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Sunday, December 02, 2012

Courts - "Courts to hear challenges to Obama recess appointments"

Two of those challenges were hear by the 7th Circuit on Friday, according to this lengthy Nov. 29th story by Sam Hananel of the AP. Some quotes:

WASHINGTON (AP) — In a major test of presidential power, federal appeals courts are starting to hear legal challenges to President Barack Obama's decision to bypass the Senate in appointing three members to the National Labor Relations Board.

The challenges in more than two dozen labor cases around the country have been winding their way through the legal system since Jan. 4, when Obama moved to fill vacancies on the board under the constitutional provision for filling an office when Congress is in recess.

Obama's move outraged business groups and Republican leaders, who contend the appointments were unconstitutional because the Senate was technically in session when the president acted. Administration officials say the Senate was actually in a 20-day recess, and the tactic of gaveling in and out of session every few days solely to avoid being in recess was a sham.

The 7th U.S. Circuit Court of Appeals in Chicago will be the first court to hear oral arguments on the issue Friday. * * *

In the 7th Circuit, the court is hearing two consolidated cases in which the NLRB found that union officials interfered with workers' rights not to join a union or pay union dues. The National Right to Work Foundation is appealing the board's decision in part based on the recess appointments.

The oral argument held Nov. 30th in Douglas Richards v. NLRB (12-1973) is available via MP3 here.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Ind Fed D.Ct. Decisions

Courts - "Supreme Court delays decision on taking up gay marriage cases"

Updating last week's ILB entries on the gay marriage cases being considered by the SCOTUS (most recent ILB entry here), David G. Savage of the LA Times reported Friday afternoon in a story that begins:

The Supreme Court took no action Friday on a series of pending appeals involving gay marriage, putting off until at least next week a decision on which cases to hear.

The justices met behind closed doors to debate cases involving the Defense of Marriage Act and California’s Proposition 8, the voter initiative that limits marriage to a man and a woman.

Here is Lyle Denniston's report at SCOTUSblog, explaining the intricacies.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Courts in general

Ind. Law - More on "Indiana Holding 'Virtual Public Hearing' on Raw Milk Sales"

Updating this ILB entry from June 30th, Rick Howlett reported on Nov. 30th in a story headed "Report On Indiana Raw Milk Study Released." The story links to the Report on the Sale of Unpasteurized (Raw) Milk to Consumers.

Here is a Dec. 2nd AP story on the report.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Law

Ind. Decisions - 7th Circuit heard oral argument on Nov. 28th re Indiana's Facebook ban for sex offenders

The case is John Doe v. Prosecutor, Marion County. You can listen to the oral argument here. It opens with the voice of Ken Falk of the Indiana ACLU.

See earlier ILB entries, including this one from June 24th, which includes links to the June 22nd opinion and a link to the complaint. Also this ILB entry from Oct. 19, 2012.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Ind Fed D.Ct. Decisions

Ind. Law - "Marijuana advocates hope to rise from 'prohibition'"

That was the headline to this long and comprehensive CNN story yesterday by Eliott C. McLaughlin.

Today Matt Tully's column in the Sunday Indianapolis Star is headed "Hashing out the likelihood of legalizing marijuana in Indiana."

Maureen Hayden, CNHI Statehouse Bureau, reports today in the Logansport Pharos Tribune in a story titled "Lower pot penalties favored in Statehouse: Commission recommends new felony to target large growing operations." Some quotes:

INDIANAPOLIS — The head of the Indiana State Police may have surprised legislators last week when he told a state budget committee that he personally favored legalizing marijuana, but the push to re-think Indiana’s pot laws isn’t new.

A legislative commission set up three years ago to review Indiana’s criminal code is recommending that the Indiana General Assembly overhaul the state’s drug laws to reduce penalties for low-level marijuana and other drug crimes.

The commission’s recommendations don’t include legalizing pot or even decriminalizing possession of small amounts of the drug. But they do call for reducing some felony-level marijuana crimes down to misdemeanors, which would significantly reduce penalties.

Under current Indiana law, for example, anyone caught for the second time possessing less than 10 grams of marijuana (about 20 to 30 joints) can be charged with a class D felony, which carries a one-to-five year prison term. The commission calls for a second-time offense to be a class A misdemeanor, with no more than a year’s jail time.

In addition to pushing for some less-harsh laws for low-level marijuana offenses, the commission is also calling for Indiana legislators to create a new felony crime which would allow police to go after the “grow houses” — large-scale operations where marijuana is illegally grown and manufactured in bulk.

The recommendations were crafted by a work group of the Indiana Criminal Code Evalution Commission, whose members included judges, legislators, prosecutors, public defenders, probation and prison officials.

The commission ended its work in October, but its recommendations are likely to be contained in a sweeping sentencing reform bill to be introduced in the 2013 session.

The proposed changes are finding some traction among the Republicans who control the Statehouse and who cite concerns about the rising costs of prosecuting and incarcerating low-level drug offenders. Drug offenses have accounted for much of the rise in Indiana’s prison population over the last 20 years, according to Department of Correction numbers.

“I think we have to do something different than what we’ve been doing,” said state Rep. Heath VanNatter, a conservative Republican from Kokomo. “We need to be spending our prison dollars more effectively than putting people away for minor violations like some kid caught with a joint in his pocket.”

Indiana doesn’t appear to be posed to follow in the footsteps of Colorado and Washington, where voters passed measures in November to allow adults to have small amounts of marijuana.

After Indiana State Police superintendent Paul Whitesell made his surprise comments at a state budget committee hearing last week — when he said that if it was up to him, he’d legalize marijuana and tax its sales — Indiana’s newly elected governor slapped down the idea.

In a statement released to the Associated Press, a spokeswoman for Gov.-elect Mike Pence said Pence opposes decriminalizing marijuana.

That may put a damper on a proposal put forth by state Sen. Brent Steele, the powerful chairman of the Senate Judiciary Committee. The conservative Republican wants to decriminalize the possession of small amounts of marijuana, turning possession of 10 grams or less into an infraction, which is akin to a speeding ticket.

Steele is expected to carry the Senate version of the sentencing reform bill that will propose other changes to the state’s marijuana laws that may mirror much of what the Criminal Code Evaluation Commission proposed.

For example, Steele has already indicated he supports the idea of doing away with the “drug zone” laws that enhance penalties for people caught with small amounts of marijuana or other drugs within 1,000 feet of a school, daycare center or park.

Like VanNatter, Steele cites rising costs to the criminal justice system from low-level drug offenders who may be better served by community-based treatment programs.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Law

Ind. Courts - "COA decision could have impact on local case involving armed zoo patron"

Mark Wilson reported yesterday in the Evansvile Courier & Press:

EVANSVILLE — The outcome of another case before the Indiana Court of Appeals could be the deciding factor in a lawsuit that claims an Evansville ordinance that prohibited firearms in city parks violated a state law barring local gun regulation.

Benjamin Magenheimer filed the lawsuit after Evansville police officers responding to a call about a man openly wearing a gun removed him from Mesker Park Zoo & Botanic Garden on Sept. 10, 2011.

Both the city and Magenheimer's attorney, Guy Relford of Indianapolis, have filed motions asking Vanderburgh Circuit Court Judge Carl Heldt to rule in their favor, based on different grounds.

However, Heldt postponed a decision until after the Court of Appeals rules on a similar lawsuit against the city of Hammond, Ind. Relford, who also filed that lawsuit, is an Indianapolis attorney interested in gun rights who filed the Hammond lawsuit.

Magenheimer's lawsuit claims police were enforcing a city ordinance barring firearms from park properties when they removed him and that he had a license to carry a gun. His lawsuit also claims that the city ordinance in question violated the state law, which had been in effect for more than two months at the time he was removed.

That law, which took effect July 1, 2011, prevents local governments from regulating firearms on property or in buildings which they own or manage, with a few exceptions such as zoning to prevent selling firearms within 200 feet of a school; in buildings with courtrooms; and in municipal buildings occupied by private businesses or residential tenants (such as entertainment venues).

The law also exempts schools, public hospitals, courts and other public buildings.

In court Thursday, Relford argued that even though the state law includes language saying that it voids local ordinances, Evansville and other cities should have acted to repeal such regulations and not simply leave them on the books even though they couldn't be enforced.

He said the state law includes language allowing a person adversely affected by enforcement of local regulations to file a lawsuit. He said local governments, including Evansville, were warned of the possibility of lawsuits by the Indiana Association of Cities and Towns before the law took affect.

City attorney Robert Burkart disagreed that the city should have repealed the law.

"We think it is a silly argument," he said. "What that essentially means is there is some hidden liability the legislature didn't intend. Their argument would create a field day for plaintiff lawyers."

But Relford said he believes that is exactly what lawmakers intended. He called Magenheimer's case "a poster child" for that interpretation of state law.

"Had the city repealed it and communicated that to employees this incident wouldn't have happened," Relford said.

ILB: For background, see the four ILB entries listed here.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Courts

Ind. Gov't. - "Pence initial picks differ from Daniels'"

Niki Kelly of the Fort Wayne Journal Gazette reported Nov. 23rd:

So far, Gov.-elect Mike Pence is filling key roles in his administration with familiar faces.

The first three appointments have extensive ties to state government.

The head of the Indiana Office of Management and Budget will be Chris Atkins, who previously served as general counsel and policy director for Gov. Mitch Daniels in the same agency.

Then there is Mike Ahearn, who will be Pence's new general counsel. Ahearn spent the last eight years at the Indiana Department of Transportation.

And Pence has also tapped a former lawmaker with 40 years experience in state government – Jeff Espich – as a legislative affairs adviser.

Compare that to eight years ago when Gov. Mitch Daniels came in and plucked many of his key advisers and agency heads from the private sector.

His appointments started with Chuck Schalliol as budget director. He left his position as president and chief executive officer of BioCrossroads to serve. Prior to that he spent years as an executive at Eli Lilly.

Next came chief of staff Harry Gonso, an attorney. Then Debra Minott as head of the State Personnel Department. She previously spent 11 years at Eli Lilly and was a high-ranking officer at Guidant Corp. when hired. And then there was Joel Silverman as Bureau of Motor Vehicles commissioner. He formerly headed a sporting goods chain.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Government

Ind. Courts - "Refusing blood test order gets DWI suspect 90 days"

Rebecca S. Green reported in the Saturday Fort Wayne Journal Gazette:

FORT WAYNE – James Osenkowski Jr. will be spending the holidays in the Allen County Jail.

On Thursday, he was sentenced to 90 days in jail by Allen Superior Court Judge Wendy Davis for refusing a court order to have his blood drawn after he was arrested for operating a motor vehicle while intoxicated.

He is the first to be so charged under Allen County’s new policy dealing with those who refuse to submit to certified chemical breath tests and blood draws.

In September, Allen County Prosecutor Karen Richards announced a shift in how her office will handle drunken-driving arrests and suspects who refuse to submit to a certified breathalyzer test at the jail.

Now her office obtains a search warrant from a judge forcing the driver to stick an arm out and get a blood test.

While Indiana law requires anyone who refuses chemical breath tests to have his or her driver’s license suspended for a year, the refusals left prosecutors with little or no evidence to effectively prosecute the case. * * *

When he appeared in court Thursday morning for a hearing on a charge of indirect contempt, Osenkowski was subdued and remorseful, apologizing profusely to the judge for refusing her order on Nov. 18.

Davis said his remorse kept him from getting a sentence of 180 days on the indirect contempt charge.

Indirect contempt involves obstructing court process or refusing a judge’s order outside the presence of the judge. Direct contempt involves misbehavior within the courtroom or in front of the judge.

The warrants give the prosecutors the ability to force a suspected drunken driver to comply with a blood draw, but McAlexander said they do not want to see anyone get hurt.

So the judges are holding those, starting with Osenkowski, in indirect contempt. Prosecutors originally asked for a sentence of 180 days in jail for Osenkowski. Davis declined, citing his obvious remorse.

Since the policy change, prosecutors have had to seek fewer than 20 warrants for the blood draws. McAlexander said that the arrested person usually complies when the consequences are spelled out for them.

Posted by Marcia Oddi on Sunday, December 02, 2012
Posted to Indiana Courts