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Trial that OK’d Jasper energy plant conversion error-filled

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A judge who ruled against opponents of the conversion of a former coal-fired energy plant in Jasper abused her discretion on a series of matters, the Indiana Court of Appeals held Monday in reversing a bench trial that found for the city.

The appellate panel stopped short of saying that there were clear violations of the Indiana Open Door Law by the city or its “volunteer” board dominated by city official that met frequently with representatives of a company that won the city’s endorsement of a proposal to convert a dormant coal-fired plant to a biomass-burning plant.

A citizens group called Healthy Dubois County formed to oppose the project because of concern that burning miscanthus grass to produce electricity could carry public health risks. It sued in an attempt to block the signing of any agreements on the plant conversion, claiming among other things that officials had violated the Open Door Law with meetings that led to approval of the proposal.

In Dr. Norma Kreilein, Rock Emmert, and Healthy Dubois County, Inc. v. Common Council of the City of Jasper and Jasper Utility Board, 19A04-1201-MI-51, the appeals court found that Special Judge M. Lucy Goffinet in Dubois Circuit Court had erred in denying HDC’s amended motions after discovery yielded more avenues through which discovery could occur.

“In sum, HDC has demonstrated that it was diligent in pursuing discovery, but was thwarted for months by Jasper’s refusal to cooperate. Less than two weeks prior to trial, HDC obtained information in the course of depositions that suggested possible Open Door Law violations by the volunteer group. The trial court abused its discretion when it denied HDC’s third motion to amend its complaint, filed only four months after its initial complaint and while discovery was ongoing,” Judge Edward Najam wrote for the panel.

“The trial court abused its discretion when it denied HDC’s motion to continue the trial. We reverse and remand with instructions that the trial court: (1) grant HDC’s third motion to amend its complaint; (2) grant HDC an additional thirty days to conduct new discovery, including but not limited to depositions; (3) grant HDC’s second motion to compel discovery; and (4) schedule a new trial to be held no less than thirty days after the close of discovery.”

The panel also noted the unusually swift nature of the bench trial. In a footnote, Najam wrote, “Our research has not revealed any cases involving the Open Door Law where the time between the filing of the complaint and trial was so abbreviated.”  
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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