Wednesday, April 05, 2017
Ind. Courts - Still more on: Dunkirk City Court judge suspended, effective immediately, following felony battery charge
Updating this ILB post from March 14th, the Judicial Qualifications Commission (JQC) has now filed disciplinary charges against Dunkirk City Court Judge Tommy D. Phillips, II. From the news release:
The 5-page "Notice of the Institution of Formal Proceedings and Statement of Charges" is public record and has been filed with the Appellate Clerk’s Office. The charges are brought by the 7-member JQC which investigates alleged ethical misconduct by judges—including judges who are not licensed attorneys. Phillips, who is not a lawyer, has been suspended with pay by the Indiana Supreme Court since September 2016 as required by rule when a felony charge is filed against a judge. The JQC charges are separate and distinct charges from any criminal or civil proceedings in the trial court system.You may download the 5-page Notice of the Institution of Formal Proceedings and Statement of Charge here.
Generally, the JQC disciplinary charges assert Judge Phillips violated judicial canons which require judges to respect the law, avoid impropriety, and promote confidence in the judiciary. Judge Phillips pled guilty in case 38D01-1609-F6-165 to Battery Against a Public Safety Official, a Level 6 felony. The conviction stems from an August 2016 incident where Judge Phillips shoved the Dunkirk Chief of Police following a heated verbal exchange.
Ind. Decisions - State to argue before 7th Circuit a ruling against Marion Co. Circuit Court for failure to provide sign language interpreter
The 7th Circuit will hear oral argument tomorrow in Dustin King v. Marion Circuit Court, 16-3726, a 9-page, Sept. 13, 2016 opinion where federal Judge Magnus-Stinson held:
Mr. King filed this cause of action against Marion Circuit Court under Title II of the Americans with Disabilities Act (“ADA”) for failure to provide him with an American Sign Language (“ASL”) interpreter during his participation in the Modest Means Mediation Program. [Filing No. 1.] On May 27, 2016, the Court issued an Order granting Mr. King’s Motion for Partial Summary Judgment and denying Marion Circuit Court’s Cross-Motion for Summary Judgment. [Filing No. 157.] Specifically, the Court held that Marion Circuit Court had violated the ADA when it failed to provide Mr. King with an interpreter or a reasonable accommodation for the Modest Means Mediation Program. [Filing No. 157 at 28.] On August 23, 2016, the Court held a bench trial to determine the issue of damages. * * *The State of Indiana has appealed the decision.
Given the case law addressing similar circumstances to Mr. King’s, the Court finds that $10,000 is a reasonable amount to compensate Mr. King for the emotional distress caused by the denial of an ASL interpreter. The Court finds that Mr. King suffered emotional distress due to being denied an interpreter for mediation and for his attempts to appeal that denial. He was further stressed by participating in the mediation at a disadvantage that would not have existed for a person without his disability. The Court further recognizes his shock and frustration with the fact that Marion Circuit Court, which to Mr. King is synonymous with the justice system, discriminated against him by denying him an interpreter, even after Mr. King placed that court on notice that its denial violated Title II of the ADA. The Court also finds notable, however, that Mr. King was satisfied with the outcome of mediation, which only lasted two or three hours, and that he admitted that the anger and frustration that still linger today are partly due to his federal ADA litigation. Thus, while the Court acknowledges that Mr. King’s emotional distress is significant, given the relevant comparable cases, the Court finds that his request for $20,000 is excessive.
III. CONCLUSION. For the reasons noted above, the Court will enter judgment in favor of Mr. King against Marion Circuit Court in the total amount of $10,380.
Ind. Decisions - Court of Appeals issues 1 opinion(s) today (and 10 NFP memorandum decision(s))
For publication opinions today (1):
In Citizens Action Coalition of Indiana, Inc., Indiana Association for Community and Economic Development, Indiana Coalition for Human Services, et al. v. Indianapolis Power & Light Company, et al., a 33-page opinion, Judge Bailey writes:
Indianapolis Power & Light Company (“IPL”) petitioned the Indiana Utility Regulatory Commission (“the Commission”) for approval of an increase to its base rates for provision of electricity, which had been in effect since 1995. The Commission granted requests for intervention by Citizens Action Coalition, Indiana Community Action Association, Indiana Coalition for Human Services, Indiana Association for Community Economic Development, National Association of Social Workers Indiana Chapter, and Indiana State Conference of the National Association for the Advancement of Colored People (collectively, “Joint Intervenors”), and by IPL Industrial Group (“IPL Group”), The Kroger Company, and the City of Indianapolis. The proposed rate increase was approved by the Commission. After the denial of various petitions for reconsideration, Joint Intervenors appealed. We affirm.NFP civil decisions today (4):
Joint Intervenors articulate four issues claiming that the order lacks adequate support, particularly challenging (1) the lack of findings specifically addressing the impact of a particular rate component, a declining block rate (“DBR”), upon energy conservation, (2) the lack of findings specifically addressing the effect of DBR on elderly and African-American customers, (3) the rejection of a proposal for 25% low-income customer subsidies, and (4) the rejection of mandatory reporting by IPL of interruption-in-service data. We consolidate and restate the issues to conform to our standard of review, that is, a Commission order will stand unless no substantial evidence supports it or it is contrary to law, 3 and address the following issue: Whether the Commission’s rate approval order is not conclusive and binding due to a lack of specific findings on factual determinations material to its ultimate conclusions. * * *
Joint Intervenors have not shown that the Commission decision approving a rate design that includes DBR is unsupported by requisite findings. Joint Intervenors have not shown that the rate approval order is non-binding due to a lack of more extensive factual findings on matters introduced by Joint Intervenors which were not directly material to components of the approved rate design.
NFP juvenile and criminal decisions today (6):
Law - IRS forfeiture issue, involving "structuring" deposits, in the news again
Some of you will remember this Oct. 27, 2014 ILB post headed "Eye-Opening NYT Story: Must Read For Attorneys and Small Business Owners." And don't overlook the last paragraph, referencing a 7th Circuit opinion by Judge Hamilton.
Today the Washington Post has an important story in Wonkblog by Christopher Ingraham, headed "The IRS took millions from innocent people because of how they managed their bank accounts, Inspector General finds." The long story begins:
The Internal Revenue Service has seized millions of dollars in cash from individuals and businesses who obtained the money legally, according to a new Treasury Inspector General's report.Later in the story:
The report covers IRS cash seizures against businesses and individuals suspected of deliberately trying to avoid federal reporting requirements for large bank deposits.
In order to combat criminal activity, individuals and businesses are required to report all bank deposits greater than $10,000 to federal authorities. Intentionally splitting up large sums of cash into sub-$10,000 amounts to avoid that reporting requirement is known as "structuring," and is illegal under the federal Bank Secrecy Act.
But many business owners engaged in perfectly legal activities may be unaware of the law. Others are covered by insurance policies that don't cover cash losses greater than $10,000. Still others simply want to avoid extra paperwork, and keep their deposits less than $10,000 on the advice of bank employees or colleagues.
While structuring is technically a crime, it's something of a secondary one. The reporting requirements were enacted in order to detect serious criminal activity, such as drug dealing and terrorism. They "were not put in place just so that the Government could enforce the reporting requirements," as the Inspector General's report puts it.
But according to the report, that's exactly what happened at the IRS in recent years. The IRS pursued hundreds of cases from 2012 to 2015 on suspicion of structuring, but with no indication that it was related to any criminal activity. Simply depositing cash in sums of less than $10,000 was all that it took to arouse agents' suspicion, and the eventual seizure and forfeiture of millions of dollars in cash from people not otherwise suspected of criminal activity.
It is unclear whether structuring forfeiture cases make up a small or large percentage of all IRS forfeitures, because the IRS does not publish that information and denied FOIA requests to make it public.
"Today’s report confirms that the IRS used civil forfeiture to seize millions of dollars from innocent business owners," said attorney Robert Everett Johnson of the Institute for Justice, a legal firm fighting for forfeiture reform, in a statement. "The IRS’s own internal watchdog found that the IRS had a practice of seizing entire bank accounts based on nothing more than a pattern of under-$10,000 cash deposits."
The Treasury report comes on the heels of a separate Department of Justice report finding that the DEA has seized billions of cash from individuals never charged with criminal wrongdoing. * * *
After public outcry, in 2014 the IRS announced it would no longer pursue forfeiture cases when structuring was the primary suspected offense. But the Inspector General's report found that those new guidelines aren't always being followed. For at least eight cases initiated after the new guidelines, the report found that "the actions taken by the Government were inconsistent with the new policy."
Ind. Gov't. - "Abortion measure advances: Adds regulations on minors"
Indiana lawmakers placed more regulations on minors seeking abortions under a bill passed 75-23 by the Indiana House on Tuesday.Read the story to better understand the complexities of the bill.
Senate Bill 404 initially had more roadblocks on the process to getting an abortion when under the age of 18 but the House made numerous changes. In the end, seven Democrats joined 68 Republicans in passing the measure. In general, it tries to ensure more parental notification and involvement when minors seek an abortion.
“I'm not a lawyer. We can parse words, but I want to talk about policy,” said Rep. Matt Lehman, R-Berne. “At the end of the day, is it good policy? I think 404 is good policy. We pass bills every day that someone doesn't like and threatens to sue. This bill is drafted very tightly.”
The chamber initially started debating the bill Monday, but House Speaker Brian Bosma stopped the discussion when Rep. Peggy Mayfield, R-Martinsville, had trouble answering questions on the legislation.
Ind. Gov't. - General Assembly endorses reentry program proposed by women incarcerated at the Indiana Women's Prison
From Kathy Bottorff of WTCA Plymouth, a lengthy story that begins:
The Indiana General Assembly took the unusual step Tuesday of endorsing unanimously a reentry program for women leaving prison that was conceived and developed by the women themselves. The program, Constructing Our Future, calls for women to be trained in building trades and spend time while incarcerated rehabilitating some of the thousands of abandoned homes in Indianapolis. They have spent more than two years in their public policy classes at the prison researching, studying, drafting proposals, and presenting the program to government officials and experts.
State Representative Karlee Macer (D-Indianapolis), whose district includes the Indiana Women’s Prison (IWP), introduced the Resolution [HCR 71] and spoke in favor of it. “I could not be more proud the women working hard to change their lives and to better communities upon release,” Macer said.
Rep. Macer also read statements by two of the women who have helped develop the Constructing Our Future program. A video recording of the women’s statements is available online.
Ind. Law - "Gorsuch's writings borrow from other authors," including Indiana Law Journal
John Bresnahan and Burgess Everett of Politico report today (h/t Dan Carden):
Supreme Court nominee Neil Gorsuch copied the structure and language used by several authors and failed to cite source material in his book and an academic article, according to documents provided to POLITICO.See the Politco article, or this tweet, for a striking side-by-side of a portion of Gorsuch's and Kuzma's articles.
The documents show that several passages from the tenth chapter of his 2006 book, “The Future of Assisted Suicide and Euthanasia,” read nearly verbatim to a 1984 article in the Indiana Law Journal. In several other instances in that book and an academic article published in 2000, Gorsuch borrowed from the ideas, quotes and structures of scholarly and legal works without citing them.
ILB: Here is the Indiana Law Journal article. Ms. Kuzma, a long-time Deputy AG in Indiana, recently ran in the Republican primary against Curtis Hill (see June 13, 2016 post) and was among those interviewed for the second 2012 Indiana Supreme Court vacancy.
Ind. Decisions - More on: En banc 7th Circuit reverses Hively v. Ivy Tech
Updating yesterday's ILB post, here is some of the press coverage:
- "U.S. court rules 1964 civil rights law protects LGBT workers from bias"" from Reuters. A few quotes:
A U.S. appeals court, for the first time ever, on Tuesday ruled that federal civil rights law protects lesbian, gay, bisexual and transgender employees from discrimination in the workplace.
The ruling from the 7th U.S. Circuit Court of Appeals in Chicago represents a major legal victory for the gay rights movement.
In its 8-3 decision, the court bucked decades of rulings that gay people are not protected by the milestone civil rights law, because they are not specifically mentioned in it.
"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," Chief Judge Diane Wood wrote for the majority. "We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination."
The ruling also allows a lawsuit to go forward in Indiana, where plaintiff Kimberly Hively said she lost her community college teaching job because she is lesbian.* * *
"Today the court jettisons the prevailing interpretation and installs the polar opposite," Judge Diane Sykes wrote in dissent.
In her lawsuit, Hively said that Ivy Tech Community College in South Bend passed her over for a permanent position and refused to renew her contract as an adjunct professor after school administrators learned she is a lesbian.
- "Federal appeals court: Civil rights law covers LGBT workplace bias" Richard Wolf , USA TODAY - a few quotes:
The 8-3 decision by the full U.S. Court of Appeals for the 7th Circuit, which overturned a three-judge panel's ruling, represents another step in the effort by gay rights groups to extend their 2015 nationwide victory on same-sex marriage to other areas, including employment.
"It is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex," Chief Judge Diane Wood wrote for the majority. "It would require considerable calisthenics to remove the 'sex' from 'sexual orientation.'" * * *
Judge Richard Posner, one of eight 7th Circuit judges appointed by Republican presidents, issued a lengthy concurrence. "I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman," he said.
The decision illustrated the rift between judges who adhere to the Constitution and laws as written and understood at the time, and those who take into consideration judicial precedents and societal changes in the aftermath -- a debate playing out this week in the Senate over the Supreme Court nomination of federal appeals court Judge Neil Gorsuch.
Judge Diane Sykes, who was a finalist on President Trump's list of potential Supreme Court nominees, wrote the dissent. She accused the court of "an aggressive reading of loosely related Supreme Court precedents" in order to circumvent the legislative process.
"If Kimberly Hively was denied a job because of her sexual orientation, she was treated unjustly," Sykes said. "But Title VII does not provide a remedy for this kind of discrimination. The argument that it should must be addressed to Congress."
But Wood, who was considered for a Supreme Court nomination under President Barack Obama, said the ruling properly reflects "what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago."
- "Federal Appeals Court Issues Historic Ruling In Favor Of Job Protections For Gay Workers" Chris Geidner, BuzzFeed News - some quotes:
In explaining why the court was taking the step it took Tuesday, Wood detailed the role of the court — and the changed legal circumstances for gay people in America today, detailing the line of Supreme Court decisions over 20 years that culminated in 2015's Supreme Court decision ending state bans on same-sex couples' marriages.
"[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago," Wood noted. "The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line." * * *
Sykes wrote, in part, that the decision represented a "radical change in a well-established, uniform interpretation of an important—indeed, transformational—statute."
Hively is represented by Lambda Legal. * * * In Sykes' dissenting opinion, she addressed the group directly, saying that while "Lambda Legal's proposed new reading of Title VII ... has a strong foothold in current popular opinion," such information "informs a case for legislative change and might eventually persuade the people’s representatives to amend the statute to implement a new public policy" but that "it does not bear" on the legal question before the court as to the interpretation of Title VII.