Christmas southern style: Pelicans on the lake.

The push for “accountability” in public education, including the federal “No Child Left Behind” mandate, has had some curious consequences. take for instance what is taking place in Muncie:

Supt. Marlin Creasy has not yet decided the punishment for Karen Dawson, a third-grade teacher at Longfellow Elementary School, who along with a student teacher, used hand signals to help students correctly answer questions on the high-stakes test. Dawson is currently suspended.

The teacher in question was a “master teacher,” meaning she had a graduate degree, at least 3 to 5 years experience, and had demonstrated ability. The superintendent noted that she was a “good classroom teacher” and was a leader within the school. It is amazing that such a well trained and apparently qualified teacher would do this, but even more amazing that someone who went through all the education, training, and work to get to her position would enlist 3rd graders in a cheating scheme - good influence for those kids. This either reflects a very damaged character on behalf of the teacher, or the immense pressure on teachers to meet achievement goals, or, more likely, both.

Link.

One of the hot button issues in the last presidential campaign was gay marriage. The debate about gay marriage seemed to unite a broad segment of the population to cast votes based on “moral values” (at least if exit polls are to be believed for any purpose). The national debate on gay marriage blurs over some of the more complicated issues involved in the rights of gay families. Many Americans are adamant that the institution of Marriage would not survive the inclusion of same sex unions, and in fact, in all of the states where the issue of same-sex marriage was on the ballot (by way of constitutional amendments), voters rallied against gay marriage.

Many of those who oppose gay marriage do so in part because they believe homosexuality to be immoral, and they view the acts that make someone a homosexual to be sinful. Based on this belief, many feel that homosexuals should be denied the rights and protections that heterosexuals enjoy. But not all those who oppose gay marriage oppose extending any legal recognition to gays. The issue of gay marriage is likely to linger in our culture, but based on the groundswell against it, I doubt it will achieve national prominence the way it did in 2004 for the time being.

But restrictions imposed on homosexuals by state and federal laws, and legal challenges will persist, and will likely be a big issue in 2005. For instance, Florida, Utah and Mississippi prohibit gay couples from adopting children. Florida’s ban was recently upheld by a federal circuit court, and the ACLU is pursuing an appeal with the Supreme Court. Many of these legal challenges will be based on Equal Protection claims.

In Arkansas, the state agency in charge of placing children in foster care had a policy prohibiting placing children in homes occupied by a homosexual. The Arkansas chapter of the ACLU filed suit in state court challenging the policy on Equal Protection grounds. However, the trial judge struck down the policy because he found that the state agency had exceeding the scope of its authority by attempting to regulate public morality. Implicit in the judge’s ruling is the thought that “protecting” children from exposure to homosexuals does not “promote the health, safety and welfare of children” which is the agencies scope of authority. As there are many who dispute this proposition, I would expect an appeal.

Link.

The right to parent children has been found to be one of our fundamental constitutional rights by the Supreme Court:

The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), we again held that the “liberty of parents and guardians” includes the right “to direct the upbringing and education of children under their control.”

Troxel v. Granville 530 U.S. 57 (2000).

This right is not without limitation, and most disputes revolve around the issue of whether the sexual orientation of a parent can have a negative impact on children in their care. This issue can arise in disputes between gays and state agencies that control foster care and aspects of adoptions. It frequently comes up in custody and visitation disputes between biological parents. In Indiana, the courts have determined that homosexuality standing alone without evidence of any adverse effect upon the welfare of the child does not render the homosexual parent unfit as a matter of law to have custody of the child. D.H. v. J.H., 418 N.E.2d 286, 293 (Ind.Ct.App. 1981). However, when presented with evidence of a harmful effect on the children, the Indiana courts have upheld restrictions on a parent’s visitation based on that parent’s sexual orientation (Marlow v. Marlow, 702 N.E.2d 733 (Ind.Ct.App. 1998)).

More recently, Indiana Courts have explored the rights of homosexual couples to adopt children. The courts are reading the current adoption statute to permit to unrelated adults to becomes the parents of a child through adoption, thus giving the green light (theoretically) to homosexual couples adopting children together (Adoption of K.S.P., 804 N.E.2d 1253 (Ind. Ct. App. 2004), Adoption of M.M.G.C., 785 N.E.2d 267 (Ind. Ct. App. 2003)). From K.S.P. came the following:

[O]ur paramount concern should be with the effect of our laws on the reality of children’s lives. It is not the courts that have engendered the diverse composition of today’s families. It is the advancement of reproductive technologies and society’s recognition of alternative lifestyles that have produced families in which a biological, and therefore a legal, connection is no longer the sole organizing principle. But it is the courts that are required to define, declare and protect the rights of children raised in these families, usually upon their dissolution. At that point, courts are left to vindicate the public interest in the children’s financial support and emotional well-being by developing theories of parenthood, so that “legal strangers” who are de facto parents may be awarded custody or visitation or reached for support. Case law and commentary on the subject detail the years of litigation spent in settling these difficult issues while the children remain in limbo, sometimes denied the affection of a “parent” who has been with them from birth.

This year, the Indiana Court of Appeals found that a lesbian had a legal claim for parental rights in a child born to her partner through artificial insemination, despite the lack of a legal or biological link to the child. (In re Parentage of A.B., ___ N.E.2d ___ (Ind.Ct.App. 2004)).

As these issues continue to churn through the courts, they will force legislatures, and ultimately the public, to respond.

bigeastern (a great blog tracking events relating to the environment in Northern Indiana) and the Indiana Law Blog direct attention to a good piece in the Chesterton Tribune about a zoning dispute in Porter County that pits the property rights of land owners againt the communities interest in preserving prime agricultural land. Link.

This is a big issue throughout most of the state as traditional city dwellers seek out tracks in the country to improve their quality of life. In Wayne County, we have seen the population largest city (Richmond) decrease steadily, while the population in the county has been basically flat. More and more folks find the suburbs too confining and opt for a more rural setting. Many folks are also concerned with the quality of the educational system in Richmond’s large urban school district and move to the country to gain access to the smaller county schools. The recent ISTEP test results show that Richmond Community Schools consistently underperforms its more rural neighbors, and this has a big impact on peoples perceptions. The local results are as follows:

Source.

I know from local experience that whenever someone goes to the local zoning board to gain a change in zoning to permit development, the first question from the board members is about the quality of the land for agricultural purposes. If the land is “prime” the owner will have an uphill battle.

People tend to view judges as a fairly generic bunch. Judges tend to contribute to this view by adopting “judicial airs” when the take to the bench. Up close, you see that judges are still the people they used to be before they became judges. I remember when I was in law school, the judges I worked around seemed larger than life and imposing. Basic fear made it easy to always treat a judge with appropriate respect. Now that I have been at this for a while, seen people my age and younger take the job, respect is more a matter of habit (and sometimes, effort).

But a look at the headlines most weeks will remind us all that judges, under the robes, are still all too human:

“An Alabama judge has rejected an attorney’s objections to his judicial robe, which has the Ten Commandments embroidered in gold on the front.” Link. This is not good. I support people taking different views on the subject, but when the courts say you cannot display the 10 Commandments in an official setting, a judge should follow the law on the job. judges are often required to do things that they would personally object to. I do not think the bench is an appropriate place for civil disobedience.

Then there is the Louisiana judge who was suspended for a year for wearing “blackface” makeup, handcuffs and a jail jumpsuit to a holloween party. Link. This was offensive and distasteful. I would have been offended by it if I was at the party. But, he was at a private party, off the bench, on his own time. Maybe those who elected (or appointed, I am not sure which) him should reconsider whether he is an appropriate candidate for this office, but I do not like it when an employer, any employer, seeks to impose discipline on an employee for legal conduct outside the workplace. What he did was not illegal, just offensive. The judge can reduce the penalty to 6 months if he undergoes some type of racial sensitivity training. What this decision says is: you do something in private that we do not agree with, and it can cost you your job. Many people will support this discipline, because they do not like the behavior. I do not like the behavior either, but I question employing this type of standard. What if a judge was discovered to be gay, would this feature of his private life subject him to suspension and “retraining” if the authorities decided they did not think judges should be gay?

Strange headline, but not too surprising to those familiar with the recent history of Union County. The Union County Sheriff avoided a trial on misdemeanor battery charges over the summer by taking a pre-trial diversion - basically, an agreement with the state to dismiss the charge if he does not get in any trouble for a period of time. Now he is being investigated for battery again.

The first charge came from a dispute he had with a town policeman after their patrol cars collided. This new charge may not amount to much since it comes from an inmate in the Union County Jail, but the local court ordered that the inmate be transferred to another facility during the investigation. The Sheriff’s reaction seems a little off to me:

Leverton said he was stunned by the accusation of battery and the way the situation was handled. He denied battering Miller.

“Certain outsiders have decided to stick their noses into the internal operations of the Union County Jail without the proper facts. I’m real upset,” Leverton said. “It was a matter of internal discipline. We should have been consulted. I guess I’m under investigation but I don’t know by who. I asked the prosecutor and he said he didn’t know.”

Link.

Maybe it is a little late for Christmas gift recommendations, but here is an interesting looking new book released from the CATO institute: Go Directly to Jail: The Criminalization of Almost Everything:

At one time, the sanction of the criminal law was reserved for serious, morally culpable offenders. But during the past 40 years, an unholy alliance of tough-on-crime conservatives and anti-big-business liberals has utterly transformed the criminal law. Today, while violent crime often goes unpunished, Congress continues to add new, trivial offenses to the federal criminal code. With more than 4,000 federal offenses on the statute books, and thousands more buried in the Code of Federal Regulations, it is now frighteningly easy for American citizens to be hauled off to jail for actions that no reasonable person would regard as crimes. At the same time, rampant federalization and mandatory minimum sentencing are making America’s criminal justice system ever more centralized and punitive. The result is a labyrinthine criminal code, a burgeoning prison population, and often real injustice. Go Directly to Jail examines those alarming trends and proposes reforms that could rein in a criminal justice apparatus at war with fairness and common sense.

Contributors include
Erik Luna, Associate Professor of Law, University of Utah
James V. DeLong, Senior Fellow, Progress & Freedom Foundation
Timothy Lynch, Director, Cato Institute’s Project on Criminal Justice
Grace-Marie Turner, Founder and President, Galen Institute, Inc.

Link.

From the AP wire, on the subject of questionable lawsuits, comes the following:

A man who has filed hundreds of lawsuits accusing businesses of violating the federal Americans With Disabilities Act was running an extortion scam, says a judge who has barred him from bringing any more such actions without court permission.

Jarek Molski is a “vexatious litigant” who has been running a “scheme of systematic extortion,” U.S. District Judge Edward Rafeedie ruled.

Molski, 34, who has used a wheelchair since being paralyzed in a motorcycle accident a decade ago, has filed 400 suits since 1998. Most have accused restaurants, wineries, bowling alleys, banks and other public facilities of violating his rights under the Americans with Disabilities Act.

In most cases, the judge said in Thursday’s ruling, Molski seeks damages of $4,000 a day until the target of his suit is brought into compliance with the disabilities act, then agrees to a cash settlement.

The judge noted that in three suits last year, the Los Angeles man claimed to have suffered identical injuries at three different restaurants on the same day.

Rafeedie said his ruling “does not limit the right of a legitimately aggrieved disabled individual to seek relief under the ADA; it only prevents abuse of the law by professional plaintiffs, like Molski and their lawyers, whose priority is their own financial gain.”

San Francisco attorney Thomas E. Frankovich, who represented Molski in many of the lawsuits, called the ruling a miscarriage of justice and said he would appeal if he can’t persuade Rafeedie to lift the order.

My best guess is this ruling will not stand up on appeal. Limitations on people’s right to sue create a “prior restraint” and generally viewed in conflict with the First Amendment. Over the years, legislatures have tried again and again to limit lawsuits from prisoners, only to see these restrictions struck down by courts.

For much more information about questionable litigation, check out Overlawyered a blog project by Walter Olson. Mr. Olson is a senior fellow at the Manhattan Institute who has written extensively on the need to reform the civil justice system in the US. On his blog, he tracks lawsuits that demonstrate, in his estimation, the need for reform.

Probably not a decision of too much interest to many of you, except for those of you who represent people facing a revocation of probation, or those of you facing a revocation of your own probation . . . But the Indiana Supreme Court reversed the Court of Appeals today:

We hold that a trial court has the statutory authority to order executed time following revocation of probation that is less than the length of the sentence originally suspended, so long as, when combined with the executed time previously ordered, the total sentence is not less than the statutory minimum.

Link.

The prior decision basically said it was an all or nothing proposition as to how much time the trial court could impose if the probation was revoked.

We attorneys often stand accused of bringing claims that are better left alone. The hot coffee-McDonald’s lawsuit set us up for years of jokes and abuse. Often, the public’s perception about particular litigation is due to lack on knowledge and understanding about the specific events.

If you really want to see crazy litigation, spend some time reading over suits filed without an attorney, typically by incarcerated citizens, who probably have little else to do for entertainment. Case in point: A federal lawsuit recently dismissed in Indiana in which an inmate tried to hold the security service at the public library responsible for the crime the inmate committed:

Ladell Alexander claimed that if the St. Joseph County Public Library’s security company had done its job, the 4-year-old victim would not have been hurt. Security guards should have confronted him or called police after observing him in an unauthorized area of the library before the molesting incident, he alleged.

Alexander is serving a 16-year prison sentence for the molestation nearly three years ago.

Link.

What I found amusing about this story was Mr. Alexander’s proposal for spitting up the proceeds of the litigation: “Alexander sought a total of $4 million in damages, including $1 million for the young victim’s family.”

But, attorneys do bring some of the ridicule on themselves: A lawsuit filed by the parents of a 5 year old against a Merrillville hotel in Lake county charges the hotel with failing to clean up a used condom before renting a room to the parents. The parents were distressed when their 5 year old, thinking the item was a balloon, was found trying to inflate it. The child tested negative for disease, but the parents are suing for emotional distress. I like the comment the Northwest Indiana Times got from a doctor:

The risk of contracting HIV, the virus that causes AIDS, by oral contact with a used condom is “slim to none,” Dr. Len Peruski said. “Except for the gross-out nature, I would not see any big issues with this.”

Link.

An Indiana law firm has filed suit in Fort Wayne against a mortgage broker it claims has sent it unsolicited faxes:

The lawsuit asks the court to treat Pellegrino and others with Indiana fax numbers who received unsolicited faxes from Pioneer two years before the lawsuit’s filing as a class of defendants. It said Pellegrino received four of the unsolicited messages between April 2 and Aug. 2, and said the inclusion of graphics and bold headlines in the messages caused the fax machines that received them to consume large amounts of toner and ink in their reproduction.

That, the lawsuit said, amounted to conversion of Pellegrino’s property by Pioneer.

Link.

Having had the same fax number for about the last 15 years I receive a limited amount of junk faxes, maybe two or three per week, mostly from the same folks: a travel agency, a stock picker, and for some reason a metal pipe seller. But I don’t know if it’s worth a lawsuit.