A Citizen's Guide to Indiana

Masson's Blog

Personal Injury Claim Lost for Want of 17 Cents Postage

by 9 Comments

Ouch. The case of Webster v. Walgreen (pdf) is a tough one. The plaintiff alleged that she was injured when she slipped and fell at a Walgreens due to the store’s negligence. The fall took place on December 17, 2008. On December 10, 2010, the plaintiff’s lawyer put the complaint in the mail to the Clerk of the trial court. Typically you have two years to file a complaint and typically a complaint is deemed filed when you deposit it in the mail.

Trouble is that the scale of the plaintiff’s attorney apparently wasn’t calibrated the same as the scale of the U.S. Post Office. The Complaint was mailed with $6.83 postage. The U.S. Postal Service said that $7.00 was required. The Clerk of the trial court declined to pay the additional postage, and the Complaint was returned to the attorney on December 21, 2010 – 4 days after the statute of limitations ran, barring the suit.

The Court of Appeals affirmed the dismissal, holding that a document has not been “mailed” unless it is deposited in the mail with sufficient postage.

There are a couple of practice pointers here – 1) unless matters are out of your control (e.g. Client comes to you at the last minute), you don’t cut things that close to the statute of limitations; 2) if you don’t have confirmation of filing before the statute, get confirmation from the court prior to it running. At least then, if necessary, you can drive to the court house or otherwise take more extraordinary measures to ensure timely filing.

Still, ouch. I feel kind of sick for that attorney.

FSSA Welfare Eligibility Privatization Contract Trial Draws to a Close

by 4 Comments

Niki Kelly has a story on the State’s lawsuit against IBM in the FSSA welfare eligibility privatization contract. The story is entitled IBM, state make closing arguments.

It was a story of Niki Kelly’s long ago, back in September 2005, about Mitch Roob that was entitled “Math geek grabs FSSA challenge with gusto” that prompted me to make this prediction:

My prediction is that a shift toward privatized social services will result in a somewhat reduced cost to the State, decent to big profits for politically connected businesses, reduced services for the needy, and increased costs to local government which ultimately has to deal with these folks in one way or another.

How did I do?

Florence v. Burlington – 4th & 14th Amendment Strip Search Case

by Leave a Comment

The recent Supreme Court decision of Florence v. County of Burlington (pdf) has been the subject of a lot of online outrage; mostly in the form of disbelief that the Supreme Court could believe that a strip search is Constitutionally permitted if it is conducted without regard to the crime of which the individual is suspected. On a superficial level, I get it. Hauled in for a speeding ticket and then some goon with a gun is telling you to move your testicles left or right? That can’t be right.

But, thinking about it and reading the case, I agree with the majority; the risk an individual poses to a jail population is not solely or even primarily a function of the crime with which he or she was charged. A falsely accused murderer is probably less of a danger than a never-accused murderer booked for check deception. I think the real question has to do with when and how jail should be used as a tool of the criminal justice system. But that question wasn’t anything under the control of the defendants in this case. The accused is brought to the jailer and the jailer is told to hold him. If there is a facially valid court order on the subject; that’s about the end of the jailer’s discretion. If these people are going to mix with the general population; then the same administrative procedures probably have to be applied to the low end offenders as the high end offenders. The distinction to be kept in mind is that the procedures themselves aren’t to punish the accused and the offenders in proportion to their crimes. They’re for jail administration.

Do people accused of minor crimes have a Constitutional right to be held in a jails or wings free of serious offenders? In all likelihood, this is good administrative policy; but I doubt it rises to a Constitutional right. That said, I don’t think it would be a bad idea for policy makers to keep this case in mind when they are evaluating the propriety of using jail as a tool in the criminal justice system for various purposes.

Filed Under: Law

A Tale of Two Cities (Lebanon & Zionsville): School Finance Edition

by Leave a Comment

Carol S. Corner, writing for the Indiana Property Tax Reporter has a very interesting comparison on school funding as between Lebanon and Zionsville. The post is entitled Indiana Tax Reporter: The Indianapolis Business Journal Compares the Zionsville School District Seeking a Referendum with Lebanon’s Schools that are Fiscally Healthy. (It references the Indiana Business Journal, so I guess I don’t know off hand how much of the Property Tax Reporter post is attributable to the IBJ.)

Zionsville has a more high end, residential population while Lebanon is more blue collar with more industry and warehousing. Changes in the last 5 years or so, significantly those having to do with the imposition of property tax caps have resulted in Lebanon having a much better school funding situation than Zionsville.

That outcry led the Indiana General Assembly to overhaul both property taxes and school funding during its 2008 session. Beginning in 2009, homeowners could be taxed no more than 1 percent of the assessed value of their homes. Farms could be taxed up to 2 percent of their value and businesses could be taxed up to 3 percent of their value.

At the same time, the state of Indiana raised sales taxes statewide and used the extra money, in part, to take over all financing of schools’ general funds. Districts with healthy property tax revenue now can use those funds only to pay for buildings and buses, not to pay teachers or to fund educational programs.

Then came the recession, which ultimately led Gov. Mitch Daniels to cut school funding $150 million, meaning all schools were getting less per student for their educational programs than before.

The Legislature’s 2008 actions “changed the game,” said Dax Norton, a Zionsville resident who is executive director of the Boone Economic Development Corp., based in Lebanon.

“The General Assembly basically said, ‘If you want to continue to survive, if you want to continue to innovate, you’re going to have to play the economic development game.’”

(The outcry being primarily from citizens in high-end, under-assessed older homes who were abruptly being asked to pay property taxes based on the actual market value of their homes.)

Anyway, the whole article is an interesting read. I recommend it.

IN-08: Buschon Embraces Health Care Status Quo; Risk Shut Out

by 4 Comments

Thomas Langhorne has an article entitled GOP silences Bucshon challenger at dinner wherein he reports on Rep. Larry Buschon speaking at the Vanderburgh County GOP’s Lincoln Day Dinner while his primary challenger, Kristi Risk, was not given an opportunity to speak.

Risk seemed to take it in stride, making a point to emphasize that the voters and not the party leadership ultimately gets to decide who the nominee is.

In the course of his remarks, Buschon apparently criticized Democratic challenger, Dave Crooks, for supporting health care reform. I’m not sure Buschon wants to go there. I’ll confess I know nothing about Buschon’s prior career. But, here is the default perception. He was a surgeon. He probably profited mightily from the health care status quo and has apparently parlayed that success into a position in Congress where he is now defending the status quo. But, guess what, the status quo of the U.S. health care system sucks for most people; a spiral of rising costs and ever-more illusory insurance coverage. Other than some hand waving and mumbling about “tort reform” and cross-state insurance sales, I’m guessing Rep. Buschon doesn’t have a lot of solid suggestions. “I’m from the health care industry, and I’m here to help” might not be too reassuring to voters these days. Certainly not if you have a pre-existing health condition.

SB 246 – Lab Technician Testimony in Criminal Cases

by Leave a Comment

SB 246 sets up procedures for allowing Prosecutors to introduce lab evidence and for Defendants to confront and cross examine lab technicians.

It requires the Prosecutor to provide notice of intent to use a lab report, defined as “a written report or affidavit relating to the results of a scientific test that is prepared for use at trial or to assist in a law enforcement investigation.” The notice has to be provided at least 20 days prior to trial. Then the burden shifts to the defendant to file a demand for cross examination within the next 10 days. If the Prosecutor doesn’t file the notice, the State can’t use the lab report. If the Defendant doesn’t file the demand to cross examine, then defendant waives the right to confront and cross-examine the person who prepared the laboratory report.

The main dynamic that jumped out at me as potentially going wrong was a Prosecutor filing the notice 6 months before trial; before the Defendant’s attorney had his act together with respect to the case and having the 10 days blow by without the Defendant getting the demand on file. But, the statute gives the court authority to alter those deadlines, so I don’t suppose that’s too big of a concern.

The License Plate of the Moral Sinner

by 19 Comments

I was picking up a growler of beer at People’s Brewing Company a couple of weeks ago when I was delighted to stumble across a couple of buddies of mine; actually one long time friend and his colleague with whom I’ve become acquainted and come to like quite a bit. They invited me to sit down for a beer and cheerfully suggested they had been talking politics and it was starting to stray into religion. Count me in!

The long time friend I have pegged as a moderate Republican who would’ve probably been happier under the Eisenhower brand than otherwise. Come to find out the other guy has politics that are probably more informed by his deeply held religious beliefs. The conversation turned to gay rights. He said, “well, the Bible says that’s a sin.” The conversation kind of ran aground there. I made a quip about the Bible also saying that eating shell-fish was a sin.

But, at that point, there really wasn’t any discussion to be had. If behavior is sinful, not because it’s inherently immoral, but because a book whose dictates you will not question tells you so, there isn’t a lot more you can talk about. I’m not going to get anywhere talking about the merits of the written down version of the oral traditions of bronze age shepherds or, for the New Testament, selected books of second hand accounts of a Roman-Era Jewish preacher.

It does bother me that gays, individuals who are every bit as human as anyone else, and who are by most accounts born into their sexual orientation, should have their lives – the one and only life any of us gets – diminished because of unflinching devotion to those tales; because of the refusal of many individuals to exercise their own, independent judgment about whether the relationships that have been declared sinful are, in fact, immoral or detrimental to society such that government should be in the business of discriminating against gay couples or offering preferences to heterosexual couples.

If a person has abdicated their own independent judgment, there really isn’t a basis for conversation. It’s like talking to a low level functionary at a call center who has only the authority to say “no.” There is no point to talking to that person; you have to go up the management chain until you’re talking to someone who at least has the authority to say “yes.” Even if that doesn’t end up being the person’s decision, the conversation is still worthwhile at that point.

Chris Sikich had an article on the Indiana Youth Group that made me think of that brewery encounter. Unlike the “Choose Life” and “In God We Trust” license plates, conservative religious types are concerned about a Indiana Youth Group license plate because, according to them, the license plate constitutes a state endorsement. The State is apparently on solid ground endorsing religious belief and a pro-life message but when it comes to a support group for gay teens, that’s beyond the pale. Apparently in the course of providing support, the group provides information about sex that’s not for procreation and not within the confines of marriage.

Homosexuality and premarital sex are sinful. The Bible says so. Because they are sinful, regardless of whether they are immoral, the State can’t endorse a group that provides information about either, let alone both. End of discussion.

Warrant Servers to Wear Uniforms After SB1

by 21 Comments

In the wake of the SB 1 “right to resist”; the Marion County Sheriff’s Office is, per WRTV6, ordering its warrant servers back into uniform. Apparently civil and criminal process servers had been serving summonses and the like in plain clothes. I’m speculating, but one benefit of having plain clothes process servers is that it cuts down on the embarrassment factor of having a Sheriff’s Deputy stop by your house to serve you papers for something relatively minor like getting sued for non-payment of a debt.
But, like approaching a fearful, skittish animal, I suppose police these days are well-advised to announce their presence well in advance.

In Which I Ramble A Bit More About Religion

by 4 Comments

Came across a quote from Greg Graffin, singer for the band Bad Religion that I liked quite a bit, particularly the bolded part:

Wired Magazine came out with a big exposé of “the new atheists”. I was interviewed for it—and yet I think I was included as a sidebar but not as a main feature and I think the main reason they did that was because they noticed that I wasn’t that happy billing myself as an atheist. To me it just doesn’t say that much; it doesn’t say much about you. Instead I bill myself as a naturalist, which I think says a lot more. Because a naturalist is someone who… first of all—they study natural science, and they have a hopeful message—I think—to send to the world, which is… we can agree on what the truth is… and it has to be through experimentation, verification, and new discoveries, followed by more verification. So… if we can agree on those terms, we can agree that the truth changes, based on new discoveries, and the structure of science is such that you can never be so sure of something, because a new discovery can rework the framework—it can reconstruct the framework of your science and you have to look at the world differently. That makes it a very dynamic and exciting place to be. And if you say “you’re an atheist”, it’s not really saying much about how you came to that conclusion. But if you say “you’re a naturalist”, I think it says something. You’ve reached that point because you’ve studied science, because you believe there’s a fundamental way of looking at the world that is part of a long tradition. And so, I prefer naturalist.

That quote led me over to the Wired Magazine article from 2006. The author interviews Richard Dawkins whose aggressive atheism is well known. The author suggests that there is a move afoot to get religious fence-sitters off the fence. I guess I’m off the fence as to whether I’m a theist or not. I’m not. I am on the fence in the meta-debate. How should non-theists be engaging theists? My strong inclination is to live and let live. Mom taught me to be polite.

On the other hand, I look at the progress of the gay equality movement, and I think they have made a lot of ground because of those gay people who were unapologetic and even assertive about who they are. The best defense is often a good offense. Atheists are probably in a better position socially if the debate isn’t centered on whether they are immoral, devil-loving corrupters of the nation’s youth. (“Atheism: Threat or Menace?”) Rather, they are in a better position, if the debate centers on what makes Catholicism or Mormonism superior to Odinism, the Flying Spaghetti Monster, the Church of the SubGenius, or any of the thousands of other beliefs that can’t be disproved by science but which are no longer or never were taken seriously.

There is always going to be a bit of incivility associated with attempts to change the status quo. Incivility is probably even more likely when discussing atheism versus theism because, unlike sexual orientation, race, and gender; religion or its lack is a choice. It’s easier to build a consensus that there is no “fault” attached to one’s race, gender, or even sexual orientation. (Though, with the latter, there are still some who claim being gay (and, by extension, I guess heterosexual) is a “lifestyle choice.”)

With religion, whichever way you land, if you embrace a different view you’re essentially saying “I’m right and you’re wrong.” Whatever its other problems, agnosticism avoids that implicit (sometimes explicit) criticism of others.

But, like I said, I do like Graffin’s focusing on celebrating natural philosophy rather than worrying too much about negating religious belief. The shift in human thinking represented by the scientific method and the way in which it fundamentally altered the human experience, I think, is difficult to overstate. The scientific method doesn’t allow us to identify every True thing, but it does allow us some common measure of confidence in the Truths that it does help us identify.

R.I.P. Judge Thompson

by 1 Comment

Sophia Voravong has a good article on Judge Warren Thompson who passed away at age 90 this past Saturday. He was the judge of Tippecanoe Circuit Court from 1961 to 1984. I only had the opportunity to directly interact with Judge Thompson as a senior judge; doing routine tasks at motion hour and whatnot.

The article notes that members of the legal community and even prisoners he sentenced described him as gentle, kind, and never having a bad day. He was also funny. At the memorial service for Fred Hoffman, the founding partner of my firm, he had the room laughing at a story about Fred; something about a chair breaking if memory serves. I just remember that his delivery and timing were perfect.

Rest in peace, Judge.