Michael Lewis and David Einhorn’s editorial in the NYT is a must read. Most of it is just stating the obvious, but since the obvious has been flatly denied for a decade - it is worth saying:

The American International Group, Fannie Mae, Freddie Mac, General Electric and the municipal bond guarantors Ambac Financial and MBIA all had triple-A ratings. (G.E. still does!) Large investment banks like Lehman and Merrill Lynch all had solid investment grade ratings. It’s almost as if the higher the rating of a financial institution, the more likely it was to contribute to financial catastrophe. But of course all these big financial companies fueled the creation of the credit products that in turn fueled the revenues of Moody’s and Standard & Poor’s.

These oligopolies, which are actually sanctioned by the S.E.C., didn’t merely do their jobs badly. They didn’t simply miss a few calls here and there. In pursuit of their own short-term earnings, they did exactly the opposite of what they were meant to do: rather than expose financial risk they systematically disguised it.

Link

Report finds ‘no practical difference’ between charter, traditional schools (Star Press). So that is the headline, and the push will go to the legislature next, seeking to freeze any new charter schools.

The opponents will take this report to mean that charter’s have proven to be a flop - no increase in performance. However, this take misses the real point of the charter school experiment.

Charter schools get about 1/2 the money that traditional public schools get. Why? All public schools get the per pupil money (so many dollars per student per day, etc), but Charter schools do not get the “building money” which means they have to provide the education and the infrastructure out of the per pupil money

The question is not “can smaller charter schools improve student performance.” The question is, what happens when you give smaller school groups half the public money, and send them off. The answer, at least under this report, is they can match the fully funded public schools.

A couple of years ago, the State Division of Children Services (or whatever it was called back then . . .) started a shift towards centralized control of its units, as opposed to letting county directors run their own shops. This regional, or top down control model likely resulted in a more uniform application of standards for providing assistance to families in need, but some questions are coming out.

For instance, last week the Pal-Item noted that Wayne County is floating a surprise $650,000 bond issue to take the Department of Child Services through the end of 2008. Local Director Terry Suttles said that the money was needed to cover an increase in services provided - due to the tough economic times.

However, the time span for the increase in numbers cited by the article - 82 kids in 2005, 143 in 2006, 382 in 2007 and 321 so far in 2008 - cover not the economic changes (that started in 9/08), but cover the shift from the old system of local control to the state control: County sells $650,000 bond issue.

The Indy Star has a piece up now entitled: DCS removes too may kids from homes, report says. The report is issued by an anti-DCS group, National Coalition for Child Protection Reform, so criticism is expected, but the factual claims are surprising: “New data compiled by [Director Richard] Wexler’s group show Indiana removed children from their families in 2007 at a rate of 4.86 per 1,000 children, more than 20 percent above the national average of 3.93.”

Ex Marion County chief juvenile judge and now director of the DCS disputes the claim that the agency has become over aggressive under his rule: “Director James W. Payne said the numbers can be explained in several ways: They reflect a greater incidence of reports of abuse and neglect. DCS has been investigating more of the reports it has received. The agency has found evidence of abuse or neglect in a higher percentage of cases that were investigated than it did a year ago.”

Payne also noted that removals must be approved by a court: “That means an independent judge has said, ‘Yes, these kids need to be safe.’” But that quote hides that practical impact of what normally goes on in a CHINs (Child in Need of Service) case - The DCS make the initial decision to remove the child and THEN goes to the judge. The judge is then to decide if the initial detention was justified and if the detention should continue.

Now put yourself in the position of that judge - The DCS runs in and says “Hey we just took this kid and now he is safe in foster care.” The judge then decides - almost guesses really, based only on the information from the DCS whether the child should stay in foster care or go back to the parents. If the judge make a mistake - the risk that the child will get hurt if returned to the parent and it would be the judge’s fault - dictate that the child is normally retained in care.

What the DCS has done is said - when in doubt, detain, then let the judges take the heat if a child is released and later hurt or killed. A very smart politic move that keeps the agency blameless in those overwrought situation where a child is hurt, but not such a good use of public power and resources.

Marcia Oddi over at the Indiana Law Blog always has good continuing coverage of how the state of Indiana makes its laws, court decisions and other “public records” available to the public. This is an area that has undergone significant change with the rise of the internet. Today, she gives a preview of one of her Res Gestae articles, this time on the sorry state of the state provided online version of the Indiana Code, a version which is so out of date, inaccurate, and lacking of basic features, that we attorneys have no option but to purchase access to the code from Lexis or Westlaw (Wait, that couldn’t be the point, could it?).

Read Marcia’s coverage: How much can you rely on what is in the Indiana Code? Marcia already warned us off of the online Indiana Administrative Code.

On the same general subject, Marcia also posted an update on the Indiana Supreme Court’s effort to provide “free”* online access to trial court case information, called JTAC.

[* "free" meaning that hundreds of millions of additional dollars will be charged to those who file cases in trial courts so that online access can be provided without charge]

Marcia’s recent coverage of the effectiveness of this provision of online records can be found here: Update on Supreme Court’s case management system plans.

Indiana is far from alone in its struggles with providing electronic access to public records. All states have confronted the issue to some degree, creating a patchwork quilt of public access laws across the country. One state, Oregon, has even gone to the extremes in claiming that its laws are copyrighted and baring secondary publication:

The State of Oregon is sending out cease and desist letters to sites like Justia and Public.Resource.Org that have been posting copies of Oregon laws, known as the Oregon Revised Statutes.

Carl Malamud via boingboing.

UPDATE: Marcia contacted me with a clarification on her new article, which in my mind makes the issue even more distressing:

This new article looks at problems that transcend the medium used for publication – these new, insofar as these discussions are concerned, problems exist with both the online and the printed versions of the Indiana Code.

In other words, no matter whether you look at an online or printed version of the Indiana Code, there is stuff that you need to know that was in an Enrolled Act, but is not in the Indiana Code. Part I looks at simple sections that are left out, In Part 1 I give an example - the law requiring defibrillators in health clubs - was passed in 2007 and has been in the Code as the law since July 1, 2007. However, a provision that is not in the Code provides that the defibrillator requirement is not applicable until July 1, 2008.

The Pal-Item put up an featured editorial today: A State Role for CAFOs. Not only does the title not make any sense, the opinion piece misses the point of much of the local outcry over CAFO’s. I would boil the errors down to 3 big ones:

Taking the 3rd point first, I have said again and again, when you meet the folks who are upset with a CAFO, you generally find out it is people who are closest to the big farms. These people tend to be rural folks who have lived out in the country for decades - if not generations. Many of them have farmed and farm themselves. The picture of CAFO opponents as uninformed city folks is used to to undercut the complaints: “You just don’t understand farming.” This is far from the case. I have worked with dozens of Indiana residents fighting factory farms and this picture is just not true.

The most offensive claim along these lines comes with this sentence: “Environmental activists have every right to imagine farming under a more romantic, 19th century ideal. But does that drive us any closer to actual policy?” So people who are concerned with ground water contamination, clean air and healthy streams and rivers are automatically Luddites?

The editorial argues for state level CAFO control and says that state policy makers should rely on science, specifically, research from Purdue, a predominant ag school. But why should local communities trust the state to protect the quality of life (and property values) of its citizens after the last 4 years of CAFO promotion by the state? Further, what advice would you expect to come from an Ag school about CAFO regulation? Why wouldn’t we want our state policy makers to hear from scientists who study ground water contamination? Watershed protection? Air quality and health?

What policy makers need to do is throw aside the “emotional” claims about the “right to farm” and face up to the full impacts of factory farming. Only once you consider the needs of all citizens and the environment they live in in relation to these mega farms can sensible policy be made.

On Sunday, Marcia Oddi at the Indiana Law Blog had coverage of the editorial in the Evansville Courier Press about Vanderburgh’s move to Doxpop, LLC for posting court case tracking information on the internet.

I think Marcia has the situation summed up very well in the following:

Re the question posed in the editorial: “Should a private firm be able to earn a profit off public records that the state itself seeks to make available online for free?” Why not? What is the difference between this situation and the Indiana Opinions, which the Court makes available online to the public, but which private companies such as West Publishing and Lexis also access directly from the Court and publish for their own subscribers in a number of enhanced formats? It is the public itself who will decide whether the free version is adequate to its needs, or whether it needs to purchase West’s or Lexis’ enhancements. The same should be the case for Doxpop and any other company wishing to access the data stream from the Monroe County case management system.

Today, BoingBoing’s Cory Doctorow notes a comment by Carl Malamud on the US Judiciary’s recent refusal to accept the offer of Public.Resource.org to supply the courts with online access to the courts’ own historic records - something that they pay West Publishing or Lexis vast sums of money for. (link to letter from US Courts Administrator). In my view, the situation at the federal level mirrors what is happening in Indiana: The court administration objects to private companies making money off providing access to public records while while charging fees and generating cash to runs its own system. At the same time the courts grant West Publishing immediate access to court decisions, and specifying that West’s reporter is the “official record” of the courts’ reported decisions, basically locking all of us attorneys into paying West’s premium to cite cases. Malamud’s comments:

Some days, the U.S. government truly astounds. At Public.Resource.Org, we released 50 years of decisions of the U.S. Courts of Appeals. Knowing that the U.S. Courts have to pay big bucks to West Law and Lexis/Nexis to access their own archives, we though they might be interested in having their very own copy. So, we asked how we could maybe get a phone call to discuss making a donation of case law. Instead of a phone call, the general counsel of the courts (how’s that for a meta position!) sent me a letter saying that while this would be great for the public he saw no benefit to the judiciary and our gift offer was hereby declined. (Not only does the Judiciary spend big bucks on legal information services, this is the same group that runs the billion-dollar IT boondoggle called PACER, which mandates that the public pay $0.08/page for court documents even though they have $146.6 million in unspent funds in their computer account they can’t even figure out what to do with.)

Marcia Oddi over at the The Indiana Law Blog has a couple of interesting post up now which raise the issue of the power of courts:

First off, a Columbus, Ohio attorney is challenging the Ohio Supreme Court’s move to determine what court records the public should access online:

Cleveland lawyer David Marburger, of the Ohio Coalition for Open Government, said a court- appointed commission drawing up rules on what court records the public should have access to does not have the constitutional authority to do so.

“When you give a small group of people, seven people, the power to decide what everyone should have access to, you have automatic mischief, maybe not intended mischief,” said Marburger, an open-records attorney who represents The Plain Dealer and other Ohio newspapers.

“The court doesn’t have this kind of power,” he said. “The court is not a little legislature.”

Indiana Law Blog quoting the Cleveland Plain Dealer. Marcia had an earlier piece up this month about the Oklahoma Supreme Court’s cutting off online access to court records.

All of this mirrors the situation in Indiana where the Indiana Supreme Court is enabling its own online access to local court records called Odyssey which has displaced the systems put in place by local county courts to make records available online. In effect, the local courts - who used to exercise broad control over their own records - have seen these powers forfeited to the central court administration.

The second issue is one on the powers of a trial judge to issue a gag order on a litigant:

Mark McGaha wanted to share his frustrations about the Department of Child Services with the public, but he never got the chance.

McGaha did an interview with an Indianapolis TV station, but a Fountain County judge issued a restraining order barring the station from airing his complaints or even showing his face — apparently without even having seen the footage.

The segment about family advocacy group Honk For Kids was broadcast March 13, without McGaha’s comments and with his face blocked out in a group shot of parents.

The Indiana Law Blog quoting a Tim Evans story in the Indianapolis Star.

The article quotes Indiana Law School Professor (Indianapolis) Henry Karlson calling the order a “prior restraint” under the US First Amendment. I’ve talked about Honk for Kids before, here and here. It is an advocacy group aimed at highlighting issues in Indiana’s child protective services system.

The Pal-Item reports that the Gov. signed the bill into law yesterday:

The objective of HEA 1276, which was authored by State Rep. Phil Pflum, D-Milton, is to give the judicial system time to cool off or take time to review a sexual predator’s past offenses and set bail at a level that is in the community’s best interest.

The need for this law came after a teenage girl, Tarra Pickett, was murdered near Cambridge City in May 2007, Pflum said.

“The individual accused of Tarra’s death was found to have been previously convicted of rape in 1982. Additionally, the person accused of her murder was out on a $5,000 for an unrelated case that involved three counts of molestation. The accused paid the $5,000 bail bond and had been released from jail when he murdered Pickett.”

This statute applies specifically to those arrested for a sexually violent offense, which includes rape, sexual misconduct, sex or human trafficking and sexually deviant behavior. They will then be subject to a background check to determine the likelihood of repeat offenses.

Link

The Indiana Court of Appeals issued a decision today on Indiana’s Grandparent Visitation Statute (IC 31-17-5-1, etc). It is an interesting decision that pits the whole “grandparent’s rights” issue against a parent’s constitutional right to determine things for their kids.

The decision is Christi J. Hoeing vs. Jean I. Williams, and it involves a paternity case where the dad takes off. Dad’s mom picks up where dad left off and starts having routine access under the Indiana Parenting Time Guidelines, including time over Christmas and the child’s birthday.

Trouble hits when mom reverts to her original religion and rejoins the Jehovah’s Witnesses. As such, she does not want her daughter exposed to the celebration of Christmas or her birthday. The trial court says that, yes mom’s got custody, and therefore the right to determine the child’s religious upbringing, but this should not permit the custodial parent from cutting down on the access under the Parenting Time Guidelines.

Court of Appeals says, nope: mom’s right to determine the child’s religious upbringing trump’s grandma’s Christmas time access.

Attorney for Randolph County, John Tanner, is not commenting on the lawsuit filed by Maxwell, Inc. against the county. The county has yet to formally answer the lawsuit, and Tanner cited the pending litigation as the reason he could not further elaborate on the issue of the legality of the county’s CAFO moratorium.

House Bill 1276 has cleared the Indiana Senate Judiciary Committee and it on its way to the full senate (it’s already cleared the house). This is the so-called “Tarra’s bill,” which I have previously commented on here.

An aside, I always get a kick out of strange sentencing provisions, like when judges sentence defendants to to put a sign in their yard, or hang a picture up of someone they have hurt. In Valparaiso, Porter County Superior judge David Chidester ordered a woman to keep the remains of her totaled vehicle in her front yard during her 3 years of probation for OWI - She hit another driver and tested .317. link (Indy Star).

The good milk update: Masson’s Blog has coverage of Senate Bill 219 :

It requires state and local government to provide for reasonable paid breaks for an employee to express breast milk for the employee’s infant child; to make reasonable efforts to provide a room or other location in close proximity to the work area where the employee can express the employee’s breast milk in privacy; and to make reasonable efforts to provide for a refrigerator or other cold storage for keeping breast milk that has been expressed.

Breast Milk: Not Just for Breakfast Anymore

The “bad” milk? Remember I told you about House Bill 1300, a bill that would have barred companies from advertising their milk products as hormone free (here and here). Well, the supporters of this measure (who makes these hormones?, I wonder) have started in on Senate Bill 123. This bill now provides that the Indiana state board of animal health review, study and make recommendations about the claims made about milk and milk products marketed to the general public. The report would be due to the legislative counsel by November 15, 2008.

For background on this issue, I’ll point you to this video that tells the tale of how a story on hormones in milk for killed off Fox news when a manufacturer allegedly got upset: FOX News Whistle blowers.

Personal note: Indiana Appeals cases issued since ILB shutdown:

Insuremax Insurance Company v. George M. Bice, Beverly J. Stalcup, Kelly M. Grahg and American Family Mutual Insurance Company

Ismael Salifou-Boubaker v. State of Indiana (NFP)

Edwin Hayes, Jr. v. State of Indiana

Ledon Taylor v. State of Indiana

Matter of the Involuntary Termination of the Parent-Child Relationship of Z.C., J.C., and C.C.; Joshua Church v. Marion County Department of Child Services (NFP)

Carolyn S. Gwaltney, et al. v. Roger D. Gwaltney, et al. (NFP)

Larry Tabb v. State of Indiana (NFP)

Termination of the Parent-Child Relationship of C.H., J.H., N.H., S.H.; Davy M. Hunley and Lisa M. Hunley v. Tippecanoe County Department of Child Services (NFP)

David Sparks v. State of Indiana (NFP)

Christopher M. Fancher v. State of Indiana (NFP)

N.J. by L. Lee Jackson and Judith Jackson v. Metropolitan School District of Washington Township, et al.

Diane Eichstadt v. Frisch’s Restaurants, Inc.

In the Matter of Cathy Marie McGuire and Edith McGuire v. Maxin Jerome McGuire

Ricky L. Barker v. State of Indiana (NFP)

Tyrell Morris v. State of Indiana (NFP)

Mayberry Cafe, Inc. v. Glenmark Construction Company, Inc., et al.

ATHF Real Property v. Howard E. Stewart

Elaine Foster, Donald Foster, et al. v. Franklin Credit Management Corporation (NFP)

In the Matter of the Paternity of H.H.; Richard Lucito v. Ericka M. Hughes

Elizabeth Riggs, M.D. v. Lafayette Emergency Care, P.C., et al. (NFP)

Richard Keeley v. Deborah Keeley (NFP)

SCI Indiana Funeral Service d/b/a Roselawn Memorial Park v. Robert E. Musgrave (NFP)

Muncie Reception Diagnostic Center v. Katherine Wright (NFP)

Jeffrey John Dawson v. State of Indiana (NFP)

Some companies that market dairy products to consumers fearful of the use of recombinant bovine growth hormone (rBGH) are up in arms about a bill quietly chugging through the Indiana Legislature.

House Bill 1300 amends Indiana Code 15-2.1-2-29.7 to provide that dairy products are misbranded if the labeling contains compositional claims that cannot be confirmed through laboratory analysis or can only be supported by sworn statements, affidavits, or testimonials.

This measure, at least according to ice cream maker, Ben & Jerry’s, would prohibit the labeling of dairy products as “hormone free” or “rBGH free.” This would mean that Indiana consumers would not know whether the dairy products they feed to their families were produced using rBGH - not an issue unless you are someone who thinks this is a problem.

Kudos to Marcia Oddi over at the Indiana Law Blog for bringing attention to the move by the Indiana Supreme Court’s administrative division to bring its plan to connect all county courts through a centralized computer network, and in the process, block out a private company that already links about half of Indiana county courts.

The Office of State Court Administration is rolling out its first test site in Monroe County, one of the first counties that had its scheduling data on the web via Doxpop. Marcia notes:

The entry went on to quote from a DoxPop memo that began “The Courts of Monroe County are planning changes that will affect your ability to access up-to-date Monroe County case information via the Doxpop system after December 17, 2007,” and then continued by explaining that DoxPop was attempting to work out an interface between the JTAC and DoxPop systems.

Apparently these efforts have thus far proven unsuccessful, according to a letter sent out today by Ray Ontko, President, which begins:

To all Doxpop users:

The Courts of Monroe County plan to stop sending case information to Doxpop on December 17, 2007. Doxpop plans to continue to provide access to historical case information, but new information about current cases will no longer be available via the Doxpop website.

The Monroe Courts are switching to a new case management system (CMS) provided by the State Court’s Judicial Technology and Automation Committee (JTAC). On October 25 we formally requested access to Monroe County case information via the new system. We are waiting for the Division of State Court Administration to act on our request.

It looks like JTAC’s “pilot program” may not encompass any effort to interface the new CMS system with the long-term and wide-ranging existing networks upon which the legal community relies.

There is an interesting discussion in the comments to my midwife posts (read here and this post) about the legal status of unlicensed midwives in Indiana. So called “direct entry” midwives practice arts aiding women in traditions that go back before written history. Many feel that the government has no role in regulating the activities of these midwives, but that’s not how government works.

Actually, Ms. Williams is a certified professional midwife, meaning that she was certified by the North American Registry of Midwives. But there is no recognition of such a designation in Indiana Law.

In reality, traditional non-licensed midwives operate in a legal gray area in Indiana. Typically, since they do not have offices or advertise, they are under the radar of state officials, operating on word of mouth, and in the privacy of people’s homes. Their activities come to light when there is a problem, as in the Williams case, where a child died in birth.

The article I cited yesterday on the Williams case (link) notes that some state at least recognize non-licensed midwives, limiting them from actually delivering babies. Indiana does not cover this issue.

Instead, Indiana’s regulatory scheme says, in effect, a “midwife” is a licensed midwife, and “practicing midwifery” is the performance of activities by a licensed midwife. This circular definition does not tell us what, if anything, an unlicensed midwife can do. You can read the whole nursing code, which regulates the licensing of midwives, and you will not find an answer to that question. (Indiana Nursing Licensure Laws and Regulations, A Compilation from the Indiana Code and Indiana Administrative Code. PDF). The use of the word “midwife” does not resolve the issue. If we instead call unlicensed midwives “female’s assistants” in Indiana, haven’t we escaped the regulations entirely?

So, the activities of an unlicensed midwife are left to be governed by Indiana’s general medical licensing statute. Indiana Code (IC) 25-22.5-8-1 says it is unlawful to practice medicine without a license. IC 25-22.5-8-2 says it is a class D felony to practice midwifery without a license. IC 25-22.5-1-1.1 defines the “practice of medicine” in extremely broad terms, including holding oneself out to the public as being engaged in:

1. the diagnosis, treatment, correction, or prevention of any disease, ailment, defect, injury, infirmity, deformity, pain, or other condition of human beings;
2. the suggestion, recommendation, or prescription or administration of any form of treatment, without limitation;
3. the performing of any kind of surgical operation upon a human being, including tattooing, except for tattooing (as defined in IC 35-42-2-7), in which human tissue is cut, burned, or vaporized by the use of any mechanical means, laser, or ionizing radiation, or the penetration of the skin or body orifice by any means, for the intended palliation, relief, or cure; or
4. the prevention of any physical, mental, or functional ailment or defect of any person.

Certainly the “treatment” of and “other condition of human beings” would seem to cover a midwife helping a woman with a pregnancy, but this provision is so broad, I would probably be practicing medicine by telling a client to take an Advil for a headache. (aside: Did I practice medicine when I cut the umbilical cord for my son?). The practical effect of such a broad provision is to give the regulators complete discretion as to what to prohibit and what to let slide. The problem with this is that we do not know if something will be unlawful until the regulators come out and say it is.

I assume that the regulators would not stop a mother from telling her daughter things about her pregnancy to help her out. I also assume that, if someone became known as being knowledgeable about pregnancy issues, and friends and neighbors called on her for advice with their pregnancies, the state would not treat this as the practice of medicine. But where is the line in the sand? What specific actions of a midwife are the practice of medicine? Is it the payment of compensation? The statute does not mention that. If so, are volunteer unlicensed midwives legal?

After reading through all of this, I guess I would have to agree with the contention that Indiana law is unclear a to what an unlicensed midwife can do in the State of Indiana.

1. Waking with the sun and biking for an hour on the back roads before the morning commuters start tearing around. Waking with the sun now means, it’s time to get into the office, so my bike stay in the garage. I could ride in the evening, but then my kids are awake (as are the teenage drivers).
2. Eating dinner before 8:00 p.m. I know its our fault, but it just seems too early to sit down to eat. The kids are still playing. I am doing something in the yard. It’s not time for dinner.
3. Because of the above: having my youngest son stay awake through dinner.
4. Watching my kids catch lightning bugs in the backyard. The bugs are still there, but by the time they come out, the kids are in bed. 
5. Living between 2 local TV and radio networks (Indianapolis & Dayton) made it easy to catch your shows in the summer: If you missed it the first time, it would “replay” on another channel an hour later.

Who knows, maybe I’ll like it in the Winter more.

 Though finding for Ohio Valley, [Vanderburgh Superior Court Judge Wayne] Trockman significantly rolled back the noncompete restrictions, finding that Millsaps and Morera will be prohibited from practicing cardiology only in Vanderburgh, Posey, Gibson and Warrick counties, and in Henderson County, Ky., for two years.

 In his 17-page decision, Trockman noted that the American Medical Association opposes such noncompete agreements. “When restrictive covenants are enforced, they force discontinuity of care, and physician-patient relationships are involuntarily terminated,” Trockman wrote. “The implications that flow from the disruption caused by enforcing covenants include increased costs of care, decreased quality of care and decreased patient satisfaction.”

Mike Gouloff, whose architectural firm just won a $1.3 million city contract to design the police/fire training academy at the former Southtown Mall site, donated about $29,000 to Mayor Graham Richard’s campaign. And the TM1 LLC, for which Gouloff acts as agent, donated another $23,000 in office space and other in-kind services.