Thursday, February 02, 2017
Ind. Courts - House adopts HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit
HB 1036, the Marion County judicial selection bill, has passed the House. Here is the bill synopsis, which hits some of the highlights:
Provides for the selection of Marion superior court (court) judges.ILB readers will recall that in September of 2015 the 7th Circuit threw out as unconstitutional the existing statute concerning the selection of Marion County judges. From the ACLU news release at the time:
Establishes the 14 member Marion County judicial selection committee
[What happens when there is a vacancy?]
Provides that, when the committee learns of a vacancy on the court, the committee follows certain procedures that conclude in the committee sending the names of three nominees to the governor.
Requires the governor to appoint one of the nominees as judge to fill the vacancy.
[What happens when the currently elected judges' terms end?]
Provides that, at the end of a judge's term on the court, the judge may have the question of the judge's retention on the court placed on the general election ballot.
Provides that, before a judge may stand for retention, the judge must appear before the committee to allow the committee to issue a recommendation to voters concerning the judge's qualifications and suitability to continue to hold judicial office.
Requires that the judge's retention on the court must be approved or rejected by the electorate of Marion County.
The lawsuit, brought by Common Cause Indiana represented by the American Civil Liberties Union of Indiana, challenged the constitutionality of Indiana Code § 33-33-49-13, which results in each major party nominating candidates for only one half of judicial vacancies.More: Here is IBJ coverage by Hayleigh Colombo, headed "House approves merit-selection system for Marion County judges."
The statute effectively removed any choice from voters and rendered the election of judges a mere formality. Voters in Marion County who did not cast a ballot in the primary election had absolutely no say in electing judges. Even people who did vote in the primary election had a say in only half of the judgeships. * * *
The Seventh Circuit ruling held that: "When an election law reduces or forecloses the opportunity for electoral choice, it restricts a market where a voter might effectively and meaningfully exercise his choice between competing candidates, and thus severely burdens the right to vote." The Court concluded that this severe burden was not justified.
Here is the Indianapolis Star coverage, by Fatima Hussein.
Courts - "Cal's top court to decide whether emails and texts sent on personal devices are public record" and much more!
Maura Dolan has the story today in the LA Times. It begins:
Community activist Ted Smith suspected backroom dealing at San Jose City Hall.There is much more in the long story. Here is the webcast of the oral argument in the appeal.
San Jose’s former mayor was asking the City Council for government money to help develop a project downtown. Smith filed a public records request for all communications related to the development from elected officials and their staff.
The city responded, providing some records but maintaining that emails, texts and other communications sent by government employees on their private devices were not covered by the California Public Records Act.
Nearly eight years later, the downtown project is complete, helped in part by city funds approved by elected San Jose officials. Smith never received the communications he sought.
But his request is likely to produce new rules to deter government officials from using private phones and computers to keep their communications secret.
During a hearing last month, the California Supreme Court appeared ready to rule that government business conducted on private telephones and computers must be made public.
The quandary expressed by justices was how to fashion a rule to protect the privacy of government employees and still ensure that public business was open to inspection. * * *
In examining Smith’s case, the justices of the state’s top court grappled with several questions: How can government ensure employees retain business-related emails and texts on their private devices? What happens if the communications have been deleted?
Will a new rule make it impossible for employees to discuss their work online for fear it will become a public record? Would a message to a friend or family member about a boss, a work project or colleagues have to be disclosed because the topic involved public business? * * *
Karl Olson, representing the news media, including The Times, argued that many public officials are deliberately using personal computers and telephones to conceal their communications. The practice is widespread, Olson wrote.
The examples Olson cited included Hillary Clinton’s use of a private account while secretary of state, the disclosure of emails that showed aides to New Jersey Gov. Chris Christie created a mammoth traffic jam to punish a Christie foe, and a host of other cases involving public officials using private email addresses in Los Angeles, San Diego, San Francisco and Sacramento.
Without conceding that public officials are using private accounts to evade scrutiny, San Jose’s Frimann said making those communications public wouldn’t necessarily provide the public with more information.
“If private accounts become public records, people will go to phones or meetings” to protect confidentiality, the assistant city attorney said.
Making this story particularly relevant are several other stories the ILB has seen this morning:
- "Federal workers turn to encryption to thwart Trump: Agency employees are turning to Signal and other incognito forms of communication to express their dissent." Politico:
Federal employees worried that President Donald Trump will gut their agencies are creating new email addresses, signing up for encrypted messaging apps and looking for other, protected ways to push back against the new administration’s agenda.
Whether inside the Environmental Protection Agency, within the Foreign Service, on the edges of the Labor Department or beyond, employees are using new technology as well as more old-fashioned approaches — such as private face-to-face meetings — to organize letters, talk strategy, or contact media outlets and other groups to express their dissent.
The goal is to get their message across while not violating any rules covering workplace communications, which can be monitored by the government and could potentially get them fired.
At the EPA, a small group of career employees — numbering less than a dozen so far — are using an encrypted messaging app to discuss what to do if Trump’s political appointees undermine their agency’s mission to protect public health and the environment, flout the law, or delete valuable scientific data that the agency has been collecting for years, sources told POLITICO.
Fearing for their jobs, the employees began communicating incognito using the app Signal shortly after Trump’s inauguration. Signal, like WhatsApp and other mobile phone software, encrypts all communications, making it more difficult for hackers to gain access to them.
- "Trump aides' use of encrypted messaging may violate records law: Using disappearing messages in government could be a "recipe for corruption," says one expert." ZDNet:
Senior Trump administration aides communicating over encrypted messaging apps may be violating federal record-keeping laws.
The Wall Street Journal reported that political aides close to the president are using Signal, an end-to-end encrypted messaging app. And it's not just in the White House. Aides close to the New York governor and the mayor and Obama administration staff also use the encrypted messaging app.
It's no secret that many in politics are taking security more seriously following the hacks that hit the Democratic National Committee, which led to the leaking of thousands of emails to WikiLeaks.
But by keeping those messages and communications private, top administration officials may be falling foul of the Presidential Records Act, a law that requires staff to keep records of those conversations.
"If new agency appointees are using Signal or other disappearing message apps routinely for work, even if it's not classified, that's a serious lapse in records retention policy," said Michael Morisy, founder of non-profit investigative news site MuckRock.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 0 NFP memorandum decision(s))
For publication opinions today (1):
In Rachel Neal v. IAB Financial Bank, f/k/a Grabill Bank, a 16-page opinion, Judge May writes:
Rachel Neal appeals a summary judgment in favor of IAB Financial Bank (“the Bank”). She argues the trial court erred in finding the Bank owed no duty toward her. We affirm. * * *ILB: The opinion includes lengthy footnotes.
Neal sued the Bank, alleging she would not have been injured in the accident but for the Bank employees’ negligent act of helping Biddle change his tire so he could get back on the road. She claimed the Bank assumed a duty of care toward her and other motorists when its employees helped change the tire. The trial court granted the Bank’s motion for summary judgment. It determined that under Indiana law, a party cannot be held liable for a drunk driver causing injuries to a third party unless it furnished the drunk driver alcohol, maintained a legal right to control the vehicle, or had a special relationship with the other parties. * * *
To prevail on a claim of negligence, Neal must demonstrate (1) the Bank owed a duty to Neal; (2) the Bank breached that duty by allowing its conduct to fall below the applicable standard of care; and (3) the Bank’s breach of duty proximately caused a compensable injury to Neal. Absent a duty, there can be no breach. The trial court found the Bank had no duty to Neal. * * *
To the extent Neal argues there is a general duty “not to assist an intoxicated person in driving,” we agree. We held so in Buchanan. Indeed, the Seventh Circuit Court of Appeals noted in its analysis of Buchanan, the consequences of Vowell’s decision to assist her daughter in driving drunk were “predictably tragic.” Spierer v. Rossman, 798 F.3d 502, 512 (7th Cir. 2015). But for reasons already discussed above, the facts here are distinguishable from those in Buchanan. Thus, we cannot say the harm to Neal was foreseeable. * * *
Were we to impose a duty on all individuals to consider the potential risk of harm to third persons before helping motorists in peril, it would require those individuals to weigh their personal risk of exposure to liability to third persons injured by the motorist against the motorist’s immediate need for assistance. We refuse to impose such a duty.
In so holding, we do not unequivocally suggest actors who help motorists never have a duty toward unknown third persons foreseeably at risk of injury resulting from negligent conduct of the driver. But where, like here, there was no prior relationship between the Bank and either Biddle or Neal, nor evidence of an actor’s knowledge of the motorist’s intoxication, imposing a duty on Good Samaritans that could discourage providing assistance to motorists in need of aid is contrary to public policy. As the Court of Appeals for the Seventh Circuit recently noted, “[t]here is simply no case where Indiana courts have recognized responsibility on the part of a person to ensure the safety of intoxicated persons with whom they have unexpectedly come into contact.” Spierer, 798 F.3d at 513. We decline to recognize such a duty today.
Conclusion. Because all three of the Webb factors lean against imposing a duty here, the trial court did not err in concluding the Bank owed no duty to Neal. Accordingly, we affirm the trial court’s summary judgment in favor of the Bank.
NFP civil decisions today (0):
NFP criminal decisions today (0):
Courts - "Can an algorithm erase bias in Cook County bond courts?"
On a Tuesday morning in mid-September, new arrestees approached a glass-enclosed room in the basement of the Cook County Jail. One by one, they sat down on a stool, opposite a court employee at a computer on the other side of the glass. Over the next 30 minutes to an hour, their past criminal record and history of court appearances would be scrutinized in detail.ILB: Some readers may recall that the Cook County Bond Court was featured in several 2015 episodes of The Good Wife, including the show's Season 7 premiere.
This is a computerized risk-assessment test, and in the end, each arrestee was assigned a score rating the likelihood that he or she would show up for his or her next court date, and the likelihood that he or she would commit a new offense if released on bail.
The Public Safety Assessment is the latest change to bond court procedures in Cook County. Previously, court staffers used paper forms to calculate whether a defendant was a flight risk by asking questions about the person's residence, arrest history, employment, and drug use. Unemployed, unstably housed people with drug abuse issues were rated more of a flight risk—an evaluation experts consider to be unfairly biased against people of color and the poor. In contrast, the PSA, fully implemented in central bond court proceedings as of last spring, relies solely on documented evidence of failures to appear and past convictions.
The PSA represents a growing trend of court systems around the country using computerized risk-assessment to inform bond-setting and, in some places, even sentencing decisions. Some experts are welcoming the PSA as a tool for potentially counteracting racial and class bias in judges' bond-setting—a bias that's seen as contributing to the disproportionate pre-trial incarceration of poor, African-American men in the Cook County jail. But critics are concerned that bias persists even in the PSA's supposedly neutral algorithm. And the whole debate is potentially moot in the face of a larger question: are Cook County judges even paying attention to the PSA's scores?
Ind. Decisions - 7th Circuit "strikes down part of Indiana vaping law"
A few quotes from the final, Jan. 31st version of the Indianapolis Star story, reported by Tim Evans , Tony Cook and Mark Alesia, on the Jan. 30th 7th Circuit opinion by Judge Hamilton in Legato Vapors, LLC v. David Cook:
INDIANAPOLIS — A federal court on Monday struck down a major portion of Indiana’s restrictive vaping law, which created a monopoly for one security firm and sparked an FBI probe.
A three judge-panel of the 7th U.S. Circuit Court of Appeals in Chicago ruled that the law’s strict requirements guiding the production of the nicotine-laced liquid consumed through vaping imposed “unprecedented” and “extraordinary” regulation for out-of-state companies. The ruling effectively ends the stranglehold that Lafayette-based security company Mulhaupt’s Inc. had on deciding who could enter the Indiana e-liquids market, although it applies only to out-of-state manufacturers.
The Legislature first approved Indiana’s vaping law in 2015, ostensibly to create safety standards for “e-liquid” production. The law was amended last year in a way that effectively gave Mulhaupt’s sole discretion to decide who could be certified to produce “e-liquid” sold in Indiana. The law guided everything from requirements for sinks and cleaning products to the details of contracts with outside security firms and the qualifications of those firms’ personnel, the judges wrote.
The appeals court found that the restrictions violated the U.S. Constitution’s commerce clause and were “akin to telling out-of-state communities how to run their recycling programs.”
“At the most basic level, one might wonder why Indiana cares,” the judges wrote, noting that the law’s “astoundingly specific” provisions “raise still more questions that go well beyond the Commerce Clause.” * * *
When the law went into effect, it drew the attention of the FBI, which questioned a number of people connected to it. Those who have been interviewed said the FBI asked who was involved, what their motivations were for supporting or opposing the law and whether they knew of anyone who was offered anything in exchange for their support.
Since then, leaders in the GOP-controlled Statehouse have pledged an overhaul.
The federal appeals court said the law “looks very much like a legislative grant of a monopoly to one favored in-state company in the security business.”
Ind. Decisions - Yet another 7th Cir. opinion yesterday, this one on Ind. Nonprofit Corp. Act of 1991
In Richard Doermer v. Kathryn Callen (ND Ind., Van Bokkelen), a 22-page opinion, Judge Hamilton writes:
This case poses several questions under the Indiana Nonprofit Corporation Act of 1991 about the governance of nonprofit corporations in Indiana. The case pits brother against sister in a long-running dispute over control of a small family foundation established by their parents. Plaintiff Richard Doermer is a member of the board of directors of the Doermer Family Foundation, Inc. (“the Corporation”). He asserts claims in his individual capacity and derivatively on behalf of the Corporation. The defendants include his fellow board members Kathryn Callen (his sister), John Callen (his nephew), and Phyllis Alberts. Richard also named as a defendant the University of Saint Francis of Fort Wayne, Indiana, Inc. Richard seeks injunctive relief against all other board members and a money judgment for the Corporation against Kathryn and Saint Francis.
The district court granted defendants’ motions to dismiss, and we affirm. Under Indiana law, only a shareholder or member of a corporation may bring a derivative action on the corporation’s behalf. Richard lacks standing to bring a derivative claim because he is neither a shareholder nor a member. In fact, the Corporation’s articles of incorporation provide that it “shall have no members.” Richard’s individual claims for money judgment likewise fail. They are properly understood as belonging to the Corporation (and so derivative in nature). Finally, all of Richard’s individual claims fail as a matter of law on their merits.