Monday, February 11, 2013
Law - "Chicago dropping red-light camera firm as probe heats up"
David Kidwell reported in the Chicago Tribune this weekend in a story that began:
Mayor Rahm Emanuel announced today he will axe the city’s embattled red-light camera vendor when its contract expires in July, citing new investigative findings that the company gave thousands of dollars in free trips to the former city official who oversaw the decade-long program.
Emanuel announced the action against Redflex Traffic Systems Inc. following the Chicago Tribune’s report today that the chairman of Redflex’s Australian parent company resigned this week and trading in the company's stock was suspended amid an intensifying investigation into allegations of corruption in its Chicago contract. * * *
The internal probe found that company executives systematically courted former city transportation official John Bills with thousands of dollars in free trips to the Super Bowl and other sporting events, sources familiar with the investigation told the Tribune.
Law - "A Call for Drastic Changes in Educating New Lawyers"
From the NY Times, a long story by Ethan Bronner about an ABA task force chaired by Randall T. Shepard. Some quotes:
DALLAS — Faced with profound and seemingly irreversible shifts, the legal profession is contemplating radical changes to its educational system, including cutting the curriculum, requiring far more on-the-ground training and licensing technicians who are not full lawyers.The article also points out that the State of Washington is not waiting:
The proposals are a result of numerous factors, including a sharp drop in law school applications, the outsourcing of research over the Internet, a glut of underemployed and indebted law school graduates and a high percentage of the legal needs of Americans going unmet. * * *
While a few schools are freezing tuition and others are increasing hands-on learning, critics are increasingly saying that the legal academy cannot solve its own problems, partly because of the vested interests of tenured professors tied to an antiquated system. Effective solutions, they insist, will have to be imposed from the outside.
Since law schools are regulated by state courts, that means convincing top state judges of the necessity of major change. * * *
The task force was set up last summer and was given 24 months to issue its recommendations. But its chairman, Randall T. Shepard, a former chief justice of the Indiana Supreme Court, said a sense of crisis was driving the group to do so this fall. * * *
As the meeting ended, one task force member, Michael P. Downey of St. Louis, summed it up. “The house is on fire,” he said. “We don’t want a report that sits on a shelf.”
It has established a board to create a program for limited-license legal technicians, the first in the country. Within a year, the board is expected to lay out the educational and professional framework for the technicians. They will have more training and responsibility than paralegals but will not appear in court or negotiate on their clients’ behalf.Here is a related quote from the SBM Blog (quoting this post from Slaw, Canada's online legal magazine):
“The consuming public cannot afford lawyers, and the profession needs to figure that out and own it,” Ms. Littlewood said. “Our hope is to provide more access. The second point is that you have these folks out there doing unauthorized practice, which is harming the public. The hope is to bring them under the tent.”
If lawyers want to improve their image, we can start by improving reality. Make the justice system swifter, more transparent and more even-handed. Find ways to make the price of lawyers' talents and efforts affordable to more than 20% of the population. Push harder for principled conduct rules and fewer obstructive tactics in litigation. And stop trying to put out of business lower-cost competitors who might be able to serve the very people who think so poorly of us in the first place. Think more and do more about the reality of clients than about the image of lawyers.
Ind. Decisions - Transfer list for week ending February 8, 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, February 8, 2013. It is one page (and 8 cases) long.
No transfers were granted last week.
One earlier transfer grant, in Lawrence v. State, was vacated after oral argument. See this Feb. 5th ILB post for details and links.
Courts - "Michigan Supreme Court Justice Hathaway's quick resignation helps colleagues skirt a disciplinary thicket"
Interesting article in the Detroit Free Press, reported by Brian Dickerson, on Justice Hathaway's resignation. A sample:
She announced her resignation just weeks before pleading guilty last month to federal charges stemming from a short sale in which she fraudulently concealed her net worth. She faces up to 18 months in prison when U.S. District Judge John Corbett O'Meara sentences her on May 28.See also Jan. 23rd ILB entry.
But the federal investigation that culminated in Hathaway's plea deal might never have gained traction if Michigan's Judicial Tenure Commission hadn't responded aggressively to the allegations against her.
The tenure commission was established under Michigan's 1963 Constitution to supervise the ethical conduct of Michigan's 600-plus judges. But whether its jurisdiction extended to justices of the state's highest court was an open question until December, when the JTC laid out its case against Hathaway in a 19-page complaint and asked her Supreme Court colleagues to remove her. * * *
Hathaway's case is the first instance in which the JTC has sought to remove a sitting state Supreme Court justice. And because neither the Constitution nor operating rules ordained by the state Supreme Court explicitly establish its jurisdiction over justices, the JTC's assertion that it had the authority to seek Hathaway's removal is precedent-setting.
Ind. Decisions - Court of Appeals issues 2 today (and 5 NFP)
For publication opinions today (2):
In Edwin Jones v. State of Indiana , a 31-page opinion including a concurring opinion, Judge Brown writes:
Edwin Jones appeals his conviction and sentence for operating a vehicle while intoxicated as a class A misdemeanor. Jones raises three issues which we revise and restate as:In Michael Gray v. State of Indiana , an 8-page opinion, Judge Vaidik writes:
I. Whether the trial court abused its discretion and violated Jones’s confrontation rights by admitting a certificate of inspection asserting the accuracy of police testing equipment;
II. Whether the court abused its discretion in ruling on certain evidentiary matters; and
III. Whether the court erred in sentencing him. * * *
[I] Thus, based upon Williams and other recent statements from the U.S. Supreme Court, we reframe the third rationale articulated in Ramirez to provide that although certificates of inspection are kept on file by the court clerk and may be duplicated for use in court, their primary purpose is to ensure that certain breath test equipment is in good operating condition in compliance with Ind. Code § 9-30-6-5. However, we reaffirm our prior precedents and conclude that the Certification was nontestimonial and that the court did not err in admitting it.
Moreover, we agree with the State that any such error regarding the admission of the Certification and the attendant breath analysis was harmless. * * *
For the foregoing reasons, we affirm Jones’s conviction and sentence for operating while intoxicated as a class A misdemeanor. Affirmed.
BAILEY, J., concurs.
VAIDIK, J., concurs in result with separate opinion. [which includes] Therefore, in light of the Supreme Court’s decision in Williams, I would simply eliminate the third rationale articulated in Ramirez.
Despite this difference, I still agree with the majority that the Certification is non-testimonial and therefore not subject to confrontation under Crawford v. Washington, 541 U.S. 36, 68-69 (2004).
Michael Gray was convicted of Class D felony possession of cocaine and received a four-year sentence. On appeal, Gray contends that the trial court erred in refusing to allow him to play portions of an audio recording of a police officer’s deposition for impeachment purposes. We find that the trial court did err in refusing to allow Gray to play a part of the audio recording that was inconsistent with the officer’s testimony on direct examination, but this error was harmless. We affirm. * * *NFP civil opinions today (3):
Although we conclude that Gray was entitled to use a specific portion of the tape, he went about doing so in the wrong way. Gray played the tape without any notice to the court. The court was well within its discretion in refusing to allow Gray to play the tape when the court had no knowledge of its content. However, Gray explained that he intended to use only a specific portion of the tape and made it available to the court. The court should have examined the portion of the tape Gray wished to use and determined whether it was inconsistent with Officer Morgan’s testimony. Given that the portions Gray wished to play were in fact inconsistent with the officer’s testimony, it was error to prevent Gray from playing the relevant portions of the tape.
We find the error harmless, however. Officer Morgan ultimately admitted that his testimony may have been inconsistent, making Gray’s impeachment attempt complete—though jurors likely found this admission less persuasive than an audio recording of the officer’s inconsistent statement.
NFP criminal opinions today (2):
Ind. Law - More on the "hunt, fish, farm" amendment
Updating some recent ILB entries (Feb. 8, Feb. 7, Feb. 5) on the proposed "hunt, fish, farm" constitutional amendment that if passed this session would be on the ballot in our next general election, Tracy Warner, editorial page editorial for the Fort Wayne Journal Gazette, yesterday had this article, headed "Constitutional clutter." Some quotes:
Perhaps inspired by the tea party, legislators are lining up to throw into the constitution statements that do not belong there. Amending property tax formulas into the constitution in 2010 – the year the tea party hit its peak – may have been the point at which Indiana lawmakers decided that amendments are a better way to institutionalize partisan policies because they take longer to change than laws.
Before Indiana was ever a state, residents of the area hunted, fished and farmed, and nothing in the state’s laws has changed that despite lack of constitutional language bestowing such a right.
But now, 162 years after Indiana’s constitution was adopted, some lawmakers have found an urgent need to amend common sense into the constitution.
This rush to change the constitution that forms the basis of Indiana’s approach to government – and the rights of its citizens – only serves to water down and even trivialize the bedrock rights already there. Do we really want to put the right to hunt and fish up there with free speech and freedom of religion? * * *
[I]f various Hoosier lawmakers had their way, a dozen or so amendments would advance just this year. One would unwisely shift the balance in the separation of powers, restricting court authority to order a county to follow the law and constitution if it cost money. One would launch another attack on unions, requiring a secret ballot for private union votes. Yet even the misnamed right-to-work law is just a law, not a part of the state constitution. Others would give state senators more power to choose state Supreme Court justices and court of appeals judges. Another (abandoned for the year on Thursday) would ban gay marriage, civil unions and – maybe or maybe not – the ability of companies to choose to offer domestic partner benefits.
Hoosier lawmakers need to answer hard questions about the right to hunt and fish amendment.
How might the “right to farm” affect laws that regulate pollution from chicken farms or zoning of hog farms or chemicals sprayed on crops? What about the constitutional requirement that “Hunting and fishing shall be the preferred means of managing and controlling wildlife”? Would that not make it unconstitutional for a pond owner to paint goose eggs to “control” the geese population? Wouldn’t cities that capture and euthanize stray dogs and cats be violating the constitution?
We don’t know what Will Rogers would say today about a constitutional right to go fishin’, but we do know what he said about the nation’s misguided rush to constitutionally ban liquor:
“Why don’t they pass a constitutional amendment preventing anybody from learning anything?” he asked. “If it works as well as Prohibition did, in five years Americans would be the smartest race of people on earth.”
Law - "America's prison boom is starting to fizzle"
Sentencing Law Blog quotes from the WSJ.
Law - "What if Crim Law was taught by cartoons?"
See the post from the ABA Journal. Leaf through the Self Defense (including stand your ground) chapter. Per the Boston Globe:
Well, this is one of the best things I've seen in ages -- the the Illustrated Guide to Criminal Law, by Nathaniel Burney, an accomplished prosecutor who also happens to be a talented cartoonist.
Catch-up: What did you miss over the weekend from the ILB?
From Sunday, February 10, 2013:
Ind. law - Issue of a county’s right to apply health code regulations on sewage disposal systems
- Ind. Courts - La Porte County Problem Solving Court doubles in size
- Ind. Courts - "Prominent Floyd attorney Rick Fox charged with drunken driving"
- Ind. Law - More on "Bill would restrict out-of-state college students from voting"
- Ind. Law - Indianapolis native, attorney Richard M. Fairbanks, III has died
- Ind. Courts - "He took money from orphans, from widows, from people whose lives were devastated"
From Saturday, February 9, 2013:
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of (2/11/13):
Thursday, February 14th
- 9:00 AM - Barbara Johnson, et al. v. Joseph Wysocki, et al. (45S04-1211-CT-634) - The Lake Superior Court entered judgment in favor of the homebuyers on their claim of fraudulent misrepresentation against the sellers. The Court of Appeals reversed in an unpublished memorandum decision, holding that the evidence was insufficient to support finding of fraudulent misrepresentation. Johnson v. Wysocki, 45A04-1111-CT-610 (Ind. Ct. App. July 30, 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
- 9:45 AM - M & M Investment Group, LLC v. Ahlemeyer Farms, Inc. (03S04-1211-CC-645) - The Bartholomew Circuit Court entered an order denying M & M Investment Group’s petition for issuance of a tax deed. The Court of Appeals affirmed, concluding that Indiana’s pre-tax-sale notice statute, Indiana Code Section 6-1.1-24-3, “violates the Due Process Clause of the Fourteenth Amendment because it does not require the government to provide sufficient notice prior to the tax sale either by mail or by personal service to mortgagees who have publicly recorded mortgages, even if such notice is not requested by the mortgagees, and because it provides that, even if the government fails to mail the requested notice or the notice is undeliverable for some reason, the validity of the tax sale will not be affected.” M & M Investment Group, LLC v. Ahlemeyer Farms, Inc., 972 N.E.2d 889, 896 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a July 16, 2012 COA opinion.
- 10:30 AM - Mary E. Santelli v. Abu M. Rahmatullah (49S04-1212-CT-667) - The Marion Superior Court entered judgment on a jury verdict in this negligence case, in which the jury allocated fault (1% to the murdered motel guest, 2% to the motel owner, and 97% to the killer) and assessed 2% of total damages against the motel owner. The Court of Appeals reversed and remanded for a new trial on fault allocation after it concluded that the trial court erred by not instructing the jury on the motel owner’s liability under the “very duty doctrine.” Santelli v. Rahmatullah, 966 N.E.2d 661 (Ind. Ct. App. 2012), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was an March 29, 2012 NFP COA opinion
Next week's oral arguments before the Supreme Court (week of 2/18/13):
- No arguments currently scheduled.
Webcasts of Supreme Court oral arguments are available here.
This week's oral arguments before the Court of Appeals (week of 2/11/13):
Wednesday, February 13th
- 1:30 PM - Charles Meriwether v. State of Indiana (49A02-1208-CR-676) Charles Meriwether appeals his conviction of Class A misdemeanor possession of marijuana and Class D felony possession of paraphernalia, arguing his Fifth Amendment and Article 1, Section 14 rights to be free from self-incrimination were violated when police detained and questioned him without first giving him a Miranda warning. The Scheduled Panel Members are: Judges Riley, May and, Vaidik. [Where: Supreme Court Courtroom (WEBCAST)]
Monday, February 18th
- 4:00 PM - Danielle Helms v. Max H. Rudicel, M.D., et al (18A04-1202-CT-70) Danielle Helms sued her doctor, a nurse practitioner, an emergency physicians group, a clinic, and a hospital for malpractice related to treatment she received during her pregnancy. A federal court found the doctor and clinic were federal employees and the federal tort claims limitation period had run. The trial court determined that decision was res judicata as to Helms’s negligence claims related to the clinic or the doctor’s work there. It also found the hospital was not vicariously liable for acts by the clinic or its employees, or for acts the doctor performed at the clinic. It found the hospital might be vicariously liable for acts of the doctor and the nurse practitioner at the hospital, and it dismissed the clinic with prejudice. Helms appeals, arguing the federal decision is not res judicata because that court did not address the issues before us, and the medical providers at the clinic were apparent agents of the hospital. On cross appeal, the hospital argues it could not have vicarious liability because it told Helms its healthcare providers are independent contractors. The Scheduled Panel Members are: Chief Judge Robb, Judges May and Pyle. [Where: Supreme Court Courtroom (WEBCAST)]
Tuesday, February 19th
- 3:00 PM - J.S. v. State of Indiana ( 20A04-1207-JV-373) J.S. appeals his adjudication as a juvenile delinquent for criminal gang activity. The issues on appeal are: (1) Whether there was sufficient evidence to support the juvenile court’s true finding that J.S. committed criminal gang activity; and (2) Whether the juvenile court abused its discretion by admitting testimony on gang colors and symbols and surveillance video footage into evidence. The Scheduled Panel Members are: Chief Judge Robb, Judges Baker and Riley. [Where: Wabash College, Crawfordsville, Indiana]
- 11:00 AM - John and Janice Gresser v. Dow Chemical and Reliable Exterminators, Inc. ( 79A02-1111-CT-1014) In this appeal, John and Janice Gresser, individually and as parents and natural guardians of Elizabeth and Rebekah Gresser, allege that they were injured by a pesticide manufactured by Dow Agrosciences, LLC and applied by Reliable Exterminators. Both the Gressers and Reliable Exterminators have requested that an oral argument be scheduled. Among the questions presented in this appeal are: (1) whether the Gresser’s state law claims are preempted by the Federal Insecticide, Fungicide & Rodenticide Act; (2) whether the pesticide is defective under the Indiana Product Liability Act; (3) whether Reliable Exterminators was negligent in its application of the pesticide; (4) whether Gresser’s expert evidence is sufficient to prove causation; and (5) whether Gresser is entitled to punitive damages. The Scheduled Panel Members are: Judges Friedlander, Brown and Pyle [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.