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Monday, February 13, 2017

Ind. Decisions - 7th Circuit decides one Indiana case today, a prisoner appeal

In Willie Long v. USA (ND Ind., Miller), a 13-page opinion, Judge Kanne writes:

Willie Long pled guilty to being a felon in possession of a firearm. Thereafter, Long sought col‐ lateral relief, arguing that his trial attorney provided ineffec‐ tive assistance of counsel. Unfortunately for Long, his plea agreement contained a provision waiving his right to collat‐ erally attack his conviction and sentence. For that reason, the district court summarily denied his claim.

On appeal, Long argues that the district court erred in denying his claim without an evidentiary hearing. Long cor‐ rectly notes that we will allow a petitioner to circumvent a collateral‐attack waiver if he can prove that his counsel was ineffective in negotiating the plea agreement containing that waiver. Nevertheless, because Long has failed to allege any facts that, if proven true, would entitle him to relief, he is not entitled to an evidentiary hearing. We affirm.  

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Lawmaker seeks to untangle regulations on African-American hair-braiding"

From Fatima Hussein's long, worth-reading in full report this weekend in the IndyStar/USA Today:

When the Indiana General Assembly started regulating hair-braiding salons in 1997, Nicole Barnes-Thomas lost her job, her apartment and, quickly, her life unraveled.

Once self-sufficient, she struggled to find work for about a year, then took an office job, though she says it's not what she'd prefer to do.

"It was devastating to say the least," said Barnes-Thomas, who saw Indiana's strict regulation of an African-American tradition as being culturally insensitive at the least and economically devastating at most.

But now Barnes-Thomas has a new ally, one who may seem unusual in these politically polarized times. A white conservative Republican lawmaker from Elkhart, Timothy Wesco, has taken up her cause of hair braiding, a move that is being repeated across the country.

Already, 20 states have ceased regulating the practice, and bills are pending in Missouri, New Hampshire and New Jersey.

Hair-braiding salons are just one of many businesses Republican lawmakers are hoping to deregulate, with Indiana lawmakers considering changes in the licenses of psychologists, mental health counselors and social workers. But hair braiding, which has been an African tradition for thousands of years, is an industry with a nontraditional constituency for most Republican lawmakers. * * *

"I was independent, I loved what I did, and I enjoyed putting a smile on people's faces," Barnes-Thomas said.

That all changed when House Bill 2011 passed into law in 1997, requiring hair braiders to complete cosmetology school in order to be licensed to practice under Indiana law. The change made it an infraction to braid hair without schooling. Currently, if braiders practice their craft without a cosmetology license, they risk committing a misdemeanor, punishable by fine of up to $500 per infraction.

As a result, many women like Barnes-Thomas have been forced to either give up the craft, spend up to $20,000 for tuition in beauty school to complete 1,500 hours of training or simply operate without a cosmetology degree with the fear of getting caught. And while many women have chosen to operate businesses without a license, Barnes-Thomas said she prefers to follow the law.

Wesco proposed House Bill 1243 earlier this year, which would remove natural hair braiding from the cosmetologist licensing requirement. This past week, the bill passed through the Employment, Labor and Pensions Committee and is headed for a full House vote. He said the change would create economic opportunities for potential business owners.

To Wesco, the regulation is a burden on potential small-business owners and "this is a perfect example of regulation we don't need."

There is push back, however, from the profession itself, including hair stylists. Licensing rules ensure the safety of clients, they say.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Government

Ind. Decisions - Transfer list for week ending February 10, 2017

Here is the Clerk's transfer list for the week ending Friday, February 10, 2017. It is two pages (and 23 cases) long.

Two transfers were granted last week:

In addition, there were two cases last week where transfer was denied by a 3-2 vote:

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Transfer Lists

Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (0):

NFP civil decisions today (2):

Katherine Fraze v. The Floyd County Health Department and The City of New Albany Department of Animal Control (mem. dec.)

Lori A. Spang v. Timothy R. Spang (mem. dec.)

NFP criminal decisions today (2):

Charles Goodman v. State of Indiana (mem. dec.)

Josselyn Patricia Johnson v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Ind. App.Ct. Decisions

Courts - Want to know more about federal district courts issuing national injunctions?

On Nov. 3, 2016, Amanda Frost had this "Academic Highlight" in SCOTUSblog that began:

Should a single district court judge issue a nationwide injunction against the federal government? That question was front and center in the aftermath of the Supreme Court’s tie vote in United States v. Texas, which left in place a nationwide preliminary injunction barring the Obama administration from granting a temporary reprieve from removal to certain unauthorized immigrants. Would-be beneficiaries of President Barack Obama’s initiative have filed lawsuits in Illinois and New York, arguing that the injunction should not apply outside the states that were parties to the lawsuit. The propriety of nationwide injunctions has come up recently in other contexts as well. Over the past few months, district courts have issued nationwide injunctions barring implementation of the Labor Department’s “persuader rule” and the Education Department’s transgender bathroom policy. Did these courts overstep their bounds?
And of course it has come up again this month, in State of Washington v. Donald Trump, re the travel ban.

Frost's SCOTUSblog article continued:

In a new paper, UCLA School of Law professor Samuel Bray examines the history of nationwide injunctions, as well as their costs and benefits. He concludes with a sensible proposal for limiting such injunctions and argues that the Supreme Court has both the power to impose such a rule and the incentive to do so to ensure that legal issues have a chance to percolate in the courts of appeal.
Here is the abstract to the 63-page, Feb. 9, 2017 version of Bray's paper, "Multiple Chancellors: Reforming the National Injunction."
In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants’ behavior with respect to non-parties. This Article offers a new analysis of the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. It considers the consequences of the national injunction: more forum-shopping, worse judicial decision-making, a risk of conflicting injunctions, and tension with other doctrines of federal courts. This Article makes two further contributions.

First, it shows that the national injunction is a recent development in the history of equity, traceable to the second half of the twentieth century. There was structural shift at the Founding from a single-chancellor model to multiple-chancellor model, though the vulnerabilities in the latter did not became visible until the mid-to-late twentieth century, with changes in how judges thought about legal challenges and invalid laws. Only with those changes did the national injunction emerge.

Second, this Article proposes a single clear principle for the scope of injunctions against federal defendants. A federal court should give what might be called a “plaintiff-protective injunction,” enjoining the defendant’s conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This principle is based on Article III's grant of "the judicial Power," which is a power to decide cases for parties; and on the practice of traditional equity.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Courts in general

Environment - "'It’s devastating,' says a former Interior Department employee who worked on one of dozens of regulations in Congress' cross hairs"

This story today in Politico, reported by Alex Guillén And Marianne Levine, begins:

Joe Pizarchik spent more than seven years working on a regulation to protect streams from mountaintop removal coal mining.

It took Congress 25 hours to kill it.

The rule is just one of dozens enacted in the final months of the Obama administration that congressional Republicans have begun erasing under a once-obscure law — much to the dismay of agency staffers who hauled those regulations through the long process to implementation.

“My biggest disappointment is a majority in Congress ignored the will of the people,” said Pizarchik, who directed the Interior Department’s Office of Surface Mining Reclamation and Enforcement from 2009 through January. “They ignored the interests of the people in coal country, they ignored the law and they put corporate money ahead of all that.”

The arrival of a Republican president opened the door for GOP lawmakers to employ a rarely used legislative tool, the Congressional Review Act of 1996, to nullify executive branch regulations issued since mid-June. The act allows lawmakers to sandblast recently enacted rules with a simple majority vote — as they did last week to the stream regulation, which the Interior Department had completed in December.

President Donald Trump is expected to sign off on that repeal, along with others moving through the Capitol.

Congress has successfully used the 1996 law only once before, but Republicans are wielding it now to slash away potentially dozens of late-term Obama rules. That has left officials who spent years working on those rules feeling rubbed raw.

ILB: The ILB has a very long list of posts on mountaintop mining.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Environment

Ind. Gov't - What can happen when Gov. and Attorney General are of different parties ...

Example: Kentucky. From the Lexington Herald Leader on Friday, a story by Daniel Desrochers that begins:

FRANKFORT The feud between Gov. Matt Bevin and Attorney General Andy Beshear continued Friday as Bevin accused Beshear of shirking his duty and Beshear publicly responded to a request for information filed by the governor that sought details about the inner workings of Beshear’s office.

In a news conference live-streamed on YouTube, Beshear defended the accomplishments of his office over the past year, saying he wanted to be as transparent as possible with the public.

“I’m not the governor’s lawyer, or the legislature’s lawyer. I’m the people’s lawyer,” Beshear said.

By releasing his response to Bevin publicly, Beshear said, “I believe the information can’t be taken out of context, regardless of who would take it out of context. You can’t take just one line from a letter and use it in any way to mislead people.”

Beshear, a Democrat, was responding to two requests issued under Section 78 of the Kentucky Constitution, which allows Bevin, a Republican, to request information from the other constitutional officers. Beshear said he has received approximately five of those requests since taking office in January 2016. * * *

Beshear’s news conference came hours after Bevin’s office issued a news release that said, “Beshear has not lifted a finger to defend the constitutionality of HB 2.”

Bevin was referring to a lawsuit filed by the ACLU of Kentucky that challenges the constitutionality of a law approved last month that requires women to view the results of an ultrasound before getting an abortion.

ILB: Of course, a Governor and separately elected Attorney General of the same party also may differ.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Government

Ind. Courts - Vacancies on 7th Circuit, Northern & Southern Districts of Indiana, and U.S. Attorney positions

U.S. Senator Todd Young has a webpage requesting applications from qualified individuals who would like to be considered for an appointment as a federal judge, U.S. Attorney, or U.S. Marshall. More:

Federal Judge Applications

Indiana currently has four judicial vacancies: three in the District Court (Northern, Fort Wayne; Northern, South Bend; Southern, Indianapolis) and one in the 7th Circuit Court of Appeals.

U.S. Attorney Applications

Indiana has two U.S. Attorney vacancies: one in the Northern District and one in the Southern District.

U.S. Marshall Applications

Indiana
has two U.S. Marshall vacancies: one in the Northern District and one in the Southern District.

Links to the applications are provided.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Indiana Courts

Law - Voting rights and redistricting reform are focus of weekend editorials

The Sunday NY Times editorial is headed "Republicans Hold On to a Myth to Hold On to Power." It begins:

Given the increased political power Republicans won in the last elections, from Washington to red-state legislatures, voters might expect the party to feel that the nation’s voting procedures are working quite well. Yet this is far from the case, as triumphant Republicans are using their enhanced clout to continue their campaign playing up the mythical threat that voter fraud abounds in the nation.

The newest and loudest zealot in this cause is, of course, President Trump, with his scurrilous claim that millions of illegal ballots cost him a popular vote majority. His baseless claim only encourages the renewed efforts at voter suppression reported to be underway in a score of Republican-dominated statehouses intent on making it harder for citizens to register or vote.

Mr. Trump is trying to sell the false idea that he was fraudulently denied a clear mandate. Republican state legislators, in turn, are no more convincing but just as cynical in insisting that elaborate new ballot protections are needed — protections that effectively target poor people, minorities and students, who tend to favor Democratic candidates.

In the Fort Wayne Journal Gazette's Sunday Centerpiece this weekend, Julia Vaughn, director of Common Cause Indiana, writes that "Stalled redistricting efforts need citizens' push."
The 2017 Indiana General Assembly is in full swing, and lots of important issues are getting their time in the legislative spotlight. * * *

House Bill 1014
, legislation that would put a politically balanced and diverse group of Hoosier voters in charge of redistricting, has yet to receive a hearing in the House Elections Committee. If that doesn’t change soon, redistricting reform will be dead for this session. We can’t let that happen.

This issue is so important that the Indiana Bicentennial Visioning Project, led by the much-respected bipartisan team of former congressman Lee Hamilton and former lieutenant governor Sue Ellsperman identified ending gerrymandering as one of Indiana’s most important challenges as we enter our third century. Unfortunately, too many lawmakers are ignoring this call for change. * * *

Let your state representative and state senator know you want an end to gerrymandering and a citizens’ redistricting commission in place before the next round of redistricting in 2021. Tell them we need a group that is truly independent of the legislature to draw the new maps and they must operate in a way that encourages public participation and that is fully transparent. Remind your legislators that it’s not their district, that it belongs to the voters and that we need to play a role in designing what they look like.

ILB: According to this House Election and Appointment Committee webpage (which also lists the membership), the Committee does not even have another meeting scheduled.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to General Law Related

Ind. Decisions - Upcoming oral arguments this week and next

This week's oral arguments before the Supreme Court (week of 2/13/17):

Thursday, February 16

Next week's oral arguments before the Supreme Court (week of 2/20/17):

Thursday, February 23

Webcasts of Supreme Court oral arguments are available here.


This week's oral arguments before the Court of Appeals (week of 2/13/17):

Wednesday, February 15

Thursday, February 16

Next week's oral arguments before the Court of Appeals (week of 2/20/17):

Friday, February 24

ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.

Past Court of Appeals oral arguments 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.

Posted by Marcia Oddi on Monday, February 13, 2017
Posted to Upcoming Oral Arguments