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.
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.
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:
- State of Indiana v. Tyson Timbs - this was a 2-1, Oct. 20, 2016 COA opinion where the majority held "that forfeiture of the Land Rover violated the Excessive Fines Clause of the Eighth Amendment."
- T.A. v. State of Indiana -this was an Oct. 19, 2016 COA opinion (3rd case) re whether the juvenile court was permitted to consider T.A.’s post-petition criminal charge in granting a petition for expungement. The now-vacated COA opinion reversed the denial.
In addition, there were two cases last week where transfer was denied by a 3-2 vote:
- Carl Wayne Montgomery v. Patricia Ann Montgomery - Transfer Denied - Rucker, Massa, and Slaughter, JJ., concur. David, J., dissents with separate opinion in which Rush, C.J., joins.
See this ILB post from last Thursday, headed "Rare written dissent filed in denial of petition to transfer."
- State of Indiana v. Christopher J. Basinger - Transfer Denied - All Justices concur, except Rush, C.J., and Massa, J., who vote to grant the petition to transfer. This was an Oct. 12, 2016, 2-1 NFP COA decision.
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):
NFP criminal decisions today (2):
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.
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.ILB: The ILB has a very long list of posts on mountaintop 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.
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.ILB: Of course, a Governor and separately elected Attorney General of the same party also may differ.
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.
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 ApplicationsLinks to the applications are provided.
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.
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.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 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.
The 2017 Indiana General Assembly is in full swing, and lots of important issues are getting their time in the legislative spotlight. * * *ILB: According to this House Election and Appointment Committee webpage (which also lists the membership), the Committee does not even have another meeting scheduled.
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.
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 2/13/17):
Thursday, February 16
- 9:00 AM - Bob Leonard v. State of Indiana (02S00-1604-LW-00185) After a change of venue from Marion County, a jury trial was held in the Allen Superior Court, where Leonard was convicted of murdering two people, conspiracy to commit arson, and multiple counts of arson. Leonard received a sentence of life imprisonment without parole and a term of years. In this direct appeal, Leonard challenges his murder convictions and life sentence.
Thursday, February 23
- 9:00 AM - Gregg Appliances, Inc. and HH Gregg, Inc. v. Dwaine Underwood, on behalf of himself and all others similarly situated (49S02-1701-PL-00025) Senior managers of Gregg Appliances filed a class action alleging they are owed bonuses for fiscal year 2012 because Gregg agreed to pay bonuses based on a measure that includes Gregg’s one-time receipt of life insurance proceeds. On the parties’ cross-motions for summary judgment, the Marion Superior Court denied Gregg’s motion and granted the managers’ motion. The Court of Appeals reversed and remanded with instructions to enter summary judgment for Gregg. Gregg Appliances, Inc. v. Underwood, 57 N.E.3d 831 (Ind. Ct. App. 2016), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 7/22/16 COA opinion re calculation of bonuses. COA reversed trial court and granted summary judgment for Gregg.
- 9:45 AM - Indiana Alcohol and Tobacco Commission v. Spirited Sales, Inc. (49S00-1611-PL-00614) Spirited Sales, LLC applied for a permit to wholesale liquor in Indiana. The Indiana Alcohol and Tobacco Commission denied Spirited’s application on the basis it would create a prohibited interest in conflict with Indiana Code section 7.1-5-9-4. The Marion Superior Court reversed, and ordered the Commission to issue Spirited’s permit. The Indiana Supreme Court granted transfer pursuant to Appellate Rule 56(A) and has assumed jurisdiction over the appeal.
ILB: The Supreme Court granted Emergency (56A)transfer of the trial court decision on Nov. 22, 2016. Justice Massa did not participate. For more information, see these Aug. 29th and a second Aug. 29th ILB posts, the latter of which includes the trial court ruling.
This week's oral arguments before the Court of Appeals (week of 2/13/17):
Wednesday, February 15
- 1:00 PM - Admiral Insurance Company v. Joseph Banasiak, et al. (45A05-1604-PL-00859) In April 2014, the Estate of Dr. Zadeh filed a complaint for declaratory judgment, argued that Admiral was obligated to satisfy any award imposed against Dr. Zadeh due to his alleged negligence because it failed to notify the Commissioner of the Indiana Department of Insurance of the early cancellation of the policy, and requested the court to declare that Admiral was required to defend and indemnify Dr. Zadeh against the claims asserted by Muehlman. In May 2015, Admiral filed a motion for summary judgment and argued that the Estate’s complaint for declaratory judgment was untimely filed under the policy, that Dr. Zadeh had failed to provide timely notice of Muehlman’s claim to Admiral, and that Ind. Code § 34-18-13-4 did not render ineffective the policy’s reporting and notice provisions. The trial court found that the cancellation of the policy was ineffective as to Muehlman’s claim because Admiral failed to comply with Ind. Code § 34-18-13-4, denied Admiral’s motion for summary judgment, and granted the Estate’s request for declaratory judgment. Admiral now appeals. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 10:00 AM - Roman Allen v. State of Indiana (87A05-1606-CR-01277) Roman Allen challenges his conviction for resisting law enforcement. He argues that the State failed to present sufficient evidence to prove beyond a reasonable doubt that he forcibly resisted arrest. He also argues that if he did resist arrest, he was privileged to do so because the arresting officers used excessive force against him. The Scheduled Panel Members are: Judges Baker, Robb and Altice. [Where: Ivy Tech Community College, Indianapolis Culinary and Conference Center, 2820 N. Meridian St., Indianapolis, IN 46208]
- 1:30 PM - Angel Shores Mobile Home Park, Inc. v. Crays, et al. (79A02-1605-CT-01106) Angel Shores Mobile Home Park, Inc. appeals the award of attorney’s fees and costs to John and Megan Crays under the Child Wrongful Death Act (CWDA). Angel Shores argues the award is not authorized under the CWDA. The Crays argue the attorney’s fees and costs were allowed under the CWDA, or, in the alternative, Angel Shores’ appeal should be dismissed because both parties signed an Agreed Stipulation indicating they would not appeal the trial verdict. In response, Angel Shores argues the attorney’s fees and costs were not covered by the Agreed Stipulation. The Indiana Trial Lawyers Association has filed an amicus brief in support of the inclusion of attorney’s fees and costs under the CWDA. The Scheduled Panel Members are: Judges Najam, Bailey, and May. [Where: Court of Appeals Courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 2/20/17):
Friday, February 24
- 12:00 PM - Elizabeth (Newman) Lewis v. David Newman (67A05-1609-DR-01981) When the marriage of David Newman and Elizabeth Newman (now Lewis) was dissolved in 2008, the trial court incorporated the parties’ property settlement agreement which provided, in relevant part, that David would pay spousal maintenance in a fixed amount each month to Elizabeth until Elizabeth either remarries or becomes eligible to receive payments from David’s retirement account, whichever occurs first. The agreement also provided that in addition to the $1,000.00 per month spousal maintenance payment, Elizabeth was entitled to 25% of the net profits of David’s book royalties. In 2016, David filed a motion to terminate his spousal maintenance obligation, alleging Elizabeth had remarried. Elizabeth agreed the $1,000 monthly payment should be terminated, but disagreed the book royalty payments constituted spousal maintenance that should also be terminated. The trial court first issued an order terminating David’s $1,000 monthly obligation but ordering the book royalty payments to continue. David filed a motion to correct error following which the trial court issued a corrected order also terminating the book royalty payments. Elizabeth now appeals, arguing the trial court improperly modified the parties’ property settlement agreement when it determined the book royalties were to be considered spousal maintenance rather than a distinct category of property. The Scheduled Panel Members are: Judges Baker, Robb, and Barnes. [Where: Culver Cove Resort, Culver, IN]