Wednesday, January 09, 2013
Law - After 8 years, Michigan courts are still litigating the meaning of the November 2004 constitutional amendment
After 8 years, Michigan courts are still litigating the meaning of the November 2004 amendment to the Michigan Constitution stating that “one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.” This post today in the State Bar of Michigan SBMBlog begins:
An unpublished opinion (PDF) of the Court of Appeals released today upholds a circuit court decision rejecting Attorney General Bill Schuette's challenge to the Civil Service Commission's extension of health plan benefits to “other eligible adult individuals” who are "co-residents of state employees" -- in other words, to domestic partners. The Attorney General said that the extension, which was the product of negotiations with state employee unions, violates the state constitution's Marriage Amendment and equal protection.See also this ILB post from Feb. 2, 2007.
Courts - Important Twomby/Iqbal (Twiqbal) cert denial
See Alison Frankel's On the Case article, headed "Supreme Court declines to halt 2nd Circuit's Twiqbal pushback."
Ind. Law - Constitutional issues with several judiciary-related bills
"Bill would eliminate mandatory retirement age for Indiana appellate judges" is the headline to a story in the Evansville Courier & Press. Some quotes:
INDIANAPOLIS — Indiana Chief Justice Brent Dickson and other appellate court judges may get more time in their positions if a proposed Senate bill is adopted during this General Assembly.ILB: But that is incorrect. [H/T: Joel Schumm] The law, if enacted, would not impact sitting appellate judges/justices. The Ind. Const., Art. 7, Sec. 11 reads in part:
Indiana Supreme Court Justice Brent Dickson - shown here after his election to chief justice - could serve beyond 75 under legislation introduced in the Senate. The bill would eliminate a mandatory retirement age of 75 for all appellate judges. * * *
Senate Bill 124 could enable 71-year-old Chief Justice Brent Dickson to keep his position past 2016 – if he wanted to. Dickson – who only became chief justice last year – didn’t request the legislation and Senator Buck said he didn’t offer it with Dickson in mind.
Sec. 11. * * * Every such justice and judge shall retire at the age specified by statute in effect at the commencement of his current term.[More] Another problem with the bill is it simply strikes out entirely the language "Every justice of the supreme court and judge of the court of appeals shall retire at seventy-five (75) years of age." Apparently the intent was to leave no limitation. But again, the Constitution requires that an age to be specified by statute.
Another bill, SB 123, authored by Senator Delph, would limit the salary of state and local public officers and employees, including the judiciary, to the salary paid to the governor. Again, this would not impact current judges and justices because of the Ind. Constitution, which provides at Art. 7, Section 19:
Section 19. Pay. The Justices of Supreme Court and Judges of the Court of Appeals and of the Circuit Courts shall at stated times receive a compensation which shall not be diminished during their continuance in office.In addition, this bill does not take into account the compromise measure on judges' pay passed in 2007, linking judges' and legislators' salaries.
Ind. Courts - Some reassignments for Marion County Courts, effective Jan. 1st
The following Marion County court room assignments were approved by the Executive Committee at its meeting 11-16-2012. They were effective Jan. 1, 2013. The new Superior Court judge, awaiting appointment by Gov. Daniels, will presumably fill the vacancy at G-21, the Protective Order Court.
Ind. Gov't. - "Lt. Gov-elect Sue Ellspermann says the first order of business in the Pence administration is a moratorium on new business regulations"
Indy Politics has the story.
Ind. Gov't. - State Board of Accounts raises questions in LaGrange County audit report
Tracy Warner, editorial page editor of the Fort Wayne Journal Gazette, writes today:
A State Board of Accounts audit of the LaGrange County commissioners for 2010 focused heavily on a trust, the trust’s ownership of land LaGrange County was to eventually receive as a future beneficiary and the role of the county attorney, Kurt Bachman.Here is a link to the SBA Audit.
The audit, in unusually direct language, said the commissioners’ failure to seek County Council approval to dispose of its land interest “constitutes misfeasance on the part of the County Commissioners.” It also said that though Bachman filed a required conflict of interest statement, “there was not a full and adequate disclosure as required.”
The audit said the county did not keep required records of the trust and the land appraisals, and that an agreement between Bachman – who oversaw the trust – and the county “required that the County Commissioners not disclose any documents or information that would disclose the identity of Kurt Bachman.”
State auditors also cited the county for not having a contract with county attorney Bachman, who was paid $20,000 in 2010, or his law firm, Beers, Mallers, Backs and Salin, which was paid $140,631 in 2010.
The commissioners have criticized the field auditor for the State Board of Accounts and contend neither they nor Bachman did anything wrong because the commissioners didn’t own the land at issue. The commissioners hired another attorney, Tim Claxton of Burt, Blee, Dixon, Sutton and Blume to take “over as County Attorney for dealings with the Trust.”
The report, filed Dec. 27, was forwarded to LaGrange County Prosecutor Jeff Wible. In 2011, a special prosecutor who looked into the trust and land deal found no criminal activity, but the State Board of Accounts audit could spur a new investigation, particularly because of its direct accusations.
WTHD 105.5 had this story by Tim Murray on Jan. 4, headed "LaGrange County and state at odds over audit report." Some quotes:
LaGrange County Commissioners are disputing the findings of a State Board of Accounts audit report that calls into question the county's handling of two property transactions.Wanda Yoder of the Sturgis Michigan Journal had a brief story Jan. 7.
The audit report released last Thursday accused county officials of misfeasance in the way they handled the transactions relating to the 516 acre Lambright Trust of which County Attorney Kurt Bachman was trustee.
State auditors claim the commissioners and county council failed to treat the transfer of property from the trust to Kurt Bachman as a sale of real property. State law prescribes how government entities must handle such sales and includes a requirement for the county council to approve. They also disapprove of a license agreement to farm the ground which they say should have required the commissioners to take bids.
The audit report also took Bachman to task for what it said was an insufficient conflict of interest statement that lacked specific details of his interest in the real estate transaction and an easement to Oliver Lake.
But a team of lawyers for the county that included Ice Miller of Indianapolis argues the transaction was a transfer of personal property, not real property, and was done legally. They also claim the transactions questioned by the auditors occurred between the trust and Bachman, not between the county and Bachman and do not trigger the statutes cited by the auditors.
Former Steuben County Prosecutor Tom Wilson was appointed as a special prosecutor in 2011 to review the Lambright transaction. Wilson filed a report with LaGrange Circuit Court saying his investigation determined there was no criminal activity in the matter. * * *
Former County Commissioner George Bachman, who was president of the commission at the time and is not related to Kurt Bachman, said Friday the State Board of Accounts violated the law itself by publishing its report without the county's written response.
You can access the * * * County's audit response [here].
Ind. Decisions - 7th Circuit denies rehearing en banc in one Indiana case today
In U.S. v. Weir (SD Ind., Magnus-Stinson), a 6-page opinion, the panel writes:
On December 14, 2012, defendant-appellant filed a petition for rehearing and petition for rehearing en banc. All the judges on the original panel have voted to deny the petition for rehearing and no judge in regular active service asked for a vote on the petition for rehearing en banc. The petition is therefore DENIED.
ROVNER, Circuit Judge, concurring in the denial of rehearing. Michael D. Weir complains that his Fourth Amendment rights were violated when a police officer seized $6,655 from him during a traffic stop. Because his trial counsel never objected to the seizure or to the introduction of evidence obtained as a result of the seizure, our review is for plain error. United States v. Kelly, 519 F.3d 355, 361 n.1 (7th Cir. 2008). * * *
So even if the seizure of the cash was error, it was not plain error. Before we will reverse for plain error, we must find (1) that there is error, (2) that it is plain, and (3) that it affects substantial rights. United States v. Thornton, 642 F.3d 599, 605 (7th Cir. 2011). “Once these three conditions have been met, we may exercise our discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. James, 464 F.3d 699, 709 (7th Cir. 2006). The defendant bears the burden of establishing that the error affected substantial rights by demonstrating that the outcome probably would have been different without the error. Id. As I have just demonstrated, the outcome would have been the same whether or not the officer seized the cash. Once the cash was legitimately discovered, alea iacta est. I therefore concur in the denial of the petition for rehearing, but I do not endorse the rationale used in the opinion to justify the seizure.
Ind. Decisions - Court of Appeals issues 1 today (and 7 NFP)
For publication opinions today (1):
In Jeffrey A. Hanauer v. Colleen T. Hanauer , a 6-page opinion, Judge Bailey writes:
Jeffrey Hanauer (“Husband”) appeals the trial court’s issuance of a protective order against him. He raises for our review the single issue of whether there was sufficient evidence to support the trial court’s issuance of a protective order. We affirm. * * *NFP civil opinions today (0):
Husband has failed to establish that the findings are clearly erroneous. Furthermore, these findings support the trial court’s conclusion that Wife was a victim of domestic violence. Therefore, the issuance of a protective order was not in error.
NFP criminal opinions today (7):
Ind. Decisions - "Are the Commissioners and County Council legally authorized to bind the elected officers to the terms of a collective bargaining agreement?"
From a Jan. 7th story by Stuart Hirsch of the Anderson Herald Bulletin. Some quotes:
ANDERSON, Ind. — Government workers in Madison County could be subject to five different sets of employment rules depending on which elected official they work for under a ruling issued by a Grant County judge.
“What we have is a nightmare right now,” County Attorney James Wilson said of the 13-page New Year’s Day order issued by Judge Warren Haas. * * *
At issue is a lawsuit filed by United Auto Workers Local 1963 in 2011, shortly after Larry Davis and Angela Shelton took office as assessor and recorder, respectively.
Davis and Shelton did not retain longtime employees, or chose to fire some. In addition, they said they were not bound by terms of a collective bargaining agreement reached between the Board of County Commissioners and the union in 2009.
“The question before the court,” wrote Haas, “is whether the Commissioners and County Council are legally authorized to bind the elected officers to the terms of a collective bargaining agreement.”
Based on his findings of fact and legal cases cited by both sides in the dispute, Haas concluded that the assessor, recorder and, by extension, other elected officers (even though they weren’t part of the suit), are independent of the commissioners and County Council in the appointment, discipline, removal and work of their deputies and employees. * * *
When all the statutes cited in the case are taken together, Haas said, the framers of the Indiana constitution and the General Assembly intended for elected officers to be able to perform the functions of their office free from interference.
The collective bargaining agreement “usurps and impairs the elected officers’ authority and independence with respect to their deputies and employees,” Haas wrote. “Therefore, the statutes, to the extent they might be read to conflict, must be construed to forbid such impairment.”
Ind. Gov't. - More on: "Support for gay-marriage ban wavering: Powerful Indiana Republican Kenley changes his stance"
INDIANAPOLIS — Some Republican state legislators are calling for the Indiana General Assembly to slow down on the constitutional ban on same-sex marriage, offering a variety of reasons why the effort shouldn’t go ahead.Related today, Indianapolis Star writer Matt Tully's column, which is headed "Amendment to ban same-sex marriage is among worst of bad ideas." Some quotes:
Both publicly and privately, GOP lawmakers are expressing doubts about a measure that saw wide support in past sessions and they cite changing public opinion on whether the state’s current ban on same-sex marriage should be locked into the state’s constitution.
Republican State Rep. Jud McMillin, a Brookville lawyer who sits on the House committee expected to hear the measure, thinks it needs to be put on hold this session. He cites the U.S. Supreme Court’s decision to take up the issue of whether state constitutional bans on same-sex marriage are legal and wants the Indiana legislature to wait on the court’s ruling.
“I just think it would be irresponsible for us to be putting something in the public hands when we know the Supreme Court may come down and rule on something that may alter our ability to do that,” McMillin said.
Republican State Rep. Ron Bacon of Boonville, who voted for the constitutional ban two years ago said he wouldn’t vote for it again this time.
Bacon’s reasons are two-fold: He agrees with McMillin that the legislature needs to wait for the court ruling, but he also objects to the language in the measure that would create a constitutional ban on civil unions as well as same-sex marriages.
“That’s a step too far,” Bacon said.
Their concerns are significant, given that Republicans control the Indiana legislature and that the amendment faced almost no GOP opposition in the past.
On the Senate side, both state Sen. Pete Miller of Avon and his fellow Republican state Sen. Luke Kenley of Noblesville have gone public with their opposition.
Neither are supporters of legalizing same-sex marriage, but both say a sweeping constitutional ban isn’t needed.
“It’s already illegal,” Miller said. “What’s to be gained other than ostracizing a whole section the population?”
Miller echoed the concerns expressed by Republican state Rep. Ed Clair of New Albany. Both Miller and Clere cite the opposition coming from some of Indiana’s biggest employers, such as Columbus, Ind.-based engine maker Cummins, Inc., that say such a ban would hurt their efforts to recruit top talent.
“If we’re trying to attract the best and brightest people to work in Indiana, this doesn’t help,”Miller said. “It’s not just putting out a sign to gays and lesbians saying, ‘You’re not welcome.’ It sends a signal to a lot of talented young people that we’re not a welcoming place.”
Last month, Kenley – an influential, conservative lawmaker who holds the powerful position of Senate appropriations chairman – cited what he called the “rapidly evolving” shift in public opinion on the issue as one of the reasons for his opposition.
Putting a constitutional ban on same-sex marriage and civil unions would handcuff future legislators from altering the current law through the legislative process. Kenley also said he opposed putting what he called “bigoted” language in the state constitution.
Privately, several key Republican lawmakers have told their colleagues that they won’t vote for the measure, which is part of a two-step process that would put the issue to a public referendum in 2014.
This is the time of year, these early days before the General Assembly gets down to work, when reports come out almost daily about some misguided idea advanced by some misguided lawmaker in a misguided attempt to legislate his or her vision of Indiana. * * *
The worst of these bills usually don’t make it very far. They land in the legislative garbage can, killed off by common sense. But some misguided ideas survive like weeds, regardless of the damage they threaten to inflict on the state, and no matter how bad or counterproductive or mean-spirited of a message they send.
This brings me to the drama over perhaps the worst piece of public policy the legislature has considered this century: a proposed amendment to the state constitution to ban same-sex marriage. Put bluntly, this amendment would put into the sacred state constitution a public endorsement of discrimination.
Now, same-sex couples are already prohibited by law from getting married in Indiana. And as wrong as that law is, slipping the measure into the more concrete constitution would be worse, and it would be contrary to the fundamental spirit behind the existence of constitutions in this country: to protect and guarantee freedom.
Environment - "What happens if the water in Lake Michigan keeps disappearing?"
The subhead to this lengthy, illustrated (and with audio) Jan. 7 report by Lewis Wallace of Chicago Public Media WBEZ91.4 reads: "Great Lake humbled by record low water levels. Without a turnaround, shipping, fishing, and whole towns are at risk."
One section is headed "Indiana's not immune" and discusses Indiana Harbor. A quote:
“If we had another summer like we had this summer, you know, lord help us,” said Dan Cornellie of ArcelorMittal steel.Another story from the same reporter, dated Dec. 17, 2012, is headed "Drought could lead Chicago River to reverse course (again): The U.S. Army Corps of Engineers warns low water in Lake Michigan could cause the river to flow back into the lake."
For every inch of water the lake loses, the ships supplying two large steel plants here have to lighten their loads by hundreds of tons. Right now freighters are coming into the harbor with two and a half feet less draft than just a few years ago, so for every six trips a ship makes, ArcelorMittal pays for a seventh to make up the difference. The result is a pricier bottom line for the thin, high-quality steel used to make everything from refrigerators to coffee machines.
Cornellie has been in the industry for a long time, and he remembers the low lake levels of 1964, but he said this time it doesn’t feel the same.
“Well, in '64 nobody talked about climate change,” he said. “There’s no mystery what’s going on. It’s a question of whether any of those temperature or precipitation trends reverse.”
And what of the Mississippi? This morning on NPR's Morning Edition, Clay Masters' story, headed "Mississippi River Level Disrupts Supply Chain," begins:
The Mississippi River is at historically low levels. The Army Corps of Engineers says the river will likely be able to stay open through the month, but soon it may be too shallow in parts for barge traffic. There have been calls for the corps to release water from reservoirs along the Mississippi.