Conversion from Crop Production to CAFO is not a “Significant Change”

One good thing about blogging so long and doing thousands of posts is that, occasionally, you get something right. Back in March of 2005, I posted on Sen. Jackman’s legislation having to do with agricultural nuisance actions.

At the time, I wrote:

This amends a section of the code apparently designed to protect agricultural areas from nuisance suits when suburbia moves into the agricultural area. Under current law, an agricultural or industrial operation is not a nuisance if: 1) it has been in continuous operation for at least a year; 2) there is no significant change in the hours of operation; 3) there is no significant change in the type of operation; and 4) the operation would not have been a nuisance at the time the operation began at the locality.

Senator Jackman’s amendment to the law repeals the requirement that the hours remain substantially the same and defines the “no significant change” requirement so that a change in the size, ownership, or to a different type of agricultural use does not constitute a “significant change”. So, presumably under the new law, converting from a small, locally owned, odor-free agricultural operation in business between 8 and 5 to a huge operation owned by an out of state corporation belching out noxious odors 24 hours per day would not consitute a “significant change”

(emphasis added)

Today and yesterday, the Indiana Law Blog has been posting about a recent decision having to do with Randolph County nuisance lawsuits from neighbors challenging increased operations at a hog finishing operation. (A “finisher” is an operator who takes the pigs after they’ve been weaned and grows them until they’re ready for slaughter). The ILB has posted the court’s decision (pdf) granting summary judgment in favor of the defendants in Armstrong v. Maxwell Farms.

The farm had been in operation since the early 1900s. Prior to 2007, the farm appears to have been used in crop production. However, in 2007, Maxwell Farms contracted with the farm’s owner as an independent contractor who would finish hogs at a barn on Gary Foulke’s farm. The plaintiffs argued, among other things, that the change from crop production to a hog finishing operation, its resulting noxious odors and diminished enjoyment and value of plaintiffs property constituted a “significant change.” The court, based on the plain language of the statute disagreed:

The Indiana Legislature had to know in 2005, when it amended the Right to Farm Act, that the number of animals being confined in swine and dairy operations was growing exponentially, and yet the Legislature did not give neighbors surrounding the operations any relief. In 2005, the Legislature made the Right to Farm Act even more restrictive to potential lawsuits. The Legislature has made its intent known to protect fanning operations against nuisance actions, even if the operation grows from a few hogs to several thousand, and even if the operation changes from growing corn to raising thousands of hogs.

I think the court got it right. The legislature, however, does not seem to be treating rural landowners very fairly. The idea that an agricultural operation ought to be able to keep doing what it was doing when neighbors bought their property makes sense. Don’t like it? Don’t move in. But, the idea that one neighbor can unilaterally take action to substantially impair the other neighbor’s enjoyment and use of the neighbor’s property is tougher to defend.

Rise Above the Mark: Kokomo – July 17

Back in December, I posted about attending the premiere of “Rise Above the Mark,” a documentary aimed at starting a discussion about the merits of privatization/voucher/charter movement on public schools:

It is an effort spearheaded by the West Lafayette Schools Education Foundation — an organization associated with West Lafayette School Corporation but funded separately. WLCS superintendent, Rocky Killion has been instrumental in its development. The documentary, I think, has two primary goals: start a discussion that is focused on finding the best way to develop the children who will be our citizens in the future; and to give a voice to the public schools and public school teachers who feel that they have been largely voiceless in the debates that have gone on in recent years. The pro-voucher side is well-funded, well organized, and seems to have the ear of most of the decision makers.

Relentless standardized testing is panned by this film. We spend a lot of money paying testing companies to waste a good bit of our kids’ educational time in order to provide information that the teachers and principals already knew. (The implication (not mentioned in the film) is that those advocating standardized testing don’t particularly trust public school teachers and administrators.) It also distorts the educational process; tending to produce students who lack creativity and the ability to self-direct their studies. Our democracy depends on creative, self-directed citizens far more than it relies on citizens with superior Scantron bubble filling skills.

Another primary point is that we have had 20+ years to experiment with public funding of alternative schools and, turns out, they don’t produce results that are notably better than traditional public schools. Often enough, they perform worse.

The Rise Above the Mark efforts have continued, the latest in Kokomo according to an article by Lauren Fitch in the Kokomo Tribune (who (mistakenly I believe) credits the effort to the West Lafayette School Corporation instead of the Education Foundation). The article indicates that a screening of the documentary and a discussion will take place, starting “at 4:30 p.m. Thursday (July 17) at the Kokomo-Howard County Public Library South Branch, 1755 E. Center Road. The first hour will be a social hour, with the film starting promptly at 5:30 p.m.”

My sense of the privatization movement, as I concluded in my IBJ column in January:

I’m not saying any of the people involved in this debate are nihilistic opportunists, mining the educational system for power and profit. I’m just saying that if such people designed an educational system, it would probably look a lot like the one we’ve been developing over the last 20 years.

Seventh Circuit Orders Indiana to Recognize Marriages Solemnized by Secular Humanist Celebrants

Back in December 2012, I posted on a District Court decision that denied a constitutional challenge to Indiana’s marriage solemnization law (IC 31-11-6-1) brought by the Center for Inquiry seeking to require Indiana to recognize marriages solemnized by humanist secular celebrants. IC 31-11-6-1 provides that marriages may be solemnized by members of the clergy of a religious organization, judges, mayors, county and city clerks and clerk treasurers, the Friends Church, the German Baptists, the Bahai faith, the Mormons, and imams.

At the time of the District Court decision, I wrote:

I think the District Court was probably correct, particularly under existing precedent, that this statute does not violate the establishment or free exercise clauses. It is maybe slightly more burdensome for an atheist to get married than a religious adherent. But, the fact is, the secular celebrant can still preside at your ceremony. You just might have to do a little extra paperwork at the Clerk’s office to have your marriage recognized by the State whereas the Muslim can just have the imam solemnize the marriage.

Today, the Seventh Circuit says (pdf) that the District Court and I are wrong.

The State suggested, among other things, that if the Humanists would just call themselves a religion, that would be good enough for the State and they could solemnize marriages. However, the Seventh Circuit observed that “humanists groups that reject the label “religion” are excluded from Indiana’s list of permissible celebrants.”

The Seventh Circuit says that favorable accommodations of religious groups over secular groups aren’t permissible where secular groups are identical with respect to the attribute selected for that accommodation. Such accommodations have to be neutral, particularly when dealing with religious and secular beliefs that hold the same place in adherents’ lives. The Seventh Circuit had previously held that, when making accommodations in prisons, states must treat atheism as favorably as theistic religion. By extension, this applies to humanists as much as it does to atheists.

The Circuit court agreed that humanists could get married by having a celebrant perform the ceremony which has no legal effect, but then could go to the Clerk to get the marriage solemnized. The fact of having to go that extra step was, the court reasoned, impermissible discrimination by the State.

Lutherans can solemnize their marriage in public ceremonies conducted by people who share their fundamental beliefs; humanists can’t. Humanists’ ability to carry out a sham ceremony, with the real business done in a back office, does not address the injury of which plaintiffs complain.

And with that wind up, the Court closes in a fairly scathing manner:

These examples, and the state’s willingness to recognize marriages performed by hypocrites, show that the statute violates the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment. It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.

(Emphasis added).

Abortions are down, but what about the unapproved sex?

Mark Small at Civil Discourse Now has a post that discusses Colorado and its falling rates of teen pregnancy and abortion.

The numbers and rates of unplanned teen pregnancies and teen abortions have dropped over the past several years. Colorado’s numbers and rates have fallen at a quicker pace than other States. In 2008, Colorado was ranked as having the 29th lowest teen birth rate. By 2012, Colorado was 19th.

Part of Colorado’s success has been provision of free birth control, without necessity of parental consent, to teenagers. The Colorado Family Planning Initiative “has provided more than 30,000 intrauterine devices (IUDs) or implants at low or no cost to low-income women at 68 family planning clinics across Colorado since 2009. The decline in births among young women served by these agencies accounted for three-quarters of the overall decline in the Colorado teen birth rate.” That is a summary from the official website portal of Colorado Governor John Hickenlooper. At the same time, the “teen abortion rate dropped 35 percent from 2009 to 2012 in those counties served by the initiative.” Id.

The problem, so far as some apparently nontrivial number of abortion opponents are concerned (and Mark alludes to this), is that opposition to abortion is in some measure also a proxy for opposition to unapproved sex. “Consequence free sex” seems to be the phrase du jour. Children are a blessing, but they are also righteous punishment for failing to resist one’s sinful, base animal urges. Which is why abortion opponents will not find common ground with sex education advocates no matter how many studies show that better sex education and better access to birth control reduce abortions.

I haven’t quite decided – and I’m sure it varies from person to person – whether the resistance to birth control & sex education among abortion opponents is more of a “cut off your nose to spite your face” situation or more of a situation where penalizing sex is the underlying point of the pro-life exercise.

Rash of violence follows the Fourth of July

There was a mass shooting in Broad Ripple when, as I understand it, a couple of patrons bumped into each other and decided to resolve their differences with lead; a police officer was killed in Indianapolis by a guy toting a high powered rifle; a Gary officer was shot in his patrol car; and two men were shot in Lafayette while sitting on their porch in what has been described as a “walk by” shooting. Prior to the Fourth, an individual was arrested in Lafayette after he posted threats to kill a West Lafayette police officer, the Tippecanoe county Sheriff, and two judges as well as a threat related to blowing up the Tippecanoe County Court House. A search of the man’s home revealed aluminum powder and black iron oxide – both substances used to make thermite.

In response to some of these incidents, Sen. Jim Merritt has indicated that he intends to push for legislation next session that would dramatically increase penalty enhancements for criminals that use a gun.

Rep. Jud McMillin is skeptical of an approach that just enhances penalties:

Rep. Jud McMillin, R-Brookville, sponsored last session’s gun crime enhancement bill and is one of the architects of the state’s criminal code overhaul. He says the legislature can’t only focus on punishing crimes after the fact.

“It’s not as simple as just throwing the book at somebody after it happens,” McMillin says. “And even if it is, you’re still handling it after it happens…and we want to prevent these things from happening in the first place.”

McMillin says lawmakers need to focus on helping treat mental health issues and addiction, which he says are often at the root of these crimes.

Despite the apparent surge in newsworthy violence, I think the overall trend is that crime is down. So, it’s entirely possible that we are safer these days even as the world feels less safe. So, some caution is perhaps in order when we devise policy responses. On the other hand, the U.S. has troubles with gun violence that no other developed country seems to have. As the Onion put it, “‘No way to prevent this,’ says only nation where this regularly happens.’” Sure, there are bad actors everywhere. But the ready availability of firearms enhances the force available to these people and the availability of similar force to good actors doesn’t seem to mitigate the damage all that much. Regardless of how the cost/benefit shakes out, the Second Amendment puts an additional wrinkle in the calculation. Even if we decide that the wide availability of firearms is a net harm to our society, short of Constitutional amendment, what remedies are available to us?

Fort Wayne Journal Gazette on Fireworks Lobbying and Laws

The Fort Wayne Journal Gazette has an editorial published July 2, blaming/crediting the aggressive fireworks industry lobby for Indiana’s lax fireworks laws. Bob Morris (of “Girl Scouts are a tactical arm of Planned Parenthood” fame) and Eric Turner (of lucrative nursing home regulatory environment fame) get special mention as advocates for the industry. The fireworks lobby apparently contributes more here than in neighboring states in spite of the comparatively low cost for political campaigns in Indiana.

The upshot of the editorial seems to be that we have lots of fireworks at all hours and our General Assembly is a bargain!

Fourth of July #238

On July 5, 1852, Frederick Douglass gave his speech, “The Meaning of the Fourth of July to the Negro,” which contained this passage:

What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sound of rejoicing are empty and heartless; your denunciation of tyrants brass fronted impudence; your shout of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanks-givings, with all your religious parade and solemnity, are to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour.

Twelve years later, and 150 years ago this Fourth of July, Gen. William Tecumseh Sherman was rectifying some of that harsh criticism by forcing back the armies of those in the South who committed treason in defense of slavery. On the Fourth of July in 1864, Joe Johnston was retreating back behind the Chattahoochee River, the last major defensive obstacle before Sherman would reach Atlanta.

We, as a nation, have certainly had some growing pains when it has come to realizing the ideals our Founders called self-evident and have struggled mightily at times to secure rights for our citizens, an ironic thing when those rights are described as “inalienable.” But, I hope, our efforts in this regard have been more forward than back. And the Fourth is a time to reflect on the remarkable amount of good our country has achieved over the last two hundred and thirty-eight years.

Court of Appeals – Potentially Troublesome Case on Statutes of Limitation

A few days ago, the Indiana Court of Appeals issued an opinion in Imbody v. Fifth Third Bank that I’m having trouble following. The decision had to do with whether suit was filed within the six year statute of limitations. The court was clear enough about why it believed the cause of action accrued when it did, but after the cause accrued, the debtor made some payments toward the debt and the court was not clear, in my opinion, about why the statute wasn’t tolled when those payments were made.

Imbody had a loan secured by a truck. Imbody defaulted on the payments, the Bank seized his truck, sold it at auction for less than the remaining debt and claimed a deficiency balance of about $15,000. Imbody made some payments toward the deficiency for awhile but then stopped.

At issue was whether the Bank filed suit within the six year statute of limitations. That issue turned, in part (or I believe it should have only been part of the analysis), on when the Bank’s cause of action accrued. The time line went like this:

7/23/2004 – Note signed
5/3/2006 – Default on loan agreement.
5/31/2006 – Truck repossessed.
?/?/2006 – Truck auctioned, deficiency remains
2/29/2008 – Last payment toward deficiency.
6/5/2012 – Complaint filed by Bank against Imbody.

After a trial, the trial court entered judgment against Imbody and in favor of the Bank. On appeal, however, the Court of Appeals said that the Bank had filed suit after the statute of limitations had run. The loan agreement had a provision saying that, if the debtor missed payments, the Bank wasn’t obligated to wait around for years for payments to become due and owing on the same schedule as if payments were continuing. Rather, it had an option to accelerate the entire note — in other words, the remaining balance comes due at once. However, the Bank wasn’t obligated to accelerate the note. Obligated or not, the Court stated that the act of repossessing the truck constituted an acceleration. Fair enough. That makes cause of action accrue on May 31, 2006. June 5, 2012 is more than six years later and, had nothing else happened, outside of the statute.

The general rule, however, is that when a debtor is making payments, the statute is tolled. Why make a creditor go to court if the debtor is making payments that are acceptable to the creditor? After the truck was sold and a deficiency balance of around $15,000 was established, Imbody made 14 payments of $100 per month through February 29, 2008. If the clock doesn’t start running until 2008, then the Bank is within the 6 year window.

In Clark v. University of Evansville, 784 N.E.2d 942 (Ind. Ct. App. 2003), the Court of Appeals said:

In construing the provisions of this statute, we have held that partial payment of a debt may constitute “an admission of continued indebtedness” which “remove[s] the bar of the statute.” Meehan v. Meehan’s Estate, 98 Ind.App. 9, 14, 186 N.E. 908, 909 (1933). In Meehan we also stated that such a partial payment must be “accompanied by circumstances or evidence amounting to an unqualified acknowledgment of more being due, from which a promise may be inferred as a matter of fact and not as a matter of law, to pay the remainder.”

The Court of Appeals in the Imbody case said, “the evidence shows that the parties had an informal agreement regarding payments on the deficiency balance. There is no evidence that the parties entered into a forbearance agreement.” If there is a requirement that a forbearance agreement be entered into for the statute to be tolled, the Court of Appeals does not cite the basis of that requirement. The Clark case suggests that it’s only necessary that there be evidence amounting to an unqualified acknowledgement of more being due from which a promise may be inferred as a matter of fact to pay the remainder. The informal agreement noted by the Court of Appeals seems to satisfy that and, in any event, the finding of fact would be the province of the trial court which found for the Bank.

So, I don’t know if I am missing something obvious on this one or if the Court of Appeals whiffed on the tolling issue. Hopefully the Court of Appeals will reconsider or the Supreme Court will review this case. Because I’d hate to have to drag a bunch of debtors into court to preserve a claim even where they are making payments that are acceptable to the creditor.

Defendant Threatens Tippecanoe County Law Enforcement & Judiciary; Calls It “Satire”

Eric Lach, writing for TPM Muckraker, reports that Samuel Bradbury of Pine Village, Indiana has posted threats to kill West Lafayette, Ind. police officer Troy Greene, Tippecanoe County Sheriff Tracy Brown, Tippecanoe County Judge Les Meade, and Indiana Supreme Court Loretta Rush on Facebook on June 19. He said he was part of a group that intended to blow up the Tippecanoe County courthouse with thermite.

Police in West Lafayette got a tip about the post on June 21, and, that night, they executed a search warrant at Bradbury’s house. According to the affidavit, officers searching Bradbury’s room found three 115 gram bags of aluminum powder and three 345 gram bags of black iron oxide — both substances used to make thermite.

The post was bracketed by “disclaimers” – at the top and bottom of the posts, he claims that the threats were a free speech exercise. Bradbury claimed ties to the Las Vegas cop killers, Jerad and Amanda Miller. He now faces both state and federal charges related to the threats.

If that was meant to be “satire,” he’s doing it wrong.

100 Years Ago Today: Gavril Princip Precipitated World War I

On June 28, 1914, Gavril Princip had participated in a failed attempt to assassinate Archduke Franz Ferdinand in Sarajevo. A co-conspirator had thrown a bomb at the Archduke’s motorcade but failed to hit his target. The motorcade got away from the planned route. However, not long thereafter, the Archduke’s driver took a wrong turn and, as he was backing up, the car stalled. As it happened, the car stalled in front of where Princip was standing. Taking his chance, Princip pulled out his pistol and shot the Archduke and his wife.

Princip was part of a Serbian separatist group that wanted parts of the Austro-Hungarian empire to split off and become part of a new Yugoslavia. The archduke was the heir apparent to the throne of the empire, so the Austro-Hungarian Empire was enraged and issued an ultimatum to Serbia – with a number of demands that Serbia simply couldn’t be expected to accept. After partially rejecting the ultimatum, Austria-Hungary declared war on Serbia. Serbia turned to Russia which regarded itself as “protector of the Slavs.” Austria-Hungary turned to Germany with which it had an alliance against Russia. Russia, in turn, had an alliance with France against Germany.

Germany’s plans for war with Russia (Schlieffen Plan) was premised on the notion that it would have to fight France in any conflict with Russia. Being situated between Russia and France, and believing it would take Russia some time to mobilize, the war plan for such a conflict required Germany to move swiftly into France, neutralize the forces there, and then swing back east to deal with Russia. The longer it entertained diplomatic solutions, the less likely the plan was to work. Additionally, the German plan took it through neutral Belgium to get to France more quickly. England was allied with Belgium against violations of its neutrality and was drawn into the war when Germany invaded.

There are a lot more details and nuances involved in the beginnings of World War I, but that’s the thumbnail sketch. The details get hopelessly complicated pretty quickly. But, at that point, Europe was like a forest full of dry dead wood and undergrowth. The relatively small spark of Princip’s assassination of Franz Ferdinand was all it took to set the whole thing off. The Great War was really a bridge into modern times. The early parts of the war feature guys on horses with plumed uniforms and whatnot facing off against industrial weaponry. The conflagration would turn into an absolute meat grinder, particularly after it settled into the trench warfare for which it became famous. It was a war of attrition on a scale not previously seen. And, for the most part, it seems that the combatants were fighting out of a combination of pride and accident.

It tends to be a forgotten war – overshadowed locally by the “good” wars like World War II, the Civil War, and the Revolutionary War, where the United States can be discussed in heroic terms and the narrative of the war and what it accomplished can be stated more simply. But, I think we ignore the lessons of World War I at our peril: that pride and lack of foresight can cause enormous losses; that there is nothing inherently noble about war; that individual bravery can be meaningless.

I suspect I’ll have more to say about the Great War in the near future. Among other things, I was a history major in undergrad and Great Britain’s involvement in World War I was the subject of my senior seminar. I don’t pretend to be any kind of an expert, but it’s an area of interest for me.