Monday, March 13, 2017
Ind. Courts - 11th Circuit panel rules: Discrimination against gay workers not prohibited
From WHIO (Dayton, OH), this AP story by Kate Brumback:
ATLANTA — In a setback for gay rights advocates hoping for an expansion of workplace discrimination protections, a federal appeals court in Atlanta has ruled that employers aren't prohibited from discriminating against employees because of sexual orientation.And here is a long report by Bill Rankin of the Atlanta Journal-Constitution. Some quotes:
A three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday ruled 2-1 that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on a variety of factors, doesn't protect against workplace discrimination based on sexual orientation.
The case was one of two that Lambda Legal had pending before federal appeals courts — along with an Indiana case at the 7th U.S. Circuit Court of Appeals in Chicago — that the LGBT rights group had hoped would mark a significant step forward for gay rights. [ILB: That would be Hively] * * *
In a similar case, a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago in July upheld a lower court's dismissal of a 2014 lawsuit filed by Kimberly Hively of South Bend, Indiana, a former part-time instructor who said Ivy Tech Community College in her hometown didn't hire her full time because she is a lesbian.
The full 7th Circuit vacated that panel's decision, and all 11 of the court's judges reheard the case in November. The ruling has not yet been announced, but several of the judges seemed to signal during oral arguments that they were ready to broaden the scope of the 53-year-old civil rights law.
Lambda Legal attorneys said they plan to ask the 11th Circuit to vacate the Evans ruling and have the full 11-judge court rehear the case, like the 7th Circuit did in the Hively case.
"This is not the end of the road for us and certainly not for Jameka," attorney Greg Nevins said in an emailed statement. "There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period."
Federal law does not prohibit employers from discriminating against workers because they are lesbian or gay, an Atlanta appeals court has ruled.ILB: The case is Jameka Evans v. Georgia Regional Hospital. Here is the 55-page opinion, issued 3/10/17.
The 11th U.S. Circuit Court of Appeals, in a 2-1 ruling issued Friday, denied the LGBT community what could have been a landmark court victory. Instead, the court declined to expand workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, sex, religion and national origin.
The decision sparked pointed exchanges between dissenting Judge Robin Rosenbaum, an appointee of President Barack Obama, and Judge Bill Pryor, the former Alabama attorney general who was recently on President Donald Trump’s short list to fill a U.S. Supreme Court vacancy. In his concurring opinion, Pryor drew a distinction between being gay and behaving as a gay person might. That is, homosexuals are not a protected class under the law, but they may not be discriminated against because of the way they dress or the way they behave. In her dissent, Rosenbaum ridiculed that argument as a “defiance of logic.” * * *
In her dissent, Rosenbaum wrote: “There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity, because not being straight is gender-nonconforming, period.”
Ind. Courts - More on "Newburgh attorney pleads guilty to impersonating public servant"
Supplementing this May 20, 2015 ILB post, quoting a story from that date by Mike Wilson of the Evansville Courier & Press that ended [ILB emphasis]:
A second felony charge of impersonating a public servant is still pending in Warrick County for what officials say was a similar incident there two weeks after Oberst’s Gibson County traffic stop. He is next scheduled to appear in court there at 9 a.m. June 15.Reporter Wilson writes today:
A Newburgh attorney who falsely claimed to be a deputy prosecutor to escape a speeding ticket has been convicted of a felony after a bench trial in Warrick County.Oberst's record on the Indiana Roll of Attorneys indicates "active in good standing," and "no disciplinary history."
Warrick County Circuit Court Judge Greg Granger issued his ruling, convicting attorney Brian J. Oberst of the level 6 felony on Friday, according to court records.
The ruling came two weeks after Granger listened to arguments from both sides in a bench trial because Oberst opted not to be tried by jury. * * *
"This is the only criminal conviction Oberst has ever had," [attorney Douglas Walton, who represents Oberst] said.
An arrest in a similar incident involving Oberst in Gibson County did not result in a conviction. Instead, the charge was dismissed in May 2016 after Oberst successfully completed a year of probation.
With no criminal convictions on his record, Oberst has continued to practice law in good standing. * * *
The Warrick County incident happened two weeks after a similar incident when a Gibson County Sheriff’s deputy stopped Oberst for speeding on U.S. 41. Oberst reportedly also claimed to be a current deputy prosecutor in that case.
Ind. Decisions - Transfer list for week ending March 10, 2017
Here is the Clerk's transfer list for the week ending Friday, March 10, 2017. It is one page (and 1 case) long.
One transfer was granted last week, with opinion:
- Cheryl L. Underwood v. Judith M. Fulford, et al. - transfer was granted and opinion issued on March 6th, per this ILB post, headed "Supreme Court issues 1 today, re presumption in favor of a tenancy by the entirety between spouses."
Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 7 NFP memorandum decision(s))
For publication opinions today (3):
In Termination: KC, et al. v. Indiana Department of Child Services, a 20-page opinion, Judge May writes:
M.M. (“Mother”) and K.C. (“Father”) (collectively, “Parents”) appeal the involuntary termination of their parental rights to G.M. (“Child”). Mother challenges a number of the juvenile court’s findings and argues the Department of Child Services (“DCS”) did not present sufficient evidence the conditions under which Child was removed would not be remedied and termination was in the best interests of Child. Father makes similar arguments, but we find dispositive his argument the juvenile court could not terminate his rights when it had never issued a dispositional decree as to Father. We affirm in part, reverse in part, and remand. * * *In Derrian N. Hampton v. State of Indiana, a 19-page opinion, Judge Kirsch writes:
The juvenile court erred when it terminated Father’s parental rights to Child because Child had not been removed from Father under a dispositional decree for at least six months as required by Indiana Code Section 31-35-2- 4(b)(2)(A)(i). However, DCS presented sufficient evidence to support the juvenile court’s findings regarding Mother, including the juvenile court’s conclusions the circumstances under which Child was removed would not be remedied and termination was in Child’s best interests. Therefore, we reverse the termination of Father’s parental rights to Child, affirm the termination of Mother’s parental rights to Child, and remand to the juvenile court for proceedings consistent with this opinion.
After the State filed a petition for revocation of Derrian Hampton’s (“Hampton”) suspended sentence, alleging probation violations, Hampton and the State entered into an Agreement on Petition to Revoke Suspended Sentence (“the Agreement”). In the agreement, Hampton admitted to a probation violation and was ordered to serve the balance of a previously-suspended sentence, and the State agreed to stay execution of the sentence for approximately six months. At the end of such time a review hearing would be held and, if Hampton had completed all terms and conditions of probation, the petition for revocation of suspended sentence would be dismissed. The trial court accepted the Agreement and entered an order. Following the review hearing, the trial court issued an Order on Violation of Probation, ordering Hampton to serve the previously-suspended sentence. The trial court denied Hampton’s Motion to Correct Error Alternatively Motion to Reconsider (“Motion to Reconsider”), and Hampton now appeals, raising three issues that we consolidate and restate as: Whether the trial court abused its discretion when it denied Hampton’s Motion to Reconsider. * * *In Argumedo Alvarez-Madrigal v. State of Indiana, a 24-page opinion with a separate concurring opinion, Judge Kirsch writes:
Following our Supreme Court’s direction in Woods and our colleagues’ application of that reasoning in Sullivan, we reverse the 550-day sanction and remand the matter to the trial court for it to determine the appropriate sanction to impose for Hampton’s violations of its order.
We affirm the trial court’s determination that Hampton violated the terms and conditions of her probation, and we remand the matter to the trial court for it to determine the appropriate sanction to impose for Hampton’s violations.
Following a jury trial, Argumedo Alvarez-Madrigal (“Alvarez-Madrigal”) was convicted of four counts of Class A felony child molesting1 and two counts of Class C felony child molesting. He appeals, contending that a statement by a State’s witness constituted impermissible vouching evidence and that it was reversible error to admit it. * * *NFP civil decisions today (2):
The record before us indicates that there was substantial independent evidence of guilt supporting Alvarez-Madrigal’s convictions. We do not find that Dr. Thompson’s isolated factual statistic, which was not elicited and was spontaneously offered, likely had substantial influence on the verdict. * * *
Robb, J., concurs.
Barnes, J., concurs in result with separate opinion. [that begins, at p. 18] I concur in result here. I do not believe Alvarez-Madrigal adequately preserved his claim on appeal that Dr. Thompson gave impermissible vouching testimony. He objected to the testimony on the basis that it was “speculation” and “not relevant . . . .” A party cannot object on one basis at trial and seek reversal on appeal on a different ground.
NFP juvenile and criminal decisions today (5):
Ind. Law - Even more on "Could Indiana pass forfeiture reform this year?"
Updating this March 7th ILB post (which mentions the Supreme Court oral argument coming this Thursday in State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2, federal Judge Magnus-Stinson (SD Ind.) issued a ruling of interest March 7th denying Marion County's motion to dismiss in a lawsuit challenging Indiana's forfeiture statute. Some quotes from the 6-page Order in Leroy Washington v. Marion County Prosecutor:
Plaintiff Leroy Washington’s car was seized and held for forfeiture following his arrest, pursuant to Ind.Code 34-24-1-2(a)(1). Mr. Washington commenced this action against Defendants the Marion County Prosecutor (the “Prosecutor”), the Mayor of the Consolidated City of Indianapolis/Marion County (the “Mayor”), and the Chief of the Indianapolis Metropolitan Police Department (the “Chief”) in their official capacities, challenging the forfeiture statute (and the Defendants’ enforcement of it) as unconstitutional. Presently pending before the Court is the Defendants’ Motion to Dismiss Mr. Washington’s Complaint. For the reasons that follow, the Court denies the Defendants’ Motion. * * *
On November 2, 2016, Mr. Washington filed a Complaint in this Court, on behalf of himself and other putative class members. Mr. Washington alleges that Ind.Code 34-24-1-2(a)(1) violates the Due Process Clause of the United States Constitution, and is therefore illegal, because “it allows the executive branch to seize and hold the vehicle of an owner for several months without affording the owner the right to a postseizure hearing to challenge the seizure.” * * *
The Defendants argue that because Mr. Washington’s vehicle is being released to him, “no relief can be granted to [Mr.] Washington under the claims asserted in this lawsuit.” They contend that “this matter is now moot and must be dismissed.” Mr. Washington responds that the “inherently transitory” doctrine and the “capable of repetition” doctrine both apply in this case, and that those doctrines make clear that his claims have not been mooted by the Defendants’ actions. * * *
The Court therefore concludes that Mr. Washington’s claim has not been mooted, and a class certification will “relate back” to the filing of the complaint.
Environment - Ruckelshaus on his return to U.S. EPA in 1983
This Jan. 31st ILB post related Indiana's Williasm Ruckelshaus' taking the job of U.S. EPA head a second time, in 1983, after Reagan's dismissal of Anne Gorsuch Burford, who (quoting the Denver Post):
... was Environmental Protection Agency director for the Reagan administration for 22 months. She slashed the agency’s budget and resigned under fire in 1983 during a scandal over mismanagement of a $1.6 billion program to clean up hazardous waste dumps.Last week Mr. Ruckelshaus, in a long op-ed the NY Times, wrote of "A Lesson Trump and the E.P.A. Should Heed." Some quotes:
In March 1983, President Ronald Reagan asked me to return to Washington to run the Environmental Protection Agency. I had been the E.P.A.’s first administrator, from 1970 to 1973, and over the agency’s first 10 years, it made enormous progress in bringing the country’s worst pollution problems under control despite resistance from polluting industries and their lobbyists. A worried and outraged public had demanded action, and the government responded.In contrast, see this March 9th Washington Post story by Chris Mooney and Brady Dennis, headed "On climate change, Scott Pruitt causes an uproar — and contradicts the EPA’s own website." It begins:
Yet the agency and its central mission came under attack during the 1980 presidential campaign. The Clean Air Act was criticized as an obstacle to growth. The agency was seen as bloated, inefficient, exceeding its congressional mandates and costing jobs. The Reagan administration and its new administrator were going to fix that. Sound familiar?
The E.P.A. I returned to in the spring of 1983, some 28 months into President Reagan’s first term, was dispirited and in turmoil. Its administrator, Anne M. Gorsuch, had been cited for contempt of Congress. Its budget had been reduced by almost 25 percent, with more cuts promised. Staffing had been slashed. * * *
While I awaited Senate confirmation hearings that April, several chemical industry chief executives asked to meet with me. I expected to hear complaints that over-regulation was stifling economic growth, just as I had heard 10 years earlier.
Instead, I was stunned by their message. The public, they told me, was spooked about the turmoil at E.P.A. Americans didn’t believe anything was being done to protect their health and the environment. They didn’t believe the E.P.A., and they didn’t believe the chemical industry. These executives had concluded that they needed a confident, fair and independent E.P.A. They knew that an environmental agency trusted by the public to do its job gave their businesses a public license to operate. * * *
Our collective freedom and well-being depends on a set of restraints that govern society and how it operates. Those restraints need to be clear and effective. They were not in 1983.
The E.P.A.’s new administrator, Scott Pruitt, comes to his job with this historical backdrop. Are there changes that can be made to improve how the agency operates? Certainly. But those changes can never be seen as undercutting or abandoning the E.P.A.’s basic mission. That was the mistake made during the early Reagan years and why I was asked to return.
One of the factors leading to the creation of E.P.A. was the recognition that without a set of federal standards to protect public health from environmental pollution, states would continue to compete for industrial development by taking short cuts on environmental protection. The laws that the E.P.A. administers create a strong federal-state partnership that has worked well for over 40 years. The federal government sets the standards and the states enforce them, with the E.P.A. stepping in only if the states default on their responsibilities.
Scott Pruitt, the nation’s top environmental official, strongly rejected the established science of climate change on Thursday, outraging scientists, environmentalists, and even his immediate predecessor at the Environmental Protection Agency.
“I think that measuring with precision human activity on the climate is something very challenging to do and there’s tremendous disagreement about the degree of impact, so no, I would not agree that it’s a primary contributor to the global warming that we see,” Pruitt, the newly installed EPA administrator, said on the CNBC program “Squawk Box.”
“But we don’t know that yet,” he continued. “We need to continue the debate and continue the review and the analysis.”
His comments represented a startling statement for an official so high in the U.S. government, putting him at odds not only with other countries around the globe but also with the official scientific findings of the agency he now leads. President Trump in the past has called the notion of human-fueled climate change a hoax. And other cabinet members, including Secretary of Energy Rick Perry, have previously questioned the scientific basis for combating global warming.
Ind. Gov't. - "Did Noblesville break the law with secret meeting?"
John Tuohy of the Indianapolis Star reported this weekend in a lengthy story:
Noblesville's mayor admitted the city likely violated Indiana’s public access law when it held a secret meeting to discuss the sale of park land to a developer, a practice critics say limits exposure to controversial proposals.
John Ditslear had defended the March 1 meeting for days, saying the private parks board meeting was needed so officials could review a proposal to sell part of Seminary Park before making it public. But two experts on the state's “open door” law said the city's justification for holding the closed door meeting did not pass muster.
In response to inquires from IndyStar, Ditslear released a statement Friday afternoon, saying, "we have reviewed the statute and a strict interpretation could mean this was not a permitted use of executive session.” * * *
City attorney Michael Howard said Wednesday that executive sessions are often used to “run something up the flag pole” to measure what kind of initial response it gets from councilors before making a formal introduction in an open setting.
But Stephen Key, executive director of the Hoosier State Press Association, said the mayor’s comments revealed a fundamental lack of understanding about the purpose of executive sessions. Issues of with high public interest such as the sale of park land should be debated in the open through committees, planning boards, commissions other public forums.
Secret meetings are reserved for sensitive legal, personal or bargaining matters that could harm the government if they were revealed, experts said.
“What it does is delay the point at when the public is aware that this is happening and someone can jump up and say, ‘Hey. I object to this,’” Key said. “The presentation of ideas is not subject matter for an executive session. "Secrecy by city officials (puts) the city in a bad light, not the public airing of innovative ideas.”
Unlike public meetings, executive sessions are closed to citizens and a record of what is discussed is kept secret. But the topics are limited by the Indiana Open Door and Open Records Law to a relatively narrow and sensitive handful: employee contracts and litigation, job interviews and performance evaluations and the purchase or lease of property by the government. * * *
Indiana public access counselor Luke Britt called it “a real stretch” to conclude that selling city property or discussing a residential project could qualify for an executive session.
“I don't buy that, on either point," Britt said. "There is a clear legal difference between what is commercial and industrial and what is residential. And I don't see how submitting development plans qualifies as an interview or negotiation." * * *
The substance of the meeting was revealed by third-term Councilor Mary Sue Rowland, who served eight years as mayor. Rowland, who opposed the plan to sell the park land, told a reporter for the Times of Noblesville details of the meeting and project. Rowland told IndyStar she had no qualms about revealing what the meeting was about because she didn’t think it should have been behind closed doors.
Ind. Courts - Trump announcement sweeps out U.S. Prosecutor for N.D. Indiana
The AP is reporting:
HAMMOND. - The federal prosecutor for northern Indiana has resigned after President Donald Trump sought the dismissals of dozens of U.S. attorneys nationwide who were holdovers from the Obama administration.Here is a longer story, with photos, from the Gary Post-Tribune.
The U.S. attorney’s office in Hammond said David Capp resigned after 31 years as a federal prosecutor. * * *
Trump’s Friday request for resignations didn’t include Indianapolis U.S. Attorney Josh Minkler. He’s a career prosecutor appointed by the district’s federal judges after Obama appointee Joe Hogsett resigned in 2014 to start his successful campaign for Indianapolis mayor.
The NY Times yesterday had a major story on the resignation/firing of Preet Bharara, the very visible United States attorney in Manhattan.
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 3/13/17):
- No oral arguments scheduled.
Thursday, March 9
- 9:00 AM - State of Indiana v. Tyson Timbs and a 2012 Land Rover LR2 (27S04-1702-MI-00070) The State sought forfeiture of a Land Rover owned by Timbs, who had pled guilty to Class B Felony dealing in a controlled substance and Class C Felony theft. The Grant Superior Court entered judgment for Timbs on the forfeiture complaint. A majority of the Court of Appeals affirmed on grounds forfeiture of the vehicle, worth approximately $40,000, would violate the 8th Amendment’s prohibition against excessive fines. State v. Timbs, 62 N.E.3d 472 (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 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."
- 9:45 AM - Charles McKeen, M.D. v. Billy Turner (53A05-1511-CT-02047) In medical malpractice litigation, the doctor moved to strike an expert’s opinion on grounds it raised a theory of malpractice the plaintiff had not presented in prior proceedings before the medical review panel. The Monroe Circuit Court denied the motion to strike. The Court of Appeals affirmed, holding a plaintiff may raise any theory of malpractice in litigation following the panel review process if the proposed complaint and evidence submitted to the panel encompassed the theory. McKeen v. Turner, 61 N.E.3d 1251 (Ind. Ct. App. 2016). The doctor has petitioned the Court to accept jurisdiction over this appeal.
ILB: This is an Oct. 4th COA opinion (and is Judge Baker's 5,000th authored majority Court of Appeals opinion).
- 10:30 AM - Jordan Jacobs v. State of Indiana (49A02-1601-CR-00019) Jacobs was arrested and charged with carrying a handgun without a license. The Marion Superior Court convicted him after a bench trial, rejecting his claim that police stopped him in violation of the Indiana and United States Constitutions. A majority of the Court of Appeals affirmed. Jacobs v. State, 62 N.E.3d 1253 (Ind. Ct. App. 2016). Jacobs has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a 2-1, Nov. 7, 2016 COA opinion (2nd case): "Jacobs contends that the trial court abused its discretion in admitting the handgun into evidence at trial because the handgun was recovered in violation of Jacob’s rights under the Fourth Amendment and Article I, Section 11. ".
This week's oral arguments before the Court of Appeals (week of 3/13/17):
Tuesday, March 14
- 1:00 PM - Joseph Lee Pierson v. State of Indiana (89A05-1306-CR-00311) On February 5, 2012, four-month-old K.H.—Joseph Pierson’s son—passed away due to severe malnutrition. Pierson suffers from severe mental retardation. Pierson was ultimately convicted of and sentenced for class A felony neglect of a dependent resulting in death. On appeal, Pierson asks that this conviction be reversed and that a conviction for reckless homicide (which the jury also found him guilty of, but was vacated out of double jeopardy concerns) should be entered instead. Pierson argues that he could not have the requisite intent for neglect of a dependent because of his mental handicap, and that someone with his handicap cannot be legally obligated to take care of another person. Pierson also challenges the use of a video deposition of a State witness, which violated the jury’s right to ask that witness questions. Finally, Pierson argues that a State expert witness should not have been allowed to testify that an insanity defense can only be proven by demonstrating “psychosis.” The Scheduled Panel Members are: Judges Baker, Najam, and Altice. [Where: Vincennes University, Vincennes, IN]
- 6:30 PM - Thomas M. Clark v. State of Indiana (45A03-1610-CR-02300) Thomas Clark challenges his conviction for resisting law enforcement. He argues that the State failed to present sufficient evidence to prove beyond a reasonable doubt that the police ordered him to stop or that he fled from police when he was driving his car. The Scheduled Panel Members are: Judges Baker, Kirsch, and Bradford. [Where: Culver Academies, Culver, IN ]
Thursday, March 23
- 11:00 AM - Wyatt Severance v. New Castle Community School Corporation (33A01-1609-CT-02088) In 2013, Wyatt Severance and Turner Melton were both enrolled in a vocational education program through New Castle Community School Corporation. A physical altercation between the two students resulted in a serious leg injury to Severance, who filed a civil complaint against the school corporation, alleging negligence. The school corporation moved for summary judgment on two grounds: first, that Severance was contributorily negligent in bringing about his injuries, thereby barring any recovery, and second, that the school did not breach its duty to Severance. During the summary judgment stage, Severance designated an expert affidavit, which the school corporation moved to strike. The trial court granted the school’s motion to strike and the school’s motion for summary judgment. Severance now appeals. The Scheduled Panel Members are: Judges Baker, Robb, and Altice. [Where: 2325 Chester Blvd., Richmond, IN]
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.