Tuesday, April 04, 2017
Ind. Decisions - En banc 7th Circuit reverses Hively v. Ivy Tech
The 7th Circuit heard the en banc oral orgument in Hively v. Ivy Tech on Nov. 30, 2016. See this ILB post, which links to the oral argument:
All 9 active judges on the 7th Circuit participated, along with (as the rules provide) the two senior status judges who were on the original panel. This leaves only Senior Judge Manion as a non-participant. So the lineup today was: Wood, Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton.See this list of all earlier ILB posts on Hively, including a long, excellent story written the day of the oral argument by Michael J. Bologna of Bloomberg BNA, that begins:
Discrimination based on sexual orientation might be prohibited by federal law, several Seventh Circuit judges suggested, raising hopes among gay rights advocates that the court is poised to fill a gap in the nation’s anti-bias laws.Today's Ruling: The vote in today's 69-page opinion is 8-3. The lineup of those participating was: Wood, Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton.
Six of the 11 judges of the U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII of the 1964 Civil Rights Act offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.
The judges, hearing oral arguments Nov. 30, expressed frustration with the employer’s strict interpretation of the plain language of the statute.
A critical question before the court is whether Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation.
Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute, John Maley, the attorney for the employer, Ivy Tech Community College, told the court.
Chief Judge Wood authors the opinion; Judge Posner concurs, beginning on p. 24; Flaum, joined by Ripple, join Parts I and II, beginning on p. 35; Sikes, Bauer and Kanne dissent, beginning at p. 41.
CJ Wood's opinion begins:
WOOD, Chief Judge. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.Here is the initial AP coverage, in the Chicago Tribune.
ILB readers may recall this post from March 13, where the 11th Circuit ruled, per the AP, "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."
Vacancy On Supreme Court 2017 - Interviews for Supreme Court finalists set for April 18-19
From the JNC:
The Judicial Nominating Commission will conduct public interviews of eleven finalists for a vacancy on the Indiana Supreme Court. The interview schedule is as follows:
April 18 (Tuesday)
9:30 a.m. – 10:00 a.m. – Hon. Vicki L. Carmichael
10:00 a.m. – 10:30 a.m. – Rep. Thomas W. Washburne
10:30 a.m. – 11:00 a.m. – Hon. Christopher M. Goff
11:15 a.m. – 11:45 a.m. – Mr. William N. Riley
11:45 a.m. – 12:15 a.m. – Hon. Maria D. Granger
12:15 a.m. – 12:45 p.m. – Ms. Elizabeth C. Green
1:00 p.m. – 4:30 p.m. – Lunch and executive session to consider applications
April 19 (Wednesday)
9:00 a.m. – 9:30 a.m. – Hon. Peter R. Foley
9:30 a.m. – 10:00 a.m. – Hon. Matthew C. Kincaid
10:00 a.m. – 10:30 a.m. – Mr. Peter J. Rusthoven
10:45 a.m. – 11:15 a.m. – Ms. Leslie C. Henderzahs
11:15 a.m. – 11:45 a.m. – Hon. Steven L. Hostetler
12:00 p.m. Lunch and deliberations in executive session followed by public vote to select nominees
After deliberation in executive session on April 19, the Commission will publicly vote to send three nominees to the Governor. The Governor has 60 days to select Indiana's next justice once the formal submission is provided by the Commission.
Ind. Decisions - 2-1 7th Cir opinion on SORNA, out of Wis.
In USA v. Lena Haslage (Wis.), a 2-1, April 3, 2017 opinion, Chief Judge Wood writes:
In Nichols v. United States, 136 S.Ct. 1113 (2016), the Supreme Court held that a sex oěender was not required under the Sex Oěender Registration and NotięcaȬ tion Act (SORNA), 18 U.S.C. § 2250, to update his registration in the state where he had been residing, after he left his home and moved to a new place. In Nichols, the new place was outȬ side the United States, in the Philippines. The two cases we have consolidated for disposition on appeal present the more conventional scenario of a person who moves from one state in the United States to another—in Lena Rae Haslage’s case, from Wisconsin to Washington State, and in Taungra Nicole Toney’s case, from Wisconsin to Minnesota. In both cases, the district courts dismissed the indictments for improper venue. The government has appealed. We conclude, however, that the district courts properly applied Nichols and that their judgments must be aĜrmed. * * *[BTW, I have no idea why some of the type is mapping this way.]
[p. 11] SYKES, Circuit Judge, dissenting. I disagree that Nichols v. United States, 136 S. Ct. 1113 (2016), precludes the governȬ ment from prosecuting these SORNA oěenses in the Eastern District of Wisconsin. Nichols addressed the scope of the registration duty set forth in 42 U.S.C. § 16913, which estabȬ lishes SORNA’s basic registration requirements for sex oěenders. The decision did not address the elements of the criminal oěense under 18 U.S.C. § 2250(a), which makes it a crime to travel in interstate commerce and fail to register as required by SORNA. Nor did the Court touch on the venue question presented here.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 5 NFP memorandum decision(s))
For publication opinions today (1):
In Joseph Lee Pierson v. State of Indiana, a 15-page opinion, Judge Baker writes:
Joseph Pierson appeals his conviction for Neglect of a Dependent Resulting in Death, a Class A Felony. He argues that because he is intellectually disabled he could not have formed the requisite intent to knowingly and voluntarily neglect a dependent; instead, he requests that he be convicted of reckless homicide. Additionally, he argues that the trial court erred by permitting one expert witness to testify via video deposition, and by permitting another expert witness to suggest that the legal definition of “mental disease” or “insanity” requires psychosis or hallucination. We find that there was sufficient evidence from which a jury could find that Pierson acted in a knowing and voluntary manner, that parties in a criminal case are permitted to agree to use a video deposition, and that the full context of the experts’ remarks did not mislead the jury of the applicable legal standards; accordingly, we affirm.NFP civil decisions today (0):
NFP juvenile and criminal decisions today (5):
Ind. Decisions - More on: Plaintiffs file brief in response to State's appeal to 7th Circuit of "birth certificate case"
Updating this ILB post from March 31, which includes links to the briefs of the parties in the appeal of Henderson v. Adams to the 7th Circuit (see this Courthouse News story for links to the earlier rulings), a number of amicus briefs have been, or are in the process of being filed in support of the plaintiffs-appelles. Here is the list so far, new filings will be added when available:
- Brief of Amici Curiae National Center on Lesbian Rights, GLBTQ Advocates and Defenders, Lambda Legal Defnese and Education Fund, ACLU Foundation, filed by Walter Dellinger of O'Melveny & Myers, LLP [ILB: see esp. pp. 17-18]
- Amici Curiae Brief of Family Equality Council and COLAGE
Ind. Decisions - More on: Federal court grants injunction in PPIK challenge to Indiana mandatory 18-hour ultrasound law from 2016
Updating this ILB post from last Friday, March 31st, which included links to federal Judge Tanya Walton Pratt's ruling plus a link to the law at issue, today Fatima Hussein of the Indianapolis Star has a long, front-page story headlined "Indiana's abortion ultrasound requirement shut down by federal judge." It begins:
A federal judge has prohibited Indiana from forcing women to undergo an ultrasound at least 18 hours prior to an abortion procedure — a decision hailed as a "major victory" for abortion rights advocates.More from the story:
The requirement, included in a state law passed last year, was struck down by U.S. District Judge Tanya Walton Pratt in her 53-page opinion issued late Friday after a hearing last November.
Indiana Attorney General Curtis Hill said he is considering whether to appeal the decision.
The law was challenged by Planned Parenthood of Indiana and Kentucky, which argued it was unconstitutional because it put an undue burden on women seeking an abortion and serves no purpose other than to block their right to an abortion.
The state argued the rule does not create such a burden, but gives women time to reflect on a momentous life decision.
Prior to the adoption of House Enrolled Act 1337 last year, women seeking abortions in Indiana were required to obtain an ultrasound, but it could be done on the same day as the abortion procedure. The 18-hour mandate applied additional “informed-consent appointments,” during which abortion providers were required to give women information regarding pregnancy and abortion.
While the informed consent appointments could be completed at any of Planned Parenthood’s 17 Indiana health centers, only six its centers provide ultrasounds. So the 18-hour requirement would have forced some Indiana women in rural areas to travel “400 miles” to attend two required appointments, rather than one, according to court documents.
HEA 1337 has been described as one of the nation's most restrictive abortion laws. The law went into effect on July 1, 2016, and was signed by then Gov. Mike Pence, who is now vice president.ILB: The General Assembly is considering imposing additional abortion restrictions this session. See this post from March 14th.
It also required funerals for fetal remains, and the identities of abortion providers must be public information. Also, individual doctors can be liable for violating a state statute. Pratt has already suspended those provisions of the law.