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Friday, February 03, 2017

Courts - "Federal Court Basically Says It's Okay To Copyright Parts Of Our Laws"

That is the headline to this important, new, lengthy post in TechDirt, that begins:

For many years, we've written about Carl Malamud and his non-profit organization Public.Resource.org, which goes to great lengths to make sure that the law and other government documents are widely available to the public. While he's gotten lots of attention for battling states over their claims to hold a copyright in the law, perhaps his biggest fight has been over the question of whether or not private standards that are "incorporated by reference" into the law, are still covered by copyright. And, unfortunately, the federal district court in Washington DC has just ruled against him (link to the opinion), and effectively said it's okay to lock up some important elements of the law with copyright. This is bad news.

Some background: as you probably know, there are tons of standards bodies out there who create various standards. Most techies are quite familiar with various technology standards, developed by various groups. But standards obviously go way beyond just the tech industry. Think: building codes for plumbers and electricians. These are often developed by independent, private bodies. Of course, you may also realize that some of these standards are in the law as well. These are generally known as "incorporated by reference." That's just a fancy way of saying that a private group created a standard and then lawmakers put into the law "this thing we're regulating needs to meet those standards." So, for example, fire codes may be developed by a private body, but then governments say that any building has to meet those standards. Voila: those standards are "incorporated (into the law) by reference."

The question, though, is how accessible are these standards? Many of the standards bodies that create those standards like to sell them. That's often how they make their money. But that seems to be in fairly dire conflict with the idea that the law should be publicly accessible. It's fairly difficult to argue that the rule of law is paramount when you can't even see the law without having to buy a bunch of expensive standards. To deal with this, many regulators and standards bodies have come up with awful hedges -- which basically say that any such standard incorporated by reference must be "available to the public," but they allow that availability to be insanely limited. So, for example, the EPA basically says, sure, you can see all of the standards, if you trek to DC and go to a special reading room (or a few other limited places)

The ILB has many posts on this topic, see for instance this one from May 22, 2013, and this lengthy post from August 7, 2008, headed "Indiana building codes, part of the Indiana Administrative Code, are copyrighted and not available online."

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Courts in general

Ind. Decisions - 7th Circuit decides two Indiana cases today

In John Jones Bey v. State of Indiana (SD Ind., Pratt), a 5-page opinion, Judge Posner writes:

John Jones Bey, who describes himself as an “Aboriginal Indigenous Moorish-American,” filed in the district court what he labeled a “Writ of Mandamus,” seeking to enjoin state and county officials from taxing real estate that he owns in Marion County, Indiana. He also asked that the defendant officials be ordered to refund the taxes that he’d paid and to compensate him for their alleged wrongs. He asked the district court to award him $11.5 billion. The court refused, and granted the defendants’ motions to dismiss, precipitating this appeal.

Bey says he’s a “sovereign citizen” and therefore can’t lawfully be taxed by Indiana or its subdivisions in the absence of a contract between them and him. We have repeatedly rejected such claims. We do so in this case as well, and thus affirm the district court. [ILB: cites omitted] * * *

But we want to take this opportunity to examine the rights asserted, in this as in the other cases we’ve cited, by persons describing themselves as sovereign citizens by virtue of their alleged Moorish origin. Most of them are African Americans who belong to the Moorish Science Temple of America (MSTA) and claim to be descendants of the Moors of northern Africa, though they are not; Moors are of mixed Berber and Arab descent rather than being African American in the usual sense of being descended from black Africans. * * *

Although we have discussed the MSTA at some length, our aim was to introduce readers who may not be familiar with the “sovereign citizen” movement to its principal institutional establishment. We do not mean to task the district judges of this circuit with having to delve into the history of every particular organization involved in every case before them. Often the organization either played no significant role in the events leading up to the case or if it did, nevertheless it was an organization already well known to the court. The unusual feature of this case is that the sovereign-citizen movement and its institutions, such as MSTA, are at once sources of difficult litigation and not well known outside the sovereign-citizen movement.

The judgment of the district court is affirmed.

In USA v. Abel Covarrubias (SD Ind., Pratt), a 6-page, per curiam opinion, the Court writes:
Abel Covarrubias was convicted by a jury of possessing with intent to distribute 50 grams or more of methamphetamine, and conspiring to commit this crime. On appeal he challenges the denial of his motion to suppress drugs found in a car being delivered to him from across the country. We affirm the judgment because the district court correctly decided that Covarrubias lacked standing to contest the admission of the drugs into evidence. * * *

Covarrubias’s argument is irrelevant because he did not have any expectation of privacy in the car once the car hauler received it. See Crowder, 588 F.3d at 934. In any event his post-Miranda statements to law enforcement are admissible because substantial evidence demonstrates that he understands and speaks English: five law enforcement officers and a paramedic testified that he understands and speaks English, he declined an interpreter when he was arrested, and he sent text messages from his cell phone in English.

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 7 NFP memorandum decision(s))

For publication opinions today (2):

In Richelle Marie Whitenack v. State of Indiana, an 8-page opinion, Judge Bradford writes:

On November 17, 2015, Gail Whitenack (“Gail”) searched her step-daughter Appellant-Defendant Richelle Marie Whitenack’s vehicle while it was in Gail’s driveway because Gail was concerned that Whitenack was using drugs. During her search, Gail found items that suggested that Whitenack was, in fact, using drugs. Gail called the police and told them what she had found. The police department subsequently issued a tip to its deputies which included a description of Whitenack’s vehicle and the suspected drug related items.

Later that same day, Whitenack was pulled over for speeding and crossing the center line twice. The deputy radioed his location and a description of the vehicle when he realized that the vehicle he had pulled over matched the vehicle in the tip. One or two minutes later, the department’s K9 officer arrived to the scene with his dog. The K9 officer and his dog walked around the vehicle while the deputy finished writing Whitenack’s ticket. The dog indicated the presence of drugs in the vehicle which prompted the deputy and K9 officer to search the vehicle. * * *

On appeal, Whitenack challenges the trial court’s admission of evidence during her bench trial. Specifically, Whitenack raises the following restated issue: whether the trial court abused its discretion when it admitted evidence found in Whitenack’s vehicle during a valid traffic stop. Because the trial court did not abuse its discretion when it admitted evidence found by a K9 officer and his dog during a valid traffic stop, we affirm. * * *

[T]he evidence obtained from Whitenack’s vehicle by the deputies during the traffic stop was the product of a legal search and the trial court did not abuse its discretion when it admitted such evidence at trial. Based upon the above-stated conclusions and evidence in the record, we affirm the trial court’s decision to admit the evidence found during the traffic stop of Whitenack’s vehicle.

In Lonnie L. Burton v. State of Indiana, a 6-page opinion with a pro se appellant, Chief Judge Vaidik writes:
Lonnie L. Burton petitioned to expunge two Class D felony convictions (theft and fraud) pursuant to Indiana Code section 35-38-9-3, and the State moved to dismiss, arguing that Burton is not eligible for expungement because he is a “sex or violent offender” based on other convictions. The trial court granted the State’s motion to dismiss, and Burton appeals. Because the plain language of Section 35-38-9-3(b) provides that a “sex or violent offender” is not eligible for expungement of Class D/Level 6 felonies, we affirm the trial court. * * *

Contrary to how Burton would have the statute read, Section 35-38-9-3(b) does not say that expungement is not available if the conviction sought to be expunged is “_____.” In addition, Section 35-38-9-3(b) provides that expungement of Class D/Level 6 felonies is not available to a “sex or violent offender”; notably, it does not say a “sex or violent offense.” This is critical because a “sex or violent offender” has a very specific meaning. Because Burton is a “sex or violent offender” as defined by Section 11-8-8-5, he is ineligible for expungement of his Class D felonies under Section 35-38-9-3.2

We therefore affirm the trial court’s dismissal of his petition.

NFP civil decisions today (3):

Kansas City Services, Inc. v. Bryan Connan, Julie Connan, and Connan's Zionsville Investors, LLC (mem. dec.)

In the Matter of the Adoption of B.A.M.: G.M., Jr. v. D.E. (mem. dec.)

Margaret J. Wilkinson v. Ivan H. Kuehn and Micki L. Kuehn (mem. dec)

NFP criminal decisions today (4):

Shannon Randolph v. State of Indiana (mem. dec.)

Breasia Sawyer v. State of Indiana (mem. dec,)

Kenneth Kennedy v. State of Indiana (mem. dec.)

Anthony W. Brown v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Ind. App.Ct. Decisions

Courts - Still more on "Federal court in Wisconsin strikes down GOP-drawn maps"

Updating this ILB post from Jan. 27th, Patrick Marley of the Milwaukee Journal-Sentinel reports today in a lengthy story:

MADISON – Republican lawmakers plan to approve behind closed doors giving a blank check to hire two law firms in a legal battle over redrawing legislative maps, adding to a bill that has already topped $2 million.

One of the firms the lawmakers plan to hire is a high-powered legal operation where former U.S. Solicitor General Paul Clement is partner. Clement, who has Wisconsin roots, charges more than $1,300 an hour, according to published reports.

Legislative aides would not say if Clement will be on the legal them they are assembling.

The legislators on deck to approve the plan don't know how much hiring the firms will cost or even their hourly rates. Those details will be ironed out after the votes, said Myranda Tanck, a spokeswoman for Senate Majority Leader Scott Fitzgerald (R-Juneau).

Hiring the firms is set to be approved Thursday by two committees. No further action will be needed. * * *

“It’s outrageous that the Republican leadership won’t specify how much of our taxpayer dollars they are willing to waste by challenging the ruling of the federal judges,” said a statement from Matt Rothschild, executive director of the Wisconsin Democracy Campaign.

Republicans are looking to hire Clement's international firm, Kirkland & Ellis, as well as Bell Giftos St. John. The second firm is based in Madison and the home of former state Deputy Attorney General Kevin St. John.

On average, partners at Kirkland charge $825 an hour, according to a review by the National Law Journal.

The plan also gives Fitzgerald and Assembly Speaker Robin Vos (R-Rochester) the power to hire any other firms they deem necessary to work on redistricting. No one else would have any say in how much they're paid.

A panel of three federal judges in the fall found maps Republicans drew in 2011 were so favorable to their party that they violated the voting rights of Democrats. Last month, the judges ordered them to establish new maps by November.

Republican Attorney General Brad Schimel plans to appeal to the U.S. Supreme Court. Republicans who control the Legislature plan to hire two law firms to supply friend-of-the-court briefs backing the appeal, said Tanck.

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Courts in general

Ind. Gov't - Clark County has trouble filling County Council seat

On Feb. 1, Elizabeth Beilman of the Jeffersonville News & Tribune reported in a long story that began:

Former State Superintendent of Public Instruction and Clark County native Tony Bennett is now a member of the Clark County Council.

Bennett was one of two Republicans caucused onto the board Wednesday evening in an unexpected move. But Bennett won't be filling the seat vacated by Mike Popplewell, who resigned amid misdemeanor charges.

Instead, Bennett will represent District 2 — and Brian Lenfert, sitting District 2 councilman, was elected to fill Popplewell's at-large seat.

"Our family's roots are in Clark County," Bennett said. "When my family and I moved back to the area, it was an opportunity I saw."

Late yesterday, however, reporter Beilman wrote:
Former Indiana Superintendent of Public Instruction Tony Bennett won't be serving on the Clark County Council after all, as he doesn't meet the residency requirements to hold office.

State law requires office holders must have lived in the district they represent for at least six months and within the county for at least a year.

The Clark County Assessor's office recorded Bennett became the owner of his Jeffersonville home Sept. 8, which doesn't even meet the six-month requirement to live within the council district. His former home in New Albany was transferred to a new owner Aug. 29.

Bennett confirmed Thursday he has only lived in Clark County about six months, having previously lived in Floyd County.

"I'm not aware of any [such law]," he told the News and Tribune when informed by the newspaper of the residency requirement. "Frankly, I would assume [Clark County GOP Chairman Jamey Noel] would know that." * * *

Attorney Larry Wilder, often hired to represent local Republicans, took fault.

"Sometimes when you have lawyers that don't read every word in a statute, they give bad advice," Wilder said. "Tony and I talked about the opening, and I spoke with [Noel] as well, and they both asked a question about eligibility to serve and quite honestly, I made a mistake."

Posted by Marcia Oddi on Friday, February 03, 2017
Posted to Indiana Government