Legislative Acquiescence

The Indiana Law Blog has a post about a recent trial court decision determining that the Notre Dame police weren’t subject to the state public records law because they are part of the university and past legal decisions have held that the private university isn’t a public body subject to the public records law.

I think the right way to go is to find that the police force, because they are exercising public police powers, are a public agency. The trial court, in my opinion, was overly legalistic in its analysis. My take on the decision was that the trial court regarded itself as powerless to carve the police department out of the university generally as being subjected to public records laws. In part of its decision, the trial court discussed legislative acquiescence to prior decisions of public access counselors that found private universities aren’t subject to the access to public records act. (I’m not clear on whether those decisions had to do with requests for the private university police records.) In any event, the doctrine of legislative acquiescence is, frankly, dubious. Basically it means that if a court interprets legislation in a certain way and the legislature gives no sign one way or the other, courts will assume that the legislature agrees with the court decision. The more likely reality is that the legislators have no earthly idea what the courts have been up to. This is even more likely when dealing with the public access counselor and not the courts.

Six Years Later: S.Ct. decides ICRC had no authority to do anything but dismiss a complaint

Today, the Indiana Supreme Court decided the case of Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) v. Bridgewater and concluded that, because the Indiana Civil Rights Commission had no jurisdiction over a complaint, it never had power to do anything except dismiss that complaint and that, by extension, a retaliation claim based on the underlying complaint could not proceed either.

FACES was, in effect, a social group formed by homeschoolers. One of the kids was allergic to food that was being served at a masquerade ball being held as an alternative to Halloween. The group said that they wouldn’t ask the venue to provide anything else and told the parent of the allergic kid not to contact the venue but the kid could bring a meal from home. The kid’s parents filed a complaint with the Indiana Civil Rights Commission. The group kicked the kid out of the group. The ICRC’s Administrative Law Judge concluded:

that FACES did not commit an unlawful discriminatory practice because it had provided a reasonable accommodation for Mrs. Bridgewater’s daughter’s dietary needs—but that FACES did commit an unlawful discriminatory practice when it expelled the Bridgewater children after they filed the disability discrimination complaint. The administrative law judge ruled that Mrs. Bridgewater’s daughter should be awarded $5,000 in damages and that FACES should take corrective action.

The ICRC apparently reduced the damages somewhat but otherwise affirmed the ALJ. The Indiana Supreme Court found that the ICRC shouldn’t have been doing any of this because it doesn’t have jurisdiction.

The Indiana Civil Rights Law explicitly conditions the Commission’s exercise of its enforcement powers to incidents where a person has “engaged in an unlawful discriminatory practice.” To be “unlawful” under the [Indiana Civil Rights] Law, the discriminatory practice must relate to “the acquisition or sale of real estate, education, public accommodations, employment, or the extending of credit.” Ind. Code § 22-9-1-3(l) (emphasis added).

Education was the only one of those items at issue here, and the Supreme Court found that to read the statute broadly enough to conclude that this claim related to education would be to convert almost every occasion of parental guidance and training into an activity “related to education.” And, by extension, the Indiana Supreme Court determined that the retaliation claim should also fail inasmuch as the ICRC didn’t have jurisdiction in the first place. To hold otherwise would invite and incentivize the intimidating technique of bootstrapping a retaliation claim onto a meritless complaint alleging discrimination not subject to the [Indiana Civil Rights] Law.

I like legal fees more than the next guy, but I shudder a little to think of the fees that were spent in this matter that could have been saved by a prompt ICRC order stating, “this doesn’t belong here – take it somewhere else.” There were probably fees responding to an investigator, asking for a determination of no probable cause, possibly mediating the case, then at a hearing before an ALJ, then petitioning the ICRC for review, then going through the Court of Appeal process, then going to the Indiana Supreme Court. And these are big time Indianapolis lawyer fees, not the sort of reasonably priced, sound legal advice you get from, say, an attorney in Tippecanoe County.

Walgreen gets hammered for $1.4 million for pharmacist privacy violation

The facts of the case are a mix of pharmacist privacy violation and good old fashioned baby mama drama. The trial happened awhile back, and the Court of Appeals upheld the verdict.

Short version of facts:

Plaintiff got her birth control filled at Walgreen for years. Peterson was having sex with her off and on. At some point, Peterson starts dating a Walgreen pharmacist named Withers. Plaintiff gets pregnant with Peterson’s kid, and Peterson also contracts herpes. Peterson lets the pharmacist/girlfriend Withers know that he may have exposed her to herpes. Withers goes digging into Plaintiff’s medical record. Pharmacist/girlfriend says she didn’t share the information with anyone, but not long after, Peterson has an email exchange with Plaintiff bitching about how she never even got her birth control refilled in July and August. Plaintiff files suit against Walgreen and Withers for malpractice. The jury found her damages to be $1.8 million and found Walgreen/Withers jointly responsible for 80% of the damages.

I’d like to see how the jury went about measuring damages in this case. Generally, I trust juries when deciding questions of liability. I’m frequently more skeptical of the math they do to calculate damages when they do find liability.

Collegiality in the Legal Profession

I had the opportunity to see the Indiana Supreme Court at work today as they held oral arguments at the Stewart Center. (See this prior entry for details on the case.) Afterward, there was a lunch reception with the Tippecanoe County Bar Association and the Justices in attendance. Justice Rush said a few words and, in particular, mentioned how important the collegiality of the local bar membership was in her development as a lawyer.

I could not agree more. In fact, during my interview with the law firm I ended up joining, I remember asking about how the local lawyers got along. Coming up through school, I had somehow picked up the message about how cut throat lawyers were. That was never my style, and it was a concern of mine moving from my job with the Legislative Services Agency to private practice.

I don’t know how it is in other localities. Maybe the reputation of lawyers as cut throat jerks is overblown generally. But, here locally, I have only seen a handful of lawyers who fit the bill. That sort of nonsense doesn’t get out of hand because the Tippecanoe County legal community is a small one. If you make a habit of jerking people around and treating them poorly, word is going to get around pretty fast. Suddenly your handshake agreements are going to turn into a lot more work, and your ability to get things done for your clients is going to disappear. So, there is a built in incentive to behave yourself. Beyond that, maybe it’s a Midwestern thing, but the lawyers in town have always been very easy to work with and very willing to share knowledge.

It’s a great place to be a lawyer, and I’m happy I ended up here.

Indiana Supreme Court to Hear Oral Arguments at Purdue

For those of you in the Lafayette area who are interested in seeing our state Supreme Court at work, you might want to check out the oral argument set for November 10, 2014 at Loeb Playhouse in the Stewart Center.

The case under review is Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc. (pdf), which was a split decision before a panel of the Court of Appeals. Judge Najam wrote the majority opinion with Judge Crone concurring while Judge Baker dissented.

The Supreme Court summary of the factual background of the cases states:

[A] child’s pre-adoptive placement (with the Kramers) failed when the child’s biological father came forward. The father established his paternity and successfully contested the adoption. The Kramers then sued the adoption agency (Catholic Charities) alleging negligence for failing to discover the father’s registration with Indiana’s Putative Father Registry.

At issue is whether the timing of the adoption agency’s review of the putative father registry was negligent, whether the adoption agency had a duty to check the registry, and whether the adopting parents waived their ability to bring this claim when they signed the agency’s release form. As luck would have it, I discussed the release/waiver issue in a blog post for my law firm when the Court of Appeals decision came out in March.

School Officials Oppose Non-Degree Teachers

Haley Dover, writing for the Lafayette Journal & Courier, has an article entitled “Local school officials oppose non-degree teachers.” The article is about a decision by our mostly dysfunctional State Board of Education’s decision to allow people without teaching degrees into the classrooms. They would have to have a B-average in a subject area and pass one exam.

“This whole idea that someone can just walk in and start teaching is ridiculous,” said Rocky Killion, superintendent of West Lafayette Community School Corp. “It’s as ridiculous as me passing an exam and becoming a brain surgeon.”
. . .
Killion agreed, saying this dumbs down teaching requirements thus reducing the probability that students will have a highly trained educator leading them. Instead of reducing the requirements, the state needs to increase teacher education standards, he said.

“Before I would ever consider someone with an emergency license, I will knock on every education door within the United States and across the world to make sure that I have a high-quality, well-prepared teacher in the classroom,” Killion said.

Seems to me a little like hiring a delivery driver who’s handy with a map but who never learned to drive a truck.

Given the political background of this decision, however, it can best be seen as a financially and politically motivated effort to continue marginalizing teachers, teacher’s unions, and teacher’s colleges.

Stay of the Same Sex Marriage Injunctions Following 7th Circuit Decision

As most folks probably know, the 7th Circuit issued a decision today affirming Judge Young’s injunction prohibiting enforcement of Indiana’s law banning same sex marriage. An interesting technical question is what effect, if any, this decision has on the stay (via the Indiana Law Blog) issued by a 7th Circuit panel in June, a few days after Judge Young’s decision. As the Indiana Law Blog reports, the Attorney General has issued a statement indicating its position that the stay remains in effect.

So what gives? It has to do with Fed. R. App. Proc. 41 which discusses issuance of a mandate by the Circuit Clerk following an opinion of the 7th Circuit. The issuance of a mandate terminates the Court of Appeals jurisdiction over the case, and it instructs the lower court how to proceed. Typically, the mandate issues seven days after the time has expired (usually two weeks – see Fed. R. App. Proc. 40) for an appellant to petition for rehearing by the full court (instead of just the panel who issued the opinion) or after a timely filed petition is denied. This gives the appellants the opportunity to exhaust their remedies with the Court of Appeals without giving the District Court conflicting opinions about entering judgments and whatnot.

Based on the research I’ve done so far, I think the issue would be clear if the District Court had issued the stay — absent a mandate, the District Court would not be instructed to do anything; lift its stay or otherwise. The District Court’s stay would therefore be in effect.

There might well be case law on this I have not yet discovered, but the effect of the panel opinion on the stay seems more ambiguous given the fact that it was the 7th Circuit panel who issued today’s opinion that entered the stay under Fed. R. App. Proc 8(a)(2) in the first place. Presumably this panel could have lifted its own stay by issuing an order to that effect at any time during these proceedings. The question is whether the panel has, in fact, lifted the stay – at least by implication by virtue of today’s opinion – when the 7th Circuit panel wrote, “The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are AFFIRMED.” Does that language override the earlier order of this same panel that said the injunction was stayed pending resolution of the appeal?

I don’t know that the answer to that is necessarily clear (absent, as I said, case law on point that I have not yet found). But the Indiana Attorney General has taken the position that the answer is that today’s opinion does not override the panel’s earlier order issuing a stay. My guess would be that most or all state officials would defer to the Attorney General under these circumstances.

The Attorney General has indicated its intent to seek a stay from the United States Supreme Court pending its petition for certiorari to the Supreme Court and that the Supreme Court has granted such stays in two other cases. If the United States Supreme Court orders a stay, that obviously clears up any ambiguity.

Attorney Reprimanded in Blackford County for Bold Anti-Sock Stance

As I’ve mentioned in the past on Twitter, a day that begins with the donning of socks is, in most ways that matter, a day that has already been lost. But, I’m also craven in matters of fashion and matters of judicial preference. So, if judges want socks, as a member of the bar, I wear socks. However, this practitioner in Blackford County, Indiana is made of sterner stuff (pdf). (h/t Indiana Law Blog).

The judge observed that this otherwise appropriately attired practitioner was not wearing socks. (I actually had never really contemplated a judge looking all that intently at my feet – I’d probably better remember to polish my shoes!) The judge did what a decent judge will do when bothered by something somewhat incidental to a lawyer’s performance in court — he took the guy aside privately and said that he’d like the lawyer to wear socks in the courtroom. According to the subsequent court order, the lawyer responded that he hates wearing socks. (And what right thinking member of society doesn’t?) But, then he probably went a (sockless) step too far, telling the judge that until he saw orders or other legal authority to the contrary, he’d continue his sockless ways.

This challenge did not present a great deal of difficulty for the judge, who presumably creates legal authority all the time. He crafted the order linked above. The judge noted the local rule requiring that attorneys wear “proper business attire” while in court. The judge went further to find, that socks constitute proper business attire “for male members of the bar presenting cases before the court.” (Where is the Patriarchy when you need it?!?) For good measure, the judge also noted that the attorney in question had been observed without a tie in an open collar shirt.

On a more serious note, I’ll just offer some observations with the recognition that what I know about this issue is solely from the context of that order. The events may well have looked different from the perspective of the attorney in question, so this isn’t meant as a critique of that person. Dress codes are almost entirely arbitrary in any situation. They are not dissimilar from codes of proper speech, prohibiting “bad” words — the choice of which are inevitably arbitrary. But, compliance with these arbitrary standards is one way we show respect or at least deference to the cultures and authorities that seek to impose these rules. With respect to courts and the rule of law, this insistence on proper attire drifts into “medium is the message” territory. If everyone involved in the legal process were, for example, dressed up like they were going to a Jimmy Buffet concert, the impact of the legal process would be different. Sure, you’d still have the guys with the guns behind the court orders. But you’d probably need more of them because there would be less reflexive obedience to the rule of law if the system were less formal.

Lawyers are part of this process and, as such, should genuflect to the Court except in those matters and in such ways as justice requires to the contrary. Fashion isn’t one of them. And if the judge offers correction in private, take the hint and don’t encourage him to make the correction public.

Howard County Judge & Kokomo Mayor contempt incident raises interesting questions

Jim Shella, writing for WISHTV, reports that a Howard County judge has, at least ostensibly, found the Kokomo mayor in contempt for issues having to do with construction around the courthouse.

Outside the Howard County Courthouse there is construction underway on the Industrial Heritage Trail. The construction has at times forced changes in the normal delivery of jail inmates to the courthouse.

Then, on Tuesday afternoon construction materials were placed in the driveway blocking access. To Judge Menges that was an act of contempt by Mayor Goodnight.

He sent the Sheriff to Goodnight’s office with a message. “If you don’t come with me over to the judge’s chamber,” Goodnight quoted the Sheriff as saying, “we’re going to take you to jail.”

Through a spokesperson the judge said he can’t comment on the record. His contempt order says the mayor blocked access to the courthouse and says it was “intentional and done solely for the purpose of disrupting the regular proceedings of the court.”

I’m not going to say I have the authoritative answer on these issues, particularly based on what is probably an incomplete set of facts, but some questions come to mind:

1. Wouldn’t that be, at best, indirect contempt, requiring the court to provide due process, including appointment of a special judge, before threatening to incarcerate the mayor? (See IC 34-47-3).

2. Given that there are multiple judges at the Howard County courthouse is Judge Menges authorized to take action absent the consent of his colleagues with respect to matters concerning the courthouse generally as opposed to his court room in particular?

3. When does that part of the courthouse stop being under the jurisdiction of the state judiciary in the person of the judge (or judges) and start being under the jurisdiction of the Board of Commissioners? If, for example, the judge asserts the authority to clear obstructions to the drive; does he then become liable if someone slips and falls on the driveway from a hazard he had the power to remedy?

4. Did the City have a construction easement that authorized the use of the real estate in that fashion?

This would be a good exercise for a law school exam!

UpdatePat Munsey, writing for the Kokomo Perspective, has some additional details.

On the order of Howard Superior Court I Judge William Menges, Goodnight was brought to court and summarily sentenced to the Howard County Jail on a charge of direct contempt of court.

During the hearing, Menges explained that the courthouse’s west entrance had been blocked, making it impossible for the county to transport “dangerous” prisoners to the court for a Friday hearing. Initially, the county determined that it would fill an area with gravel leading to the concrete pad so that the transports could be completed.

The rest of the story describes Menges summarizing information he seems to have received second and third hand before finding Mayor Goodnight in “direct contempt.”

IC 34-47-2 describes “direct contempt” as involving activity taking place “in a court of record” while the court is in session. That’s clearly not what took place here. Sometimes the courts take the position that the legislature can go pound sand when it comes to defining the court’s powers, so maybe the Indiana Supreme Court has its own definition of “direct contempt” that goes beyond the statute. But I can’t imagine that what’s described in these news reports satisfies the requirements of due process.

Update 2 The court’s order on “direct contempt” is here (pdf). The court’s rationale for calling this “direct contempt” (which can be punished with much less in the way of process) instead of “indirect contempt” (which would seem to require appointment of a special judge) is that the judge witnessed the placement of construction materials in the courthouse drive. I don’t see that the court had direct, first-hand knowledge of the mayor’s acts or omissions.

Oral Arguments in 7th Circuit Marriage Equality Lawsuits – Posner, Williams, and Hamilton Panel Judges

The 7th Circuit is conducting oral arguments today in combined Indiana and Wisconsin cases considering the constitutionality of laws prohibiting same sex marriages. The panel drawn to hear the cases are Judges Posner, Williams, and Hamilton. Posner is a Reagan appointee, Williams is a Clinton appointee, and Hamilton is an Obama appointee. This is not a good draw for the Attorney Generals of the states seeking to have their laws prohibiting same sex marriages upheld.

Posner who, just from a two-dimensional political analysis, might be expected to be the most sympathetic to the marriage laws on the books is not a reliable enthusiast for socially conservative positions. Looking at his Wikipedia page (how is that for legal analysis!) he has expressed opinions sympathetic to abortion rights and skeptical of the drug war. With respect to gay marriage in particular, Judge Posner offered a discussion at his blog with Gary Becker. He believes the available evidence suggests that homosexuality is innate and, as such, “if homosexuality is innate, it becomes difficult to see why it should be thought to require regulation.” He concludes:

It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.

(emphasis added).

I can’t imagine the chances of the State attorneys general gets any better with Judges Williams and Hamilton. Ian Millhiser, writing for Think Progress, says of the panel draw, “Marriage equality supporters just won the lottery.”