Tuesday, November 27, 2012
Courts - "Who’s the Boss? The Supreme Court Hears Argument on the Meaning of the Term 'Supervisor' in Workplace Harassment Law" [Updated]
Supplementing this ILB post from Nov. 26th, about the SCOTUS oral argument Monday in the case of Vance v. Ball State University, Joanna L. Grossman of Hofstra has written a long analysis of the case and its place in employment law, published here, at Verdict.
[Updated 11/28/12] For more, see the Fort Wayne Journal Gazette editorial this morning, commenting on the case and on the oral argument.
Law - "Legal Events to Watch This Week"
This useful feature is posted every Monday by Joe Palazzolo of the WSJ Law Blog.
Courts - SCOTUSblog begins 4-day series on "the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage"
Written by Lyle Denniston, Part I's introduction reads:
This is the first article in a four-part series explaining the constitutional controversy, now awaiting the Supreme Court’s attention, over same-sex marriage. At its private Conference on Friday, the Court is scheduled to consider ten separate petitions seeking review of lower court decisions on that issue. Eight of the petitions deal with the constitutionality of a 1996 federal law, the Defense of Marriage Act, as it applies to gays and lesbians who are already legally married under state law. One petition deals with a similar state law adopted in 2009 in Arizona for state employees. And the tenth involves the constitutionality of California’s “Proposition 8,” a voter-approved ban on same-sex marriage in that state. Today’s first article in the series deals with the choice of a constitutional “standard of review” — that is, the test to be used to judge the validity of any of these laws. Later articles in the series will deal with the legal arguments for and against same-sex marriage, and with the options the Justices have as they consider the ten petitions.
Ind. Courts - More on: Governor names Tippecanoe Superior Court 3 judge, replacing J. Rush
Updating yesterday's announcement, Chris Morisse Vizza and Justin L. Mack have a long story today in the Lafayette Journal Courier on "Faith Graham, the current juvenile magistrate, [who] will be the new judge of Tippecanoe County Superior Court 3." It continues:
Gov. Mitch Daniels made the announcement Monday afternoon. Graham succeeds Justice Loretta Rush, who was appointed by the governor to the Indiana Supreme Court in September.
“Judge Rush has inspired a lot of people, and I’m one of them,” Graham said.
Now in her seventh year as juvenile magistrate, Graham aspired to become judge of the court from the onset.
“It will be exciting to expand my involvement in the community and develop new programs,” Graham said. “This court is surrounded by a lot of strong, competent people, and with that army around me, we will continue to be dedicated to strengthening families.”
Rush, who received the news via phone from Graham early Monday, also is excited to see the magistrate step into the role and confident her former court is in good hands.
“I was thrilled,” Rush said. “Judge Graham has worked as my magistrate for seven years, and I just watched her in regards to how she handles cases involving family issues. Her legal reasoning, her compassion for the kids ... I was really pleased.”
Ind. Decisions - Court of Appeals issues 1 today (and 3 NFP)
For publication opinions today (1):
In Kirstan Haub, d/b/a American Handyman Service v. Jenny Eldridge, a 12-page opinion, Judge Pyle writes:
Haub asserts that the trial court erred in denying his motion for summary judgment. Specifically, Haub argues that the Release is unambiguous in its release of Haub and AHS from any and all claims asserted by Eldridge and that the trial court erred in considering parol evidence to find the existence of an issue of fact. * * *NFP civil opinions today (1):
The plain language of the Release covers all claims Eldridge may have against Haub for faulty or defective work, arising up to and including October 8, 2010, the date Eldridge signed the Release, including, but not limited to, any claim that arose on or about September 29, 2008. Given that the Release makes no reference to the Policy or IFBI’s coverage under the Policy, we cannot say that the language in the Release limits it to only “claims arising from an ‘accident’ or ‘occurrence’ as defined by” the Policy.
The clear and plain language of the Release continues, providing that the terms of the Release “have been completely read and are fully understood by [Eldridge] . . . for the purpose of making a full and final compromise adjustment and settlement of all claims, disputed or otherwise, . . . against [Haub].” (App. 26) (emphasis added). In addition, the Release unambiguously provides that “it is the ENTIRE AGREEMENT between the parties . . . .” (App. 26). There is no contradictory language in the Release regarding its coverage that necessitates a factual determination. Accordingly, we find that the trial court erred in considering parol evidence, where the Release unambiguously releases Haub from any and all claims that Eldridge may have had against him on or before October 8, 2010. [cites omitted]
We therefore find that the trial court erred in denying Haub’s motion for summary judgment and that Eldridge is not entitled to summary judgment. We reverse and remand with instructions that the trial court enter summary judgment in favor of Haub.
NFP criminal opinions today (2):
Ind. Law - "Opponents of Indiana ban on gay marriage cite concerns about impact on 614 laws"
Mike Leonard reports in the Bloomington Herald Times in a $$ story that begins:
Nine months ago, more than 25 students in the Indiana University Maurer School of Law began research into what the legal consequences might be if Indiana writes a ban on same-sex marriage and civil unions into the state constitution.Here is the Indiana Equality Action web page and here is the 62-page report, subtitled "A Compendium of the Rights and Responsibilities of Civil Marriage in the Indiana Code." From the introduction:
They came up with 614 laws that could be affected — ranging from laws that govern probate, inheritance and financial matters to personal affairs such as visitation and custody rights to laws governing the ethics of conflicts of interest involving family members.
Students working on the law school’s LGBT Project teamed up with representatives of Indiana Equality Action for news conferences in Bloomington and Indianapolis Monday to announce their findings, detailed in a report, “More Than Just a Couple: 614 Reasons Why Marriage Equality Matters in Indiana.”
While Indiana law already bans same-sex marriage, opponents of same-sex marriage and civil unions passed a proposal to write the ban into the Indiana Constitution in 2011. The proposed amendment is all but assured of being introduced in the next successive Legislature in 2013, and if passed, it will be put to voters in a referendum in 2014, as required by the state constitution. * * *
Maurer student Donald E. Bierer said the measure could affect just about every area of Indiana law, from inheritance tax treatment to dealing with governmental agencies to removing protections guarding against conflict of interest situations involving family members.
Maurer student Cara M. Johnson said the measure illustrates how broadly marriage status permeates the law and how a constitutional ban denying any type of benefits to same-sex partners could affect various types of inheritance and tax law.
What is clear from this compendium is the extent to which Indiana law uses civil marriage as a way to classify, grant rights to, and impose responsibilities upon couples and families in 614 ways. We hope that it serves as a resource for examining how legislative action around marriage can affect all Hoosier couples and families.
Ind. Decisions - Transfer list for week ending November 21, 2012
[Search all the Transfer Lists: The ILB feature, "Search the ILB Transfer Lists," allows you to do just that, back to Feb. 2004. Check it out. Read the instructions. Note that the search is now current through the May 20, 2012 list.]
Here is the Clerk's transfer list for the week ending Friday, Nov. 21, 2012. It is two page (and 22 cases) long.
One transfer was granted last week.
- M & M Investment Group, LLC v. Ahlemeyer Farms, Inc., Monroe Bank - This was a July 16, 2012 COA opinion that concluded:
... that the Indiana pre-tax sale notice statute violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected. The trial court correctly denied M & M’s petition for a tax deed. Affirmed.The COA also looked at (and avoided under the facts of this case) the question of "Whether the trial court erred when it failed to certify Monroe Bank’s challenge to the constitutionality of Indiana Code section 6-1.1-24-3(b) to the Attorney General of Indiana, which would have allowed the Attorney General to intervene in the action."