Friday, February 17, 2017
Courts - More on: "Louisville panhandling law struck down"
Updating this ILB post from Oct. 14, 2016, about the action of a Jefferson District Court judge, Jason Riley reports today in a WDRB Louisville story headed "Kentucky Supreme Court strikes down Lexington panhandling law as unconstitutional." From the start of the story:
LOUISVILLE, Ky. (WDRB) – The Kentucky Supreme Court has ruled that a Lexington law against panhandling is an unconstitutional violation of free speech.Here, via WDRB, is the 14-page, Feb. 16, 2017 Supreme Court of Kentucky opinion in Champion v. Kentucky.
The landmark ruling - which could affect similar laws across the state - stems from the case of Dennis Champion, who was jailed in 2015 for violating a Fayette County ordinance prohibiting “begging and soliciting upon public streets.”
Champion, according to court documents, was caught standing at an intersection holding a sign that read “begging for alms” in December 2014.
On Thursday, the high court ordered the case be dismissed because the law “unconstitutionally abridges freedom of speech under the First Amendment.”
“Despite the societal stigma associated with panhandling, this form of expression is widely considered to be constitutionally protected speech,” the high court ruled in a unanimous decision. “… Freedom of speech does not exist for us to talk about the weather; to accept this liberty is to welcome controversy and to embrace discomfort.” * * *
A Jefferson District Court judge last year ruled Louisville's panhandling law unconstitutional, but the order is only for his court.
Ind. Decisions - Court of Appeals issues 0 opinion(s) today (and 11 NFP memorandum decision(s))
For publication opinions today (0):
NFP civil decisions today (6):
NFP juvenile and criminal decisions today (5):
Victor Gersdorff v. State of Indiana (mem. dec.)
Danny L. Hersley, Jr. v. State of Indiana (mem. dec.)
Nicholas Edward Daugherty v. State of Indiana (mem. dec.)
Ind. Decisions - Supreme Court issues 1 today
In Termination: VG, et al. v. Indiana Department of Child Services, an 8-page, 5-0 opinion, Chief Justice Rush writes:
Few liberties are as central to our society as the right of parents to raise their children. Our General Assembly has thus set a high bar for terminating parental rights—requiring a termination petition to allege four defined elements and commanding dismissal when DCS fails to prove each element by clear and convincing evidence.
The first required element establishes three waiting periods to give parents time to reunify with their children, and bars DCS from seeking termination until one of those three periods has passed. Here, DCS failed to allege the only one of those waiting periods that had in fact passed— that Father’s daughters had been removed from him for at least six months under a dispositional decree. Finding this missing element fatal to DCS’s petitions to terminate Father’s parental rights, we reverse and remand. * * *
We realize that DCS’s failure to allege the six-month waiting period was likely a mere drafting error. But a statutory requirement—even one that seems minor or technical—is still a requirement. And here, where that requirement protects the fundamental rights of parents, it takes on particular importance. Terminating Father’s parental rights in spite of this pleading defect therefore requires reversal.
Conclusion. DCS failed to prove the waiting periods it alleged and failed to allege the waiting period it could have proved. We thus reverse the termination of Father’s parental rights regarding his daughters, Bi.B. and Br.B., and remand for further proceedings consistent with this opinion.
Law - President Trump's executive orders and memoranda
Gregory Korte of USA Today has had several valuable stories recently on President Trump's executive orders.
This story, from Feb. 14th, "White House posts wrong versions of Trump's orders on its website," is eye-catching in itself, but also links to the text of Trump's recent orders. From the story:
By law, the Federal Register version is the legally controlling language. But it can often take several days for the order to be published, meaning that the public must often rely on what the White House puts out — and that's sometimes inaccurate.Reading some of the executive orders reminds the ILB of the famous Truman quote about President Eisenhower, as set out in this prescient, June 3rd, 2016 (worth-reading in full) NYT opinion piece by Eric Posner ("And if Elected: What President Trump Could or Couldn’t Do"):
Mr. Trump’s biggest obstacle to vast power is not the separation of powers but the millions of federal employees who are supposed to work for him. Most of these employees have a strong sense of professionalism and are dedicated to the mission of their agency. They don’t take kindly to arbitrary orders from above. As President Harry Truman said ahead of Dwight D. Eisenhower’s presidency: “He’ll sit here, and he’ll say, ‘Do this! Do that!’ And nothing will happen.”With that in mind, look at the text of this "presidential memorandum on a plan to defeat the Islamic State," directing the Secretary of Defense to "develop the Plan."
See also: On Jan. 24th, reporter Korte published this story, headed "Presidential memoranda vs. executive orders. What's the difference?"
Law - Repealing federal regulations generally difficult
It is not easy to repeal a federal regulation, as Howard Shelanski, who was administrator of the federal Office of Information and Regulatory Affairs from 2013 to 2017, explains in this Washington Post opinion piece. It begins:
Since taking office, President Trump has signed executive orders instructing officials to reconsider regulation of the financial sector and requiring executive departments and agencies to find two rules to repeal for every new one they issue. But translating those promises into action is going to be a lot harder than the president thinks.See also this Jan 27th ILB post: "Trump's regulation freeze makes losers out of some U.S. businesses."
Here’s the rub: It generally takes a new rule to change or remove a regulation that is already on the books. Under long-standing Supreme Court precedent and a law known as the Administrative Procedure Act, agencies must provide a reasoned explanation when they want to change established policy.
Put another way, if an agency wants to abandon a rule it already has in place, it must justify that decision by going through the painstaking process of providing an opportunity for public comment and building a factual record subject to review by the courts. Agencies then have to show that their original decisions were either wrong or have been superseded by events. The law thus requires agencies to be both transparent and accountable, not just in issuing new rules but also in repealing existing rules. The more recent the regulation suggested for repeal, the harder that task tends to be.
Courts - "On eve of confirmation vote, judge orders EPA nominee to release thousands of emails"
The Washington Post is reporting today, in a story by Brady Davis:
An Oklahoma judge on Thursday ordered Scott Pruitt, the state’s attorney general and President Trump’s nominee to lead the Environmental Protection Agency, to turn over thousands of emails related to his communication with the oil, gas and coal industry.From the Huffington Post:
The Center for Media and Democracy has been seeking the release of Pruitt’s correspondence with fossil-fuel representatives under public records laws for more than two years. The group filed suit over Pruitt’s refusal to turn over the documents and requested the expedited hearing that led to the judge’s decision, which was first reported by E&E News.
The ruling by District Court Judge Aletia Timmons, who said there had been “an abject failure to provide prompt and reasonable access to documents requested,” came a day before the Senate is expected to vote on confirming Pruitt to head the EPA, an agency that he has sued repeatedly during the Obama years.
Timmons gave the attorney general’s office until Tuesday to release the records, meaning they likely won’t come to light until after he is sworn in to his new position.
Judge Aletia Haynes Timmons of the District Court of Oklahoma County ruled that the attorney general’s office will have until Tuesday to turn over more than 2,500 emails and other documents. The watchdog group Center for Media and Democracy, with legal representation from the American Civil Liberties Union, had filed a lawsuit against Pruitt earlier this month, alleging that his office had violated Oklahoma’s open records law.From E&E News:
The Center for Media and Democracy sued for his emails. The attorney general's office will have to either turn them over to the group or provide them to the court for inspection, Judge Aletia Haynes Timmons [a state district court judge] said after a 25-minute hearing.
Law - The end of public records, and maybe the end of history?
Adding to these recent stories quoted in a Feb. 2nd ILB post:
- "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.
- "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.
- "The Risks of Sending Secret Messages in the White House: Communication apps with disappearing text could run afoul of presidential records laws—and might not be as secure as they seem. The Atlantic. It begins:
By some accounts, the deluge of leaks detailing the hurdles and setbacks that have troubled the first weeks of the Trump administration have provoked panic among its highest ranks—and prompted top officials to try to identify the leaky staffers. President Trump has tweeted his dismay at the leaks several times, once calling them “illegal.” That’s why, according to a report in The Washington Post, some White House employees have turned to technology to cover their tracks.
The app of choice: Confide, a platform that encrypts messages end-to-end, so that they can only be seen by the sender and the recipient, and deletes every trace of a message as soon as it’s read. (Axios reported last week that Confide has also been taken up in larger Republican circles looking to avoid the fate of Democrats who had their emails hung out to dry by WikiLeaks.)
There are two problems with using Confide to chat with your colleagues in the White House. One has to do with digital security; the other with the law of the land.
- "House members: EPA officials may be using Signal to 'spread their goals covertly': Encrypted messaging app gains new currency under the Trump administration." ArsTechnica. It begins:
Two Republican members of Congress sent a formal letter Tuesday to the Environmental Protection Agency’s Office of the Inspector General, expressing concern that “approximately a dozen career EPA officials” are using the encrypted messaging app Signal to covertly plan strategy and may be running afoul of the Freedom of Information Act.
The open source app has gained renewed interest in the wake of the election of President Donald Trump.
As Ars has reported previously, all Signal messages and voice calls are end-to-end encrypted using the Signal Protocol, which has since been adopted by WhatsApp and other companies. However, unlike other messaging apps, Signal’s maker, Open Whisper Systems, makes a point of not keeping any data, encrypted or otherwise, about its users. (WhatsApp also does not retain chat history but allows for backups using third-party services, like iCloud, which allows for message history to be restored when users set up a new device. Signal does not allow messages to be stored with a third party.)