An amendment added to HB 1419, until now a vehicle bill, concerning judicial nominations is getting some attention. Here is the text of the language inserted into the bill. As I read it, it does a few things. The judicial nominating committee is made up of 3 attorneys nominated and elected from 3 different judicial districts by attorneys in their respective districts. In addition the commission has 3 non-attorney members appointed by the Governor. Finally, the Chief Justice of the Indiana Supreme Court is on the commission.

The bill alters how the judicial nominating committee is selected. Instead of being nominated by attorneys in the district,  the nominating would be done by the Speaker of the House and the President Pro Tem of the Senate. The attorneys would have to vote for individuals pre-approved and nominated by the Speaker and President Pro Tem.

As for the non-attorney members, the bill terminates all of the current non-attorney members’ terms of office on May 31, 2006, allowing Governor Daniels to replace all of them right away regardless of whether their 3-year term expires naturally or not.

The bill then directs the commission to review all judges who are up for a retention vote. If 4 of them recommend for or against retention, that recommendation (for or against) is to be placed on the ballot next to the candidate’s name.

Niki Kelly, writing for the Fort Wayne Journal Gazette has a story in today’s paper. Surely just a coincidence that the bill is being hammered through in advance of the 2006 election where 5 appellate court justices and 1 Supreme Court justice are up for retention — they are all Democrats.

The rationale:

The bill’s author, Rep. Ralph Foley, R-Martinsville, said the system
hasn’t worked out fairly because in 16 years all 21 judges appointed
have been Democrats, including five Supreme Court justices and 16
appeals court judges.

This stands to reason, since Democrats have held the Governor’s office for the past 16 years. And, when Republicans controlled the Governor’s office, Republicans were appointed to the judiciary. As it stands now, Rep. Foley is trying to engineer a system where between 4 to 7 Republicans will be on the nominating commission and will be allowed to insert their unrebutted commentary onto the ballot urging rejection of Democratic judges.

If I were Rep. Foley, a licensed attorney, I would be careful about playing hardball with the judiciary in this fashion. Two weeks ago I posted an entry involving Rep. Foley. He represented Morgan County defending an ordinance it adopted in excess of the county’s authority. Morgan County had adopted a certificate of need ordinance to protect the county hospital by requiring county permission before new medical construction in the county could begin. The County did not have the authority to adopt such an ordinance under the Home Rule Act. In an apparent attempt to obtain for his client from the legislature what could not be obtained under existing law, Rep. Foley authored HB 1492-2005 which would have given Morgan County the authority to adopt such an ordinance. I don’t know that the Rules of Professional Conduct prohibit representing one’s clients in this fashion, but it sounds a little sketchy to me.

I would suggest that, to the extent possible, keeping the political separate from the judicial is the best course of action. If Representative Foley wants to politicize the judiciary in this fashion, things could get ugly, particularly for the attorneys in the legislature, if the judiciary decides to get political.

Other coverage of this bill is available at Rep. Dvorak’s site, The Indiana Law Blog, and Taking Down Words.

In the comments to my previous post on the Toll Road, someone asked whether HB 1108 provided for the privatization of all of Indiana’s transportation infrastructure and not just the toll roads.

My review of the bill has been brief, but that seems to be essentially what SECTION 33 of the introduced bill provides for. It creates a new Article to the Indiana Code at IC 8-15.7 entitled “Public-Private Partnerships”. It allows for the State to enter into 99 year contracts with private entities to operate tollways, intermodal facilities, roads, airports, transit facilities, “other transportation facilities and infrastructure.” In addition, the term “project” means all or part of a bridge, tunnel, overpass, underpass, intercahange, structure, ramp, access road, service road, entrance plaza, approach, tollhouse, utility corridor, toll gantry, rest stop, service area, or administration, storage or other building or facility related to the transportation facilities and infrastructure.

The process appars to be something like this: The Indiana Finance Authority makes a request for proposals. (The authority is made up of the following members: the budget director who is appointed by the Governor, the State Treasurer, and 3 members appointed by the Governor, 1 of whom must be from a different political party.)  If it likes one of the proposals it recommends the proposal to the governor and the budget committee. (The Budget Committee consists of two Republicans and two Democrats appointed by the party leaders of each chamber of each house. It also consists of the Budget Director appointed by the Governor.) Apparently the budget committee is responsible for reviewing the Finance Authority’s recommendation but has no power to accept or reject. Instead, accepting or rejecting the recommendation appears to be entirely in the Governor’s discretion.

So, the Finance Authority — a majority of whom can be from the same political party as the Governor and appointed by the Governor — makes recommendations to the Governor and the Budget Committee about projects that can privatize essentially any state owned transportation infrastructure for up to 99 years at a time. The budget committee can give its 2 cents but can’t do anything to affect the process. The Governor can then accept or reject the project.

Wow. That’s pretty breathtaking in its scope. Thanks to those who got on me to sift through this legislation. A determined Governor with loyal appointees could mortgage almost all of the state’s transportation infrastructure for generations to come in a very short time, and the legislature couldn’t do a thing about it.

It probably doesn’t matter to Mr. Bush, since he’s not running for anything in the future, but according to the most recent ARG poll, his approval rating has returned to a low of 36% compared to a disapproval of 58%. His approval rating probably has more to do with the 2006 and 2008 elections where, if his numbers are bad enough, he’ll be actively bad for Republicans seeking office instead of being merely a non-factor for them.

Democrats and Republicans are fairly predictable in their responses, the more significant group are the Independents, figured as 30% of the responders. 71% of them disapprove compared to 24% approval.

The Louisville Courier Journal has a story on the Certificate of Need ordinances in Floyd and Clark Counties recently struck down by Judge Barker in the Southern District of Indiana. The ordinances are designed to protect county hospitals from competition and prohibit construction of new medical facilities without the county’s permission. Back in November, Judge Hamilton struck down a similar ordinance in Morgan County. In previous posts (here and here ), I discussed Perry County’s bewildering decision to adopt a similar ordinance even though they were aware that Judge Hamilton had ruled that they were beyond a county’s authority and illegal.

According to the Courier Journal article, Clark County has paid legal expenses of $70,000 to the law firm of Barnes and Thornburg in Indiana and an unspecified amount to their own county attorney. In making the determination of whether to appeal the decision, Dr. Gordon Gutmann, physician and president of the board of directors at the Clark County hospital makes a great deal of sense:

Gordon Gutmann, a physician and president of the board of directors at Clark Memorial, said it is his position that Clark County should not appeal the judge’s ruling to the 7th U.S. Circuit Court of Appeals in Chicago. It would cost more money and time, Gutmann said, and court opinions so far have shown that the regulation of local health care is up to the Indiana State Department of Health and not county government.

“If that’s what the law is it’s what the law is,” Gutmann said. “We have to suck it up and abide by it.”

Meanwhile, Floyd County’s attorney said there was a more than 50/50 chance Floyd County would appeal the decision. He said that he believes Floyd County has legal grounds to pass some type of ordinance regulating hospitals in addition to the regulatory authority assigned to the State Department of Health. The article did not specify what that additional authority might be.

I’m all for county authority to act. I think county government tends to be more responsive to the citizenry than state or federal government. But I just don’t see that the counties have a leg to stand on with respect to this issue. Under Indiana’s Home Rule structure, once authority over an issue has been assigned to a state agency, local governments do not have authority over the issue unless specifically granted such authority by statute. Two judges reviewing three different ordinances have failed to find such a specific grant of authority.

So, the $70,000+ question for the Perry County Commissioners is whether they think they can succeed where three others have failed or do they want to repeal their ill-considered decision to adopt a Certificate of Need ordinance?

In a previous post I discussed Perry County’s recent adoption of a “Certificate of Need” ordinance which prohibited construction of new medical facilities unless the builder obtained a “certificate of need” from the County.

Back in November, Judge Hamilton struck down a similar ordinance adopted by Morgan County. According to a story in the Perry County News, the Perry County commissioners were aware of the Morgan County case and proceeded to adopt the ordinance anyway, claiming that they had drafted the language of the ordinance more narrowly. As I explained in that previous post, there is no way the ordinance can be read as being permissible in light of Judge Hamilton’s ruling.

Yesterday, Judge Barker issued her opinion striking down similar ordinances in Clark and Floyd Counties. The reasoning of both Judges Hamilton and Barker is the same. Under Indiana’s Home Rule Act (IC 36-3-1), counties simply do not have this authority.

The Home Rule basically starts with the presumption that a local unit of government has the authority to do something. However, it states that “Counties may not exercise powers that are expressly denied by a state statute or that are expressly granted to another entity.” It goes on to specifically withhold from counties the power to “regulate any conduct that is regulated by a state agency, except that which is expressly granted by statute.”

The Indiana State Department of Health is granted the right to license and regulate hospitals and is directed to enhance competition. There is no support for an inference that the General Assembly had given a county the power to hinder a county hospital’s competition. Judge Hamilton went on to say:

Morgan County’s Ordinance in this case does not meet the standards of these Indiana decisions. The Ordinance serves a purpose of restricting competition, a purpose that is not merely different from the state regulations and policy, but is flatly contrary to the express state policy of promoting competition.

It remains incomprehensible to me how or why the Perry County Commissioners would adopt their ordinance. If they had simply been ignorant of the prior Morgan County decision, the ordinance would have mad a bit of sense. But, according to the Perry County News, they knew about it and adopted the ordinance anyway. With the latest decision striking down the Floyd and Clark County ordinances, they probably ought to save themselves some legal fees and repeal their ordinance as soon as they can.

David Broder has a column on Gore’s indictment of George Bush based on Bush’s pattern of vastly overstepping his authority, perhaps criminally so. Broder notes that Gore is hardly objective on the topic of the Bush presidency, but credits Gore for laying out a clear and copious case of Bush’s ventures to (beyond, imho) the limits of executive power.

Broder mostly dismisses Gore’s criticism of Bush’s decision to rush into a war of choice based on sketchy intelligence. According to Broder, this was mere incompetence rather than malice aforethought. Broder seems more in agreement with criticism of Bush and his adminstration over the torture at Abu Ghraib and the adminstration’s resistance to setting and enforcing clear prohibitions on torture and inhumane treatment of prisoners. Broder notes Bush’s “oddly equivocal” signing statement on the McCain anti-torture bill, suggesting that he could simply ignore the law.

On the warantless wiretap searches of American citizens, Broder states:

Gore’s final example — on which he has lots of company among legal scholars — is the contention that Bush broke the law in ordering the National Security Agency to monitor domestic phone calls without a warrant from the court Congress had created to supervise all such wiretapping. If — as the Justice Department and the White House insist — the president can flout that law, then it is hard to imagine what power he cannot assert.

Broder concludes by writing:

When [Gore] challenged the members of Congress to “start acting like the independent and co-equal branch of government you’re supposed to be,” he was issuing a call of conscience that goes well beyond any partisan criticism.

If you use an RSS feed to read this blog, the feed URL has changed. It is now:
https://www.masson.us/blog/?feed=rss2

Of course, if you rely on the old, broken feed to read this site, you’ll never see this.

Via SlashdotVia Slashdot the future of nanobiotech predicted.

the experts say we can look forward to biosensors capable of detecting a single molecule by 2015, the direct construction of artificial human organs by 2020, and the use of nanomachines inside the body for diagnosis and therapy by 2025.”

Presentation (pdf).
Press release.
And, for background, the Wikipedia entry on Nanotech.

I just came across a Hoosier blog by Charlie Averill that seems primarily focused on union issues. Worth a read. I came across his blog after he left a comment at Rep. Heim’s blog entry on the the informal prayer conducted by some House members.

He inquired as to what the prayer might have been about:

I’m also wondering if it was simply a prayer of thanksgiving, or rather, was it a prayer that our seniors would get the help they need in deciding which Medicare prescription drug plan to choose, or was it a prayer that the minimum wage in Indiana would finally be increased, or that all of Indiana nursing homes would be required to have fire extinguishers, or that Governor Daniels would re-establish bargaining rights for Indiana’s 24,000 public workers, or that laws would be established to outlaw the permanent replacement of striking workers, or that the workers compensation laws would be strengthened, or that the governor would stop blaming the departing of companies like Colgate out of our state on the fact that Indiana is not a right-to-work-for-less state, and put it where it belongs……plain old greed, or maybe you were all praying that all Hoosiers would some day have health care? I certainly hope so.