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Thursday, July 15, 2010
Courts - Oral Advocacy of Thomas Fisher
As explained in this post Tuesday, headed "A New Voice at Oral Argument," this week the ILB is featuring the oral advocacy of the three semi-finalists for the current Supreme Court vacancy who have argued cases before the Court. This feature on Thomas Fisher's oral advocacy, from IU Law-Indy Prof. Joel Schumm, is the second of those entries.
Mr. Fisher is Indiana’s first Solicitor General, a position created in 2005. As the “chief litigation policy advisor to the attorney general,” he pursues “issues of vital interest to state government” and handles specific cases involving constitutional challenges.” Mr. Fisher has argued at least a dozen cases to the Indiana Supreme Court. Many have been high-profile cases. Mr. Fisher’s position has prevailed in nearly all of these cases. This entry begins with detailed summaries and short argument excerpts of two recent cases and then lists all the remaining cases argued by Mr. Fisher.
League of Women Voters v. Rokita
After successfully arguing the federal constitutionality of Indiana’s Voter ID law in the U.S. Supreme Court, Mr. Fisher defended the law against claims that it violated Article 1, Section 23 (Equal Privileges and Immunities) and Article 2, Section 2 (Voting Qualifications) of the Indiana Constitution. That March 4, 2010, oral argument may be viewed here. An excerpt of Mr. Fisher responding to Justice Rucker’s concern that some citizens are denied the right to vote may be viewed here:
The Court ruled 4-1 in Mr. Fisher’s favor in an opinion issued June 30, 2010, by Justice Dickson; Justice Boehm dissented. The Court affirmed the trial court’s dismissal of the complaint because the case presented “only facial challenges” to the law and neither constitutional provision “prevents the legislature from promulgating a new way for voters to identify themselves.”
Richard Brown v. State
Mr. Fisher represented the State in a criminal case where the defendant was convicted of criminal confinement for pretending to be a radio DJ and luring adult men to his home to exchange their clothes for a small t-shirt as part of a fake contest. Criminal confinement is defined by statute as removal by fraud or enticement, which the defendant argued was unconstitutionally vague. The Court held oral argument at Indiana University Maurer School of Law on January 30, 2007. The argument may be viewed here.
For those seeking a quick taste, you may view here Mr. Fisher’s response to Justice Boehm’s questions about whether Borat or Candid Camera would be criminal under the Indiana statute:
The Court ruled against Mr. Fisher’s position in an opinion by Justice Dickson; the Chief Justice dissented without a separate opinion. The Court held the criminal confinement statute is unconstitutionally vague because the broad language could apply to “a vast assortment of very acceptable and even salutary conduct that is clearly not criminal in nature, e.g., using misleading reasons to secure a person's attendance for their surprise birthday celebration; evoking Santa Claus's watchful eye to induce a child to go to bed; employing flattery or exaggeration to motivate another person to attend an event; asserting an untruth to persuade an Alzheimer's patient to enter the location of a caregiver.” No mention of Borat, though.
The Three East Chicago Cases
Indiana Attorney General v. City of East Chicago
October 23, 2008 Oral Argument
April 13, 2009 Opinion
The Court reversed the trial court’s dismissal of the Attorney General’s claims for constructive trust and unjust enrichment.
City of East Chicago v. East Chicago Second Century
October 23, 2008 Oral Argument
June 30, 2009 Opinion
The Court held “certain of the City’s claims should survive a motion to dismiss and others should not. We also hold the existing arrangements are subject to alteration, through the appropriate administrative channels, as the Indiana Gaming Commission on advice of the City and others may deem best for the future of East Chicago’s residents.”
Foundations of East Chicago v. City of East Chicago and the Attorney General of Indiana
October 29, 2009 Oral Argument
May 18, 2010 Opinion
The Court relied on its earlier opinions in concluding “the 2007 provision did not alter in any substantive way the statutory framework under which the Gaming Commission regulates licenses and license conditions, and thus find it unnecessary to rule on its constitutionality.”
Other Cases Mr. Fisher has argued before the Supreme Court
Bonner v. Daniels
December 4, 2008 Oral Argument
June 2, 2009 Opinion
“Although recognizing the Indiana Constitution directs the General Assembly to establish a general and uniform system of public schools, we hold that it does not mandate any judicially enforceable standard of quality, and to the extent that an individual student has a right, entitlement, or privilege to pursue public education, this derives from the enactments of the General Assembly, not from the Indiana Constitution.”
State of Indiana v. American Family Voices, Inc.
June 16, 2008 Oral Argument
December 23, 2008 Opinion
The Court reversed the trial court’s dismissal of the State’s complaint seeking to enforce Indiana’s Autodialer Law. The Court held the statute applies to “all autodialer calls, not just consumer transaction calls with commercial messages.”
Nu-Sash & Liberty Publishing, Inc. v. Carter
January 28, 2008 Oral Argument
May 27, 2008 Opinion
The trial court’s order was reversed, and the Supreme Court held compliance with the Civil Investigative Demand statute requires “a verified petition, affidavit, or testimony or other admissible evidence presented at a hearing. But naked allegations in a petition are insufficient.”
Bonney v. Indiana Finance Authority
June 13, 2006 Oral Argument
June 20, 2006 Opinion
The Court affirmed the dismissal of the plaintiffs challenge to the “Major Moves” legislation. The Court found no violation of the special legislation provision of Article 1, Section 23; Article 10, Section 2’s requirement that surplus revenues should be used to pay the public debt; or the “uniform and equal” taxation requirement of Article 10, Section 1.
Cantrell v. Morris
October 6, 2005 Oral Argument
June 21, 2006 Opinion
Web summary: “The Supreme Court responds to a certifed question from the U.S. District Court for the Northern District of Indiana, holding that any civil damage remedy available to a public employee terminated for political activity or affiliation, in violation of the Indiana Constitution, is governed by the Indiana Tort Claims Act, but that the Indiana Constitution does not of itself give rise to any such claim.”
Clinic for Women v. Brizzi
June 21, 2005 Oral Argument
November 23, 2005 Opinion
The Court held requiring women be provided certain information and wait eighteen hours before an abortion may be performed does not violate Article 1, Section 1 of the Indiana Constitution
Doe v. O’Connor
May 8, 2003 Oral Argument
June 26, 2003 Opinion
Web summary: “The Supreme Court upholds the Indiana Sex and Violent Offender Directory, as applied to require a man previously convicted of a sex offense to have his picture and address posted on the Directory, rejecting the argument that the offender has a constitutional right to a court hearing on whether the offender poses any future danger to society before such information is posted.”
[Interesting note: John Feighner, a current member of the Judicial Nominating Commission, represented the Allen County Sheriff in the case and was seated at counsel table with Mr. Fisher]
Posted by Marcia Oddi on July 15, 2010 10:08 AM
Posted to Vacancy on Supreme Ct