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Friday, January 18, 2013

Ind. Decisions - Right to work law decisions in ND Ind. and 7th Circuit

From a story by the Indianapolis Star's Robert King and Tim Evans:

A federal judge threw out a union’s lawsuit seeking to overturn Indiana’s “right to work” law Thursday, saying such a challenge should remain at the state level.

Judge Philip Simon of the U.S. District Court for the Northern District of Indiana issued the ruling, approving the state’s motion to dismiss the suit filed last year against former Gov. Mitch Daniels, Attorney General Greg Zoeller and former Commissioner of Labor Lori Torres.

The plaintiffs, Local 150 of the International Union of Operating Engineers, claimed the law, which bars companies and unions from negotiating contracts that require all employees to pay for representation, violated the constitution.

The law’s passage by the General Assembly last February was a major milestone in what has become a national tug of war over union rights.

Indiana became the first state in the industrial Midwest to put such a measure on the books. By December, Michigan had followed suit. * * *

Judge Simon wrote that: “For better or worse, the political branches of government make policy judgments. The electorate can ultimately decide whether those judgments are sound, wise and constitute good governance, and then can express their opinions at the polls and by other means.

“But those are questions beyond the reach of the federal court, which instead is limited to analysis of particular legal arguments that the challenged legislation runs afoul of preemptive federal labor law or the U.S. Constitution wrote. None of the legal challenges launched by the Union here to attack Indiana’s new Right to Work law can succeed.”

Here is a copy of the opinion in Sweeney v. Daniels.

This afternoo
n the 7th Circuit issued this opinion in Wisconsin Ed. Ass'n. v. Walker See this post from How Appealing, that begins:
Seventh Circuit overturns that portion of a federal district court's ruling holding that parts of Wisconsin's Act 10, regulating collective bargaining for public employees, are unconstitutional.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions

Ind. Courts - Marion County public defender accused in prostitution sting

Michael Boren of the Indianapolis Star posted this story this afternoon.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Indiana Courts

Ind. Decisions - COA posts another opinion, an order on rehearing

Sometime after the COA posted the six opinions today, it posted another, In Re Indiana Newspapers, Inc., d/b/a The Indianapolis Star v. Jeffrey M. Miller, et al. (Here are earlier, related ILB entries.) From Chief Judge Robb's 6-page opinion granting the petition for rehearing and affirming its order [dismissing appeal in this matter] in all respects:

In its original briefing, The Star maintained that the Discovery Order at issue here was a final judgment eligible for direct appeal. When we scheduled oral argument on The Star’s Motion to Stay, we asked the parties “to address whether the court has jurisdiction to consider the trial court’s discovery order.” We rejected The Star’s arguments for the reasons stated in our Order.[2]

Now The Star advances a number of additional arguments as grounds for the exercise of jurisdiction in this case. It is a well-settled rule that a party may not advance new arguments on rehearing, and, to the extent the Petition breaks new ground, it is out of bounds. Carey v. Haddock, 881 N.E.2d 1050, 1051 (Ind. Ct. App. 2008), trans. denied. When a party offers new arguments in a petition for rehearing, we usually deny the petition. Nevertheless, we have granted the Petition to consider the additional reasons The Star now presents for this court to exercise jurisdiction.
_________
2 Among other reasons, we noted that The Star’s rationale for jurisdiction amounts to a constitutional challenge to our rules of procedure and leads to the conclusion that every interlocutory order would be subject to an immediate direct appeal.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Jermaine Hines v. State of Indiana , a 9-page opinion where the issue was "Whether the trial court erroneously admitted the firearm into evidence.," Judge Pyle concludes:

In this case, law enforcement officers lawfully attempted to detain Hines based upon their reasonable suspicion that he had been engaged in criminal activity. While fleeing from law enforcement officers, Hines threw the firearm away. Hines was in such a rush to get away from law enforcement officers that he crashed his moped, got up, and continued to flee on foot. Additionally, Hines was in such a rush to get rid of the firearm that it struck the side of the house at 2309 Hendricks Street when he threw it away. The objective facts in this case show Hines’ clear intention to relinquish any possessory interest in the firearm. See Campbell v. State, 841 N.E.2d 624 (Ind. Ct. App. 2006) (defendant who threw firearm under a car after police shined flashlight on him was found to have abandoned firearm). Therefore, we affirm the trial court’s admission of the firearm into evidence.
John F. Harris, III v. State of Indiana , an 11-page opinion, Judge Crone writes:
John F. Harris, III, was convicted of possession of cocaine, which was enhanced to a class B felony because the offense occurred within 1000 feet of a family housing complex. Harris was also found to be a habitual offender based on prior convictions of escape and possession of cocaine with intent to deliver.

On appeal, Harris argues that a statutory defense to the class B felony enhancement applies because he was present in the proscribed zone for only a brief period of time and no children were present. Although no children were seen at the time of the offense, there was proof that children were residing in the immediate vicinity. We conclude that, pursuant to supreme court precedent, this evidence was sufficient to prove that children were present and therefore the defense was rebutted.

As to the habitual offender enhancement, Harris argues that he falls within a provision that precludes application of the enhancement to certain offenders who do not have more than one dealing offense. We agree that the State has failed to prove that Harris has more than one dealing offense, and we therefore reverse the habitual offender enhancement. * * *

The State relies on a document titled “Bail Review Pretrial Release Report” which indicates that Harris has a 1997 conviction of “Manufacture/Delivery of a Controlled Substance” from Illinois. The record is silent as to which drug Harris manufactured; therefore, we cannot determine which offense in Indiana is analogous to the Illinois conviction. Not all of Indiana’s manufacturing offenses fall within the sections identified in Indiana Code Section 35-50-2-8(b)(3)(C). The State has failed to prove that Harris has more than one conviction falling under Indiana Code Section 35-50-2-8(b)(3)(C). All the conditions of subparagraph (b)(3) are met; therefore, Harris is not a habitual offender, and we reverse the enhancement.

NFP civil opinions today (1):

Kelly Bertholet Stokes v. Estate of Kenneth Stokes (NFP)

NFP criminal opinions today (3):

Danielle Kelly v. State of Indiana (NFP)

Matthew A. Parks v. State of Indiana (NFP)

Jonathan Books v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "House Bill 1118 has sympathy for motorcycles, scooters stuck at lights"

Dorothy Schneider of the Lafayette Journal Courier has this story today. A quote:

House Bill 1118 would amend Indiana motor vehicle code to allow operators of motorcycles, motorized bicycles, motorscooters and bicycles to proceed through a steady red signal if they first:

• Come to a complete stop at the intersection for at least 120 seconds; and

• Exercise due caution as provided by law, treat the traffic control signal as a stop sign, and determines that it is safe to proceed.

Really.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Indiana Law

Ind. Gov't. - Public Records Commission to prohibit redistribution of digital data?

This item in the coming issue of Indiana Legislative Insight certainly caught my eye this morning:

The Oversight Committee on Public Records will hold a public hearing February 20 on a proposed amendment to Title 60 of the Indiana Administrative Code that would regulate the commercial use of records received using an Access to Public Records Act request to the Commission on Public Records. Specifically, any person receiving electronic data from the Commission through a public records request (or from the beneficiary of a public records request), would be barred from employing the electronic data for commercial use or benefit; or transferring the data to another person for the commercial use or benefit of either party.
Here is a copy of the proposed new rule.

A public hearing will be held on the proposal on Feb. 20, 2013.

Here is the one-line "economic impact on small business" statement.

Here is the provision of the law apparently authorizing this rule: IC 5--14-3-3(d) and (e):

(d) Except as provided in subsection (e), a public agency that maintains or contracts for the maintenance of public records in an electronic data storage system shall make reasonable efforts to provide to a person making a request a copy of all disclosable data contained in the records on paper, disk, tape, drum, or any other method of electronic retrieval if the medium requested is compatible with the agency's data storage system. This subsection does not apply to an electronic map.

(e) A state agency may adopt a rule under IC 4-22-2, and a political subdivision may enact an ordinance, prescribing the conditions under which a person who receives information on disk or tape under subsection (d) may or may not use the information for commercial purposes, including to sell, advertise, or solicit the purchase of merchandise, goods, or services, or sell, loan, give away, or otherwise deliver the information obtained by the request to any other person for these purposes.

Use of information received under subsection (d) in connection with the preparation or publication of news, for nonprofit activities, or for academic research is not prohibited.

A person who uses information in a manner contrary to a rule or ordinance adopted under this subsection may be prohibited by the state agency or political subdivision from obtaining a copy or any further data under subsection (d).

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Indiana Government

Environment - "About a Dozen Environment Reporters Left at Top 5 U.S. Papers"

This story by Katherine Bagley, InsideClimate News, begins:

The news last week that the New York Times is dismantling its environment desk and reassigning the reporters throughout the newsroom provoked an outpouring of reaction, much of it suggesting that now isn't the time to take risks that could diminish the coverage of climate change.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to Environment

Law - IU McKinney Law School Clinics

Here is a just released 2:30 promo for the IU McKinney Law School and its clinical courses, offering students a broad range of practical lawyering experiences before graduation.

Posted by Marcia Oddi on Friday, January 18, 2013
Posted to General Law Related