In the wake of the recent failure of the CAFO moratorium bill here in Indiana, local water advocate Barbara Sha Cox sent in an opinion piece to the Pal-Item: CAFO slowdown is needed:

There are several legislators who are concerned and have introduced legislation to address the issues. However, their legislation is always blocked by those who are not listening to the citizens and have chosen to only listen to agricultural business. Legislators interested in the citizens’ point of view include Senator Allen Paul (R-Richmond) with his bill for a moratorium for three years to study the issues and place in lawregulations that would address the issues.

One for publication:

State of Indiana v. Philip Morris Tobacco Company, et al.:

Plaintiff-Appellant State of Indiana appeals the trial court’s order compelling it to participate in arbitration with the Defendants-Appellees Philip Morris Tobacco Company USA Inc., R. J. Reynolds Tobacco Company, and Lorillard Tobacco Company. We affirm. The State presents two issues for our review, which we restate as: I. Whether the trial court erred by ordering the State to participate in arbitration pursuant to the Master Settlement Agreement. II. To the extent that the trial court ordered arbitration by a single, national arbitration panel, whether the trial court erred in so ordering. This litigation commenced in 1997.

The tobacco settlement calls for Philip Morris USA, Inc., R. J. Reynolds Tobacco Company, and Lorillard Tobacco Company to pay money to the states in the settlement each year. The parties disputed the amount of the payment from 2003, and the tobacco companies wanted arbitration.

Three Four not:

Sewell Jerome Evans v. State of Indiana (NFP)

Scott Kiefner v. State of Indiana (NFP)

Jessica Winchell v. Marion County Department of Child Services and Child Advocates (NFP)

Dwight A. Looney v. State of Indiana (NFP)

Hey folks, as an update to this post, be sure to go back and check the comments.

To understand what is going on here in this public vs. private effort to bring the local court scheduling records together in a state wide computer system, you need to know some of the background: Historically, each county was responsible for maintaining their local court records and providing access to the public. As technology progressed, courts wanted to store scheduling and other court related information on computers for better access.

Each trial court was left to make its own decisions on how to do this. Some small counties, like Union County, kept with the paper systems in place, but most moved to computers. While Fayette County Circuit Court Judge Daniel Pflum wrote his own court scheduling system, most courts turned to a handful of private companies to develop commercial software to handle the task. One of the biggest providers in Indiana turned out to be CSI, Inc., a firm run by Kevin Cook. Kevin’s company has been maintaining sophisticated and effective court scheduling software in local Indiana courts across the state for over 20 years.

Along comes Doxpop, and through a partnership with CSI and other vendors, brings internet access to these records. The important thing about this effort is that it was structured such that internet access was provided to these records at no cost to the counties. All of this has been done on a voluntary basis, albeit, with the express permission of the Indiana State Court Administration.

Several years ago, the State decided that it would construct a computer system for these local court records which would be controlled by the state, and mandated on all the courts across the state. Since this announcement, courts, vendors like CSI and Doxpop have wondered how this new system would impact them, but the state system has been, to say the least, delayed, its been business as usual, save for the fact that no one can plan for the future.

Now the State has announced that it will start a pilot of its central system in Monroe County this month. This means that CSI will be shut out of Monroe and Monroe’s current data will be pulled out of Doxpop.

As Kevin points out, the State is planning to spend real taxpayer dollars on its effort:

The Indiana Supreme Court who plans to spend nearly $100 million taxpayer dollars is offering courts a CMS system that forces a court to transact, store and retrieve court information including confidential juvenile, mental health, adoption, personal information over the internet and this confidential information will be housed under the Indiana Supreme Court’s control and view.

So the plan is, take a system of private companies working in cooperation with local courts to bring case information to the public via the internet at no cost to the public, while leaving the local courts in control of their own data, and scrap it so the State can spend millions, effectively putting private companies out of business, and forcing local courts to give up control of their own records.

Kevin points to a Monroe County blog for additional information Pin-the-Tail.

[Full Disclosure: I have done legal work for Doxpop]

One of the most contested post-dissolution issues courts face is the relocation of a parent having custody of the children. As people become less tied to a specific community, and generally more willing to relocate, more divorced parents face the loss of regular contact with their children due to a relocation.

This is hard on the children and the parents, but the courts have to balance this loss with the need for the custodial parent to be free to move. Indiana recently revised its relocation statute (IC 31-17-2-8) to require that specific notice of the intention of either parent to relocate their residence be given in a particular form and with particular details to the other parent. The new  provision also establishes a standard that the moving parent must meet to be permitted to relocate the children.

The Indiana Court of Appeals recently reviewed a case under the revised statute: Gerry Ray Rogers v. Laura Lynn Rogers . The Court upheld the trial court’s decision to permit the mother to relocate the children to Texas. I bring this case up to highlight the dissent filed by Justice James S. Kirsch. I think the dissent shows how hard these issues are:

How can depriving children of the presence of their loving and caring father in their daily lives be in their best interests? My colleagues conclude that Father failed to carry his burden that Mother’s relocation to Texas was not in the best interests of his children without raising or answering this question. To me, it is of paramount importance. These children’s father will not be there to attend their birthday parties, school functions, recitals, concerts, science fairs, athletic contests, and extracurricular events. Their father will not be there for parent-teacher conferences. Their father will not be there to take them to school in the morning or to pick them up in the afternoon. Their father will not be there for their doctor and dentist appointments. Their father will not know their teachers, and he will not know their friends. Their father will not be there as they move into and through adolescence with all of its attendant challenges. The choice before the trial court and here is not a custody determination between parents who live in different places. Mother said she would not move if the trial court denied it. Rather, the choice is between whether the children should live in the same community as both of their parents or should live with one parent several hundred miles away from their other parent. To me, the better choice is obvious.

 
Good Question. Frankly, I have had some “professional engagements” that have made it difficult for me to post anything about the looming pig crisis for quite a while now.

With that in place, I sort of lost my blogging identity, having become the blog about CAFO’s - CAFO’s all the time. I may return to pigs at some point. but for now, I will be steering clear. So, let’s see if I have anything else to talk about. . . .

Link:

On Tuesday, the Madison County Board of Zoning Appeals approved a special-use exemption that clears the way for a 4,000-hog confined animal feeding operation in Duck Creek Township.

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.

Following up on my post from last week. the Dayton Daily News had a story on the impact in Ohio: Law forces sex offenders to move. Some are fighting back. Does making sex offenders move really make children safer? covers the story of a 5 year old man, caring for his ailing spouse who is appealing a court order requiring him to relocate due to a 2005 law in Ohio prohibiting sex offenders from living within 1,000 feet of a school:

The order was appealed Feb. 7 to the Ohio 2nd District Court of Appeals by lawyers from the Ohio Justice and Policy Center in Cincinnati. Among the nonprofit office’s missions is helping convicted sex offenders get back on their feet, said Stephen JohnsonGrove, a center lawyer. . . .

“There may be people, indeed, who shouldn’t be living within 1,000 feet of a school, but offenders are approached with such a broad paint brush,” JohnsonGrove said. “I simply want people to consider the level of damage that this is doing to people’s lives, and there is no evidence this is going to help anything.”

• Nuvo on Church and state: ICLU llawsuit
  Nuvo’s Laura McPhee provides some background on the plaintiffs behind the recent lawsuit against the speaker of the Indiana House on opening house sessions with prayers. The piece notes that the plaintiffs are ministers or otherwise affiliated with major
  (tags: churchstate)
• Judge sentences man to death for double-killing in Lapel
  Jeff Lockwood’s client, Fredrick Michael Baer sentenced in Madison County to death for killing a woman in front of her 4 year old daughter. The defense admitted the killing, but argued that Baer was mentally ill and his life should be spared.
  (tags: sentencing criminal)
• License of doctor accused of growing marijuana suspended
  I guess I do not see how practicing medicine and growing pot are related, but maybe they feared he was smoking and working at the same time.
  (tags: criminal)
• No bail for former trooper accused of killing his family
  Katharine Liell’s client David Camm, back for retrial, now in Warrick County denied bail. The person whose DNA was found at the scene of the killing has pointed the finger back at Camm
  (tags: criminal)

• Michael J. Hart v. State of Indiana
  Fact that defendant disseminated pictures of him sexually abusing his daughter on the internet was NOT an appropriate aggravating circumstance. The legislature could have enhanced the crime because of this feature, if it saw fit
  (tags: IND_CASES criminal Appeals sentencing)

• Indiana Courts > Appellate Opinions
  Here is a link to the page where 6 opinions have been posted today in PDF. I am holding off posting direct links until I see what their archive process is.
  (tags: IND_CASES Appeals)
• Indiana Courts > Appellate Opinions
  Here is the link for the 1 criminal case decided by the Indiana Supreme Court today.
  (tags: IND_CASES Supreme)

• Donna Swift v. Daniel J. Pirnat
  How exciting can proper venue cases get? Not very
  (tags: IND_CASES Civil$ Appeals procedure)
• Eric Simmons & Anthony Davis v.State of Indiana
  State can use accumulation of small drug sales to meet the 3 gram threshold.
  (tags: IND_CASES criminal Appeals drugs)
• Richard Welch v. State of Indiana
  Self defense claim can only bring in acts of violence by the victim into evidence if defendant knew about them prior to the incident
  (tags: IND_CASES criminal evidence Appeals)
• State of Indiana v. Bruce Phillips
  Officer makes stop because he did not see the temporary tag in the defendant’s back window. Court says initial stop valid as, if tag correctly displayed, officer would not have missed it. Mathias disagrees
  (tags: IND_CASES criminal Appeals 4thAmendment)
• Starting June 15, airlines must report how many pets are killed, lost or injured on their flights
  The government estimates 2 million animals fly commercially every year. the American Society for the Prevention of Cruelty to Animals, suggested 1 percent are killed or injured, which would mean 20,000 animals per year
  (tags: airlines pets)

• Jerry Reyes v. State of Indiana
  Defendant’s admissions enough to prove that victim was confronted in his home and defendant was in a position of trust.
  (tags: IND_CASES criminal sentencing Blakely)
• Rogelio Medina v. State of Indiana
  Defendant not prejudiced by jury instruction that left off the culpability for child molesting as accidental molesting was not posible
  (tags: IND_CASES criminal instructions)

• Lawrence Thomas v. State of Indiana
  No harm no foul: Where defendant’s counsel failed to object to bad instruction on felony murder, state proved state proved standard murder anyway.
  (tags: IND_CASES criminal instructions Supreme)

• Hayes Arboretum update
  The planning commission approved the expanded plat, despite serious concerns about drinking well contamination.
  (tags: local environment realestate)

• Matter of U.M. v. State of Indiana
  Juvenile tells cop: “Fuck you.” Court says kid was ” was expressing himself regarding the legality and appropriateness of police conduct toward his companion,” so protected speach
  (tags: IND_CASES criminal Appeals 1st Amendment)
• MCS Lasertec, Inc., et al v. Richard J. Kaminski
  Ex-employee is sued by employer for taking $. Employee claims he took some $, not all and court believes him. He then pleads guilty to steal all: No relief for employer
  (tags: IND_CASES Civil$ Appeals)
• Daniel Scalpelli v. State of Indiana
  Man working on his house, piles some dirt on graves in an adjacent cemetery without a permit. He claims he meant no wrong. Court says “A crime is a crime.”
  (tags: IND_CASES criminal Appeals)
• Linkamerica Corporation v. William A. & Connie J. Cox
  Indiana had personal jurisdiction over parent company (Linkamerica), as Indiana company and Linkamerica had same address and same corporate officers
  (tags: IND_CASES Civil$ Appeals civilproceedure)
• Michael J. Williams v. State of Indiana
  Blakely violation in ordering enhanced sentences. Court determines that appropriate remedy is to impose non-aggravated sentences, but makes them consecutive.
  (tags: IND_CASES criminal sentencing Supreme Blakely)

• Mario Sims, Sr. v. Richard M. Bramer, et al.
  The court takes on a hardened pro se (inmate) litigant and threatens him with contempt for frivolous repeat filings
  (tags: IND_CASES Civil$ Appeals)
• Elaine Strauser and Estate of Yoder v. Westfield Insurance Company, et al.
  Cause of action against insurance company for refusing to pay claim accrues with denial, not with subsequent victory against the tort-feasor in litigation.
  (tags: IND_CASES Civil$ Appeals)
• DECK v. MISSOURI 04-5293 7 to 2 (Thomas &Scalia)
  Court says that visible shackles at capital sentencing hearing without justification violated Deck’s 5th & 14th amendment rights.
  (tags: SCOTUS criminal sentencing)
• CLINGMAN V. BEAVER 04-37 6 to 3?but mixed
  Oklahoma can prohibit libertarians from opening their primary to registered Republicans and Democrates
  (tags: SCOTUS electionlaw)
• JOHANNS V. LIVESTOCK MARKETING ASSN. 03-1164 5-4
  Because beef checkoff funds the Government’s own speech, it is not susceptible to a 1st Amendment compelled-subsidy challenge
  (tags: SCOTUS 1stAmendment)
• LINGLE V. CHEVRON U.S. A. INC. 04-163
  A “takings” case. Hawaii’s gas station rental cap survives round 1
  (tags: SCOTUS realestate takings)

• PAUL A. MOORE v. STATE OF INDIANA
  Yes, they can use illegally obtained evidence to implicate you in a crime, as long as they come up with more evidence before trial.
  (tags: IND_CASES criminal evidence Appeals)
• Frank Wenning v. Lottie Calhoun
  Court calls a mulligan: A purchase agreement that leaves out a legal description in too indefinite to enforce.
  (tags: IND_CASES Civil$ Appeals realestate)
• William Haddix v. State of Indiana
  Double jeopardy not violated when trial court refused to enter conviction on first jury’s verdicts of guilt for lesser included misdemeanor OWI offenses and permitted Haddix to be retried on C felony OWI resulting in death charge
  (tags: IND_CASES criminal Appeals OWI)
• Ivan Paramanandam, et al v. Victoria Herrmann
  Insider quits company, scrapes company website and opens a competing online vendor. No trade secret violations as website content not secret
  (tags: IND_CASES Civil$ Appeals)
• Samuel Crook v. State of Indiana
  an anonymous tip alone is insufficient to constitute the reasonable suspicion necessary to search through Crook’s garbage
  (tags: IND_CASES criminal Appeals 4thamendment)
• Jerry L. Downs v. State of Indiana
  After criticizing defense counsel’s brief writing skills, court says 2 year sentence on direct contempt is not unreasonable
  (tags: IND_CASES criminal Appeals)
• S.S. v. State of Indiana
  Special terms of probation that are punitive, such as home detention, may not be a term of probation where plea agreement silent to such conditions
  (tags: IND_CASES criminal sentencing Appeals)

• Shirley Ott v. Alliedsignal, Inc., et al.
  Because there are at bases to distinguish between long-latency and short-latency illnesses, we cannot invalidate statutory distinction that is created by products liability statute of repose
  (tags: IND_CASES Civil$ Appeals)
• Julian Pendleton v. Manuel Aguilar, et al.
  Trial court erred in entering a post-verdict set-off of collateral source payments where evidence of reimbursement was presented to jury and jury was instructed on non-duplication of recovery
  (tags: IND_CASES Civil$ Appeals)