I have serious doubts about the propriety of this proposed ordinance in Greenwood. The mayor wants a ban on the rental of any newly constructed home for a 3 year period.

I think you could probably make it legal, by using the zoning and building permit processes to get the builder to agree to such a condition in exchange for permission to build. I understand the motivation — you have a number of builders softening the housing market which probably has deleterious effects on the community at large.

I don’t necessarily have much sympathy for large developers, who can address the pros and cons of such an ordinance up front and price and plan accordingly. But, it might tie a home buyer to his or her property in an unfair way. Say someone buys their home, plans to live there, but their situation changes 1.5 years later with the real estate market in a down phase — perhaps getting them upside down on their mortgage, making their only real option to rent the place out.

Councilman Keith Hardin seems to have a good head on his shoulders about this at any rate:

Some Greenwood City Council members, who will hear Henderson’s proposal tonight, like the idea behind it but are wary of whether it can pass legal muster.

“I don’t want to be a test case in the courts for these types of things,” said Councilman Keith Hardin.

He prefers more of a carrot-and-stick approach in the form of a three-year tax abatement to developers that could be passed on to homeowners to help nurture the upkeep of their properties.

“The whole point is we debate this and encourage developers to stick with their original plan and not bait-and-switch the city.”
He and fellow Councilman Bruce Armstrong want the city to tighten its zoning regulations, too. Greenwood’s ordinances allow a developer to change his commitments without penalty.

“It’s the wrong way to go about what needs to be done,” Armstrong said of the ordinance. “Unfortunately, there are too many loopholes developers are using.”

The June edition of the Indiana Register is available. It contains:
Adjustments to the toll rate structure on the Indiana Toll Road by INDOT and the Indiana Finance Authority.

Youth deer hunting season.

Reduces HIV nursing facility Medicaid rates by $5 per resident per day.

A notice from the Governor that he intends to take an additional 15 days as permitted by IC 4-22-2-34(b) to approve or disapprove Rule 05-94(F) concerning Abortion Clinics. It includes fairly comprehensive licensure requirements, meticulous record keeping for its patients that includes reliable identifying information and must be easily retrievable.  It also sets forth a fairly detailed list of requirements for the clinic’s physical plant. I don’t know how much this might differ from requirements for similar, non-abortion, medical facilities.

The following is the text of Lafayette attorney and Chapter 13 trustee, David Rosenthal’s letter to a number of area elected officials opposing and urging opposition of the potential closure of the federal building in Lafayette which is the seat of the United States District Court for the Northern District of Indiana, Hammond Division at Lafayette as well as the United States Bankruptcy Court in Lafayette Indiana.

I am the Trustee in the US Bankruptcy Court in Lafayette IN and was advised the Lafayette Federal Building may be closed. This possible closure comes after a recent renovation of the building to accommodate the US Bankruptcy Court which in 2005 served approximately 8,000 citizens and their dependants from Tippecanoe, Carroll, White, Benton, Jasper, Warren and Newton Counties which combined has a population of over 300,000. Besides the Bankruptcy Court, the Federal Building also serves the needs of the area in matters of civil and criminal litigation in the US District Court, the Post Office, the US Probation Department and the 7th Circuit Court of Appeals.

Access to federal services for the area is provided by the beautiful and renovated Federal Building which is a vital and important symbol of America and represents the services provided by our federal government. If the Federal Building is closed, the nearest Federal Building is in Hammond or South Bend, both 2 hours from Lafayette. Besides the importance of the Federal Building set forth above, the difficulty of traveling to either city would be a severe impediment to our citizen’s access to the federal justice system and governmental services now readily available in Lafayette IN.

As importantly, the Federal Building is an architectural gem both externally and internally and as situated in downtown Lafayette is critical to the civic vitality of the area served. lafayette and its surrounding counties has a unique population, a mixture of rural and urban well served by its Federal Building. To require the population to travel to a Federal Building in distant cities, many of the citizens have never traveled to or know, would cause considerable anxiety and discomfort. Further, the Federal Building was beautifully renovated in 2003 at a considerable expense to the Federal Government and which renovation furthers the efficient use of internal space.

To consider closure of our Federal Building is an affront to the citizens of Lafayette and its surrounding counties. Rather than close the Federal Building, the area serviced should be expanded to include Clinton, Montgomery, Fountain, Cass, and Pulaski County, all with similar population characteristics and who travel to Lafayette for work, professional services, cultural and entertainment activities, educational programs at Purdue University and shopping. Lafayette is the center of the 11 counties, NOT Hammond or South Bend.

As stated above, I request that you oppose the closure of the Charles Halleck Federal Building at 300 Ferry Street, Lafayette IN and consider expansion of the population it serves.

In addition to being sent to the Tippecanoe County Bar Association, the letter was distributed to Lafayette Mayor Tony Roswarski, West Lafayette Mayor Jan Mills, Senators Lugar and Bayh, U.S. Representative Steve Buyer, State Representatives Sheila Klinker and Tim Brown, State Senators Ron Alting and Brandt Hershman, and Governor Daniels.

I just received a notice from the Tippecanoe County Bar Association that:

[T]here are efforts being made by the Administrative Office of the United States to close the federal courthouses in Terre Haute and Lafayette. This means the loss of the U.S. District Court, the U.S. Bankruptcy Court, the U.S. Probation office, and Judge Kanne’s chambers. The rationale for the proposed closing is, in large part, the rental cost the courts must pay to the General Services Office for the use of the building, e.g., one federal agency paying another. . . .

If closed, federal cases and bankruptcies would need to be filed and handled in Hammond or possibly South Bend. This would be devastating not only to lawyers in Tippecanoe and surrounding counties, but also to the public at large. The necessity of travel to Hammond or South Bend would cause a significant loss of business for the local attorneys and greatly increased costs for our clients.

The federal courthouse in Lafayette is the Northern District of Indiana Hammond Division at Lafayette.

This is a Bad Idea. Geographically, Lafayette fills an important gap in the territory of the Northern District. Currently, the Lafayette “division” serves Benton, Carroll, Jasper, Newton, Tippecanoe, Warren, and White Counties. Those places are a long, long way from Hammond and South Bend.

If this strikes you as a bad idea, you might try contacting Senators Lugar and Bayh as well as Representatives Chocola, Buyer, Hostettler, and Visclosky.

Governor Daniels recently ordered the pardons of 5 convicts.

As I mentioned on November 2, 2005 and November 21, 2005, the Indiana Department of Revenue’s INDebt site is not available. Back then, I thought it was a minor oversight, skirting the law in the interest of implementing the tax amnesty legislation.

But now that the site has apparently been down for at least 6 months, it strikes me as a little more serious. The Indiana Dept. of Revenue is supposed to list tax warrants that are between two and ten years old since their first issuance, and the liability is more than $1,000. I believe the Department of Revenue is in violation of IC 6-8.1-3-16(j) which states:

The department shall publish the list compiled under this subsection on accessIndiana (as operated under IC 4-13.1-2) and make the list available for public inspection and copying under IC 5-14-3.

The last time I looked, I was interested in verifying whether a particular debtor was being truthful when he claimed he had huge tax liabilities to contend with. This time, I am investigating collectability of a particular debt. As part of its free information, Doxpop lists a bunch of tax warrant cases pending against the debtor but nothing about the amounts or the status of the case without paying for their service. Anyone know the deal about why INDebt is down or whether the list of tax cheats has been online any time during the past 6 months?

Maybe Richard Rhoad has a huge tax debt and keeping it under wraps is another “undisclosed detail” of the compensation package promised to him by Mitch Roob. Well, o.k., probably not. But with these guys, you just never know sometimes.

The Indy Star has a story on an issue that has been blogged by the Indiana Law Blog and Opening Arguments. The question is whether police officers engaged in pursuit of a suspect are entitled to law enforcement immunity under IC 34-13-3-3(8). That provision states that governmental entities and their employees are immune from liability for actions they take in an effort to enforce the law.

Marion County Judge David Dreyer stated that officers were not entitled to law enforcement immunity when they hit a bystander while engaged in a high speed chase trying to apprehend a suspect. I do not know his rationale. However, the article states that the case could be merged with a Lake County case that raises the same issue.

Here is where I think the Court of Appeals reviewing the Lake County case got it wrong and where I think the Supreme Court ought to go with this law enforcement immunity case. The Court of Appeals  spent a lot of time laboring over an apparent conflict between the immunity statute and IC 9-21-1-8 which imposes a duty on the driver of an emergency vehicle to drive with due regard for the safety of all persons. Ultimately, the Court decides that the immunity statute cannot be reconciled with the emergency vehicle duty statute and, because of that and certain rules of statutory construction favorit the duty statute, the duty statute trumps the immunity statute.

The Court of Appeals went so far as to quote the caselaw that leads in the opposite direction but did not follow its instructions to the necessary conclusion: “[I]t is only after a determination
is made that a governmental defendant is not immune under the ITCA that a court undertakes the analysis of whether a common law duty exists under the circumstances.”  Using this principal of immunity jurisprudence, you have to make the immunity determination first. Either the defendant is immune or not. Immunity exists in spite of duty. It’s not that the tortfeasor hasn’t breached a duty of care. That’s the whole point. The tortfeasor has acted negligently but the legislature has granted immunity in spite of the negligent breach of a duty.

So, first you look at ITCA (the immunity statute) and ask whether the police officer’s act constituted law enforcement. If so, the governmental entity and its employees are immune from liability. End of analysis. It’s only after you’ve established that immunity does not exist that you worry about whether a duty has been breached, regardless of whether it is a duty imposed by statute or by common law.

If any judges out there are reading this, consider whether you think the Court of Appeals statutory construction of law enforcement immunity would shake out the same way if it was judicial immunity on the line. Judges are immune from liability for decisions they make on the bench. Say the judge negligently messes up a sentencing calculation or fails to notice an inmate is on his jail list longer than his sentence called for. Certainly a statute on the books telling a judge to release an inmate when his sentence was up or to calculate a sentence in a certain way shouldn’t be construed to impair judicial immunity.

Immunity is a cruel thing. It potentially leaves someone who was wronged without a remedy against the wrongdoer.  But, at least in the context of law enforcement, the benefits of having the government free to act to enforce its laws are seen to outweigh the detriment of leaving a claimant without a remedy when the government’s employees act negligently. (And, in the case of the judiciary, allowing judges to act freely is very important without every disgruntled litigant trying to conjure up a case for judicial liability.)

Tracy Warner flags an interesting motor vehicle law in a post entitled BMV changes. He links to a BMV press release stating that a motorist involved in an accident with more than $1,000 damage done to their vehicle must forward within 10 days a report of the accident to the BMV. The report must contain, among other things, the signature of the individual’s agent. This seems like a burdensome new development. If you don’t have a local agent, getting a signature from your insurance company then getting the document to the BMV within 10 days is something of a hassle — particularly when your main concern at that point is to get your car fixed.

But I’m trying to figure what this means in practice. The laws in question that the BMV is enforcing are IC 9-26-1-2(3) and IC 9-26-1-2.5. IC 9-26-1-2 was amended by HEA 1073-2005 (P.L. 210-2005), SECTION 51. Prior to the amendment in the 2005 legislative session, the reporting requirements were the same except that the motorist was required to provide a written report, including the signature of an insurance agent, to the Indiana State Police rather than the Bureau of Motor Vehicles. Was anybody doing this? I’m pretty up on these things, and it certainly never would have occurred to me to file my own report with the state police that included an insurance agent’s signature. I would have figured hanging around until the police took their report would have been sufficient. At that point, I would have considered my involvement with the government complete with respect to the accident.

So, was the prior law not being enforced? Is there some provision that makes the police report sufficient even absent an insurance agent’s signature? Or were citizens routinely filing such reports on their own behalf?