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Tuesday, May 08, 2012

Ind. Courts - Slates prevail in Marion County judicial races

Jon Murray is now reporting from his Star blog:

UPDATE (9:15 p.m.): The party slates held ironclad. With nearly 92 percent of precincts now reporting, the non-endorsed candidates — Republicans Paul Ogden and Judge Carol Orbison and Democrats Greg Bowes and Mark King — were running thousands of votes behind the 10 leaders on each side.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Indiana Courts

Ind. Courts - "Waiting on results for Marion Superior Court judges"

Jon Murray gives a good set-up for the upcoming election results in the Marion County judges races at his IndyStar blog.

For more background, see this ILB entry from Sunday.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Indiana Courts

Ind. Gov't. - IDEM submits draft construction/operating permit for Rockport Coal Gasification plant to US EPA for approval

Here is IDEM's 1,012-page draft PSD New Source Construction/Part 70 Operating Permit. You may access the entire document here, but be cautioned that it is over 15M.

The ILB has extracted the 6-page cover letter, which begins:

Dear Mr. Lubbers:

Indiana Gasification, LLC located at CR 200 N and Base Road, Rockport, Indiana in Spencer County submitted a PSD and Title V Operating Permit application to IDEM, OAQ on April 20, 2011 relating to the proposed facility designed to convert Illinois Basin coal and petroleum coke into pipeline-quality SNG and liquefied CO2. Pursuant to 326 IAC 2-2 and 326 IAC 2-7 the following emission units are approved for construction at the source: * * *

Here is the press release issued yesterday by Indiana Gasification, LLC. It is headed "World-class Coal Facility Advances with IDEM Proposed Permit." S ome quotes:
ROCKPORT, Ind., May 7, 2012 /PRNewswire-USNewswire/ -- Indiana Gasification today welcomes the decision by the Indiana Department of Environmental Management (IDEM) to file a proposed permit for our company's state-of-the-art plant with the U.S. Environmental Protection Agency (EPA). * * *

The Indiana Department of Environmental Management (IDEM) has submitted a proposed permit to the U.S. Environmental Protection Agency ("EPA") for review, including IDEM's response to the comments received from the EPA and the public on IDEM's draft Clean Air Act construction and operating permit. IDEM previously published the draft permit for public comment, and held a public meeting and hearing on January 25, 2012.

See this Jan. 26, 2012 ILB entry re the public hearing.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Environment | Indiana Government

Ind. Decisions - 7th Circuit issues two Indiana decisions today

In Susan Schaefer-LaRose v. Eli Lilly (SD Ind., Barker), a 54-page combined opinion, Circuit Judge Ripple writes:

These two cases, which we have consolidated for opinion, involve the application of the outside sales and administrative exemptions of the Fair Labor Standards Act (“FLSA” or the “Act”), 29 U.S.C. §§ 201-19, to pharmaceutical sales representatives employed by Eli Lilly & Co. (“Lilly”) and Abbott Laboratories, Inc. (“Abbott”). The plaintiffs in each case claim that, during their tenure as sales representatives with these pharmaceutical companies, they were misclassified as exempt employees and denied overtime pay, in violation of the statute. The employers contend that both the administrative exemption and the outside sales exemption, 29 U.S.C. § 213(a)(1), remove the sales representatives from the overtime protections of the FLSA. The two district courts in the present cases reached opposite conclusions, each relying on cases decided by other circuits.

Before this court, the Department of Labor (“DOL” or the “Department”) has participated as amicus curiae in case number 10-3855 and has asked us to consider its arguments in our disposition of cases 11-1980 and 11-2131 as well. In the Department’s view, the plaintiffs are neither administrative employees nor outside salespersons within the meaning of the statute and the Department’s regulations.

After thorough consideration of the positions of the parties, the view of the Department, the opinions of our sister circuits and the facts in the records before us, we conclude that, under the regulations of the Department of Labor, the pharmaceutical sales representatives are classified properly within the administrative exemption to the overtime requirements of the FLSA. Consequently, we do not address the applicability of the outside sales exemption. We therefore affirm the judgment of the district court in favor of Lilly in case number 10-3855 and reverse the judgment in favor of the plaintiff class in cases 11-1980 and 11-2131 and remand with instructions to enter judgment for Abbott.

In Sandifer, et al v. US Steel (ND Ind., Miller), a 19-page opinion, Circuit Judge Posner writes:
These appeals arise out of a class action (technically a “collective action,” as it is brought pursuant to 29 U.S.C. § 216(b), a part of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq., rather than pursuant to Fed. R. Civ. P. 23) on behalf of 800 former and current hourly workers at U.S. Steel’s steel works in Gary, Indiana. The plaintiffs argue that U.S. Steel has violated the Act by failing to compensate them for the time they spend in putting on and taking off their work clothes in a locker room at the plant (“clotheschanging time”) and in walking from the locker room to their work stations, and back again at the end of the day (“travel time”). The collective bargaining agreement between U.S. Steel and the steelworkers union does not require compensation for such time, and apparently none of the previous collective bargaining agreements between U.S. Steel and the union since 1947, nine years after the FLSA was enacted, required it either. But the plaintiffs argue that the Act itself requires compensation; and if it does, it overrides any contrary contractual provision. Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 740-41 (1981).

The district judge ruled that the Fair Labor Standards Act does not require that the clothes-changing time in this case be compensated, but that the Act may require that the travel time be compensated and he therefore refused to dismiss the suit. But he certified the issue of the compensability of the travel time for an interlocutory appeal under 28 U.S.C. § 1292(b) by U.S. Steel, and we accepted the appeal. * * *

[Page 5 includes a color photo of "a man modeling the clothes." The opinion states that "These work clothes are in the record, and since a picture is worth a thousand words ...".]

We resolve the specific issue that we have been asked to resolve in this interlocutory appeal in favor of U.S. Steel. On the basis of that resolution, the suit has no merit and should be dismissed by the district court.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - 7th Circuit decides ACLU v. Alvarez

Just a few days ago, on May 3rd, the ILB posted an entry headed "Recording Police v. Recording Citizens Debated in 7th Circuit and in Illinois Legislature." Today the 7th Circuit issued its opinion, written by Circuit Judge Sykes, joined by Judge Hamilton, with Judge Posner dissenting.

In ACLU v. Alvarez (ND Ill.), a 66-page, 2-1 opinion, Circuit Judge Sykes writes:

The Illinois eavesdropping statute makes it a felony to audio record “all or any part of any conversation” unless all parties to the conversation give their consent. 720 ILL. COMP. STAT. 5/14-2(a)(1). The statute covers any oral communication regardless of whether the communication was intended to be private. Id. 5/14-1(d). The offense is normally a class 4 felony but is elevated to a class 1 felony—with a possible prison term of four to fifteen years—if one of the recorded individuals is performing duties as a law-enforcement officer. Id. 5/14-4(b). Illinois does not prohibit taking silent video of police officers performing their duties in public; turning on a microphone, however, triggers class 1 felony punishment.

The question here is whether the First Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people who openly record police officers performing their official duties in public. More specifically, the American Civil Liberties Union of Illinois (“ACLU”) challenges the statute as applied to the organization’s Chicago-area “police accountability program,” which includes a plan to openly make audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders. Concerned that its videographers would be prosecuted under the eavesdropping statute, the ACLU has not yet implemented the program. Instead, it filed this preenforcement action against Anita Alvarez, the Cook County State’s Attorney, asking for declaratory and injunctive relief barring her from enforcing the statute on these facts. The ACLU moved for a preliminary injunction.

Faced with so obvious a test case, the district court proceeded with some skepticism. The judge dismissed the complaint for lack of standing, holding that the ACLU had not sufficiently alleged a threat of prosecution. The ACLU tried again, submitting a new complaint addressing the court’s concerns. This time, the judge held that the ACLU had cured the original defect but had “not alleged a cognizable First Amendment injury” because the First Amendment does not protect a “right to audio record.” The judge denied leave to amend. The ACLU appealed.

We reverse and remand with instructions to allow the amended complaint and enter a preliminary injunction blocking enforcement of the eavesdropping statute as applied to audio recording of the kind alleged here. The Illinois eavesdropping statute restricts a medium of expression commonly used for the preservation and communication of information and ideas, thus triggering First Amendment scrutiny. Illinois has criminalized the nonconsensual recording of most any oral communication, including recordings of public officials doing the public’s business in public and regardless of whether the recording is open or surreptitious. Defending the broad sweep of this statute, the State’s Attorney relies on the government’s interest in protecting conversational privacy, but that interest is not implicated when police officers are performing their duties in public places and engaging in public communications audible to persons who witness the events. Even under the more lenient intermediate standard of scrutiny applicable to contentneutral burdens on speech, this application of the statute very likely flunks. The Illinois eavesdropping statute restricts far more speech than necessary to protect legitimate privacy interests; as applied to the facts alleged here, it likely violates the First Amendment’s freespeech and free-press guarantees. [ILB emphasis] * * *

Before closing, a brief response to a couple of points in the dissent. Our decision will not, as Judge Posner suggests, “cast[] a shadow over the electronic privacy statutes of other states.” Dissent at 54. As we have explained, the Illinois statute is a national outlier. See Alderman, Police Privacy in the iPhone Era?, supra note 4, at 533-45 (collecting state statutes). Most state electronic privacy statutes apply only to private conversations; that is, they contain (or are construed to include) an expectation-of-privacy requirement that limits their scope to conversations that carry a reasonable expectation of privacy. Others apply only to wiretapping, and some ban only surreptitious recording. Id. Indeed, the California statute discussed in the dissent is explicitly limited to “confidential communications,” a term specifically defined to exclude the kind of communications at issue here. If the Illinois statute contained a similar limitation, the link to the State’s privacy justification would be much stronger.

The dissent also takes us to task for giving insufficient consideration to the privacy interests of civilians who communicate with the police and for failing to grasp the extent to which people “say things in public that they don’t expect others around them to be listening to, let alone recording for later broadcasting.” Dissent at 63. To the contrary, we have acknowledged the importance of conversational privacy and heeded the basic distinction drawn in Katz that some conversations in public places implicate privacy and others do not. See Katz, 389 U.S. at 351. Again, the privacy interests that may justify banning audio recording are not limited to those that the Fourth Amendment secures against governmental intrusion. But the Illinois eavesdropping statute obliterates the distinction between private and nonprivate by criminalizing all nonconsensual audio recording regardless of whether the communication is private in any sense. 720 ILL. COMP. STAT. 5/14-1(d). If protecting privacy is the justification for this law, then the law must be more closely tailored to serve that interest in order to avoid trampling on speech and press rights.

For these reasons, we conclude that the ACLU has a strong likelihood of success on the merits of its First Amendment claim. The Illinois eavesdropping statute restricts an expressive medium used for the preservation and dissemination of information and ideas. On the factual premises of this case, the statute does not serve the important governmental interest of protecting conversational privacy; applying the statute in the circumstances alleged here is likely unconstitutional.

Accordingly, we reverse and remand with the following instructions: The district court shall reopen the case and allow the amended complaint; enter a preliminary injunction enjoining the State’s Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible communications of law-enforcement officers (or others whose communications are incidentally captured) when the officers are engaged in their official duties in public places; and conduct such further proceedings as are consistent with this opinion.

[Judge Posner's dissent begins on p. 53 of 66. He concludes] Accuracy is a social value, and a recording of a conversation provides a more accurate record of the conversation than the recollection of the conversants: more accurate, and also more truthful, since a party to a conversation, including a police officer, may lie about what he heard or said. But on the other side of the balance are the inhibiting effect of nonconsensual recording of conversations on the number and candor of conversations (and hence on values that the First Amendment protects); the baleful effect on privacy; the negative effect on law enforcement; and the litigation likely to be engendered by police officers’ shooing away intruders on their private conversations with citizens. These are significant social costs, and the majority opinion offers no basis in fact or history, in theory or practice, in constitutional text or judicial precedent, for weighting them less heavily than the social value of recorded eavesdropping.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Ind. (7th Cir.) Decisions

Ind. Law - Indiana law exempts ALEC from lobbyist disclosure requirements

The ILB's most recent post on ALEC (the American Legislative Exchange Council) was April 23rd. Today Paul Abowd, iWatch News (The Center for Public Integrity) has this lengthy surprising story in The Huffington Post, headlined "ALEC exempted from lobbyist status in three separate states." Some quotes (emphasis added by ILB):

This spring has brought constant controversy for the American Legislative Exchange Council, the conservative group of legislators and corporations that pushes free-market model legislation in the states -- but it may not be over yet. * * *

It could take several years for the IRS to decide whether ALEC is indeed a lobbyist required to register with that label and disclose how much it spends on influencing legislation. But in three states -- South Carolina, Indiana and Colorado -- it turns out that ALEC has quietly, and by name, been specifically exempted from lobbyist status.

The laws in those states allow ALEC to spend millions annually hosting corporate lobbyists and legislators at three yearly conferences, send "issue alerts" to legislators recommending votes on pending legislation, and draft press releases for legislators to use when pushing ALEC model bills -- all without registering as a lobbyist or reporting these expenditures.

Legislators can receive scholarships from ALEC's corporate donors to attend conference events, or they can legally go on the taxpayer dime.

These exemptions are just now coming to light. * * *

In Indiana, six groups are expressly "not considered lobbyists": the National Black Caucus of State Legislators, Women in Government, the National Conference of Insurance Legislators, the Council of State Governments, and the National Conference of State Legislatures, as well as ALEC.

ALEC member and Republican Speaker of the House Mike Murphy co-sponsored a 2010 Indiana ethics bill with Minority Leader Pat Bauer that laid out rules for lobbying disclosure. The original bill did not exempt any organizations by name. Bauer, a 42-year veteran of Indiana's state House, says the Republican-led Senate Legislative Rules Committee amended the bill to exempt six organizations -- including ALEC -- before it came to a vote.

He supports revising the law to exclude ALEC. "Since the tsunami of 2010," which gave Republicans new command in dozens of state legislatures, says Bauer, ALEC has pushed its legislation in Indiana more aggressively. "At the time this bill passed, they didn't have that profile." [ILB - The ILB's first post on ALEC is dated Oct. 29, 2010.]

But Julia Vaughn, director and lobbyist for Common Cause's affiliate in Indiana, says any challenge to ALEC's exemption would die quickly in the state's heavily GOP legislature.

Here is the Indiana General Assembly page for HB 1001-2010. Here are the Senate Rules Committee amendments. See p. 4, lines 26-36.

The exemptions are now codified at IC 2-7-1-10.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Indiana Law

Ind. Courts - "'Legal issue' halts murder trial"

Sophia Voravong reports today in a long story in the Lafayette Journal Courier - some quotes:

Wesley Coffey’s remark Friday afternoon in Tippecanoe Superior Court 1 about his friend, Clint Laxton, completing a polygraph for police as part of a homicide investigation was just one small mention made during roughly 30 minutes of detailed testimony.

But however brief, that statement was enough for Judge Randy Williams to declare a mistrial Monday morning in 32-year-old Edward C. Zaragoza’s trial on charges of murder, conspiracy to commit robbery and 11 other felonies.

Now the trial, which began with jury selection May 1, included three full days of testimony and was expected to last up to three weeks, must be rescheduled. Attorneys plan to meet with Williams on Wednesday morning to choose another date. * * *

Robert Little, one of Zaragoza’s court-appointed attorneys, confirmed Monday afternoon that it was due to a comment Coffey made about Laxton, a Lafayette man who admitted during testimony Friday morning that he and Zaragoza previously plotted to take cash and marijuana from Rogers, a marijuana dealer. * * *

Beyond bringing up the polygraph — polygraphs typically are not admissible in court because they’re not considered reliable and results can sway jurors — Coffey’s statement that Laxton passed it was wrong, according to Little and Meyers’ motion for a mistrial that was filed Monday. Laxton actually failed it, they wrote.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Ind. Trial Ct. Decisions

Vacancy on Supreme Court 2012 - "New Indiana Supreme Court Justice Mark Massa dons robes of office"

William J. Booher of the Indianapolis Star has the story today, along with a set of nice photos by Matt Kryger.

Eric Bradner has a story in the Evansville Courier & Press headed "Justice Mark Massa inducted into supreme court."

Video of the ceremony is available here on the Supreme Court site.

Posted by Marcia Oddi on Tuesday, May 08, 2012
Posted to Vacancy on Supreme Court 2012