Friday, October 01, 2010
Ind. Courts - "What do they wear under those robes?" [Updated]
A story today in the Indianapolis Star headed "Retiring Justice Boehm honored at reception" included a photo with this caption:
Justice Theodore Boehm (right) answered the question, "What do they wear under those robes?" Thursday by showing off his seasonal wear (both Pacers and Colts jerseys).In the photo the Justice has stripped off his robe to reveal a Pacer's jersey, fashionably worn over a Colt's jersey. The Pacer's jersey is Number 33. Any significance to #33?
[Updated at 6:23 p.m.] A reader writes: "Apparently it's Danny Granger's number. I thought maybe Reggie Miller, but he was 31."
Ind. Law - Indianapolis bankrupcty attorney Mark Zuckerberg is the focus of a front-page story today because ....
... because his name is Mark Zuckerberg, same as Mark Zuckerberg of Facebook fame. Reporter Erika D. Smith wrote the story for the Indianapolis Star. A sample:
For [Mark] S. Zuckerberg, this is a problem. A doppelganger sort of problem.
Already, his office in Downtown Indianapolis gets about a dozen phone calls a day from people complaining about Facebook and demanding tech support. He gets about 500 Facebook friend requests a day, many of them coming from people in other countries who don't speak English, so he couldn't explain his identity even if he wanted to. * * *
But most of all, S. Zuckerberg bemoans the loss of being the only Mark Zuckerberg of note on Google. A standout in his field of consumer bankruptcy law, with several awards and a schedule of national speaking gigs -- Zucked by an upstart.
"I was always on the first page, always number one. No. 1. Now," S. Zuckerberg said with an irritated sigh, "I'm pages and pages back. This guy is killing me!"
Courts - "Couple Allowed to Sue Morgue for Retaining Son's Brain"
Mark Fass reports today in the New York Law Journal, in a story that begins:
The New York City Medical Examiner's Office's failure to inform a Staten Island couple that the office had removed and retained their late son's brain violated the couple's right of sepulcher, Brooklyn's New York Appellate Division, 2nd Department has ruled.Read in conjunction with this description of the book, "Give Me My Father's Body: The Story of Minik, the New York Eskimo."
"[W]hile the medical examiner has the statutory authority…to remove and retain bodily organs for further examination and testing in connection therewith, he or she also has the mandated obligation…to turn over the decedent's remains to the next of kin for preservation and proper burial once the legitimate purposes for the retention of those remains have been fulfilled," Justice William F. Mastro wrote for a unanimous panel in Shipley v. City of New York, 2009-03226.
Jesse Shipley, a 17-year-old Port Richmond High School student, was killed on Jan. 9, 2005, when the car in which he was riding collided with another vehicle.
The following day, Jesse's father, Andre, consented to an autopsy. An examiner completed the autopsy, and funeral home personnel picked up the remains that same day. The family held a funeral three days later.
Two months later, classmates of the Shipleys' daughter, Shannon, who was also injured in the accident, took a field trip to the Richmond County Mortuary. Several students noticed a jar holding a human brain suspended in formaldehyde.
"In what can only be described as a surreal coincidence," Mastro wrote, "the label on the jar indicated that the brain was that of Jesse Shipley, a circumstance which evoked strong emotional reactions from some of the students who were present."
Ind. Decisions - Court of Appeals issues 1 today (and 4 NFP)
For publication opinions today (1):
In Lawrence T. Davis v. State of Indiana , a 7-page opinion, Sr. Judge Barteau writes:
Defendant/Appellant Lawrence Terrell Davis appeals the trial court’s sentencing enhancements after he was convicted of one count of auto theft and two counts of resisting arrest. We affirm but remand.NFP civil opinions today (0):
Davis raises three issues for our review, which we restate as: I. Whether the trial court failed to give a sufficient advisement of Davis’ right to a jury trial during the enhancement phases of the trial. II. Whether the trial court erred in using the same prior conviction both to support the habitual offender and the auto theft enhancements. III. Whether the trial court erred in imposing a separate sentence for the habitual offender determination.
NFP criminal opinions today (4):
Ind. Decisions - Two Indiana cases and a cybersquatting case decided today by 7th Circuit
From Annex Books v. City of Indianapolis (SD Ind., Evans), a 4-page, per curiam opinion:
This suit began when the City of Indianapolis required adult bookstores to be closed all day on Sunday and between midnight and 10 a.m. on other days. We held last year that the empirical support for this ordinance was too weak to satisfy the requirement of intermediate scrutiny, which applies to such laws. * * * The City needs evidence about the effects of the sort of law it enacted. We suggested that experience in Indianapolis itself could supply the required data: Before the City’s ordinance took its current form, plaintiffs had been treated like other bookstores, so it should be possible to find out whether the new closing hours reduced crime or produced other benefits. 581 F.3d at 463.In U.S. v. Suggs (SD Ind., Hamilton), a 12-page opinion, Judge Sykes writes:
After the remand, plaintiffs asked the district court to enter a preliminary injunction. A hearing was held, at which Indianapolis offered a single piece of evidence: Richard McCleary & Alan C. Weinstein, Do “Off-Site” Adult Businesses Have Secondary Effects? Legal Doctrine, Social Theory, and Empirical Evidence, 31 L. & Policy 217 (2009). The authors concluded that dispersing adult stores that sell for off-site reading or viewing reduced crime in Sioux City, Iowa. Indianapolis contended that this article supports its ordinance too. The district judge was skeptical, and entitled to be so, for three reasons. * * *
The district judge did not abuse her discretion. The single article that Indianapolis offered suffers some of the shortcomings of the evidence we evaluated last year: it concerns a dispersal ordinance rather than an hours-ofoperation limit, and the authors did not attempt to control for other potential causes of change in the number of arrests near adult establishments. The other new evidence, derived from experience with this ordinance in Indianapolis, appears to support the plaintiffs (though a statistical analysis might show that the support is illusory). Given the state of the record, the district court’s decision is sound. The parties should devote their energies to compiling information from which a reliable final decision may be made after a trial on the merits. AFFIRMED
Police officers arrested Charles Suggs after a traffic stop during which he pulled a handgun from beneath the driver’s seat of his truck. Suggs later pleaded guilty to being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), and was sentenced to 108 months’ imprisonment. On appeal Suggs challenges the district court’s application at sentencing of a 4-level increase under U.S.S.G. § 2K2.1(b)(6) for using or possessing the firearm in connection with another felony offense. We affirm.In a case out of Illinois, Mobile Anesthesiologists v. Anesthesia Associates, Judge Hamilton writes:
We refer to the parties as Mobile/Chicago and Mobile/Houston. Mobile/Chicago brought suit against Mobile/Houston in federal court in Illinois claiming that Mobile/Houston violated the federal anti-cybersquatting statute by registering a domain name confusingly similar to Mobile/Chicago’s registered trademark. The district court dismissed the suit for lack of personal jurisdiction.
We affirm. First, we conclude that Mobile/Houston did not waive its personal jurisdiction defense by asking to delay a preliminary injunction hearing or by asking for expedited discovery to prepare for that hearing. Second, we agree with the district court that Mobile/ Houston lacked the required “minimum contacts” with Illinois to support personal jurisdiction there. Mobile/ Chicago relies principally on the inference that Mobile/ Houston expressly aimed its conduct in Texas at harming Mobile/Chicago in Illinois. That inference is based on two inadequate connections between Mobile/ Houston and Illinois: (1) Mobile/Houston’s creation of a website accessible in Illinois but aimed only at the Houston market, combined with Mobile/Houston’s constructive notice of Mobile/Chicago’s trademark via federal registration of that mark; and (2) Mobile/Houston’s receipt of Mobile/Chicago’s cease-and-desist letter. These contacts are not sufficient to establish that Mobile/Houston’s activities in Texas were calculated to cause harm in Illinois.
Ind. Courts - List of those successful on the July 2010 Indiana Bar Examination
Here is the list of those applicants who were successful on the July 2010 Indiana Bar Examination.
Ind. Courts - Warning: You may not receive a ballot for the upcoming JNC election
This will be the most contested race ever for an attorney seat on the Judicial Nominating Commission. Per the Clerk of the Courts:
Ballots and biographies of each candidate will be mailed to all Second District attorneys on October 12, 2010. Ballots are due by 4:00 p.m. on November 10, 2010. The Clerk of the Supreme Court will count the ballots at 10:00 a.m. on November 12, 2010.ILB: Here are reasons you may not receive a ballot:
- You are not a Second District attorney. Here is an interactive map of the Second Judicial District. Here is a list: Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White. (I was surprised when I looked at the map, I'd always thought of the 2nd District as the middle third of the State.)
So if you live in Boone, Hendricks, or Johnson County, for instance, you can't vote.
- Notice I said "live in," as the ballots are sent to your home address. You may practice in Marion County, but if you live in Johnson County, you won't receive a ballot.
- You also won't receive a ballot if you did not provide a home address on your annual bar registration. Fortunately, you can still remedy this if you act quickly. (You may not have provided a home address because you didn't want it showing up on the online Roll of Attorneys.) Use the Clerk's Change of Address form to remedy this ASAP. I'm told they will be making up the final mailing list of home addresses on Oct. 8th.
- Finally, some of you may practice out of a home office, and provided your home address as your business address, and left home address blank. I don't know how you can tell if that will be a problem for you, unless you retained a copy of the annual registration form the Clerk sent out in August. It has been suggested to me that if you received a Notice of Election in August, then they are using your home address. But no, that may have been sent to what the Clerk's Office has listed as your business address -- it is unclear to me.
Courts - More pre-first Monday in October stories
"Major cases for the Supreme Court's 2010-11 term" is the heading of this lengthy story by Joan Biskupic in USA TODAY. Some quotes from the story (which includes a sidebar listing major cases for the Court's 2010-11 term):
WASHINGTON — When the Supreme Court opens its term on Monday, it will look different from any U.S. high court in history. And as this new set of nine — including, for the first time, three women — begins to resolve cases, it could chart new territory on the law, too.An interesting story today from Ben Conery of the Washington Times begins:
In its early days, the look of the bench is likely to be most striking. Along with Justice Elena Kagan, who rounds out the first trio of women on the court, the group is more youthful. Kagan, who succeeded John Paul Stevens, is 40 years younger, and the average age of the justices is now 64, compared with 76 five years ago. * * *
Since 2005, four new members have joined the court, after what was an unusually stable period of 11 years with no retirements.
Today, generally with Roberts, 55, on the right are Republican-appointees Scalia, 74, Kennedy, 74, Clarence Thomas, 62, and Samuel Alito, 60. The Democratic appointees on the left are Kagan, 50, Ruth Bader Ginsburg, 77, Stephen Breyer, 72, and Sonia Sotomayor, 56.
The greatest change in the courtroom is the three women sitting together.
Female justices, including Ginsburg, have said their presence would not necessarily affect the substance of the law. Yet Ginsburg has referred to the "subtle influence" women have.
The gender divide might come into play in a challenge to a provision of U.S. immigration law that treats mothers and fathers differently. It brings the court back to a 2001 ruling that Ginsburg told USA TODAY last year is "the case that I most regret on this court."
In the earlier case, the court upheld a law that made it easier for a child born to unmarried parents abroad to be considered a U.S. citizen if the mother, rather than father, was already a citizen.
The new case tests whether mothers and fathers can have different residency requirements in situations involving the citizenship of a child born out of wedlock abroad.
Of the 2001 decision, from which she dissented, Ginsburg referred in the interview to "the notion of men of a certain age" that an unwed father would not care about a child as much as an unwed mother. The court has become younger and more female since 2001. Yet it will be without a third woman when it hears the case; it is one of the disputes involving the government that Kagan will sit out.
The Supreme Court's upcoming term will include the most emotionally charged freedom-of-speech case in recent history along with the usual assortment of high-profile challenges focusing on hot-button issues such as immigration and prosecutorial misconduct.
But the term, which begins Monday, also is notable for what it often will not include, namely new Justice Elena Kagan.
Justice Kagan, who won confirmation this summer to replace retired Justice John Paul Stevens, has said she must step aside for about half the roughly 50 cases the court has so far agreed to hear this term. It is not uncommon for justices to have to step aside when the court hears cases with which they had some previous involvement, but Justice Kagan's unusually high number is a result of her previous job as solicitor general.
It is unclear how many more, if any, recusals Justice Kagan will have this term, or how many she will have in subsequent terms, though the number is likely to be lower in ensuing years. With such a large number of recusals, some cases could end in 4-4 ties, which means they would retain a lower court's ruling.
Sen. Patrick J. Leahy, Vermont Democrat and chairman of the Senate Judiciary Committee, tried to avoid that scenario by proposing a bill this week that would allow retired Justices Stevens, Sandra Day O'Connor and David H. Souter to fill in for such cases.
Courts - A guide to the technology cases before the SCOTUS
A long survey today by David Kravets of the Wired blog, Threat Level, begins:
The U.S. Supreme Court begins a new term Monday with a slew of technology and civil rights issues queued on its docket, some of which could have far-reaching implications for the Freedom of Information Act, copyright, warrantless searches of private residences, the “state secrets” privilege and freedom of expression.
The cases we’re tracking involve regulation of videogame sales, the limits of the Copyright Act’s first-sale doctrine and the power of the government to collect sensitive data on employees. Another case asks whether convicted defendants have a right to use modern DNA testing to prove their innocence.
Ruling on these issues is a rapidly changing high court, with four new appointees in five years, creating the youngest court in the modern, digital age.
“You’re getting a new generation of justices. You’ve got justices who text on their phones, who do e-mail, who actually use a computer,” says Thomas Goldstein, the SCOTUSblog founder who has argued nearly two dozen cases before the Supreme Court. “That can have real consequences. It makes a difference.”
Courts - "Your Early Guide to the Big Business Cases of the High Court Term"
A useful review from Ashby Jones of the WSJ Law Blog.
Ind. Gov't. - "We can no longer afford tolerating remnants of the spoils system as the necessary cost of our form of government"
Indiana Supreme Court Justice Theodore R. Boehm spoke from the bench at his retirement ceremony yesterday, September 30, 2010. In a serious moment, he talked about the current economy impacting "public safety, education at all levels, and a deteriorating infrastructure, not to mention public transportation, libraries and parks, and a myriad of amenities that nourish thriving communities."
"Yet," Boehm continued, "we are often unable to implement programs that can provide better service at less cost." He cited examples in all three branches of government, examples that are "costing us money and degrading the quality of service we can and should expect from government:"
- The Kernan-Shepard analysis of county and township government identified a number of steps that could be taken to modernize our nineteenth century form of local government. When Indiana started out as a State, the only government that really mattered to most people was local government, and it was quite useful in a horse and buggy day to have the seat of government within one day’s ride from every citizen. In today’s world of internet communications and interstate highways those considerations are largely obsolete. Yet we cling to duplicative and grossly inefficient ways to accomplish the work of government.
- A second example comes from the judicial branch, where in some parts of the state we have systems of judicial selection that work well, but in Marion county, for example, we have a scheme that purports to place the selection in the hands of the voters, but in practical effect leaves it under the control of a few party officials. There are several pernicious results, not the least of which is the judges become a vehicle for raising funds for political parties. Despite widespread derision, even ridicule of this system, few in government have the will to challenge it.
- The legislative branch has its own problems. There seems to be an emerging consensus that Gerrymandered legislative districts are a bad thing. If the vast majority of districts are dominated by one party of the other, the primary election, not the general election becomes the decision point in selection of most legislators.
And the selection is inevitably reflective of the center of gravity of the dominant party, not the population as a whole. The result is a polarized legislature composed of very few mediators, compromisors, or centrists.
Boehm closed: "What to do about these questions and many more are subjects for greater exploration at a later date. For now, ... I hope they will be in the public dialog and ultimately the citizenry will demand reform. I hope to be a voice in that discussion."