« January 24, 2013 | Main | January 26, 2013 »

Friday, January 25, 2013

Courts - More on "DC Circuit Recess Appointments Clause Decision"

"Court Ruling Upsets Conventional Wisdom On Recess Appointments" is the title to this long analysis by Carrie Johnson of NPR.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Courts in general

Ind. Courts - Still more on: Glitches with the Clerk of the Courts' email notification system?

Bill Groth, the attorney quoted in the initial ILB Jan. 23rd post, notes today:

It’s now been 4 days since I saw the opinion in Jenkins v. So. Bend Community Schools posted online. While I’m very pleased with the decision, I still have yet to receive it by email, fax, or regular mail. Something is definitely amiss with the notification system.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Indiana Courts

Ind. Courts - Ex longtime Indiana Super Lawyer now represented by public defender

Updating this list of earlier ILB entries on William F. Conour, including this one with the criminal complaint, this one re his resignation from the Indiana bar, and this one mentioning the reception for Chief Justice John G. Roberts in the Conour Atrium at the IU-Indianapolis Law School, today the ABAJournal notes:

A once-prominent personal injury attorney in Indiana is now represented by a public defender as he awaits trial in a federal wire fraud case in which he has been accused of stealing $4.5 million from 25 clients.

William F. Conour, 65, told a federal judge in Indianapolis at a Friday hearing that his only income is $2,000 a month from Social Security. Authorities say he misappropriated client funds in an operation dating back as far as 1999 that involved running his law firm in a manner akin to a Ponzi scheme.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Indiana Courts

Courts - "DC Circuit Recess Appointments Clause Decision"

Good post by Prof. Lawrence B. Solum on the recess appointment ruling today.

This story by Robert Barnes in the Washington Post includes:

The decision flatly rejected the administration’s rationale for appointing the board members, and jeopardizes the separate recess appointment of former Ohio attorney general Richard Cordray to head the Consumer Financial Protection Bureau. Cordray is the subject of a different lawsuit.

The ruling acknowledged that it conflicts in parts with what other federal appeals courts have held about recess appointments. The issue is likely to be decided by the Supreme Court.

The decision came from Circuit judges David B. Sentelle, Karen LeCraft Henderson and Thomas B. Griffith.

Here is Lyle Denniston's post at SCOTUSblog.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Courts in general

Courts - "D.C. Circuit rules that President Obama's recess appointments to the NLRB were invalid"

See How Appealing and The Volokh Conspiracy.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Courts in general

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In Term. of the Parent-Child Rel. of: D.T., (Minor Child), and T.S. (Father) v. The Indiana Dept. of Child Services, a 12-page opinion, Chief Judge Robb writes:

T.S. (“Father”) appeals the termination of his parental rights as to D.T. and raises one issue on appeal: whether his due process rights were violated when the lower court did not appoint a Guardian ad Litem (“GAL”) for Father. Concluding that his due process rights were not violated, we affirm.
In David Delagrange v. State of Indiana , a 14-page opinion with a dissent beginning on p. 10, Judge May writes:
David Delagrange appeals his conviction of four counts of Class C felony attempted child exploitation. Delagrange presents two issues, one of which we find dispositive: Whether the trial court erred when it denied Delagrange’s motion for directed verdict. We reverse and remand.

On February 27, 2010, Delagrange, outfitted with video camera mounted to his shoe and controlled through an apparatus in his pants, traveled to Castleton Square Mall in Indianapolis. Once at the mall, Delagrange recorded images of the area beneath the skirts of several females, four of whom were minors. Delagrange’s conduct triggered concern, and a store manager contacted an off-duty police officer. The officer approached Delagrange, who attempted to flee. Delagrange was immobilized with a taser and arrested. The State subsequently charged Delagrange with four counts of Class C felony attempted child exploitation, ten counts of Class D felony voyeurism, and Class A misdemeanor resisting law enforcement. * * *

Due process prohibits Delagrange’s convictions under the statutes that existed at the time of his actions, though it appears similar acts in the future could be punished as public voyeurism. As the statutes in force when Delagrange committed his acts required conduct by the child, we are compelled to reverse his convictions and remand, as there was no evidence any of the minors were involved in the type of conduct required by the child exploitation statute. * * *

As the opinion on interlocutory appeal did not address the portion of the statute at issue here, the issue herein is not res judicata.

KIRSCH, J., concurs.
NAJAM, J., dissents with separate opinion. * * * I would hold that the law of the case doctrine precludes such a reconsideration of the relevant statutory language. But, second, the child exploitation statute cannot be interpreted to require that a child be an active participant in the exhibition of her genitals or that the child have the intent to satisfy sexual desires. Such an interpretation improperly focuses the elements of the crime on the actions of the child and undermines the very foundation of the statute, which was designed to protect children. * * *

In sum, the law of the case doctrine precludes our consideration of the issues raised in this appeal. And, to the extent that the majority reads the child exploitation statute to require a child victim to actively participate in the sexual conduct element of the crime, I disagree. While the statute may not be well-drafted, the legislature cannot have intended that interpretation.

For more on the "shoe camera" case, start with this post from June 27, 2010.

In Robertson Fowler v. State of Indiana, a 3-page opinion, Judge May writes:

Robertson Fowler petitions for rehearing of our decision dated August 31, 2012, affirming the denial of his petition for post-conviction relief. In that opinion, we held Fowler’s guilty plea precluded him from later challenging his sentence. We grant his petition for rehearing in order to acknowledge and address a subsequent decision by another panel of this court that reached a different result in resolving a similar allegation of error, and we reaffirm our original opinion.
NFP civil opinions today (1):

Term. of the Parent-Child Rel. of D.C., Minor Child; A.R., Mother, and S.C., Father v. Indiana Dept. of Child Services, Lake County CASA (NFP)

NFP criminal opinions today (7):

David McCombs v. State of Indiana (NFP)

Dale D. Engle v. State of Indiana (NFP)

Charles Kingery v. State of Indiana (NFP)

Ricky J. Thurston v. State of Indiana (NFP)

D.J. v. State of Indiana (NFP)

Paul Hoffert, Jr. v. State of Indiana (NFP)

Kip Hurt v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Ind. App.Ct. Decisions

Ind. Courts - More on: Glitches with the Clerk of the Courts' email notification system?

Updating this ILB entry from Jan. 23rd, another reader, Gary L. Miller, who returns to a seat on the Marion County Superior Court this coming Monday, writes:

I had a case where I wasn’t notified of a decision by email or hard copy. I found out about the case from the DEFENDANT when I ran into him on election day last spring. The decision had been rendered as a NFP months earlier. I was pissed, and I looked like an idiot.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Indiana Courts

Environment - Rights to hunt, fish, engage in agriculture, and to engage in traditional and modern farming and ranching practices, to be enshrined in Indiana Constitution?

On Dec. 2, 2012 the ILB posted an entry headed "How the NRA is larding state constitutions with frivolous, redundant 'right to hunt' amendments," the headline referencing an article in Slate. I noted that:

Indiana's General Assembly adopted a "right to hunt" constitutional amendment in 2011. If it passes again this session (2013) or in 2014, the question of its ratification will appear on the 2014 ballot.

Here is the text of this proposal to amend Article 1 of our Constitution, the Indiana Bill of Rights:

ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 38. The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, poultry, or dairy products, which is a valued part of our heritage and shall be forever preserved for the public good, subject only to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly. Hunting and fishing shall be the preferred means of managing and controlling wildlife. This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.
The measure has been introduced again this year, as SJR 7.

New this year is a proposed amendment to the Indiana Constitution's Bill of Rights that reads:

ARTICLE 1 OF THE CONSTITUTION OF THE STATE OF INDIANA IS AMENDED BY ADDING A NEW SECTION TO READ AS FOLLOWS: Section 40. The right of Indiana citizens to engage in traditional and modern farming and ranching practices shall be forever guaranteed in Indiana. No law shall be enacted that abridges the right of Indiana citizens to employ traditional or modern agricultural technology, animal production, or ranching practices.
It has been introduced in the Senate as SJR 21 and in the House as HJR 5.

Today a Fort Wayne Journal Gazette editorial opines:

Farming may fall somewhere near the ranks of apple pie and baseball in its importance to the American ethos, but ensuring all citizens have equal protection under the law should be far more important. Unfortunately, some state lawmakers want to enshrine special protections for farmers into the Indiana constitution.

House Joint Resolution 5 and Senate Joint Resolution 27 [sic], identical pieces of legislation making their way through the two chambers, seek to amend the Indiana Constitution to prevent any legislative body from adopting any rules regulating farming.

“It makes unconstitutional any law governing farming,” said Kim Ferraro, an attorney and director of water and agricultural policy for the Hoosier Environmental Council. “It seems to elevate one profession over all others for constitutional protections.”

The amendment, apparently, would prevent any rules regulating large industrial agricultural businesses such as confined animal feeding operations. It would also prevent any laws that protect public health and private property rights for Hoosiers who are not farmers. Even zoning laws could be challenged.

A resolution must be approved in two separately elected sessions and then win approval in a statewide referendum before the constitution is amended.

State legislators are also proposing a slew of bills that purport to promote the interests of agriculture and farming in Indiana, but as written would prohibit state and local governments from creating rules that protect communities from water pollution or other public health threats.

Posted by Marcia Oddi on Friday, January 25, 2013
Posted to Environment | Indiana Law