeal to the highest court and intends instead to fight the plaintiffs at the district court level. A spokesman, Alejandro Hernandez, declined to discuss why the company chose not to seek a nationwide resolution.

The plaintiffs in the New York case, homeowners from Brooklyn, alleged that Wells Fargo, one of the country’s highest-volume lenders, routinely marked up fees to its customers without adding extra services to justify the surcharges. For instance, according to the suit, Wells Fargo contracted for loan origination documents from outside vendors that cost the company $20 to $50, then charged the charges to $150 to $300 at settlements.

The plaintiffs also alleged that Wells Fargo marked up “automated underwriting” fees charged by mortgage investors Fannie Mae and Freddie Mac. Rather than simply passing along Fannie’s or Freddie’s $20 underwriting fees, according to the suit, Wells Fargo charged borrowers up to $300 for underwriting.

Fargo won at the district court, but lost in the Second Circuit. Now, rather than risk their markups across the country, they have decided to drop their effort to take the case to the Supreme Court. The article provides this breakdown:

Here’s the current lineup of the federal court circuits on markups, and where that leaves you as a consumer: If the property you are buying or refinancing is located within the 4th, 7th, or 8th appellate circuits, lenders and other settlement service providers are free to mark up your fees with no fear of federal constraints. The states within those circuits include Minnesota, Wisconsin, Iowa, North and South Dakota, Illinois and Indiana. There might be state consumer protection statutes that protect you against fee-gouging or deceptive marketing practices, but no federal law.

If you are buying or refinancing in the 11th or 2nd circuits, lenders and other service providers are prohibited from markups that are not accompanied by additional, valuable services. The states within those circuits are Florida, Georgia, Alabama, New York, Connecticut and Vermont.

Link.

A pair of British students plan to spend the summer of 2005 in an interesting effort to bring attention to some of America’s stranger laws:

As US coast-to-coast crimewaves go, it is not in the league of Bonnie and Clyde. It lacks both violence and avarice and is further hindered by an overabundance of pre-publicity.

Undeterred, a couple of students from Cornwall are intent on making American criminal history by spending their summer breaking as many US laws as possible.

Starting in the liberal state of California, they hope to evade the attention of local police officers when they ride a bike in a swimming pool and curse on a crazy-golf course.

In the far more conservative - and landlocked - state of Utah, they will risk the penitentiary when they hire a boat and attempt to go whale-hunting.

If they manage to outwit state troopers in Utah, and perhaps federal agents on their trail, they will be able to take a deserved, but nevertheless illegal, rest when they have a nap in a cheese factory in South Dakota.

“There are thousands of stupid laws in the United States, but we are limiting ourselves to breaking about 45 of them,” said Richard Smith, from Portreath, Cornwall.

Link via BoingBoing.

Retired judge Gary McCarty, who served in Union Circuit Court for 18 years will take over the temporary role of Wayne Circuit Judge:

Gov. Mitch Daniels has yet to name his permanent replacement, but the Supreme Court of Indiana is sending in a substitute so VanMiddleworth can relax a little.

Judge Gary K. McCarty has been named judge pro tempore for Wayne Circuit Court effective Tuesday. McCarty was a three-time Union County Circuit Court judge.

VanMiddlesworth has been serving in a pro tempore capacity since Feb. 1 when his retirement officially began, but he had told the Supreme Court he had “plans” beginning in March.

Link.

March 12, 2005, Cope Environmental Center will have a dedication ceremony for their new wind turbine. The Center had to work through the technical issues involved in installation, including collecting wind data at their site for several years, plus they had to obtain permission from the county for the construction, cutting new ground for the county planning and zoning board. Come and learn from their experience:

Wind power is the up- and-coming alternative energy for Indiana, said Lina Gordy, the executive director of Cope.

“A lot of people don’t know Indiana is an excellent place for using this wind energy, especially because of (the land’s) flatness,” Gordy said. “It’s a very low-impact technology and it’s affordable and suitable for lots of different places.”

The environmental center is in the process of developing a demonstration home to show alternative energy at work. The demo home combines wind and solar power to run necessary household appliances, including computers, hot water heaters and lighting.

Link to the Pal-Item story.

Link to the Cope Center Site.

As the field of wind power develops, solutions are becoming more varied, and affordable. For instance, check out this British company, Windsave.

[Disclosure: I am on the Center’s Board or Directors]

A court of appeals in Illinois was faced with a novel legal theory: Man and girlfriend have oral sex. Unbeknownst to man, girlfriend saves the sperm, and the uses it to get pregnant. Man finds out 2 years later and claims to be emotionally devastated about becoming a father unexpectedly. The court determines that the man can at least pursue his claim for intentional infliction of emotional distress:

The judges backed the lower court decision to dismiss the fraud and theft claims, agreeing with Irons that she didn’t steal the sperm.

“She asserts that when plaintiff ‘delivered’ his sperm, it was a gift - an absolute and irrevocable transfer of title to property from a donor to a donee,” the decision said. “There was no agreement that the original deposit would be returned upon request.”

[T]he higher court ruled that, if Phillips’ story is true, Irons “deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy, to use plaintiff’s sperm in an unorthodox, unanticipated manner yielding extreme consequences.”

Link.

More on this story at Three Sheets to the Wind.

A thoughtful comment in response to my previous post on domestic protection orders brings out an aspect of these orders that I do not think most of the public is aware of.:

These orders can issue without notice to the person to be restrained and without a hearing in most circumstances. A protective order can issue at the option of the trial court based solely on the statements sworn out by the petitioner in the petition. Only if specific forms of relief are requested (like kicking someone out of their home, possession of property, or taking away the right to bear firearms) is a hearing required.

If a no-notice/no-hearing order (we call them “ex parte”) is issued, the recipient of the order has 30 days after service to request a hearing on the order. Many of us find this type of procedure to be prone to abuse. All of the local judges in Wayne County, like the commenter on my prior post, after reading over that provision, decided to set all these petitions for hearing, regardless of whether one is requested or not, and I think this is the right approach. This is not universal, though, and in some venues, these order just go out, to be entered into the Indiana Data and Communication System (IDACS), raising red flags on the recipient all over the state, if not the nation.

Many of the recipients of these orders do not have the sophistication to know what they need to do to respond. I have talked to many people who come into the office with one of these orders issued against them several month previously, and they have not seen their kids, and have no legal means to make contact with the custodial parent to try to see their kids. The protective order statute permits us to go in and seek a modification to set up access, but this is a process, we have to get on the court’s calendar and go through a hearing. In the meantime, the parent has been without access with their kids for months, endangering a sometimes already endangered parental relationship.

Marcia Oddi at the Indiana Law Blog caught a good story on FindLaw about an attorney in Indiana who was able to escape serious sanctions for missing a hearing in federal court when he was able to demonstrate that the reason he did not attend was that his firm’s email filter was set such that it treated the court’s notice of the hearing as spam.

Remember when we used the mails? I do not think I would want to go back to those days. I like the fact that we get immediate notice when a hearing is set on my calendar, but as with any type of technology, the system needs to be maintained and watched carefully to assure that it is functioning. With the mail, it almost always got where it was supposed to, and sorting junk mail from court mail is a very easy, error free process.

Link.

Earlham College professor, Peter Cline, sent the following to the Pal-Item editorial page on Indiana’s proposed constitutional amendment:

Were legislators really out to defend marriage, wouldn’t they repeal divorce laws? Wouldn’t they restore (or call for enforcement of) laws prohibiting adultery and fornication? Why don’t they go after bastardy and the mothers of babies born out of wedlock? Why the lawmakers don’t tackle these matters that do far more to undermine traditional marriage seems obvious: such steps would be politically dangerous.

So they target the last segment of society against whom bigotry may be directed without incurring much backlash, gays and lesbians. Let’s be candid. The real reason some craven legislators make gays and lesbians the scapegoats for all the changes in society and the law that organized prejudice deplores and that have transformed marriage, family and adult relationships seems pretty plain. Many lawmakers know full well their gesture is simply closing the barn door after the horses have galloped away. But foolishly they pretend they are defending marriage.

Link.

Domestic protection orders are not things I tend to think very highly of. For the people who need them the most, they offer little protection:

A woman who was killed with her two children and boyfriend in a weekend shooting rampage by her estranged husband had gone to court to keep him away after their separation turned violent last fall.

Such court-issued protective orders, however, cannot deter someone bent on committing violence that can become as extreme that on Sunday that left five dead in a murder-suicide, authorities said.

Alicia Smith sought the court order for Arthur Lee Smith, 36, to stay away from her in November after he smashed a car window at her trailer, Police Chief Kelly Rayhill said.
. . . .
The Martin County court order gave police authority to arrest Lee Smith if he showed up at Alicia Smith’s home for up to two years.

“For the most part, that protective order is just a piece of paper, and there is no guarantee that protective order will protect the person,” Ringle said. “A person who has a protective order out against somebody has to be very careful.”

Women who are granted the orders are sometimes in the most danger, said Ann DeLaney, executive director of The Julian Center, a battered-women’s shelter in Indianapolis.

“A lot of people assume that if they’ve got a protective order and made a break (from a relationship), they’re safe,” she said. “I don’t think they realize that’s when they’re the most vulnerable.”

Other get such orders to manipulate their former lovers. A protective order is obtained, sometimes for violence that is years old and even “mutual” (there is no time limitation in the act), primarily to make it harder for one parent to make efforts to see their kids. Since the legislature decided to gut the protective order statute and implement the domestic protective order provision, I have have seen a share of both: People scared to death, clutching a piece of paper for protection, and people almost completely locked out of their kids lives by a hastily issued order. I have also seen the police grow increasingly complacent with these orders. If a complaint of violation is made to the police, the protected person is often told “Hey, that’s a civil order, go file a contempt citation with the court.”

Oops, Senate Bill 123, that I discussed here, put forth by local Senator Allen Paul to put some restrictions on Confined Animal Feeding Operations (CAFO’s) now appears destined for the scrap heap:

A bill that would have forced the Indiana Department of Environmental Management to penalize polluting confined animal feeding operations likely will go to a summer study committee.

On Monday, Senate Bill 123 was amended by the Senate Energy and Environmental Affairs Committee to require further study on the issue this year, said Sen. Allen Paul, R-Richmond. He said he expects the amended bill to be approved in the Senate and sent on to the House. The study committee will begin its work in June if the bill is approved by both Houses and signed by the governor.

“It’s a very difficult issue, and both sides seem unwilling sometimes to negotiate,” Paul said. “With the new staff at IDEM, this will give them some time to get their feet on the ground. There is no easy remedy, but I don’t want a bill that doesn’t do anything.”

Paul wrote the bill in response to requests by Randolph County residents who fought a 1,650-cow megadairy that was granted a federal permit in fall 2004 by IDEM. That permit is under appeal, but construction on the dairy has begun.

Randolph residents wanted the bill because they say IDEM’s enforcement actions against polluting confined animal feeding operations (CAFOs) lack muscle because it forgives fines and allows multiple violations.

Paul’s original bill would have forced IDEM to revoke a CAFO’s permit after three environmental violations.

The Indiana Farm Bureau spoke against the bill when a committee heard it three weeks ago but supports sending the issue to a study committee, said Bob Kraft, director of state government relations for Indiana Farm Bureau.

“We spoke in opposition because it was a ‘three strikes and you’re out,’” Kraft said. “There was no definition of the three strikes. They could have been minor offenses and leave a farmer with no livelihood.”

Although Farm Bureau Inc. supports farmers, it wants livestock operations to comply with environmental rules, Kraft said. The study committee should determine criteria to define blatant violators and focus on continued compliance rather than enforcement after a violation occurs, he said.

Link.

See the current bill here.

A trust is very flexible and versatile tool in an attorney’s toolkit. A trust can do basic but important things like provide the future support for your minor children if you die before they reach an age of responsibility (say, 45). Trusts can also be used hide things from public view, like the control of land. With a trust, there is the person (trustor) who transfers assets to a trustee who then holds and manages those assets for the benefit of someone (the beneficiary).

The great thing about a private trust is that the actual trust document, where the trustees’ authority and instructions come from, can be kept private, shielded from public view. Even so, the trustee is considered to be a fiduciary in the law, meaning that the trustee has certain duties and obligations with respect to the trust assets that he or she can be held to account for. If the trustee violates those duties, he or she can be called into court by the beneficiaries to account, and could be removed, replaced, or see the trust terminated if it is found that he or she violated those duties.

Creating a trust for the benefit of the public (a “public charitable trust”) has likewise been a great way for private citizens to do something good, but maintain control over their particular vision over time through the use of a trust. Someone who wants to, say created a living history museum, so modern Hoosiers can appreciate the ways of life of the first European settlers in this region, can do this with a trust. Presumably, if the trustor thought that the government knew best how to use the trustor’s assets, the trustor would simply give those assets to the government to do with as it pleased. But in reality, most folks do not have that kind of view of the government, and most folks with substantial means struggle mightily to assure that the state and federal governments get no more (and maybe a little less) that what the law requires.

But many wealthy people, from Henry Ford, to Eli Lilly, to Bill Gates, happily turn over substantial sums to fund projects to benefit the public, but in some specific way.

When someone decides to fund a trust for the benefit of the public, the issue becomes, who among the beneficiaries (”the public”) has the power to hold the trustee to account? Generally, the only entity with the authority to question the actions of the trustee with respect to that trust (outside the IRS) is seen to be the state’s attorney general. In the recent Earlham/Conner Prairie flap, Steve Carter, the state’s AG, claimed he had the authority to call Earlham into court to account for the “Public trust” created in 1964, when Eli Lilly deeded the 64 acre Lilly homestead to Earlham to “hold this parcel in perpetuity as a public charitable trust; that it will keep and maintain all improvements situated thereon and related to the Conner House and Monuments in a good state of repair in all respects.”

The AG’s claim of authority over the trust came from 2 statutes. This general one:

IC 4-6-1-6 All of the rights, powers, and duties conferred by law upon the attorney-general are conferred upon the attorney-general created by this chapter; in addition thereto, the attorney-general shall consult with and advise the several prosecuting attorneys of the state in relation to the duties of their office, and when, in his judgment, the interest of the public requires it, he shall attend the trial of any party accused of an offense, and assist in the prosecution; and shall represent the state in any matter involving the rights or interests of the state, including actions in the name of the state, for which provision is not otherwise made by law.

And IC 30-4-5-12, which simply says that a public charitable trust must notify the AG annually that an accounting has been prepared and is available to be reviewed by the AG and the public. Federal statutes governing such a trust (implemented by the IRS)would also require that the public be permitted to view an annual accounting. However, in order to obtain any control over a public charitable trust, the AG would have to be able to prove to a court that the trustee violated his or her duties with respect to the trust: That there has been a breach of trust.

Now the AG says he needs more authority to regulate public charitable trusts, and charitable organizations generally. According to an article by Andrea Muirragui Davis in the February 21, 2005, Indianapolis Business Journal (IBJ, offline, can you believe it), the state AG is pushing a pair of bills moving through the Indiana Legislature (HB1453 & SB424) that would give the AG more options in a situation like he confronted with Earlham. The bill includes this:

SECTION 7. IC 30-4-5.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]:
Chapter 5.5. Enforcement Powers of the Attorney General
Sec. 1. (a) This section applies if a trustee of a trust for a benevolent purpose does any of the following:
(1) Commits a breach of trust.
(2) Violates the mandate of a charitable trust.
(3) Violates a duty listed in this article.
(b) The attorney general may petition a court to issue one (1) or more of the following remedies for an action enumerated in subsection (a):
(1) Injunctive relief.
(2) Appointment of temporary or permanent receivers.
(3) Permanent removal of trustees.
(4) Appointment of permanent replacement trustees subject to court approval.
A remedy under this subsection is in addition to any other remedy.
(c) The attorney general may seek a remedy listed in subsection (b) against a trustee or a trust.
(d) If the attorney general is successful in an action under this section, the attorney general may recover reasonable attorney’s fees and court costs.
SOURCE: IC 30-4-6-3; (05)SB0424.1.8. –> SECTION 8. IC 30-4-6-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 3. (Venue) (a) Venue in a proceeding brought by the attorney general against a trustee or a trust lies in Marion County, unless a court determines that venue in Marion County would be a hardship for a trustee or a trust.

Source: SB424

The IBJ article quoted one lawmaker, Senator David Ford from Hartford City, who voted against the measure as questioning what the AG was doing getting involved in public charitable trusts in the first place. I wonder the same myself. I understand the concern: A dishonest trustee could pillage and plunder a public trust, or a negligent trustee could permit the trust’s assets to dwindle away and rot. Some oversight should be in place, to protect assets pledged to the public benefit, for the benefit of the public.

But again, my issue goes back to the original intention of the trustor: If the trustor thought the government knew best what to do with the trustor’s assets, why didn’t the trustor just hand them over to the government? The AG and many in government seem to think that “public” means them: they have a monopoly on the public sphere, and anything that enters that sphere is subject to their review, approval and ultimately, control.

But I wonder what the long-term impact of increased governmental oversight will be on individuals considering making gifts for the public benefit. If you see that the government is going to step in and start pushing your trustee around, deciding who should do what, and what is appropriate, will you be a willing to fund the thing from the start? If Eli Lilly knew that the state AG would be stepping in and deciding that Earlham was out and coming up with his own plan for Mr. Lilly’s gift, would he have given it over in the first place?

{Thanks go out to Marcia Oddi, at the Indiana Law Blog, for her heads up on (and provision of) the IBJ article}

The Pal Item has this update today on the vacancy in Wayne Circuit Court. In sum, no news:

Wayne County’s Circuit Court has officially been without a judge for three weeks now.

Judge Douglas VanMiddlesworth, who retired effective Jan. 31, is still holding down the bench as a pro tem senior judge until Gov. Mitch Daniels appoints his successor.

But VanMiddlesworth is chomping at the bit to begin relaxing in earnest.

“I’ve told them I have some plans after the end of this month,” VanMiddlesworth said. “I don’t plan to be here in March.”

Under Indiana’s constitution, when a vacancy occurs in a county court, it is the governor’s responsibility to find a replacement.

Two weeks ago, the governor’s press secretary Jane Jankowski confirmed that letters of interest in the job had been received and candidates were being asked to fill out applications.

At least five local attorneys have inquired about the position. The governor or governor’s staff has reportedly interviewed at least some of them.

But there is still no announcement of a replacement.

And there has been no vetting of the applicants’ bona fides here.

Local judges and Wayne County Bar Association president Bob Bever have all offered to consult on the appointment, but none have been asked for an opinion yet.

VanMiddlesworth said he was assured a replacement would be named by Feb. 28.

Link.

One of the things that a practicing attorney is supposed to do is keep up with changes in the law. Because there is a great volume of law out there to monitor, most of us only focus on the areas that we think impact us, like family law, real estate or criminal law. Changes come from many sources: State and federal courts, Congress and the state legislature, and administrative bodies with rule-making authority.

Some attorneys rely on annual seminars put on by experts in their field to keep them abreast of important developments, but many of us read the cases as they come out, and study the code and rule revisions as they are made. Doug Masson’s blog has followed the current session of the Indiana Legislature, and through his focus, I have been exposed to the process of making law like never before. But today he notes that there have been 1,500 bills introduced in the legislature this year, and I see I have only glimpsed the tip of the iceberg.

Doug’s insight on this high volume of bills is that technology is what has made it possible for the legislature to consider this many bills. I think he is right, but how are we, who are supposed to know the law, to keep up? Technology again.

There is a bill in the Indiana House (HB1154), that would permit Wayne County to impose a 1% tax on prepared food and drink (dine-in, take-out and delivery) to be spent by the county to promote convention and tourism business. The current plan would be for Richmond to use the proceeds to construct, operate and promote a convention center.

There has been some fairly strong opposition to the measure. Some have noted that a tax on all county eating establishments for the benefit of a Richmond convention center is not fair to businesses in placed like Hagerstown, which would be unlikely to get much business from a convention center. Others have noted that taxes on food and drink tend to be regressive: We all, rich and poor, have to eat, so a food tax bears equally on both the rich and the poor, leaving the poor paying a larger percentage of their wages in food tax than the rich. I do not think that argument works as the tax is not collected on groceries.

The Pal-Item has a good piece on the proposed bill and arguments pro and con up today. I think that the argument against the tax the rings true with me is one on the role of government: When can the government use its power to benefit some private citizens? The government argues that it has a legitimate interest in promoting the local economy, so it can use its taxing power to promote economic growth, even if the tax ends up benefitting some local developers and businesses specifically. This same type of argument is behind the government’s use of its power of eminent domain to take property from citizens so it can turn it over to developers for improvement, a tactic that is currently being considered by the Supreme Court, more on that over here.

While the nation logged fewer personal bankruptcies in 2004, Indiana saw an increase:

Even as Indiana’s economy rebounded last year, personal bankruptcy filings rose to more than 55,000 statewide, a record volume.

Lawyers said rising credit card burdens, especially among laid-off factory workers, contributed to the increase.

No one is certain, however, exactly why the state’s bankruptcy volume rose in 2004 — a year when Indiana’s economy finally created jobs, 10,000 of them, after losing about 100,000 chiefly in factories from 2000 to 2003.

Although those in favor of the bankruptcy reform measure that has been kicking around in congress for several years claim that bankruptcy filings have doubled since 1994 because of irresponsible spending, my observations are closer to those of an attorney interviewed for the story:

Carey, a lawyer since 1990, figures her clients in recent years generally had a difficult period, such as an illness, divorce or job loss. They relied on credit cards as a safety net.

Link.

Among her clients, Carey estimates 40 percent are single women; 33 percent ran up high medical bills with little or no health insurance; 25 percent have jobs; 15 percent are retirees; and 10 percent are teenagers. The numbers don’t add up to 100 percent because some are in two or more categories.

“Very few are extravagant,” Carey said. “It’s usually an outside force that comes in and bears on what’s going on.”

The heat surrounding the forced removal from public lands of the 10 commandments monuments tends to polarize folks to the extent that reasoned debate hard to find. Even so, I would expect a congressman to have a little more respect for the integrity of the government than this:

U.S. Rep. John Hostettler sent a letter Thursday to President George W. Bush asking him not to enforce the ruling issued by a federal district judge Jan. 31, who ruled the Ten Commandments monument at the Gibson County Courthouse must be removed.

In a press release accompanied by a copy of his letter to Bush, Hostettler said federal courts have the power to judge, but not enforce their judgements because that power is reserved for the president, according to the U.S. Constitution.

In the letter Hostettler told Bush the ruling made by U.S. Southern District Judge Richard Young in the case of Russelburg v. Gibson County, where the removal of the monument was ordered, is not consistent with the intent of the framers of the Constitution or the Christian heritage of the United States.

He asked the president to order the Justice Department and the U.S. Marshal’s Service not to enforce the removal of the monument as ruled by the federal court, or enforce any future appellate courts’ rulings in the matter, including that of the U.S. Supreme Court.

Update: The original link I posted to this story was to a piece in the Princeton Daily Clarion, from Gibson County, and thanks to Doug Mason, I’ve learned that this paper does not use static links to stories, and I cannot find the story anywhere on their site anymore, so here is a link to the actual letter from Hostettler, on his official site:

Link.

The Indy Star has a piece up today about the decision of the Marion County prosecutor’s decision to seek the death penalty against Kenneth Allen, the man accused of killing his mother and grandparents in Indianapolis. The story discusses the financial considerations that are part of a death penalty case and provides some hard numbers. I have commented before about the high cost that counties face in a death case, and how this can be a major deterrent to smaller counties, already facing tough financial circumstances.

The Star piece notes the decline in death penalty cases, and attributes this decline, in part, to the high costs:

The number of death penalty cases in Indiana has dropped from a high of 26 in 1991 to six in 2004. Nationally, the trend appears to be the same.

Sentencings to Death Row dropped from about 300 per year in the late 1990s to about 140 last year, said Richard Dieter, executive director of the Death Penalty Information Center, an anti-death penalty research group based in Washington.

Link.

The story goes on further to provide the following cost comparison between a death case and a life-without-parol case:

When Harriet Husted, a former latin and business teacher in Union County, Indiana, died, her will left $25,000 to the Union County Foundation (UCF) to be used for the preservation of Union County history. The money was taken in by the UCF and put into an account for this purpose. When the opportunity came up to get matching funds for unrestricted gifts from the Lilly Foundation, the UCF transferred the gift to its general fund and collected $50,000 from Lilly. The UCF’s accountant noticed the transfer, and notified Lilly. Lilly asked for there money back as the $25,000 gift was “restricted” and their match was for “unrestricted.”

The UCF sent their attorney to court and asked the court to interpret the will to determine if the gift was intended to be restricted. Answer: “Yes.” $50,000 back to Lilly, and $25,000 into a restricted account.

Link.

I was interested by the statements attributed to the UCF’s attorney, who was the one who authorized the original transfer of the gift to the unrestricted account, and who was also the attorney who represented Husted, and was the attorney for her estate:

Douglass [the attorney] said he and [Mae] Hubbard [the CPA] have “radically different perspectives” toward the foundation.

“Mae sees numbers. I see people. Mae is interested in administration. I’m interested in fund-raising and grants. I have never dwelled on the paperwork. I do what I have to do,” Douglass said.

He said the bequest in Husted’s will for the preservation of Union County history, particularly local railroad history, was his idea to increase Husted’s interest in giving to the foundation.

Hmm, convince the donor to make the gift for a particular purpose and then do with the money want you want when it comes in?