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Tuesday, January 22, 2013

Ind. Courts - Still more on "Blogger Jailed; Allegedly Threatened Dearborn Judge"

Updating this ILB entry from Jan. 21st, Eugene Volokh of The Volokh Conspiracy late this afternoon posted an entry on our Indiana Court of Appeals' opinion in Daniel Brewington v. State of Indiana. The long post is headed "Harshly Criticizing a Judge (or Others) for Their Past Conduct = Crime?" and begins:

That’s what Brewington v. State (Ind. Ct. App. Jan, 17, 2013) appears to hold. The defendant may well have seemed like a potentially dangerous person, and he was also convicted of perjury and other crimes; moreover, the government argued that he threatened violence and not just criticism. But the court’s reasoning, which focused on the defendant’s continuing harsh criticism, would apply to many other defendants in the future. This strikes me as quite troubling.
The post concludes:
As I’ve said above, I think this decision is wrong, and quite dangerous. It’s not limited to blackmail of the “do this or I’ll reveal this secret about you” sort; indeed, this speech involved neither an attempt to coerce the judge (the speech happened after the judge’s actions) nor a revelation of secrets. It would also apply equally to speech that harshly and repeatedly condemns legislators for their “prior lawful act[s],” as well as speech that condemns others — journalists, business leaders, and the like — at least so long as the speech seems to carry within it the “threat” of more speech. A very bad result, which I hope the Indiana Supreme Court reviews and reverses.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Ind. App.Ct. Decisions

Ind. Law - "Roe v. Wade turns 40: What has happened in Indiana"

The Indianapolis Star has this story on its website this afternoon, written by Shari Rudavsky and Cathy Knapp. It begins by stating that "40 years ago today the debate over abortion entered a new arena when the Supreme Court issued its monumental Roe v. Wade decision." Here is the decision, from Jan. 22, 1973.

Most of the online story is devoted to a "History of Indiana's abortion law." However, this detailed Star history begins on April 19, 1995, and moves forward from there, to Nov. 23, 2005.

Did nothing happen in Indiana from 1973, when Roe was decided, until 1995, and from 2005 until 2013?

Perhaps the Star's online archives only goes back to 1995? Actually, they appear to go back to 1991. For instance, here from the archives is a snippet from May 24, 1991 that begins: "Supporters of abortion rights called the ruling - which bans abortion counseling at federally funded family planning clinics - callous and shocking, while abortion opponents praised it for rejecting the "bizarre concept" that treats abortion the same as contraception."

Perhaps the reporters were confused by the source notes to IC 16-34-1, Indiana's abortion law. The source notes indicate that IC 16-34-1 was added by P.L.2-1993, SEC.17. Did the reporters assume that Indiana had no abortion statute prior to 1993? But a little research shows that PL 2-1993 was an LSA "recodification" bill that repealed existing law and reenacted it in substantively the same form, but with different numbers. According to this table, the source of IC 16-34-1 was IC 16-10-3.

For a glimpse at a much richer Indiana history on aspects of this topic, look at Maurer Law Prof. Dawn Johnsen's [yes, that Dawn Johnsen] 2009 Yale Law Journal article, “TRAP”ing Roe in Indiana and a Common-Ground Alternative. Two quote from Johnsen's article:

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Law

Ind. Decisions - Transfer list for week ending January 18, 2013

[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 January 11, 2013 list.]

Here is the Clerk's transfer list for the week ending Friday, January 18, 2013. It is one page (and 17 cases) long.

No transfers were granted last week.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 2 today (and 7 NFP)

For publication opinions today (2):

In Lula L. Jenkins, et al. v. South Bend Community School Corp. , a 9-page opinion, Judge Kirsch writes:

Lula L. Jenkins (“Jenkins”), American Federation of State, County and Municipal Employees Council 62, and AFL-CIO Local 686 (collectively “the Union”) appeal from the trial court’s order entering summary judgment in favor of South Bend Community School Corporation (“SBCSC”) in Jenkins and the Union’s action seeking an independent determination of whether Jenkins was discharged for just cause from her position with SBCSC. On appeal, we are asked to decide if the trial court erred by granting summary judgment in favor of SBCSC instead of making an independent determination of whether Jenkins was discharged for just cause. We reverse and remand. * * *

In this case, we conclude that the “exclusive remedy” provision of the CBA at issue here was intended to function only as an exhaustion-of-administrative-remedies provision and not as a bar to Jenkins’s exercise of her right to free and open courts and their remedies. Thus, under this CBA Jenkins must proceed through the grievance procedure prior to resorting to judicial review of her claims. The advisory nature of the arbitrator’s award allows the non-prevailing party, here SBCSC, to reject the award, thus triggering judicial review, either under the UAA’s provisions or for a determination whether the facts found by the arbitrator support the award. Consequently, we find that the trial court erred by declining to make that determination and by entering summary judgment in favor of SBCSC. Therefore, we reverse the trial court’s entry of summary judgment and remand this matter to the trial court for a determination of whether the facts found by the arbitrator constitute just cause under the CBA.

In Erving Sanders v. State of Indiana, a 12-page opinion, Judge Brown writes:
Sanders raises one issue, which we restate as whether the trial court erred in denying his motion to suppress. We reverse. * * *

Based upon the evidence presented at the suppression hearings, including the photographs of the Suburban which were taken one hour after the stop and depict the window tinting, we cannot say that there was an objectively justifiable reason for the stop of the vehicle. Accordingly, under the totality of the circumstances Officer Minch lacked reasonable suspicion to stop Sanders for investigatory purposes at the time he observed Sanders’s vehicle. The trial court erred in denying Sanders’s motion to suppress.

NFP civil opinions today (4):

David Frohwerk v. Mark Levenhagen (NFP)

Jacqueline R. Clements v. Clinton County, Indiana, by and through the Board of Commissioners of the County of Clinton, Ted R. Johnson, Barbara Conner, Michael W. Conner and William Clinton (NFP)

Term. of the Parent-Child Rel. of K.W., K.O.A., and K.E.A., Minor Children, and Their Father, O.W.: O.W. v. Indiana Dept. of Child Services (NFP)

Jason T. Myers v. Linda Phillips, Tippecanoe County Assessor and Office of the Indiana Attorney General, Unclaimed Property Division (NFP)

NFP criminal opinions today (3):

Aaron Di-Shon Windom v. State of Indiana (NFP)

Anthony Henderson v. State of Indiana (NFP)

Donald L. Swain v. State of Indiana (NFP)

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Ind. App.Ct. Decisions

Law - "Even if It Enrages Your Boss, Social Net Speech Is Protected"

That is the headline to this long, front-page story today in the NY Times, reported by Steven Greenhouse. It take a comprehensive look at recent NLRB rulings saying:

... workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place at the office or on Facebook.

In addition to ordering the reinstatement of various workers fired for their posts on social networks, the agency has pushed companies nationwide, including giants like General Motors, Target and Costco, to rewrite their social media rules.

“Many view social media as the new water cooler,” said Mark G. Pearce, the board’s chairman, noting that federal law has long protected the right of employees to discuss work-related matters. “All we’re doing is applying traditional rules to a new technology.”

The decisions come amid a broader debate over what constitutes appropriate discussion on Facebook and other social networks. Schools and universities are wrestling with online bullying and student disclosures about drug use. Governments worry about what police officers and teachers say and do online on their own time. Even corporate chieftains are finding that their online comments can run afoul of securities regulators.

The labor board’s rulings, which apply to virtually all private sector employers, generally tell companies that it is illegal to adopt broad social media policies — like bans on “disrespectful” comments or posts that criticize the employer — if those policies discourage workers from exercising their right to communicate with one another with the aim of improving wages, benefits or working conditions.

More from the story:
The N.L.R.B. is not the only government entity setting new rules about corporations and social media. On Jan. 1, California and Illinois became the fifth and sixth states to bar companies from asking employees or job applicants for their social network passwords.

Lewis L. Maltby, president of the National Workrights Institute, said social media rights were looming larger in the workplace.

He said he was disturbed by a case in which a Michigan advertising agency fired a Web site trainer who also wrote fiction after several employees voiced discomfort about racy short stories he had posted on the Web.

“No one should be fired for anything they post that’s legal, off-duty and not job-related,” Mr. Maltby said.

As part of the labor board’s stepped-up role, its general counsel has issued three reports concluding that many companies’ social media policies illegally hinder workers’ exercise of their rights.

There are a number of links within the article. In addition, many comments already have been posted to the NYT site.

The social media policies of Wal-Mart, Cosco and General Motors may be located by using the search box at this page, and typing in, eg, "Wal-Mart social media".

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related

Ind. Courts - " Judge switches up trial process; says problems caused by late plea agreements made in jury trials" [Updated]

Caitlin Huston reports in the Logansport Pharos-Tribune in a long story that begins:

Cass Superior II Judge Rick Maughmer is putting the responsibility for setting jury trials on lawyers due to issues caused by guilty pleas being entered shortly before the trial date.

Maughmer said lawyers will be responsible for setting the dates because often juries are being called, but not used, when plea agreements were filed close to the trial date. When guilty pleas are entered so close to the jury trials, lawyers and prosecutors say it’s harder to prepare and the court loses money.

To combat the problem of jury trials falling through, Maughmer said the court had previously decided to schedule multiple jury trials a day, so that the jury would be used in at least one of the cases.

However, Maughmer said this did not work as cases were resolved between final pretrial conferences and jury trials about 10 times in 2012.

“It’s been a process challenge,” Maughmer said.

While the court formerly provided a jury trial date early in the proceedings, Maughmer said he would only set a final pretrial conference and then wait for attorneys or prosecutors to request a trial date.

With the multiple jury trials scheduled on one day, Attorney Jim Brugh said attorneys would often spend time preparing for a trial, only to have it pushed to another day. That meant that attorneys would have to prepare for the same trial multiple times before it finally happened.

Attorney Matthew Barrett said having jury trials pushed to another day or canceled because of a plea agreement also creates problems for witnesses who have already scheduled the day off work or who have to travel long distances.

[Updated almost immediately] The ILB has received several reactions already, including this one from attorney Cara Wieneke:
I just see more problems than solutions with this new plan.

Problem #1: what happens when a defendant acts for his "fast and speedy"? I believe the judge is required to set a jury trial date within 70 days. Is the judge not going to?

Problem #2: let's say the defendant doesn't do anything at all. Then the onus is completely on the prosecutor to make sure a date is set. Because if the prosecutor doesn't do it within 365 days, the case gets dismissed.

How this problem is often handled in other counties: judges set a final date after which they won't entertain any further plea agreements. It seems to work pretty well.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Courts

Ind. Law - " Will Indiana put pot in its place? Both Republicans, Democrats call for lighter penalties"

Maureen Hayden and Scott Smith reported this lengthy story in the Sunday, Jan. 20th Kokomo Tribune. It begins:

Indianapolis — On the subject of Indiana’s marijuana laws, state Sen. Karen Tallian may be in the minority for the present, but even on the other side of the political aisle, she’s gaining some allies.

The Michigan City Democrat has been in the media for her marijuana bill, which proposes turning most possession offenses into an infraction, the same as a speeding ticket. The law doesn’t consider an infraction to be a criminal offense.

Tallian talks about a female constituent, who as a teen was convicted of marijuana possession. Five years later, the young woman is being told her past offense disqualifies her for a teaching assistant position, Tallian said.

“Is this the kind of message we want to send to our kids? You make a mistake one time, and it can negatively affect your career for the rest of your life?” Tallian asked.

The idea of decriminalization, as opposed to outright legalization, appears to be gaining traction in Indiana. A 2012 survey by the Bowen Center for Public Affairs at Ball State University found 53 percent of Indiana residents support the idea of a ticket for possessing small amounts of marijuana, with 41 percent in opposition.

But the idea of decriminalization has found little traction in the General Assembly, replaced instead by a push to bring down penalties for pot and other drug crimes.

Under major legislation backed by prosecutors and police groups, the penalties for most felony-level marijuana crimes would be reduced to misdemeanors. And people caught possessing or selling the drug would no longer automatically lose their driver’s license.

The bill, put forward by state Sen. Brent Steele, R-Bedford, would roll back Indiana’s marijuana laws — some of the toughest in the nation — that make possession a felony unless it’s a first-time offense or the amount is less than 1 ounce.

There is much more to the story.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Law

Law - Interesting separation of powers case from Wisconsin

Really catching up, here is a long Jan. 12, 2013 Milwaukee Journal Sentinel story that caught my eye. The headline to the long story: "Wisconsin Supreme Court race could shape several key rulings." The last item:

Administrative rules. In 2011, lawmakers changed state law to require that the governor sign off on all administrative rules. Though obscure, administrative rules have the force of law and contain more specifics than what is spelled out in state statutes on everything from environmental regulations to how elections are run.

A Dane County judge ruled in October that the law was unconstitutional as it relates to rules for the Department of Public Instruction. Those rules are in the purview of the state schools superintendent, who does not have to go through the governor to set them, the judge ruled.

Republican Attorney General J.B. Van Hollen is appealing the decision.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related

Ind. Gov't. - "Is Zoeller independent?"

Catching up, here is a Jan. 17th post from Niki Kelly's Fort Wayne Journal Gazette Political Notebook:

Gov. Mike Pence showed off his new cabinet Wednesday to reporters -- with one interesting addition.

Seated a few chairs down from the governor at the table was Attorney General Greg Zoeller -- a seperately-elected statewide office holder.

He didn't say anything but he even had a placard in front of him. And while he was at the table, other executive-branch appointees were relegated to chairs behind the governor.

It is unclear why Zoeller rated an invite but not the state's other four elected officeholders -- Secretary of State Connie Lawson, Auditor Tim Berry, Treasurer Richard Mourdock and Superintendent of Public Instruction Glenda Ritz

Pence Press Secretary Kara Brooks was asked specifically about why Zoeller was invited and if the other office holders were as well.

Her response avoided the question, simply saying Zoeller "attended today's cabinet meeting to meet the agency heads and so that they could meet him as well."

Brooks also ignored a follow-up email asking again whether the other office holders were invited or not.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Indiana Government

Courts - Watch Justice Sonia Sotomayor on The Daily Show

Here is the link to the segment from last night's show.

Here is Part 2.

Here is part 3.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to Courts in general

Law - "Asset Forfeiture Abuse Revisited"

It has been some time since the ILB has posted on asset forfeiture on either the state or federal level. Here is a long list of earlier entries, the most recent dated Aug. 30, 2011. Today Ilya Somin has a post in The Volokh Conspiracy, commenting on an article in Reason.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related

Law - If boilerplate is your passion, this post is for you

From the Law Librarian Blog, a post that points to a number of books about boilerplate. A sample:

As an intellectual exercise, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law sounds like it may make for stimulating reading.

Posted by Marcia Oddi on Tuesday, January 22, 2013
Posted to General Law Related