Saturday, February 28, 2015
Ind. Gov't. - "Nickeled and dimed, Purdue staff seethes"
That is the title of Dave Bangert's Sunday Lafayette Journal & Courier column. Earlier J&C stories reported:
- "Purdue’s new leave policy could reduce benefits" - Joesph Paul, Feb. 19:
“At first glance, the new policy appears to represent a significant decrease in benefits for both faculty and staff,” Michael Fosmire, chairman of the University Senate’s Resources Policy Committee, said in an email Thursday. “The total time available has been decreased, the carryover of hours has been slashed, and there is no payout of unused benefits. These are all reductions in benefits ...”
- "Purdue staff oppose paid time off changes" - Chris Morisse Vizza, Feb. 27:
“Those on the bottom of the pile are feeling crushed,” she said. “A number of clerical and service staff live below the 2015 federal poverty guidelines.”
Administrators listened as hourly staff described how their lives will be affected by the recommendations determined by a committee of administrators, faculty and staff.
The goal was to update and streamline the existing policy that makes it difficult to track Purdue’s more than 15,000 employees, interim vice resident for human resources Trent Klingerman told the crowd.
The new policy merges numerous categories of vacation, sick time, bereavement and personal time into one paid time off system.
For the first time, Purdue will offer short-term disability leave, a benefit most employees wanted, Klingerman said.
The net result is a reduction from 31 to 25 the number of days off allotted annually for Purdue’s 3,500 hourly employees.
The changes also eliminate the payout of unused vacation and sick days that clerical, service, operations and technical employees have historically banked for retirement.
After sitting through a PowerPoint presentation about the new policy, employees fired their pent-up frustration at Klingerman.
People who earn $8 to $10 an hour don’t make enough to save money, employee Alan Farrester said.
“You’re taking six days a year away that we used to build up for retirement,” he said.
“If you’re going to change, you shouldn’t keep taking away from us like we feel you have been the last two or three years.” * * *
More than one faculty member said the changes will undermine Purdue’s ability to recruit new employees.
“If our pay wasn’t top dollar we used to be able to say, ‘Hey, we have tremendous benefits,’“ veterinary teaching hospital administrator Mimi Arighi said. “We’ll have tremendous problems recruiting.” * * *
Clerical, service, operations, technical
Current program: Vacation, sick leave, personal holiday; 31 days maximum/year; Payout of accrued days upon retirement/separation
New program: Vacation, sick leave, personal holiday; 25 days maximum/year; No payout upon retirement/separation
Seething through the standing room only crowd on the ballroom's hardwood floor was a sense that the new paid time-off policy unveiled 10 days ago in the name of austerity and tuition freezes might be the nickel and dime that breaks the camel's back.
Or to put it another way, it's just another microaggression on staff compensation on a campus where the unofficial recruiting motto traditionally has been: The pay might not be the best, but the benefits are great.
As one catcall summed up from the back of the ballroom: "Not anymore."
"I'm really steamed," said Candy Sheagley, who works for Purdue's libraries. "Please, do not take away what we have worked so hard to earn."
Purdue has a situation on its hands. * * *
"The choices we've made have not been made to hurt staff, I promise you, but to help staff," Trent Klingerman, Purdue's interim vice president of human resources, told a restless crowd Friday.
But the more Klingerman attempted to answer questions and promise that tweaks were still possible, the more groans he got from a room fixated on the number 25.
Starting in July, hourly workers would get 25 days each year for any combination of sick time, personal time and vacation. Currently, they get a combined 31 days.
The six days lost were one thing. But the new policy also makes it so unused time off among those 25 days no longer carries over to the next year. Klingerman told the crowd that the average employee used 20 days of paid time off. Do the math, and that's 11 days of time off banked, in most cases. * * *
Daniels has made himself a popular man in many corners of campus and across the nation for vowing to find ways to keep tuition flat and a Purdue education affordable. Students who arrived in West Lafayette since Daniels was announced as Purdue's president in June 2012 haven't experienced a tuition increase.
But part of that growing concern is that Daniels has pitted students and their parents against faculty and staff.
No tuition increase plays well among the student body staring down historic levels of debt. But someone has to cover that cost.
On Friday morning in the South Ballroom, there was little doubt about how that was trickling down to those lowest on the pay scale.
And they ticked off the ways, one by one: small or no pay increases in recent years; a rise in the number of private vendors; the introduction of high-deductible health insurance plans; job consolidations that have left those remaining to pick up more, making it less likely to use all of their annual allotment of vacation time even if they wanted to.
And now a huge shift in paid time off.
Friday, February 27, 2015
Courts - Get ready for next week's SCOTUS Obamacare argument
Listen to the smart anaylsis by Emily Bazelon, John Dickerson, and David Plotz at this week's Slate's Political Gabfest podcast. It is the first segment, about 14 minutes. There are also a number of links to sources mentioned in the show.
SCOTUSblog's Friday roundup has a number of links to coverage and commentary of the case, King v. Burwell.
Ind. Gov't. - Lake, LaPorte Counties plan to buy parts of bankrupt tollroad
Bill Dolan reports this afternoon in the NWI Times in a story that begins:
CROWN POINT | Lake and LaPorte county commissioners have prepared a final bid to buy the bankrupt Indiana Toll Road designed to give Lake at least $5 million a year and a voice in the highway's future operation.
A joint statement by the two counties' officials, released Friday morning, insists taxpayers can only benefit from the deal and won't be at risk if toll road revenues fail to repay what is estimated to be a $4.5 billion loan needed to purchase the 157-mile highway from its previous owners.
The Toll Road's western-most section passes through Hammond, Gary and Lake Station in Lake County; Portage and Chesterton in Porter County; and New Durham and Center Townships in LaPorte County. It continues east to the Indiana-Ohio border.
Porter, St. Joseph and the three other counties crossed by the Toll Road are not part of the proposed partnership.
Lake and LaPorte are proposing to partner with private investors and a professional management team that would undertake daily highway operations.
Lake County Commissioner President Roosevelt Allen, D-Gary, stated both counties have "engaged lawyers, financial advisers, underwriters and other consultants at little or no cost to the counties to help us submit a competitive bid. This is a win-win for our taxpayers if we can succeed."
Ind. Courts - Judicial Center's Legislative Update: 8th weekly installment. And more
Marking the session's midpoint, the February 27th weekly installment of the Legislative Update for the 2015 legislative session is a series of topical charts detailing the status of bills of interest to the judiciary that passed on third reading, available here.
And here, via IndyBar, is a Feb. 27th report on bill status of bills being monitored by the association.
Interestingly, neither list includes SB 523, which makes changes in the Marion County small claims courts, and which passed the Senate on Feb. 26.
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 10 NFP memorandum decisions)
For publication opinions today (3):
In Mary Ann Crider v. Robert Crider , a 9-page opinion, Judge Riley writes:
[Issue] Whether the trial court erred in its calculation and division of the marital estate. * * *In State of Indiana v. John J. Arnold , a 14-page opinion, Judge Crone writes:
[W]e find that the trial court clearly erred by including the Florida Property as marital property, and we remand with instructions for the trial court to recalculate and redistribute, if necessary, the marital estate. * * *
[T]he tax debt is a marital liability and should have been considered by the trial court in fashioning an equitable division of property. * * *
Because Wife’s accounts were valued as of the Filing Date, her subsequent payment of the total tax debt effectively reduced her share of the marital estate, which is clearly inconsistent with the trial court’s intended distribution scheme. Therefore, we remand with instructions for the trial court to include the tax debt in the marital estate and to determine what portion, if any, should be allocated to Husband.
CONCLUSION. Based on the foregoing, we conclude that the trial court erred by including the Florida Property and by excluding the IRS debt in its calculation and distribution of the marital estate. Reversed and remanded for further proceedings.
The State of Indiana appeals the trial court’s grant of John J. Arnold’s motion to set aside his habitual offender enhancement. The State contends that the trial court erred in refusing to vacate Arnold’s entire plea agreement when it vacated his habitual offender enhancement. We conclude that Arnold’s motion to set aside habitual offender enhancement should be treated as a petition for postconviction relief and that the trial court’s judgment should be reviewed as an award of postconviction relief. We also conclude that the vacatur of Arnold’s habitual offender enhancement would frustrate the basic purpose of the plea agreement, and therefore the trial court erred in not setting the entire agreement aside. Accordingly, we affirm in part, reverse in part, and remand.In Tyrone Shelton v. State of Indiana , an 11-page opinion, Judge Riley writes:
[Issue] Whether the trial court abused its discretion by admitting evidence that was seized during the course of a warrantless search. * * *NFP civil decisions today (5):
Based on the foregoing, we conclude that the trial court acted within its discretion in admitting the evidence seized from Shelton’s property because Officer Flanagan’s search was justified by the combination of a reasonable suspicion that Shelton engaged in criminal activity and a search condition contained in his agreement with Community Corrections. Affirmed.
NFP criminal decisions today (5):
Env't. - "Developer gives up 37-year fight for Mallard Lake landfill near Anderson"
From a Feb. 23rd AP story:
ANDERSON (AP) – Developers who fought for 37 years to build a landfill near a lake and an elementary school have dropped their efforts for good.Here is a long list of earlier ILB posts on the proposed landfill, the most recent from 2011.
Bex Farms Inc. and its affiliate, 600 Land Inc., have withdrawn their application to renew the landfill permit for a 13-acre site near Mallard Lake and Killbuck Elementary School, the Herald Bulletin reported Sunday.
The Indiana Department of Environmental Management said the application was withdrawn last week.
Activists have fought the proposed landfill since 1979, claiming the project would hurt the region's economy and environment. The Killbuck Concerned Citizens Association battling the project in administrative, trial and appeals courts, zoning hearings, the Legislature and other venues. The city of Anderson also opposed the landfill.
Courts - "Some who file formal complaints against N.Car. judges could be sent to prison"
John Monk has the story in The State. A few quotes:
Some worry such a law would go too far.
Lee Coggiola, head of the Supreme Court’s Office of Disciplinary Counsel, said such a law would have a “chilling effect on the public’s right to file a complaint.”
The current process for screening and evaluating complaints against judges provides transparency and accountability for the judicial system and anything that might tamp down on those values would not be helpful, Coggiola said. Her office screens complaints against judges and conducts investigations where warranted.
South Carolina Press Association executive director Bill Rogers echoed Coggiola’s sentiments.
“People have the right to criticize judges,” Rogers said. “People do get emotional about judges, and they should have their say without risk of being fined.”
Thursday, February 26, 2015
Ind. Gov't. - State Police resist public access to a 1972 video recording [Updated]
A video recording they have shown hundreds of times.
That information is from a Feb. 20th PAC response to: Formal Complaint 15-FC-17; Alleged Violation of the Access to Public Records Act by the Indiana State Police. Some quotes:
On December 16, 2014, you submitted to the ISP a public records request seeking access to a copy of records related to the 1972 Bull Island rockfest (a.k.a. the Erie Canal Soda Pop Festival and the Labor Day Soda Pop Festival), particularly an unedited copy of a video recording taken by the ISP. * * *[Updated] Well, it turns out this was a well-known event in Indiana history. The ILB quickly found this YouTube video, really a slide-show with music: "Erie Canal Soda Pop Festival - Bull Island Illinois 1972." Wikipedia has an entry.
On December 17, 2014, Capt. Dave Bursten responded to your request by email, denying access to the records. The ISP maintained the records sought relate to investigatory records and fall under an exemption Ind. Code § 5-14-3-4(b)(1). You also take exception with the categorization of the records as investigatory as the ISP did not have jurisdiction over Bull Island; it is Illinois territory. * * *
The ISP has denied any institutional knowledge the film had been shown in the past, however, you have provided an Indiana State Police bulletin from 1973 announcing the film had been shown 249 times to a total of 30,000 people from 1970-1973.
ISP has also determined the video displays many scenes of illicit activity. The release of the video could “result in possible civil action against the State” by those individuals recorded. ISP has used its discretion to withhold the record on the basis the harm of disclosure outweighs public interest. * * *
ANALYSIS * * *
While I believe the information you request falls under the category of investigatory records as it was originally compiled in the course of an investigation of a crime (or for crime prevention purposes), the nature of the record changed course after it was displayed multiple times to the public.
I do not agree with ISP’s argument a record does not lose its status for discretionary release just because it has been released in one capacity at a point in time. To release to one group or groups, but deny others could be viewed as arbitrary and capricious. Without a compelling reason for doing so, if a record is intentionally released as a disclosable public record, then an agency can no longer exercise that particular discretion ex post facto. From the information provided in the form of the State Police newsletter from 1973, it is clear the video has been shown many times to interested members of the public.
Release to a court or other law enforcement agency in the investigation process notwithstanding, a record is deemed disclosable once released as a public record. The bell, as it is said, cannot be un-rung. The ISP clearly demonstrated the video as a cautionary depiction of illegality in the past and has therefore consented to its release.
ISP also argues:ISP determined that significant portions of the video display images of illicit drug use, nudity, and sexual intercourse occurring at the festival. The individuals engaged in these activities could result in possible civil action against the State by these individuals. ISP scrutinized its decision and used our discretion to withhold the record as investigatory, and believes that the harm of disclosure outweighs the public interest of transparency in this case.The Access to Public Records Act does not have a privacy clause with the exception of narrow exceptions such as social security numbers and confidential financial information. Embarrassment of individuals voluntarily engaging in illegal and illicit acts is not an exception to disclosure. Likewise, the mere threat of a lawsuit is not an exception either. Moreover, the proposition a lawsuit would be successful is dubious as there is no expectation of privacy for engaging in lewd or illegal acts in public.
CONCLUSION. Based on the foregoing, it is the Opinion of the Public Access Counselor the Indiana State Police should release the entirety of the Bull Island video upon request.
And here is a long 2008 Evansville Living article by Maureen Hayden (now CNHI statehouse reporter) and Jessica Levco with the heading:
On Labor Day weekend, September 1972, two concert promoters put on a rock show in the spirit of Woodstock, but they were woefully unprepared for the overrun of more than 200,000 people. They came. They saw. They got stoned. Two people died. Its official name was the Erie Canal Soda Pop Festival, but for those who witnessed the mayhem, it is remembered simply as Bull Island.Finally, in 2012 Sean McDevitt had a long feature in the Evansville Courier & Press, headed "Woodstock on the Wabash: The Bull Island rockfest, 40 years later."
Ind. Decisions - 7th Circuit decides one Indiana case today
In Betty Ruth Nelson v. Peggy Holinga-Katona, Lake Co. Auditor (ND Ind., Van Bokkelen), a 3-page opinion, Judge Bauer writes:
Plaintiff‐Appellant, Betty Ruth Nelson (“Nelson”), a former employee of the Lake County Auditor’s office, brought suit under 42 U.S.C. § 1983 against Defendants‐ Appellees, Peggy Holinga Katona, individually and in her official capacity as Lake County Auditor, and Lake County Indiana, individually and severally (“the Appellees”). Nelson alleged that she was unlawfully terminated from her job by the Appellees in retaliation for her political support of Barack Obama. After a full trial, the court entered judgment against Nelson in accordance with the jury’s verdict. On appeal, Nelson challenges the sufficiency of the evidence supporting the jury’s verdict. Because Nelson failed to file any post‐verdict motions—a necessary first step for our analysis of the facts—we affirm.
Ind. Decisions - Court of Appeals issues 5 opinion(s) today (and 8 NFP memorandum decisions)
For publication opinions today (5):
In Julie M. Fetters v. Jay M. Fetters, a 12-page opinion, Judge Barnes writes:
Julie Fetters appeals the trial court’s division of property in her divorce from Jay Fetters, following its decision to enforce a premarital agreement into which the parties entered. We reverse and remand.In Skyline Roofing & Sheet Metal Company, Inc. v. Ziolkowski Construction, Inc. and United Union Roofers, Waterproofers and Allied Workers Local #26, a 16-page opinion, Judge Riley writes:
The restated issue before us is whether the premarital agreement is unconscionable. * * *
Here, the facts are largely undisputed. Indeed, in his brief Jay expressly agrees with Julie’s statement of the facts in her brief, with one exception. Namely, it is undisputed here that Jay commenced an illicit sexual relationship with Julie when she was fourteen years old and he was twice her age. When Julie became pregnant when she was fifteen, Jay found himself under police investigation for his conduct. In a successful attempt to evade prosecution, Jay proposed marriage to Julie, and she accepted. However, he also asked Julie to sign a premarital agreement disavowing any claim to any of his property, no matter how long they stayed married. Julie, being just sixteen years old, had no property of her own at the time and would accumulate very little during the marriage. She also dropped out of school upon marrying Jay and having their first child and has not since obtained her GED. Julie did not obtain independent legal advice regarding the premarital agreement, and she had difficulty understanding it in part because of her own poor reading skills. The only matter of dispute between the parties is whether Jay’s attorney read the document to Julie as opposed to a legal secretary. * * *
We have not discovered any case remotely similar to this one, either in Indiana or elsewhere. We readily conclude that this premarital agreement is unconscionable as a matter of law. Although it does not appear Jay is highly educated, there still was a gross disparity in life experience between him and Julie. Indeed, Jay apparently violated criminal laws intended to protect minors by carrying out his illicit sexual relationship with Julie. See I.C. § 35-42-4-9 (1995) (defining crime of sexual misconduct with a minor but providing as defense that child is married). And, he personally benefitted greatly by marrying Julie and avoiding prosecution, with no comparable benefit to Julie. Rather, Julie dropped out of school and did not further her education, while either caring for the couple’s children or working at low-wage jobs. Also, the property division portion of the agreement was entirely one-sided in Jay’s favor, as he was the only party bringing any assets into the marriage.
Furthermore, Indiana law has long held that contracts entered into by a minor are voidable at the option of the minor while he or she remains a minor, or within a reasonable time after reaching majority. * * *
In sum, after considering all of the circumstances surrounding the premarital agreement’s execution and its one-sided nature in favor of the dominant party, Jay, we conclude that the agreement was unconscionable at the time of its execution. * * *
Having found the premarital agreement unconscionable, we must also address the trial court’s alternate conclusion that Julie is “barred by laches and estoppel” from challenging the agreement because she failed to disavow the agreement for nearly fourteen years after she turned eighteen. * * *
The trial court erred in concluding that the parties’ premarital agreement is not unconscionable and that Julie is time-barred from challenging it. We conclude that the agreement is unconscionable, Julie is not barred from challenging it, and it therefore is void. We reverse the trial court’s division of property in the parties’ dissolution and remand for the trial court to divide the marital property in a manner consistent with the general laws governing such division.
Skyline raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court properly concluded that Skyline failed to establish a genuine issue of material fact that Ziolkowski violated Indiana’s Antitrust Act by unlawfully restraining open and free competition in bidding for a public project to build a new middle school. * * *In Indiana Bureau of Motor Vehicles v. Jennifer M. Gurtner, a 14-page opinion, Judge Mathias writes:
Based on the foregoing, we conclude that Skyline established a genuine issue of material fact that Ziolkowski violated Indiana’s Antitrust Act by unlawfully restraining open and free competition in bidding for a public project to build a new middle school. Reversed and remanded for further proceedings.
The Indiana Bureau of Motor Vehicles (“BMV”) appeals the order of the Marshall Superior Court granting a petition for judicial review filed by Jennifer M. Gurtner (“Gurtner”) after her license was suspended for failure to provide proof of financial responsibility following an automobile accident. On appeal, the BMV claims that the trial court was without authority to grant the petition because the controlling statute provides the trial court with no discretion to overturn the suspension. Concluding that Gurtner did not adequately avail herself of the available statutory remedies, we reverse. * * *In In the Matter of the Civil Commitment of R.P. v. Optional Behavior MHS , Judge Riley concludes:
This case sets forth facts that were not really contemplated by the licensure statutes in effect at the time. Gurtner and the trial judge involved did the best they could do under unusual circumstances. That said, Gurtner failed to take advantage of the existing statutory remedies that would have provided her with an opportunity to explain why her failure to maintain financial responsibility was not her fault. Accordingly, we cannot say that the suspension of her license was accomplished without adequate due process. Reversed.
Based on the foregoing, we conclude that the trial court properly ordered R.P.’s involuntary commitment because he presented a danger to others pursuant to I.C. § 12-26-6-1. Affirmed.In Thomas L. Arflack v. Town of Chandler, Indiana; Chandler Town Council; and Town of Chandler Advisory Plan Commission, a 15-page opinion, Judge Riley writes:
Appellant-Plaintiff, Thomas L. Arflack (Arflack), appeals the trial court’s grant of Appellees-Defendants’, Town of Chandler, Chandler Town Council, and Town of Chandler Advisory Plan Commission (collectively, Chandler), motion to dismiss for failure to state a claim pursuant to Indiana Trial Rule 12(B)(6). We reverse and remand for further proceedings.NFP civil decisions today (3):
Arflack raises two issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in dismissing Arflack’s complaint for failing to state a claim pursuant to Indiana Trial Rule 12(B)(6).
In its brief, Chandler raises one issue, which we restate as: Whether the trial court’s order to dismiss was a final, appealable judgment. * * *
Based on the foregoing, we conclude that the trial court’s order to dismiss was a final, appealable order and the trial court erred by granting Chandler’s motion to dismiss based on a failure to state a claim. * * *
Baker J. concurs
Vaidik, C.J. concurs in result with separate opinion [which begins, at p. 14] The majority concludes that the trial court’s dismissal order was a final, appealable order and the court erred by granting Chandler’s motion to dismiss based on a failure to state a claim. I agree with this result; however, I write separately because I believe the majority improperly resolves the ultimate issue of whether Arflack could only be removed for cause and was entitled to written notice of his removal from the Town Council.
A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint, not the facts that support it.
NFP criminal decisions today (5):
Ind. Gov't. - "Bills shot down left and right in session"
Niki Kelly, the Fort Wayne Journal Gazette's long-time Statehouse reporter, reports this morning in a long story - some quotes:
In the last 24 hours before a key legislative deadline, bill after bill went down to defeat Tuesday and Wednesday.For more on the 'right to farm' defeat, see this IndyStar story by Ryan Sabalow. And this story from the Muncie Voice on the involvement of Forrest Lucas in pushing the amendmemt.
Some were publicly trounced with dozens of red buttons glaring on the vote board.
Others were quiet burials as the authors of the legislation knew the expected outcome and declined to call the bill for consideration.
The topics were wide-ranging – education, vaccines, speed cameras, annexation, alcohol regulations, cremation, civics testing and more.
“That tends to happen toward the end of each segment (of the legislative session),” House Speaker Brian Bosma said. “People get tired. The day gets long, and if there’s something that rubs them the wrong way, they’ll cast a no vote. We’ve had some good bills go down that way.”
Even though House Republicans spent hours in caucus Wednesday, he said head counts were taken only on a few bills.
Instead, it’s up to authors to call a bill or not. And they usually know the landscape of whether something will pass or fail.
On Tuesday, Rep. Tom Dermody, R-LaPorte, said he clearly didn’t have the votes on a Sunday alcohol sales bill. So it is now dead for the session.
On Wednesday, Rep. Bob Behning, R-Indianapolis, passed on an education bill involving ISTEP+ and letter grades for small schools after seeing a wide-ranging education bill get defeated hours earlier.
The latter bill was House Bill 1072, which gave more power over student data to the State Board of Education, changed teacher evaluation methodology, tweaked how school’s A-to-F grades work and made changes to the ISTEP+ test.
It was defeated 51-42 – a surprise to many. It was a Republican bill, and the GOP has a supermajority of 71 in the House. * * *
Another bill that died was an attempt to use cameras on school buses to catch people passing the buses when the “stop” sign is fully extended. A separate provision allowed cameras to issue speeding fines in work zones.
That bill came up late Tuesday night, and one Republican termed it “gotcha government.”
A Democrat called it an “ACLU meets tea party moment here,” saying it will breed contempt for government.
Bosma halted the bill in the middle of the debate, and the author did not call it down again Wednesday.
But it wasn’t just the House killing bills.
The Senate voted 28-22 to defeat a constitutional amendment defining the “right to farm and ranch.”
Sen. Brent Steele, R-Bedford, has pushed the measure to protect small family farms from animal rights and environmental groups opposing some farming practices.
Much of the discussion centered on whether state and local governments could reasonably regulate confined feeding operations or other farms under such a measure.
Sen. Tim Lanane, D-Anderson, said two state laws already protect farmers so there is no need for a constitutional amendment.
The Senate also voted 33-17 against requiring Hoosier students to pass a civics test to graduate high school.
Senate President Pro Tem David Long, R-Fort Wayne, said this was a matter of bad timing. While he supports the importance of civics knowledge, he said it was inconsistent to add a test at a time that many lawmakers and Hoosiers are upset with the number of tests students are taking.
Ind. Gov't. - "Businesses and nonprofits have twisted the idea of religious freedom, arguing that it provides the right to discriminate"
That is a quote from an article yesterday in The Guardian, by Louise Melling, headed "More courts are telling businesses: stop using religion to discriminate." A few quotes:
[Since Hobby Lobby] lower courts and commissions have been stepping up and ruling against companies that try to use the freedom of religion argument as a pretext for discrimination against LGBT people and women.But another [and perhaps more realistic] view of that response comes from a long, perhaps dynamic, post by Jeff Guo in the Washington Post's GovBeat that surveys the status of pending legislation in the states. Some quotes:
Religious freedom is integral to this country. It must - and will – be protected. But what is being increasingly recognized is that religious freedom gives us all a right to our beliefs. This right, though, like all our rights, has limits. Those limits come into play when acting on our beliefs harms others.
Religious liberty can’t be used by businesses to turn away lesbian and gay couples seeking to celebrate a relationship, or by religiously associated nonprofits who treat women employees like second-class citizens by denying contraceptive coverage. The promise of equality is not real or robust if it has exceptions. * * *
When there were calls in congress and courts across the country to let businesses turn away African Americans because of religious beliefs, the answer was a resounding “no.” The answer should be the same today.
Businesses and nonprofits have twisted the idea of religious freedom, arguing that it provides the right to discriminate. They’d like the right to put up a big sign that says, “We don’t serve your kind here,” and claim that’s okay simply because of their religious beliefs.
The growing response from courthouses and government bodies has been a loud and clear, “No.” This shift promises that religious freedom will be protected – and the promise of equality will too.
[T]he fight over gay rights continues in conservative corners of the country, where legislators are advancing laws that would, intentionally or not, ensure that gay people can be refused service, fired or evicted simply for being gay.
There are no national laws protecting against these forms of discrimination, so the matter has been left up to individual communities. A growing list of cities, for instance, are passing gay anti-discrimination ordinances, which has raised the ire of their more conservative state houses.
In this year’s legislative session, similar bills in several states are striking back against gay rights.
The proposed state laws fall into two categories. Some are anti-anti-discrimination measures that would prevent a state’s cities or counties from creating protections for gay people. * * *
In another, more classic category are laws that would protect people who discriminate against gay people on religious grounds. There has been tremendous legal murkiness concerning when and in which contexts religious rights trump gay rights. These religious freedom bills would have religious rights triumph, always.
Yesterday, Indiana’s Senate passed SB 101, a broadly written bill that would shield anybody from laws infringing on the practice of their religion.
Ind. Gov't. - "Sen. Jean Leising persists in pursuing making cursive writing a requirement"
That is the headline of a good story in the Anderson Herald Bulletin by Maureen Hayden, CNHI Statehouse Bureau Chief. Some quotes:
After three failed attempts, Sen. Jean Leising, R-Oldenburg, is again trying to write penmanship requirements back into school standards, this time telling her colleagues, “I told you so.”ILB: Referring to earlier ILB posts on Gov. Pence's effort's to abolish the Indiana State Library's esteemed Genealogical Department, a reader wrote:
Earlier this week, as the Senate took up the measure, Leising heard from colleagues whose children or grandchildren cannot decipher the cursive writing in handwritten notes. One child couldn't make out his grandmother's promise of much-coveted tickets to the NCAA Men’s Final Four tournament here in April.
“He couldn’t read the note and was disappointed because his grandmother usually sends money,” Leising said.
“The reality is we now have kids exactly as we predicted," she said. "They're not able to read cursive because they’re not taught cursive or not using it at all.”
Her arguments to colleagues were persuasive enough that the Senate again voted to reverse a 2011 decision by the state Board of Education to make lessons in cursive optional while requiring schools to teach keyboarding.
First we don't teach cursive which ensures students will not be able to do historical research from original sources and now we are ensuring they cannot find the historical sources!
Wednesday, February 25, 2015
Ind. Decisions - Court of Appeals issues 4 opinion today (and 4 NFP memorandum decisions)
For publication opinions today (4):
In In the Matter of: E.W. (Minor Child), Child in Need of Services, J.W. (Mother) v. The Indiana Department of Child Services, a 9-page opinion, Judge Baker writes:
J.W. (Mother) appeals the juvenile court’s order terminating visits and phone contact with her child, E.W. (Child). Mother argues that there is insufficient evidence supporting the juvenile court’s order. Finding sufficient evidence, we affirm.In Robert L. Holleman v. Ind. Dept. of Correction, Bruce Lemmon, as Commissioner of the Ind. Dept. of Correction, and Bob Bugher, as Chief Counsel for the Ind. Dept. of Correction, a 7-page opinion, Sr. Judge Darden writes:
Robert Holleman sued the Indiana Department of Correction and its officials for failing to respond to his public records request. The Department subsequently produced documents in response to his request and moved to dismiss his complaint on grounds of mootness. The trial court dismissed the case and Holleman appeals. The Department concedes that remand is necessary for further proceedings. We affirm in part, reverse in part, and remand.In David B. Cartwright v. State of Indiana, a 21-page, 2-1 opinion, Sr. Judge Darden writes:
Cartwright raises one issue, which we restate as whether the trial court abused its discretion in admitting evidence discovered as a result of the search warrant. Concluding that there was insufficient probable cause to issue a search warrant, and that the evidence was thus inadmissible, we reverse. * * *
Cartwright argues that the probable cause affidavit failed to establish the informant’s credibility. We agree. The affidavit does not indicate that the informant gave correct information in the past. At the time of the issuance of the search warrant, the affidavit states that the informant provided “drug information” to an Illinois police officer eight years prior to the interview, but there is no explanation of whether the information was correct, accurate, or had led to any arrests and convictions. * * *
In addition, the affidavit does not include independent police investigation that adequately corroborates the informant’s statements. * * *
Mathias, J., concurs.
Baker, J., dissents. [beginning at p. 17] I respectfully dissent. I agree with the majority’s conclusion that the probable cause affidavit failed to establish the CI’s credibility and, consequently, that there was a lack of probable cause. I part ways with the majority, however, in the application of the good faith exception.
In Gordon L. Peak, Jr. v. State of Indiana, an 11-page opinion, Sr. Judge Sharpnack writes:
Here, the officers stopped Peak because he failed to display his turn signal for the required distance before making a right turn. * * * There is no dispute that Peak failed to signal for the required 200 feet before turning right. Instead, Peak argues that the statute does not apply here because he did not intend to turn right until he came to a stop at a red light and made the decision. * * *NFP civil decisions today (2):
In this case, we have already determined that the officers’ seizure of Peak did not violate the Fourth Amendment. There was thus no error, let alone fundamental error, in the admission of the marijuana at trial.
NFP criminal decisions today (2):
Ind. Courts - Allen County Judge Ummel retires; magistrate vacancy in Allen Superior Court announced
John McGauley, court executive of the Allen County courts, writes:
Fort Wayne, Ind. – After 27 years’ experience serving the citizens of Allen County, Allen Superior Court Magistrate Judge Jerry L. Ummel has announced his retirement.
Ummel has served as a judicial officer since 1988, when he was appointed as a Magistrate/Referee in the Allen Superior Court Misdemeanor and Traffic Court. He has served in his current position in 1991, when Ummel was appointed as Magistrate Judge in the Small Claims Court. His retirement is effective April 21, 2015.
“Replacing someone like Jerry Ummel will be a daunting task,” said Judge Craig J. Bobay, supervising Judge of the Allen Superior Court Small Claims Court. “His experience, wisdom and complete dedication have been invaluable to the Court. Judge Ummel has served our community with distinction.”
Allen Superior Court will begin the search for a new magistrate immediately. Applications for the position are available beginning today (Wednesday, Feb. 25, 2015). Applicants can obtain an application by contacting Allen Superior Court Executive John McGauley by email at firstname.lastname@example.org. Applications must be submitted electronically by 12:30 p.m. EST on Friday, March 13, 2015.
Not law - More on "Why has number of women college coaches plummeted since Title IX?"
Even women who have found success in coaching can find themselves out of a job, sometimes seemingly without cause.Today the Minneapolis Star-Tribune reports in a story by Paul Walsh and Patrick Condon, headed "Dayton, lawmakers want answers about ouster of UMD women's hockey coach":
The most recent example came in December when Minnesota-Duluth said it wouldn't renew the contract of women's hockey coach Shannon Miller because of "financial considerations."
"When's the last time you saw a men's collegiate coach fired after winning five NCAA championships, developing 28 current and former Olympians and running up a .713 winning percentage?" asked Bob Collins in the blog he writes for Minnesota Public Radio.
Miller was the highest-paid Division I women's hockey coach, making a base salary of $207,000. But she has repeatedly told the media she would have taken a pay cut to keep her job.
"This move was incredibly disrespectful to all women, not just to coaches and to female athletes," Miller told the Boston Globe. "It is a slap in the face to our gender. I will not tolerate it and I will continue to speak out and fight it."
Miller, an outspoken and openly gay woman, has called her firing a violation of her civil rights.
Gov. Mark Dayton added his political heft Tuesday to a group of state senators demanding more information about why Shannon Miller is losing her job as head coach of the University of Minnesota Duluth women’s hockey team.
Thirteen DFL state senators sent the letter to University of Minnesota President Eric Kaler and Duluth Chancellor Lendley Black, hinting at sexism in the school’s recent decision to release Miller after this season, even though she had led the UMD Bulldogs to five national championships. “Governor Dayton has requested to add his name to the letter as a signatory,” his spokesman, Matt Swenson, said Tuesday.
“It is our understanding that [UMD] is citing financial reasons for letting Ms. Miller go,” the letter read. “However, the coach of the men’s hockey team [Scott Sandelin], who earns a salary that is $20,000 per year higher than Ms. Miller’s and has a lower winning percentage, is being retained.”
The letter was sent by Sen. Katie Sieben, of Newport, and cosigned by a dozen other DFL senators, most of them men. All but two are from the Twin Cities. None represent the Duluth area. * * *
The Bulldogs women’s team is 19-10-5 this season, and in the hunt for a berth in the national playoffs as the regular season winds down and conference playoffs follow. The Bulldogs have not made the eight-team national tournament since 2011.
Miller’s pending departure sparked a national debate about the treatment of female coaches and athletes. In December, Black, along with UMD athletic director Josh Berlo, told Miller that her contract would not be renewed in June, despite her past national titles and a record of winning more than 70 percent of games in 16 seasons. Miller herself said the decision violated Title IX, the federal law prohibiting gender-based discrimination at schools that get federal funds, and she has hired an attorney.
Ind. Decisions - "Elkhart 4" Supreme Court oral argument tomorrow
Tomorrow at 10:30 AM you will be able to watch live the videocast of the "Elkhart 4" oral arguument before the Supreme Court.
The Court has informed the parties that it is particularly interested in argument on issues relating to application of IC 35-42-1-1, the felony murder statute, to this case. The ILB has earlier posted the transfer petitions and responses.
Ind. Gov't. - Still much more on: Purdue's "Trimble Report" finally released. Results are surprising
Updating this ILB post from Feb. 22nd, here is a second story from the Fort Wayne Journal Gazette, this one from Rebecca S. Green, headed "Report: Wartell ouster botched; Investigator cites falsehoods by ex-Purdue president." Some quotes:
Purdue University handled the 2012 forced retirement of former IPFW Chancellor Michael Wartell pretty poorly, opening the door for years of litigation that followed, according to a report by an independent investigator.Lafayette Journal and Courier columnist Dave Bangert writes today under the headline "What Purdue had to hide in IPFW report." Some quotes:
While the investigator, attorney John Trimble, found neither the university nor then-President France Córdova discriminated against Wartell, he pointed out blatant falsehoods by Córdova and a general bungling of the situation that left Wartell bruised and spoiling for a fight with his former employer.
The Trimble Report paints a picture of the former chancellor as a somewhat controversial and prickly advocate for the Fort Wayne campus, which caused some politicking by community leaders in opposition to him in the events leading up to and following his ouster.
For more than two years, Purdue officials fought to keep the Trimble Report a secret, recently releasing it only after a settlement was announced in a federal lawsuit stemming from Wartell’s retirement and after a federal Freedom of Information Act request by The Journal Gazette. * * *
While the report sides with Purdue regarding Wartell’s claims of discrimination, neither Córdova nor the university escapes unscathed.
The report said Córdova lied to her lawyer, since that is what Purdue argued it considered Trimble, about her reaction to the same retirement policy, which required high-level administrators to exit their positions when they hit the age of 65.
Wartell believed she wanted him out, in part, because her own request to be excluded from the policy was denied. She told him, and Trimble, that she had never made such a request of Purdue’s board of trustees.
Current board of trustees chairman Tom Spurgeon, then the board’s vice-chairman, wrote a letter to the editor of The Journal Gazette in October 2011, also suggesting that Córdova made no such request to the board when she approached age 65.
Both assertions were patently false, according to the report.
“She did seek an extension of her contract, and it was declined by the board,” Trimble wrote in the report.
Trimble said Purdue handled Wartell’s retirement particularly ungraciously, and he urged Purdue to “study how decisions of this kind should be made in the future.
“Wartell is a proud and assertive man who made it well known that he wished to stay on at IPFW until he could celebrate the 50th anniversary,” Trimble wrote in his report. “For him to receive a cold call out of the blue telling him that the Board of Trustees had made a decision on this issue was understandably shocking and upsetting to him.”
Trimble faulted the board and administrators for failing to sit down with Wartell and talk to him about the policy in advance and to hear him out.
Around the time of his retirement, well-known Fort Wayne-area businessmen and philanthropists met with Córdova, asking her to decline Wartell’s request to stay on, according to the report.
There were additional negative letters about Wartell distributed to the board, according to the report.
“Matters were further complicated by the fact that outside parties were able to submit negative letters without him having the opportunity to rebut the things that were said about him,” Trimble wrote.
Trimble urged the university to state that Wartell’s complaint and allegations were not false and malicious, even though they were unsubstantiated.
“He had reasonable cause to believe that his allegations were true,” Trimble wrote.
At least one mystery was solved when Purdue University finally gave in to court rulings and open records requests and released a report into the forced retirement of Michael Wartell, former chancellor at IPFW, a regional campus in Fort Wayne.There is much more in the lengthy J&C column, definitely worth reading in full.
The juiciest tidbit in Wartell's gender and age discrimination case against the university from the start was this scene: former Purdue President France Córdova standing before a organizational chart and putting her finger on the IPFW chancellor's face, stating that by the end of her tenure, she would "replace this one with a woman."
The problem for Wartell is it didn't happen, according to Indianapolis attorney John Trimble's 2012 report into the chancellor's departure from IPFW. Or, at least, Teri Thompson, then Purdue's vice president for marketing and media, wouldn't corroborate for Trimble that she described the scene to Wartell that way.
Actually, the bigger problem for Wartell, who fought Purdue's mandatory age 65 retirement for longtime administrators, is that not much goes his way in what's come to be known as the Trimble Report.
While Trimble chides Purdue, saying the chancellor's departure "was carried out very badly," he found no age discrimination and no gender discrimination by Córdova and Purdue's trustees. * * *
That's probably the big picture Purdue had in mind when it sent testy notes to the Journal & Courier and the Fort Wayne Journal-Gazette when the 30-page Trimble Report and another 245 pages of associated documents were released Friday, three years after they were assembled.
Purdue spent more than $153,000 fighting the release of a report the university considered an internal investigation into a personnel issue that should have remained confidential. Purdue claimed attorney-client privilege. But courts disagreed, labeling Trimble an investigator rather than an attorney working on Purdue's behalf.
Even as they fought to keep the Trimble Report hidden, Purdue officials were touchy about assumptions that the report must have made the university and Córdova look bumbling, conspiring or worse.
In a letter to the J&C, Steve Schultz, Purdue's legal counsel, said that once Trimble's conclusions were released, "perhaps you will reconsider with a fresh perspective any earlier speculation about the report's content."
Even though Purdue was cleared of wrongdoing, a fresh perspective doesn't wipe away all earlier speculation. It's easy to see why Purdue didn't want the dirty laundry hanging out on this one.
At its core, the Trimble Report tells a story of two top-level administrators who didn't particularly care for one another, each being forced to come to grips with the end of Purdue careers they had hoped to keep going.
Ind. Gov't. - First half of legislative session drawing to a close
Both the Senate and House convene this morning to act on the bills remaining on their 3rd reading calendars. Here is the House calendar; the Wednesday Senate calendar is not available yet, but will be here.
Here are some news reports of action this week:
- "Balanced budget measure advances" - Niki Kelly, FWJG:
By a vote of 47-3, the Indiana Senate on Tuesday passed [SJR 19,] a constitutional amendment requiring a balanced budget.
The vote is the first in a long journey to amend Indiana’s Constitution. The measure next moves to the House. If the House approves, it would need to pass the General Assembly again in 2017 before going to the public for a vote in 2018.
All area senators supported the measure.
The change is sought by Gov. Mike Pence, who said Indiana is one of only a few states without a constitutional balanced budget requirement.
Sen. Brandt Hershman, R-Buck Creek, said lawmakers have always interpreted an existing provision in the Indiana Constitution as a ban on debt. But he conceded after doing research that the provision is not explicit.
“We drafted language to prevent some of the games played in other states,” he said.
But the amendment provides an “escape hatch” if the economy falters; the legislature could waive the requirement during an emergency with approval by two-thirds of the lawmakers in the House and Senate.
- "Senate passes ‘religious freedom’ bill" - Tony Cook, Star
- "Religious freedom bill passes Senate" - Niki Kelly, FWJG:
“You don’t have to look too far to find a growing hostility toward people of faith,” said Sen. Scott Schneider, R-Indianapolis.
He is co-author of Senate Bill 101, which is being carried by Sen. Dennis Kruse, R-Auburn.
Kruse called it a good piece of legislation that simply mirrors the federal Religious Freedom Restoration Act.
The law says a state or local government action cannot substantially burden a person’s right to the exercise of religion.
But it isn’t an automatic win for someone who would sue under the statute.
A judge would still have to determine that the action was essential to a compelling government interest and it was achieved in the least restrictive way.
But Democrats believe the law can be used to discriminate against Hoosiers – especially gays and lesbians who aren’t protected by state anti-discrimination laws.
Sen. Greg Taylor, D-Indianapolis, also pointed out the bill expands the federal law to cover businesses – not just individuals.
It now moves to the House for consideration. House Speaker Brian Bosma has been coy on the topic, saying he needs to delve into the issue soon.
Kruse has said the effort is not in reaction to legalized gay marriage in Indiana but instead to the federal Hobby Lobby case, in which the U.S. Supreme Court ruled in June that the government could not force the company to offer insurance coverage for certain contraceptive methods that go against its religious beliefs.
The federal law has been on the books since 1993, but it doesn’t apply to states. * * *
One major concern is whether a business may deny services to someone because of race, gender, disability, religion or other reason.
Sexual orientation is not a protected class, but 12 Indiana cities, including Fort Wayne, have human rights ordinances that protect gays.
These local laws generally – with some slight differences – say a business can’t discriminate in employment, housing and public accommodations.
Opponents believe the state law will trump these local protections. Republicans turned back an attempt Monday to ensure that local human rights ordinances would not be affected.
- "House says not so fast to speed cameras" - Dan Carden, NWI Times
- "Sunday alcohol bill meets a familiar fate" - Tony Cook, Star:
Supporters of Sunday carryout alcohol sales — who have fought in vain for years to overturn the Prohibition-era ban — had a lot of reasons to be optimistic this year.
As the 2015 legislative session ramped up, leaders in the House expressed unprecedented support for the idea. Corporate powerhouses such as Kroger and Wal-Mart threw in lobbying power. And a new coalition called Hoosiers for Sunday Sales hired a top-notch campaign manager to spearhead a grass-rootseffort.
But after more than two months of intense lobbying by liquor stores, which oppose the measure, the bill evolved into a collection of stringent new restrictions on alcohol sales at groceries, drugstores and convenience stores. Big-box retailers — who support Sunday sales — turned on the measure, fearing lost sales and expensive store renovations. As for the top-notch campaign manager, she resigned after being charged with drunken driving.
On Tuesday, the bill met a familiar fate when its author, House Public Policy Chairman Tom Dermody, unceremoniously announced he would not call the measure for a vote.
- "Sunday sales bill dies with no vote" - Niki Kelly, FWJG
- "Surprise battles enliven Indiana's legislative session" - Tom LoBianco, Star:
The 2015 session wasn't supposed to be an all-out blockbuster, with all the acrimonious debate that filled 2014's same-sex marriage fight or 2012's union battle — but at the midpoint, lawmakers are facing down a pair of surprise fights on very similar measures.
A "religious freedom" measure that soared through the Senate this month drew out the same coalition of activists who successfully fought a constitutional ban on same-sex marriage last year. And the surprise arrival of the "common wage" labor battle a little more than a week ago has split the Statehouse along the same lines that punctuated the 2012 "right to work" fight.
Add to that a partisan fight for control of Indiana's State Board of Education, which drew hundreds of teachers and public school activists to the Statehouse, and the 2015 session is shaping up to be as wild as any the state has seen in the past few years.
None of the state leaders started the session with a promise of controversial issues and divisive fights. Instead, Republican leaders, overseeing strengthened supermajorities in the Senate and House, and Gov. Mike Pence promised that education spending, fiscal restraint and ethics reform would dominate the 2015 session.
But long-simmering issues found air this year during the state's "long session." Although gambling expansion was not at the center of anyone's 2015 legislative agenda, the item has occupied more time and effort than most other issues this session. * * *
The midpoint marks a key deadline for House measures to advance to the Senate and vice versa, and it's hardly the end of the session, but it does give a better idea of what will define the 2015 session.
A few surprises have popped up along the way. House Speaker Brian Bosma slapped a lid on a proposal sought by Indiana utilities that had environmentalists and renewable energy company leaders up in arms. He also withdrew a proposal to bring speed cameras to Indiana at the last minute Tuesday evening.
Tuesday, February 24, 2015
Ind. Decisions - Another COA ruling today
In Meridian North Investments LP v. Anoop Sondhi DDS, MS, an 11-page opinion, involving a summary judgment motion, Judge Barnes writes:
On the morning of December 22, 2010, Dr. Sondhi was injured when he slipped and fell on a patch of ice outside the office building as he was about to enter the building. Dr. Sondhi sued Meridian North, alleging it had been negligent in failing to keep the common areas of the office building free from ice and had breached its contractual obligation to clear ice from the premises. * * *
[A]s Dr. Sondhi notes, the Lease is not between him and Meridian North; it is between Sondhi-Biggs and Meridian North. Dr. Sondhi signed the Lease in his capacity as President of the corporation. * * *
There is insufficient evidence on summary judgment to pierce the corporate veil and make Dr. Sondhi interchangeable with Sondhi-Biggs. As such, Meridian North has failed to establish that Dr. Sondhi is effectively the tenant under the Lease and is personally bound by the exculpatory clauses. Dr. Sondhi’s personal injury claim against Meridian North may proceed.
Ind. Gov't. - "Right to farm" in the Bill of Rights? Not this year.
Today SJR 12 was defeated by a vote of 22 to 28. The voting record does not appear to be available.
However, SJR 2, the "Right to Hunt and Fish," passed the Senate Feb. 16th. See this ILB entry from Feb. 12th, headed " Legislators continue efforts to limit DNR enforcement authority through legislation and constitutional amendment," as well as this list of related entries.
Not law - "Why has number of women college coaches plummeted since Title IX?"
Great and much needed look at the question "Why has number of women college coaches plummeted since Title IX?" today in the Indianapolis Star, reported by Dana Hunsinger Benbow!
Courts - Interpreting statutes, with an eye toward King v. Burwell
SCOTUSblog on Feb. 18th ran a good post by Stephen Wermiel on interpreting statutes, aimed at law students but useful to many. A sample:
In a constitutional case, the Justices may be painting on a broad canvas that is shaped by the language of the Constitution as well as a provision’s historical meaning and context. For some Justices, the meaning will also be determined by contemporary societal values, while for others the interpretation will be rooted more in the intent of the Constitution’s Framers. There may be other influences, as well: the structure of the Constitution, deference to other branches, perhaps federalism concerns where relevant, and to an extent Supreme Court precedent.Also useful is this post yesterday from Amy Howe of SCOTUSblog, explaining the case of King v. Burwell in Plain English. And here is the case page, with all the briefs, etc.
The Court’s role is somewhat narrower when it comes to statutory interpretation. Although it is by no means entirely simple or straightforward, the process of statutory interpretation requires an effort to determine the meaning of a statute, typically a federal law passed by Congress. The process first involves an examination of the text of the law. If there is uncertainty or ambiguity in the meaning of the text, the process may also involve an effort to ascertain the intent of Congress in passing the provision. Determining intent or practical goals may involve resort to other tools that guide statutory interpretation. Some Justices will turn to legislative history – committee reports, debate among lawmakers – while some others, like Justice Antonin Scalia, question the legitimacy of legislative history as a means of elucidating congressional intent.
The Affordable Care Act provides a perfect vehicle to consider these different roles for the Supreme Court.
Also useful are several articles mentioned here.
Ind. Decisions - Court of Appeals issues 0 opinion today (and 3 NFP memorandum decisions)
For publication opinions today (0):
NFP civil decisions today (0):
NFP criminal decisions today (3):
Not law - "Millennials still strongly prefer print for pleasure and learning"
In other words, it is just not we boomers and pre-boomers, according to this Feb. 22nd story in the Washington Post reported by Michael S. Rosenwald. A few quotes from the long story:
Textbook makers, bookstore owners and college student surveys all say millennials still strongly prefer print for pleasure and learning, a bias that surprises reading experts given the same group’s proclivity to consume most other content digitally. A University of Washington pilot study of digital textbooks found that a quarter of students still bought print versions of e-textbooks that they were given for free.
“These are people who aren’t supposed to remember what it’s like to even smell books,” said Naomi S. Baron, an American University linguist who studies digital communication. “It’s quite astounding.” * * *
Readers tend to skim on screens, distraction is inevitable and comprehension suffers. * * *
And it can be seen most prominently on college campuses, where students still lug backpacks stuffed with books, even as they increasingly take notes (or check Facebook) on laptops during class. At American, Cooper Nordquist, a junior studying political science, is even willing to schlep around Alexis de Tocqueville’s 900-plus-page “Democracy in America.”
“I can’t imagine reading Tocqueville or understanding him electronically,” Nordquist said in between classes while checking his e-mail. “That would just be awful.” * * *
The most important one to him is “building a physical map in my mind of where things are.” Researchers say readers remember the location of information simply by page and text layout — that, say, the key piece of dialogue was on that page early in the book with that one long paragraph and a smudge on the corner. Researchers think this plays a key role in comprehension.
Monday, February 23, 2015
Law - Rather than show the StringRay device, police offer a plea bargain
Back in early 2014 the ILB had a number of posts on "the use of stingray tracking devices by state and local police departments." Yesterday the Washington Post had a story by Ellen Nakashima, complete with diagrams on how a StringRay works, headed "Secrecy around police surveillance equipment proves a case’s undoing." The story raises some of the same concerns expressed by legislators here last year.
Some quotes from the Feb. 22nd WAPO story:
TALLAHASSEE — The case against Tadrae McKenzie looked like an easy win for prosecutors. He and two buddies robbed a small-time pot dealer of $130 worth of weed using BB guns. Under Florida law, that was robbery with a deadly weapon, with a sentence of at least four years in prison.
But before trial, his defense team detected investigators’ use of a secret surveillance tool, one that raises significant privacy concerns. In an unprecedented move, a state judge ordered the police to show the device — a cell-tower simulator sometimes called a StingRay — to the attorneys.
Rather than show the equipment, the state offered McKenzie a plea bargain. * * *
McKenzie’s case is emblematic of the growing, but hidden, use by local law enforcement of a sophisticated surveillance technology borrowed from the national security world. It shows how a gag order imposed by the FBI — on grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public and criminal defendants in the dark on how the tool works.
That secrecy, in turn, has hindered debate over whether the StingRay’s use respects Americans’ civil liberties.
Ind. Courts - Apparently no rulings from COA today
The Court's list of opinions and decisions has not been updated today.
Ind. Courts - Court of Appeals Judge Friedlander to retire later this year
From the news release:
INDIANAPOLIS – Court of Appeals Judge Ezra H. Friedlander has submitted his resignation to Gov. Mike Pence, effective Aug. 31, 2015.
At retirement, Judge Friedlander will have served on the Court for more than 22 years and practiced law for 50 years. He will retire just shy of the mandatory retirement age for judges of 75, in December 2016. “I thought 50 years was a good time,” Judge Friedlander said. “When you’ve done something for 50 years, it’s a good milestone.”
In his letter to the governor, Judge Friedlander said, “It is my hope that I have been of valuable service to the citizens of the State of Indiana. I personally value having been able to be of service to the citizens of our State.”
Judge Friedlander said he is submitting his resignation now to give the governor and the Indiana Judicial Nominating Commission adequate time to appoint his replacement. The merit selection process to fill Judge Friedlander’s position will include an application and interview. The final selection is made by the Governor. The Judicial Nominating Commission will release details about the process on March 2.
Judge Friedlander was appointed by Gov. Evan Bayh and joined the Court of Appeals in January 1993. He was retained by election in 1996 and 2006. He
Ind. Decisions - Transfer list for week ending February 20, 2015
Here is the Clerk's transfer list for the week ending Friday, February 20, 2015. It is one page (and 1 cases) long.
No transfers were granted last week.
With respect to the one case listed, Town of New Pekin, Indiana v. Gail Stewart and Kermit Stewart , the Court "now denies both the petition to transfer jurisdiction and the motion for appellate alternative dispute resolution. All Justices concur." It is a NFP May 23, 2014 opinion.
Ind. Gov't. - Religion in Indiana public schools
Lauren Slagter, Kokomo Tribune Education Reporter, reported at length Sunday on how "The Christian influence at Eastern Howard School Corp. shows up in a variety of ways among administrators, staff and students."
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 22, 2015:
Ind. Gov't. - Civil asset forfeiture back in the Indiana news, but it has continued to be a topic at the national level (and in the ILB) [Updated]
- Ind. Courts - Judicial Center's Legislative Update 7th weekly installment
- Ind. Gov't. - Utilities fighting solar in Indiana, but accomodating, and even embracing, solar in North Carolina
- Ind. Gov't. - More on: Purdue's "Trimble Report" finally released. Results are surprising
From Saturday, February 21, 2015:
From late Friday afternoon, February 20, 2015:
- Ind. Courts - More on: Amendment proposed to Article 7, the Judicial Article
- Ind. Gov't. - Purdue's "Trimble Report" finally released this afternoon
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/23/15):
Thursday, Feb. 26
- 9:00 AM - Andrew Satterfield v. State of Indiana (63S00-1401-LW-306) Andrew Satterfield admitted killing his mother and setting her house on fire. He defended on grounds he was not responsible by reason of insanity. The jury rejected the insanity defense, and found Satterfield “guilty” of murder and arson. In the penalty phase, the jury recommended a sentence of life without the possibility of parole, and the Pike Circuit Court sentenced Satterfield accordingly. In this direct appeal, Satterfield raises issues relating to conduct of the trial and the sentence.
- 9:45 AM - David J. Markey v. Estate of Frances S. Markey (89S05-1412-ES-749) David Markey filed a complaint against his stepmother's estate and her children, alleging the stepmother had breached a contract with David's father to make mutual wills providing the last to survive would divide the estate equally between David and the stepmother's granddaughter. The Wayne Superior Court found David's action was untimely and entered summary judgment for the stepmother's children. The Court of Appeals affirmed, holding David had to file his petition within three months of the admission of the will to probate. Markey v. Estate of Markey, 13 N.E.3d 453 (Ind. Ct. App. 2014), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a July 9th COA opinion; see ILB summary here (2nd case). The COA: "In this case we are asked to clarify the time limit within which an action for a breach of contract to make a will must be filed."
- 10:30 AM - Blake Layman & Levi Sparks v. State of Indiana (20A04-1310-CR-518); Anthony Sharp, Jr. v. State of Indiana (20A04-1310-CR-501) Appellants and two other teenagers participated in a burglary of a house chosen because they thought the owner was not home. One of the teenagers was shot and killed by the homeowner. Following a jury trial in the Elkhart Circuit Court, the appellants were convicted under Indiana’s felony murder statute, Indiana Code section 35-42-1-1. The convictions were affirmed in Layman v. State, 17 N.E.3d 957 (Ind. Ct. App. 2014), transfer pending and Sharp v. State, 16 N.E.3d 470 (Ind. Ct. App. 2014), transfer pending. Appellants have petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: These are "Elkhart 4" defendants. The Court has informed the parties that it is particularly interested in argument on issues relating to application of Indiana Code section 35-42-1-1, the felony murder statute, to this case. The ILB has earlier posted the transfer petitions and responses.
- No oral arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 2/23/15):
Thursday, February 26
- 10:00 AM - NIPSCO Industrial Group and IN Office of Utility Consumer Counselor v. Northern Indiana Public Service Co., et al (93A02-1403-EX-158) In this consolidated appeal, the Indiana Office of Utility Consumer Counselor ("OUCC") and NIPSCO Industrial Group ("Industrial Group") appeal the decision of the Indiana Utility Regulatory Commission ("Commission") regarding two petitions filed by Northern Indiana Public Service Company ("NIPSCO"). This is the first appeal that addresses Indiana Code Chapter 8-1-39, which was enacted in 2013 and is referred to as the "TDSIC" statute. The TDSIC statute allows a utility to implement rate "trackers" for investments in transmission, distribution, and storage system improvements. NIPSCO's petitions concerned proposed improvements to its systems of more than $1 billion. The Commission approved NIPSCO's petitions. On appeal, the OUCC argues that: (1) the Commission erred by allowing NIPSCO to continue rate recovery of retired equipment while also recovering costs for replacement assets; and (2) the Commission erred by approving NIPSCO's proposed rate allocation methodology. The Industrial Group argues that: (1) the Commission erred by allowing NIPSCO to specifically identify the proposed projects for only the first year of the seven-year plan and by establishing a presumption that the proposed projects for years two through seven of the seven-year plan were eligible for special ratemaking treatment; and (2) the Commission erred by approving costs in excess of a statutory cap on aggregate increases. The Scheduled Panel Members are: Judges May, Barnes and Pyle. [Where: Court of Appeals Courtroom (WEBCAST)]
- 12:00 PM - Alvarez v. Horizon Bank, N.A. (46A03-1404-CC-129) Kelly Alvarez (Galanos) appeals the denial of her motion to dismiss Horizon Bank's claim against her for lack of jurisdiction and the grant of summary judgment in favor of Horizon Bank. She argues the promissory note on which Horizon's claim is premised emanates from the divorce decree with her ex-husband, George Galanos, and thus is in the jurisdiction of the court that issued the divorce, not the civil court in which Horizon filed a claim against her. Alvarez argues summary judgment is improper due to lack of jurisdiction as well. The Scheduled Panel Members are: Judge Riley, May and Robb. [Where: Culver Cove Resort & Conference Center, Culver, IN]
Next week's oral arguments before the Court of Appeals (week of 3/2/15):
Friday, March 5
- 1:00 PM - Devereaux v. Love and Love (49A02-1404-CT-260) The instant matter involves questions relating to the duty owed to clients of a law firm when one of the clients' counsel of record resigns from his employment from the firm over concerns about potential ethical violations that may have been committed by his co-counsel. On appeal, Appellant-Defendant Timothy Devereaux and Appellees-Plaintiffs Jim and Diana Love challenge the trial court's order denying each of their competing motions for summary judgment. Specifically, the parties challenge the trial court's determination that an issue of material fact exists as to whether Devereaux, in his prior position as counsel of record for the Loves, breached a duty owed to the Loves when he resigned from his employment at the law firm representing the Loves without notifying the Loves of his concerns relating to potential ethical violations committed by and the honesty and trustworthiness of the Loves' remaining counsel at the firm. The Scheduled Panel Members are: Judges Riley, Robb and Bradford. [Where: Indiana State University, Terre Haute]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast. [Note: This may be changing...]
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Sunday, February 22, 2015
Ind. Gov't. - Civil asset forfeiture back in the Indiana news, but it has continued to be a topic at the national level (and in the ILB) [Updated]
Although much has been reported nationally (the Washington Post has made it a major focus) and in the ILB on the topic of civil asset forfeiture (here is a long, long list of ILB posts), and the issue was raised briefly in Indianapolis a few years back (in 2011 Heather Gillers had stories in the Star on the question of why these forfeitures were not going to the Common School Fund, as mandated in the Indiana Constitution), the practice and alleged abuses have continued.
Today the Indianapolis Star has a long front-page story by Kristine Guerra compiling some instances of abuses from the process. She continues:
Attorney General Eric Holder, defense attorneys and legal experts are beginning to question the fairness of a program that allows officers to seize property first, and file charges later. In January, Holder said local agencies would no longer be able to use federal law to seize the assets of people not yet convicted of crimes.ILB: Hershman returned his bill, SB 388, from 3rd reading back to 2nd on Thursday. Generally an author does this when he plans a amendment.
Holder's new policy that limits the federal Equitable Sharing program would eliminate only 3 percent of forfeitures nationwide. It would not affect police departments that seize assets under state laws. But some see his decision as a call for a debate on the subject, suggesting a basic constitutional right is at stake — due process of law.
"No one should lose their property without being convicted of a crime," said Louis Rulli, a law professor from the University of Pennsylvania. "It really puts our whole justice system on its head."
How much money is at stake for local law enforcement agencies is hard to tell, although nationally billions of dollars in cash and property have been seized.
Law enforcement officials say forfeiture money is a small portion of their budgets but is an important source of revenue to train officers and purchase vehicles and equipment. One thing it's not used for, said Marion County Prosecutor Terry Curry, is "creating some sort of slush fund for luxury items."
Still, the absence of statewide data has some concerned. State Sen. Brandt Hershman, R-Buck Creek, is proposing an amendment to state law that would require local police departments and agencies to regularly report seizures and forfeitures.
Like others, Hershman says he supports the idea of asset seizures and forfeitures.
"The question is," he said, "are they working as we intended?"
The story today includes a photo that could be a still from the series "Breaking Bad," of "$2.6 million in cash from inside the panels of a semi’s trailer headed for Texas" that was seized in Marion County. "As a result of the investigation, officials seized a total of $4.3 million in drug proceeds and five tons of marijuana."
The story reports that Indiana law:
... allows forfeiture funds to be used to reimburse police agencies for the costs of their investigations. Any remainder is supposed to go to the Common School Fund, which is used to build schools. State law, however, is interpreted differently by each county. Some meticulously account for the cost of each investigation and send any remaining dollars to the Common School Fund.The ILB argued again last week that settlements awarded to the State of Indiana should go to the General Fund, to be disbursed by appropriation of the General Assembly, as other funds are publicly appropriated. Dealing with civil asset forfeitures presents similar issues.
Many, including Marion County, do not put money into the school fund.
A previous effort to change Indiana's forfeiture law — defining how funds should be divided among law enforcement agencies and prosecutors — failed after former Gov. Mitch Daniels vetoed the bill in 2011.
But in the wake of Holder's policy change, more forfeitures are expected to be handled under state laws, heightening concern.
Sen. Hershman's bill, SB 388, would require law enforcement agencies and prosecutors to submit annual reports to a state agency that would then have to compile data for the state treasurer. The reports would include an itemized list of seized items, as well as their values, and how much is forfeited to each agency.
But with civil asset forfeitures, two distinct problems need addressing. The first involves the matter of alleged abuses by local authorities of the civil forfeiture process itself - as the Star story reports "defense attorneys and legal experts are beginning to question the fairness of a program that allows officers to seize property first, and file charges later."
The second is that funds seized by local law enforcement officials should not be treated as "spoils." The Constitution directs that they go to the Common School Fund. At a minimum, their distribution should be spelled out clearly in statute, and transparency must be the rule.
[More] See this April 27, 2011 ILB post about our Supreme Court's 2011 decision in Serrano and the ILB note:
In its discussion of the origin of Indiana‘s system for civil forfeitures, the Court writes that "At the core of the financing scheme for this objective was creation of the Common School Fund, a 'perpetual' depository for 'support of Common Schools, and no other purpose.' Ind. Const. art. 8, § 3." Footnote 3 on page 4 cites IC 34-6-2-73 and notes: "Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that 'all forfeitures' be deposited in the Common School Fund is an unresolved question."
Ind. Courts - Judicial Center's Legislative Update 7th weekly installment
The February 20th (seventh) weekly installment of the Legislative Update for the 2015 legislative session is available here. It is in blog form, you can scroll down for earlier updates. This is a good way to keep aware of bills of interest to the judiciary.
Ind. Gov't. - Utilities fighting solar in Indiana, but accomodating, and even embracing, solar in North Carolina
Updating this Jan. 28th ILB post on net metering, re HB 1320, about which the Bloomington Herald-Times editorialized "Indiana House bill casts a cloud over more use of solar energy," two items of interest.
First, the IBJ reported on Feb. 21st that "the utility issue of net metering is drawing opposition from conservative groups with a libertarian bent." More:
The bill allows investor-owned electric utilities to seek permission from regulators to pay less than the retail rate for energy to customers that use “distributed generation,” including solar. It would also allow them to levy additional fixed charges for connecting those customers to the grid.And there is this fascinating Feb. 18th story by Katie Fehrenbacher in Gigaom about how:
Currently, Indiana requires utilities like Duke Energy and Indianapolis Power & Light to offer “net metering,” which gives solar users full credit for any excess energy they produce.
The world’s largest internet companies are turning to clean power to run their data centers like never before. This month we saw huge clean power deals from Apple, including big solar projects planned in California and Arizona, and a big wind buy from Google to provide local power for its headquarters in Silicon Valley. * * *
[I]n 2009 when Apple and Facebook were considering building data centers in North Carolina, clean power was still an early idea. It was attractive in some emerging ways, but the state and local utilities weren’t offering the type of clean power options that the internet companies wanted.
That’s why in late 2011 Apple started building its unusual and massive solar farms in the area. Built by SunPower, these solar farms now stretch across hundreds of acres and now generate more solar power than Apple needs for that facility. The company also has a fuel cell farm built beside the data center. Apple agreed to plug into the state’s grid, but it was also generating its own clean power that went back onto the grid and made up for its use of the dirty grid power.
Apple’s solar farms ended up putting pressure on local utility Duke Energy and the state to recognize that if there was ample clean power provided to these customers from the power grid, then they wouldn’t need to build their own. In late 2013, Duke Energy officially asked the state’s regulators if it could sell clean power from new sources to large energy customers that were willing to buy it — yes, thanks to restrictive regulations and an electricity industry that moves at a glacial pace, this formerly wasn’t allowed.
Now Duke Energy has a clean energy supply program in the state. And just this week, Duke Energy issued a request for proposal asking for project builders to build 50 MW worth of solar projects in the state. * * *
Solar panels are at the cheapest time in history. Wind power, too, is similarly cheap. Google’s deal to buy power from the revamped Altamont Pass shows how wind turbines have come down considerably in price and up in power.
Now, the official embrace of these internet companies and clean power is just one part of the story. There’s a whole host of smaller data center operators that can’t afford to deal at the scale of Google or Apple. But Google and Apple are still paving the way for the smaller companies by changing utilities minds that there’s a good business to be had in clean power.
Ind. Gov't. - More on: Purdue's "Trimble Report" finally released. Results are surprising
Updating this ILB post from Friday afternoon, Sherry Slater reports today in the Fort Wayne Journal Gazette in a story headed "Local push fueled exit of Wartell: Papers show business leaders acted secretly to end his stay." The long story today begins:
While then-IPFW Chancellor Michael Wartell was battling Purdue University leaders to remain in his job through the school’s 50th anniversary, some local business leaders were secretly lobbying for a new campus leader.There is much more in the story. The earlier ILB post includes the Lafayette Journal Gazette link to the now public Trimble Report.
The chairmen of Steel Dynamics Inc. and Rea Magnet Wire Co., the retired chairman of Lincoln National Corp. and a Fort Wayne attorney met with then-Purdue President France Córdova on June 29, 2011, via teleconference to ask her not to grant Wartell’s request for an exemption to the university’s mandatory retirement age.
The four men followed that meeting with letters to Córdova, including one clearly marked “confidential.” The correspondence was released Friday to The Journal Gazette by Purdue officials in response to a Freedom of Information Act request.
The letters described Wartell as having poor working relationships with his staff, leaders of other local colleges and the local business community. They also questioned his integrity.
Mark Ulmschneider, a local attorney who represents Wartell, takes a dim view of how Keith Busse, Jim Vann, Ian Rolland and Larry Lee expressed their opinions.
“It was underhanded,” he said. “It was done in secret, and they mischaracterized the facts.”
As a result of the secret nature of the correspondence, Wartell didn’t have the opportunity to respond to the allegations against him, Ulmschneider said.
“It’s a violation of due process, basically,” he added. “It was a group character assassination, that’s what it was.”
It’s unclear whether the letters influenced Purdue’s trustees, who made the decision to reject Wartell’s bid for an extension after 18 years as IPFW’s chancellor. He was forced to retire in July 2012.
ILB: Although the story has more than a dozen references to a "Larry Lee," the story does not otherwise identify him, other than as a donor to IPFW.
Friday, February 20, 2015
Ind. Courts - More on: Amendment proposed to Article 7, the Judicial Article
Updating this post from Jan. 13th, SJR 15, which would have substantially changed the way appellate jurists are selected and retained, failed in the Senate Judiciary Committee this week by a vote of 4-6.
Apparently, when a proposal fails in committee, no roll call is provided...
Another problem here is that the language that was actually considered by the Committee is not available online. That is because the resolution's author submitted an amendment to the posted proposal at the time when discussion began. This not only put the members of the public who were there to testify at a disadvantage, but also appears to mean that there is no record of the language that was actually discussed and rejected.
BTW, this last minute rewrite is not that uncommon a practice in the committee hearings the ILB has watched so far this year.
In the interests of history and transparency, the ILB would be pleased to post a copy of the version of SJR 15 that was actually considered, if someone could make it available.
Ind. Gov't. - Purdue's "Trimble Report" finally released this afternoon
The most recent ILB post on this topic, from Feb. 8th, was headed "Purdue 'Trimble report' finally released? Not yet!"
But this Friday afternoon, it was. Here is the Lafayette Journal & Courier's copy.
Here is some of what Rebecca S. Green wrote in the Fort Wayne Journal Gazette on Feb. 6th:
Purdue officials this week revealed they spent more than $153,000 in legal fees over about 18 months to conceal the $19,000 report, which was compiled after an investigation into the forced retirement of former IPFW Chancellor Michael Wartell in 2011.This afternoon Joseph Paul reports in the Laf. J&C:
The Journal Gazette has requested from Purdue both the report and the terms of the settlement reached in the lawsuit, but the university has not yet provided the information.
An internal investigation by Purdue University into complaints of harassment and discrimination found the allegations were unsubstantiated.
The terms of a recent federal court settlement made public a 2012 report by attorney John Trimble after former IPFW Chancellor Michael Wartell was forced into retirement in 2011 at the age of 65.
Purdue hired Trimble to investigate Wartell's allegations of age and gender discrimination by former Purdue President France Córdova, whom Wartell believed had a desire to fill more top administrative positions with women.
In a copy obtained Friday by the Journal & Courier, Trimble found through interviews with Wartell, Córdova, Board of Trustees members, witnesses and a review of nearly 250 pages of evidence that no discrimination took place under the university's current definition.
"The specific allegation that President Córdova engaged in sex discrimination by pointing at Chancellor's photo and stating, 'I will replace this one with a woman' has not been substantiated," the report states. "The individual who allegedly shared that information with Chancellor Wartell cannot or will not confirm it. To the contrary, that individual corroborates President Córdova's statement that there were merely conversations about the necessity of encouraging diversity within the administration of Purdue University." * * *
Over the course of the legal wranglings between Wartell and Purdue, both federal and state courts ruled the report compiled by Trimble should be considered a public document.
As reported by the Associated Press earlier this month, the university spent more than $150,000 in legal fees over the past 18 months, fighting public records requests and claiming the document was protected by attorney-client privilege.
Trimble himself, however, admitted he didn't reveal he was representing the university when he interviewed Wartell over the course of the investigation, according to a Journal & Courier report in March, shortly after the Indiana Court of Appeals upheld a lower court ruling that the document was not privileged.
Courts - "Ky. Supreme Court prohibits 'clandestine communication' between lawyers, judges"
Jason Riley reports today at WDRB Louisville in a story that begins:
In what local prosecutors call a “landmark” ruling, the Kentucky Supreme Court Thursday made it clear in unusually strong language that judges are prohibited from talking with criminal defense attorneys about the release of a defendant without the input of the prosecution.Read the story for the details.
The ruling on this so-called ex parte, or one-sided, contact between judges and lawyers found there is a “culture among some members of the Jefferson District Court and some members of the bar that appears completely inconsistent with the ethical execution of judicial duties.”
The high court called the “clandestine communication between some attorneys and some sitting judges” a “recurring problem” that must be addressed.
“The practice here was so egregious and distasteful and unethical that the court had to make it clear for every court in the commonwealth what they could not do,” Jefferson County Attorney Michael O'Connell said in an interview. “It does not get any stronger than that from the Supreme Court.”
Chief District Court Judge David Holton said he believes "the Supreme Court got it right," adding, however, that he didn't believe any current judges were taking part in the practice anymore.
"We have good and trustworthy people serving on the bench in Jefferson County," he said in an interview.
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In Daniel Hall v. Carolyn Colvin, SSA (SD Ind., Magnus-Stinson), a 6-page opinion, Judge Posner writes:
This is an appeal by an applicant for social security disability benefits named Daniel Hall, who was turned down by the Social Security Administration seconded by the district court. An aviation mechanic discharged in 2001 by the military (we are not told which branch) because of pain from an ankle injury, he was deemed by the Department of Veterans Affairs to be 70 per cent disabled and, more important, to be “unemployable” in “a substantially gainful occupation” and therefore totally disabled. 38 C.F.R. § 4.16. In 2010 he applied for social security disability benefits on the ground that pain from his ankle injury, together with back and knee pain and other ailments, had steadily worsened and by 2009 had rendered him totally disabled under the standards of the Social Security Act. * * *
The administrative law judge’s most serious error, one we’ve noted in previous cases (see next paragraph), is her belief that complaints of pain, to be credible, must be confirmed by diagnostic tests. Even if that were true, she should have known of the limitations of x-rays as tools for diagnosing pain and, knowing that, should have ordered an MRI before issuing her decision, because his two earlier MRIs had, he testified, preceded the onset of his total disability.
It is understandable that administrative law judges want diagnostic confirmation of claims of pain. Without such confirmation the administrative law judge has to determine the applicant’s credibility, and it is often very difficult to determine whether a witness is telling the truth—especially when as in this case he has an incentive to exaggerate. But as numerous cases (and the Social Security Administration’s own regulation) make clear, an administrative law judge may not deny benefits on the sole ground that there is no diagnostic evidence of pain but only the applicant’s or some other witness’s say so: “an individual’s statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on his or her ability to work may not be disregarded solely because they are not substantiated by objective medical evidence.” SSR 96–7p(4); see, e.g., Pierce v. Colvin, 739 F.3d 1046, 1049–50 (7th Cir. 2014); Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004).
Several doctors noted that Hall had been in pain when examined, and this was some corroboration of his testimony. The administrative law judge could have resolved her doubts by ordering an MRI or directing a further examination by a medical expert. Her failure to do either leaves her determination that Hall is not disabled without a foundation in substantial evidence. Her failure to analyze and weigh the Veteran Administration’s determination that the applicant is totally disabled was a further oversight.
The denial of disability benefits cannot be sustained. The decision of the district court is reversed with directions to remand the case to the Social Security Administration for further proceedings consistent with the analysis in this opinion. REVERSED AND REMANDED.
Ind. Decisions - Tax Court posts one today, filed Feb. 19
In Marineland Gardens Community Association, Inc. v. Kosciusko County Assessor, a 7-page opinion, Judge Wentworth writes:
The Indiana Board of Tax Review denied Marineland Gardens Community Association, Inc.’s 2009 and 2010 property tax exemptions because it failed to make a prima facie case that it was established for the purpose of retaining and preserving its land and water for their natural characteristics. The Court affirms the Indiana Board. * * *
This Court will find that a final determination of the Indiana Board is supported by substantial evidence if a reasonable person could view the record in its entirety and find enough relevant evidence to support the Indiana Board’s determination. See Amax Inc. v. State Bd. of Tax Comm’rs, 552 N.E.2d 850, 852 (Ind. Tax Ct. 1990). Here, a reasonable person viewing the record would find enough relevant evidence to support denying the exemption because Marineland did not explain how its evidence indicates that it was established for the purpose of retaining and preserving the land and water for its natural characteristics under Indiana Code § 6-1.1-10-16(c)(3). See Long v. Wayne Twp. Assessor, 821 N.E.2d 466, 471 (Ind. Tax Ct. 2005) (stating that in order to make a prima facie case, a taxpayer must walk the Indiana Board and this Court through every element of its analysis) review denied.
Ind. Decisions - Court of Appeals issues 2 opinion today (and 10 NFP memorandum decisions)
For publication opinions today (2):
In Angela Lundy v. State of Indiana, a 13-page opinion, Chief Judge Vaidik writes:
Angela Lundy was charged with Class D felony possession of a controlled substance. The existence of a valid prescription is a defense to this crime.In Kirsten L. Phillips v. State of Indiana, a 12-page opinion, Judge Crone writes:
Lundy served a subpoena on non-party Indiana Board of Pharmacy (“the Board”), requesting a copy of her INSPECT report. As part of the INSPECT program, the Board compiles controlled-substance information into an online database.
The Board filed a motion to quash the subpoena, claiming that the information was confidential pursuant to statute. The trial court granted the Board’s motion because it found that Lundy had to make a threshold showing that she could not get her prescription records elsewhere before she was entitled to her INSPECT report from the Board. The trial court certified its ruling for interlocutory appeal.
There is a three-part balancing test for discoverable information in a criminal proceeding, but the only consideration at issue here is particularity, which requires a showing that the information is not readily available elsewhere. The Board argues that because Lundy knew where she could “possibly” obtain her prescription records, they were readily available. “Readily available,” however, does not equate to knowledge. That is, just because Lundy knew where she could “possibly” obtain her prescription records does not mean that they were “readily available” to her. In addition, the particularity requirement is not to be construed strictly against the defendant but should be administered so as to maximize pretrial discovery. Given that the Board does not challenge the other parts of the test, we conclude that the trial court abused its discretion in granting the Board’s motion to quash Lundy’s subpoena. We therefore reverse and remand this case to the trial court.
Five-month-old C.T. tragically died after Kirsten L. Phillips put him down for a nap inside a broken portable crib at the home daycare where she worked. Following a jury trial, Phillips was convicted of class C felony reckless homicide and class D felony involuntary manslaughter. Phillips appeals, asserting that the trial court abused its discretion in admitting certain evidence at trial. Phillips also asserts that the State presented insufficient evidence to support her convictions. We conclude that the trial court did not abuse its discretion in admitting evidence and that sufficient evidence supports Phillips’s reckless homicide conviction. We need not address the sufficiency of the evidence of her lesser conviction for involuntary manslaughter because we determine sua sponte that her dual convictions for reckless homicide and involuntary manslaughter violate double jeopardy principles. Accordingly, we affirm Phillips’s reckless homicide conviction and vacate her involuntary manslaughter conviction.NFP civil decisions today (1):
NFP criminal decisions today (9):
Ind. Gov't. - "When States Win Lawsuits, Where Does the Money Go?"
In this long Feb. 4th post, the ILB asked "What will become of Indiana's $21.5 million share of the S&P settlement?"
In answer to a question directed to the AG's public information officer about how much of the S&P settlement would go to the general fund and specifically how would the balance be distributed, the ILB received a response that included this language: "Specific allocations of the remaining balance will be determined consistent with the parameters of the settlement and taking into account claims made by the securities and consumer protection divisions based on their involvement in the settlement." My conclusion:
It is [still] not clear to the ILB how and where settlements (other than the tobacco settlement - see IC 4-12-4) are reflected on the Indiana books, and who has authority to make the decisions.I'd like to say a lot of people expressed interest in the post, and in finding out the answers, but that was not the case.
But yesterday, Feb. 19th, Pew's Stateline posted an article by Jeffrey Stinson, titled "When States Win Lawsuits, Where Does the Money Go?"
It is a long, interesting story, but with no clear answers for Indiana. And there are no details as to whether some other states have specific statutory guidelines (other than for the tobacco fund), or whether there are provisions requiring, for instance, that settlements go to the general fund, to be distributed by the general assembly of the state via the appropriation process. Here is the section of the Pew story headed "Where the Money Goes":
Attorneys general usually keep some settlement money to cover the costs of cases and to help finance future litigation. But distribution of damage recoveries or awards can be set by law, such as reimbursing Medicaid for fraud.
Half the S&P settlement, $687.5 million, will go to the federal government as a penalty. The other half was divided among the states and the District, based on their damages and costs in litigating.
Some states will pay back parties directly damaged by the ratings agency’s practices. That’s the first rule of thumb in distributing money: Try to compensate damaged parties even if you cannot make them whole.
California, for instance, will send $176 million of its $210 million share to the California Public Employees’ Retirement System (CalPERS), which had invested in some of the toxic securities. CalPERS also will get another $125 million from the settlement of its separate suit against S&P.
Washington state will use $3 million of its $21.5 million share to help victims of the mortgage crisis. The bulk, $18 million, will go to the state’s general fund. Democratic Attorney General Bob Ferguson’s office said that S&P’s actions harmed Washington’s economy and ultimately cost the state tax revenue.
Missouri will put its $21.5 million in the state general fund for legislators to decide how to spend it. The legislatures in Colorado, Delaware and Idaho, along with the District city council, will largely determine how their shares will be disbursed.
Other states will allocate their money in a variety of ways:
In many states, attorneys general have some say in where the money goes, though legislatures often have final word when it’s not earmarked by law or when it’s impractical to identify and reimburse damaged parties.
- In Illinois, the majority of its $52.5 million share will go to the state’s beleaguered public pension system.
- Iowa will send $20 million of its $21.5 million share to seven public employee retirement funds. The attorney general’s litigation fund will get $500,000, and $1 million will go to the state’s Insurance Division for future securities enforcement efforts.
- Maine’s $21.5 million share will go to consumer protection and education efforts.
In Arizona, Republican Attorney General Mark Brnovich’s office said that he, Republican Gov. Doug Ducey and legislative leaders will figure out how to distribute the state’s $21.5 million share among children, family, seniors and public safety programs.
In North Carolina, Democratic Attorney General Roy Cooper’s office said most of the state’s $21.5 million share will go to schools. But he’s asking that some go to college scholarships for students who stay in the state to teach and to retain scientists at the state’s crime lab.
Courts - "SCOTUS docket full of state-related cases"
Ind. Gov't. - More on "Is ‘right to farm’ amendment for Indiana a‘right to harm?’"
Updating this ILB post from Feb. 16th, a very long, interesting story by Ryan Sabalow of the Indianapolis Star, headed "Pot farms in Indiana? Never say never," looks at the issue of what is included if the "right to farm" became part of the Indiana Bill of Rights. Some quotes:
On Monday, Sen. Mike Crider, R-Greenfield, a former state conservation officer, said he was worried that a proposed constitutional "right to farm" amendment for Indiana, authored by Sen. Brent Steele, R-Bedford, may someday prevent the state from regulating marijuana farming if the practice ever becomes legal here.
His concerns didn't seem particularly outlandish to me, or others.
Chris Lindsey, a legislative analyst for the Marijuana Policy Project, a group that advocates for marijuana to be decriminalized — and regulated — said it very well might.
After reviewing the proposed amendment — Senate Joint Resolution 12 — for me, Lindsey said: "I suppose if you start to treat marijuana like any other agricultural product, I don't see anything in this language that would assume that you would treat marijuana differently."
In other words, Sen. Crider might be on to something, especially with national and statewide support for marijuana legalization consistently staying at 50 percent or more.
I've seen firsthand in my home state how sticky the regulatory issues surrounding commercial marijuana growing can be.
About three years ago, I moved to Indianapolis from rural Northern California. There were times during my six years as a reporter for the Record Searchlight newspaper in Redding, Calif., that it seemed like all my colleagues and I wrote about was marijuana farming. * * *
The impoverished, rural region where I lived and worked often had high unemployment rates. With cannabis permission slips so easy to get, many turned to farming marijuana to make a living.
I was told that during the beginning of the pot boom — before the market grew saturated with marijuana — a well-maintained, backyard grow might produce $50,000 or more of pot in a single season.
Lured by the promise of easy cash, mini pot farms sprouted up in neighborhoods and subdivisions all over the place. Some neighborhoods smelled stronger than a Cheech and Chong fan club meeting. Many neighbors found the ever-present smell of all that marijuana nauseating. * * *
Imagine, as Senator Crider does, if Indiana marijuana proponents ever argued in court that under Steele's amendment, pot was just another "diverse farming and ranching practice" free from new state laws "that unreasonably abridge" a farmer's rights.
Steele, meanwhile, laughed off Crider's concerns at Monday's hearing before the Senate Agricultural Committee, which overwhelmingly passed the amendment with Crider issuing the only Republican "no" vote.
The Bedford Republican told Crider that there's no way marijuana could ever be legal in Indiana.
I'm sure 10 years ago [ILB: or 2 years ago!], a great many Hoosiers would have said same-sex marriage would never be legal in Indiana either.
Look at how that turned out.
Ind. Law - Still more on "Indiana Senate bill targets Gary gun lawsuit"
This Feb. 18 ILB post reported that the after the debate on 3rd reading Sen. Tomes:
... pull[ed] the bill to return it to 2nd reading.And yesterday Sen. Tomes did call down SB 98 on second reading, where it was amended to remove SECTION 5 from the then current version of the bill, and then ordered to engrossment.
This does not mean the bill is totally dead, there is still the opportunity to attempt to amend it on second reading.
The result: Sen. Kenley's issue with the now stricken provision, that it could result in Smith & Wesson receiving attorneys' fees incurred since 1999, has been addressed.
But the main argument against the bill, that it would mean the legislature was stepping into the role of the judiciary and affecting the outcome of pending litigation, remains.
Thursday, February 19, 2015
Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal
In Timothy Austin v. Andrew Pazera (ND Ind., Moody), Judge Posner writes:
Plaintiff Austin, an inmate of an Indiana prison, was punished in a prison disciplinary pro-ceeding for having attempted to traffic in tobacco, meaning attempting to carry tobacco or tobacco products into or out-side the prison. His punishment consisted of losing 60 days of good-time credit (which increased his period of impris-onment by 60 days), being demoted from “credit class 1” to “credit class 2” (inmates in the first class earn one day of good time credit for each day of imprisonment, inmates in the second class earn one day of credit for every two days of imprisonment), being given 20 hours of extra work duty, and being denied access to the prison commissary for 25 days.
He petitioned for federal habeas corpus, see 28 U.S.C. § 2254, on the ground that the disciplinary proceeding had denied him due process of law, primarily by convicting him on the basis of insufficient evidence. The respondent is the prison’s superintendent. The district court denied the petition, ruling that the evidence, though scanty, had been adequate to prove Austin’s “constructive possession” of tobacco. * * *
Proximity is not possession. And to top it all, we don’t even know whether there were any tobacco prod-ucts in the crawl space on the day Austin worked there.
Convicted without evidence of guilt, Austin was denied due process of law. The judgment is therefore reversed and the case remanded with directions to order the relief sought by him. For when the imposition of prison discipline is not supported by even “some evidence,” which we think the proper characterization of the scanty record in this case, the prisoner is entitled to a writ of habeas corpus commanding that the discipline be rescinded. Grandberry v. Smith, 754 F.3d 425, 426 (7th Cir. 2014).
Ind. Gov't. - Feature on Bloomington's African-American heritage
The Bloomington Herald-Times has a story today by Brian Seymour on a walking tour put together by the city of Bloomington. Number 1 on the list:
1. The Gables, 114 S. Indiana Ave.
Now the site for BuffaLouie’s, the Gables was integrated in 1947, almost a decade before the Civil Rights Movement. The story goes that George Taliaferro, former Hoosier football player and College Football Hall of Famer, was staring at his picture in the Gables when he decided the restaurant needed to integrated. Working with Herman B Wells, late president of Indiana University, Taliaferro and his girlfriend planned to dine at the Gables daily. It was soon integrated.
Ind. Decisions - Court of Appeals issues 3 opinion today (and 7 NFP memorandum decisions)
For publication opinions today (3):
In In re the Paternity of Snyder, M.S. v. D.A., an 8-page opinion, Judge May concludes:
There is no evidence in the record suggesting how M.A.’s physical health or emotional development would be impaired by telling M.A. that Father is her biological father. See Ind. Code § 31-14-14-1(a); Farrell v. Littell, 790 N.E.2d 612 (Ind. Ct. App. 2003) (statute requires specific finding of physical endangerment or emotional impairment prior to imposing restriction). As such a finding is required by statute, the trial court erred when it denied Father’s request to tell M.A. he is her father, and we accordingly reverse that portion of the trial court’s decision.In Walnut Creek Nursey, Inc., d/b/a Alsip Home & Nursey v. Barbara Banske, a 15-page opinion, Sr. Judge Sharpnack writes:
Walnut Creek Nursery, Inc., d/b/a Alsip Home & Nursery (“Alsip”), appeals from a jury’s verdict in favor of Barbara Banske, in a negligence action brought by Banske. Alsip contends that the trial court committed reversible error by allowing a naprapath, who was licensed as such in Illinois, to testify about her treatment of Banske in Illinois. Alsip claims that the testimony should have been excluded and that a new trial should be held during which that testimony is not admitted. Concluding that no error is preserved for our review, we affirm. * * *In Natasha R. Hill v. State of Indiana, a 7-page opinion, Judge Robb writes:
Grice testified that naprapathy is “soft tissue manipulation, connective tissue
manipulation” with the goal of “assist[ing] the body in healing itself.” Naprapathy involves application of pressure to points on a person’s body that “releases the contracture or tightness of the soft tissue to facilitate opening up the circulation.” * * *
Because Indiana does not license naprapaths, and Grice was licensed to practice
and treated Banske in Illinois, we turn to Illinois law to help understand the
matter. * * *
Applying the rationale used in Kyowski (Ill. App. Ct. 1979), to the facts of this case, we conclude that Grice’s testimony about her treatment of Banske’s injuries was sufficiently connected to Banske’s slip and fall. Grice had treated Banske before and after her slip and fall and testified about the difference in Banske’s health from the stand point of a naprapath. The trial court did not err as a matter of law by admitting Grice’s testimony. The evidence was relevant and helpful to the jury.
We save the resolution of the limitations on the testimony of a naprapath for
Following a bench trial, Natasha Hill was convicted of two counts of theft and ordered to pay restitution in the amount of $2526.83. Hill appeals, raising two issues for our review: (1) whether her dual theft convictions, which were based upon acts committed minutes apart and in the same department store, are contrary to law; and (2) whether the trial court abused its discretion in ordering Hill to pay restitution. Concluding Hill’s dual convictions violate Indiana’s single larceny rule and that the trial court’s restitution order was an abuse of discretion, we reverse and remand for further proceedings consistent with this opinion.NFP civil decisions today (0):
NFP criminal decisions today (7):
Ind. Decisions - 7th Circuit Tinder opinion involving attorney sanctions, out of Wisconsin
Here are some quotes from Judge Tinder's 9-page Feb. 11th opinion in In re Wendy Nora (WD Wis.):
On August 13, 2014, we ordered attorney Wendy Nora to show cause why she should not be sanctioned for pursuing a frivolous appeal, see Fed. R. App. P. 38, and why she should not be disciplined for conduct unbecoming a member of the bar, see id. 46(c). PNC Bank, N.A. v. Spencer, 763 F.3d 650, 655 (7th Cir. 2014). For the rea-sons that follow, we now impose a sanction of $2,500 but suspend the sanction until such time, if ever, that Nora submits additional frivolous or needlessly antagonistic filings. * * *(h/t to the ValpoLawBlog)
Nora also fails to alleviate our concern about her engaging in “conduct unbecoming a member of the court’s bar” under Rule 46(c). She contends that her comments during this litigation have amounted to nothing more than unsanctionable rudeness, citing In re Snyder, 472 U.S. 634 (1985). In Snyder, the Supreme Court concluded that a single ill-mannered letter did not rise to the level of “conduct inimical to the administration of justice” that is sanctionable under Rule 46(c). Id. at 645–47; see In re Lightfoot, 217 F.3d 914, 916–17 (7th Cir. 2000) (discussing this standard and collecting cases applying it). But Nora’s conduct is more egregious than that in Synder. As noted in our earlier opinion, Nora has repeatedly acted with needless antagonism toward opposing counsel and judicial officers. In her responses to our order to show cause, she has refused to back down from her accusations of libel against Judge Crabb and “actionable civil fraud and racketeering” against opposing counsel. She denies accusing the state court judge of altering transcripts, but the record belies her denial: she not only made the accusations but moved for substitution of the judge on that basis. She also now derides “this panel and many of the judges in this circuit” as being biased “against homeowners’ rights to be heard and defend their homes.” This bandying about of se-rious accusations without basis in law or fact is unacceptable and warrants sanctions. See In re Hendrix, 986 F.2d 195, 201 (7th Cir. 1993) (explaining that attorney’s filing of submissions not grounded in law or fact is sanctionable); Mays, 865 F.2d at 140 (sanctioning attorney for falsely imputing positions on opponents and the court).