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Dolla Dolla Bill YallBy: Faith Alvarez
Valparaiso University Law School
J.D. Candidate, 2016

Tax Day was April 15, 2015, a day when some 60,000 low-wage workers in the United States walked off the job in more than 200 cities demanding a $15-an-hour minimum wage. The protest was reportedly held on Tax Day because more than 150 billion taxpayer dollars are spent on public assistance to support underpaid workers.

Then the following day, the Indiana House passed a measure that would require Indiana welfare recipients to take a drug test in order to receive benefits.

The cost of the program is about 2.2 million taxpayer dollars.

These tax dollars would in large be spent drug testing those earning minimum wage. Which, judging by the prior day’s protests, include fast-food workers, home-care aides, child-care providers, Wal-Mart clerks, adjunct professors, and airport workers.

Representative Terry Goodin is the author of this bill from Scott County, where there are more than 130 confirmed HIV cases – almost all are linked to drug use. His bill wasn’t new to Indiana, which has tried to follow other states with such a requirement before. But Goodin’s proposal is a bit different than past failed attempts. Specifically, his proposal would not take those who test positive off of welfare, but would provide counseling and drug rehabilitation programs. Nor would it impact anyone on disability, over 65 years old, or a child.

But then just hours after it passed with an 83-13 vote, Goodin told reporters that he was rethinking his decision.

Why the change of heart? He saw the statistics:

  • Only 9 of the adults testing positive for HIV in his home Scott County receive welfare benefits.
  • Otherwise, 60 adults in Scott County receive benefits on behalf of 93 children.
  • Statewide, about 3,909 adults and 17,194 children receive benefits.
  • The average payment is $88.30 per month in a child-only or one-parent family and $52.23 per month in a two-parent family.

After passing the measure, Goodin said, ” Maybe there’s not as much fraud as people say there is. … It even makes me rethink my position. Since now we found out the drug testing isn’t going to reach many people, maybe there’s a different way to reach these people who are hooked on drugs.”

After the state plans to spend $2 million on public relations expert Porter Novelli out of New York (plus the cost of actual advertising), how much are taxpayers willing to spend to find out who is smoking marijuana or taking heroin? Do we really know if the cost will be worth the potential savings?

Even Indiana’s own Rock and Roll legend John Mellencamp has chimed in on recent Indiana Politics, saying that he doesn’t want tax revenue from his ticket sales going to the Indiana government. His editorial can be read here.

What is going on in Indiana? Is there a disconnect?

Indiana Flag

By: Alex Salvi
Valparaiso University Law School
J.D. Candidate, 2016

On April 2, Indiana Gov. Mike Pence signed into law a revised version of the controversial Religious Freedom Restoration Act (read more about it here). The revisions grant new protections to LGBT employees, tenants and customers, lawmakers said at a news conference in the Indiana Statehouse. The fix, however, does not apply to churches or schools.

The fix features what lawmakers call “anti-discrimination safeguards” by adding language to clarify that no “provider” or business—other than a church or church-affiliated school—may deny service to anyone on the basis of sexual orientation, race, religion or disability. A landlord may not discriminate against gay tenants, for example. The RFRA also does not negate any rights available under the state constitution.

Governor Pence signed Senate Bill 101, also known as the “Religious Freedom Restoration Act,” making the law effective. The bill was approved by the Republican-controlled House by a 63-31 margin and reached the Governor’s desk to be signed. The bill was modeled on the federal Religious Freedom Restoration Act (RFRA). Indiana’s law expands protections to disputes between private citizens and corporations, in accordance with the 2014 Hobby Lobby decision.

Indiana’s original Religious Freedom Restoration Act, which Pence signed the week prior, would have allowed any individual or corporation to cite religious beliefs as a defense when sued by a private party. The law was originally written so broadly that many businesses and LGBT advocates argued that it would open the door to discrimination.

Legislators immediately drew heavy fire not only from gay rights activists but also from a wide range of large companies, including Apple, Levi’s, the Gap, Angie’s List, Eli Lilly, Twitter and Yelp. Business owners and the NCAA—which is headquartered in Indianapolis—said that if the law was not changed, they would reconsider whether or not to participate in business in the state. In response, Indiana revised the law and has since hired a public relations firm to repair the damage done to the state’s image by the law.

Not everyone is pleased with the revised bill, however. “Our position is that this ‘fix’ is insufficient. There was no repeal of RFRA and no end to discrimination of homosexuals in Indiana,” said Bill Oesterle, the CEO of Angie’s List. Employers in most of the state of Indiana can fire a person simply for being Lesbian, Gay, Bisexual, Transgender or Questioning.  That’s just not right and that’s the real issue here. Our employees deserve to live, work and travel with open accommodations in any part of the state.”

A similar scramble was underway Thursday in Arkansas, where Governor Asa Hutchinson signed a revised version of a religious liberties bill that had drawn similar blowback, prompting him to call for revisions. The bill he signed Thursday makes it harder for businesses to use religion to justify denying services to gays.

While the Indiana legislators did address the issue of discrimination in the bill, they did not repeal the bill altogether. It doesn’t accomplish what the law’s critics wanted most: Adding sexual orientation to the list of categories protected by Indiana’s anti-discrimination law. Therefore, the new language does nothing to expand LGBT rights from where they were prior to Pence’s signing of the RFRA. LGBT discrimination is still legal in Indiana, since it lacks comprehensive protections on the basis of sexual orientation and gender identity.

Chemical formula of olmesartan medoxomil, sold under the trade name Benicar.

Chemical formula of olmesartan medoxomil, sold under the trade name Benicar.

We’ve talked about patent zombies here before. Now how about a zombie patent?

On March 31, the Court of Appeals for the Federal Circuit issued its decision in Apotex Inc. v. Daiichi Sankyo, Inc. The case was a grueling three-sided fight between an original drugmaker and two generic drugmakers over the legal effect of a paperwork error at the Food and Drug Administration that kept a legally “dead” patent on the books.

The core question was whether generic drugmaker Apotex could sue the original drugmaker Daiichi for declaratory judgment that Daiichi’s legally dead (but still on the books) patent was really dead.

The problem was that federal courts only have jurisdiction where there is a justiciable case or controversy. Here, there was no controversy: everybody agreed that Daiichi’s patent could not be enforced. But under the law, Apotex could start selling its generic drug much sooner if it got a declaratory judgment that the patent would not be infringed. Was that enough to get the case into court?

Judge Richard Taranto wrote for the three-judge panel, concluding that Apotex could in fact sue. The requirements for federal jurisdiction and standing were met, the court ruled, because despite the lack of controversy over the patent itself, there was still a valuable legal right at stake.

The case was governed by the Hatch-Waxman pharmaceutical patent framework, as amended in 2003. Patent cases in general are not known for being especially easy to decipher. But Hatch-Waxman patent cases take on a special opacity. The citations alone can be eye-watering.

For example, a key provision in this case was 21 U.S.C. § 355(j)(5)(D)(i)(I)(bb)(AA), which governs the relevant exclusivity period.

(Go on, follow that link and see if you can figure out how the exclusivity period is determined.)

The facts are as headache-inducing as the law, but here are the essentials:

Drugmaker Daiichi holds two patents on the drug olmesartan, which treats high blood pressure. One patent expires in 2016 while the other expires in 2021. Daiichi has disclaimed the later-expiring patent (US Patent 6,878,703), rendering that patent null and void.

Thus, generic drugmakers should be able to start making and selling olmesartan in 2016.

But the FDA keeps a record of all patents on approved drugs, called the Orange Book. If a patent on a drug is listed in the Orange Book, the FDA won’t approve a generic version.

The FDA should have removed the second patent from the Orange Book when Daiichi disclaimed the patent. But for some unknown reason, it did not. And that failure to remove the patent from the Orange Book had some odd legal effects.

The first generic drugmaker to apply for the right to market a future generic version, Mylan, had filed a certification contesting the patent’s validity.

In enacting (and later amending) Hatch-Waxman, Congress wanted to give generic drugmakers a strong incentive to challenge bad patents. Rather than paying money or handing out fancy trophies, Congress decided to give a drugmaker who challenges a patent an exclusivity period during which no other drugmaker can market a generic version: a temporary duopoly.

So in this case, because it challenged the patent, Mylan would get a 180-day period during which it could market its generic version of olmesartan without any competition except for the original drugmaker. But under the statute, it would forfeit that 180-day period if a third drugmaker got a declaratory judgment against the patent.

And that sets up the bizarre shell game in this case. Daiichi had already irrevocably disclaimed the patent: the patent had legally ceased to exist. But because the patent was still listed in the Orange Book, Mylan still had a 180-day exclusivity period as its reward for challenging the now-void patent.

Since the underlying purpose of Hatch-Waxman was to get generic drugs to market quickly, Judge Taranto concluded that it would make no sense to interpret the statute as preventing a suit like Apotex’s. The Apotex suit would precisely serve the purpose of the statute in clearing the way for faster, wider generic competition.

But in deciding that the courts could hear Apotex’s claim, the Federal Circuit significantly expanded the scope of subject-matter jurisdiction in patent law: a court can now hear a suit for declaratory judgment against a patent even when there is no controversy about the patent at all.

The case now returns to the Northern District of Illinois, where it is likely that Apotex will quickly get a declaratory judgment of non-infringement and be able to offer its own generic olmesartan in 2016.

By: Samuel Henderson
Valparaiso University Law School
J.D. Candidate, 2016

 

Religious FreedomBy: Alex Salvi
Valparaiso University Law School
J.D. Candidate, 2016

Last week Governor Pence signed Senate Bill 101, also known as the “Religious Freedom Restoration Act,” making the law effective. The bill allows private parties—including businesses open to the public—to invoke a religious defense in legal cases. The bill was approved by the Republican-controlled House by a 63-31 margin and reached the Governor’s desk last Monday.

Despite gubernatorial vetoes by a number of other governors of similar laws, Gov. Mike Pence resisted calls to veto the bill Monday evening. He issued a statement that the measure, “is about respecting and reassuring Hoosiers that their religious freedoms are intact. I strongly support the legislation and applaud the members of the General Assembly for their work on this important issue.” Other Republican leaders, like presidential hopeful Senator Ted Cruz and Governor Jeb Bush, have also backed Pence and the legislation.

The bill is modeled on the federal Religious Freedom Restoration Act (RFRA). Indiana’s law expands protections to disputes between private citizens and corporations, thanks to the 2104 Hobby Lobby decision. There, the Court ruled that closely-held corporations owned by shareholders with religious objections do not have to participate in arrangements under the Affordable Care Act resulting in their employees’ being covered for contraceptives. Senate Bill 101 attempts to prohibit a governmental regulation from substantially burdening an individual’s free exercise of religion, by allowing exemptions from legal requirements for  persons having religious objections to the applicable law unless the law is the “least restrictive means possible to further a compelling governmental interest.

Indiana’s S.B. 101, is broader than federal law RFRA (and also broader than many other state RFRA’s). While the Indiana bill says that a “governmental entity may not substantially burden a person’s exercise of religion,” it also applies those rules to businesses and interactions between private parties “regardless of whether the state or any other government entity is party to the proceeding.”

So, what legal topic or issue does that raise? Indiana’s RFRA could apply to any legislation or regulation, but many believe that the motivation for its passage is to allow individuals and businesses who object to same-sex marriage to claim exemptions from requirements that they not discriminate against same sex couples.

“The claims that the Religious Freedom Restoration Act is about licensing discrimination are completely off-base and misinformed. This legislation is simply about preventing the government from trampling on the religious liberties of Hoosiers” David Long, Indiana Senate President (R-Ft. Wayne) said in response to these allegations. “It does this my establishing a strict test for courts to use when reviewing government actions that may impact religious freedom. At least 30 states and the federal government already have this safeguard, and I support providing the same protections here in Indiana.”

This legislation is extraordinary in many ways, but the challenge underlying it is the tension between governmental regulations and free exercise, and then, more intensely free exercise versus a competing claim not to be the object of illegal discrimination. Consider also the effect on employees. When a person goes to work for a company, that individual may be affected by the belief system of its owners, but with no particular recourse under the law if the employee’s own belief system is violated. Employees who work for the corporations asserting free exercise exemptions seem to be overlooked. Finally, a background assumption of the bill is problematic. It is the notion that it would provide a workable, even common, religious exemption right from state regulations. And, there remains a substantial doubt as to its constitutionality, because the Supreme Court will be ruling on whether states have the constitutional right to ban same-sex marriage. If they do not, Indiana’s own RFRA is jeopardized.

Many employers may wish to qualify for Indiana’s state RFRA. But, courts have typically required compliance with content-neutral, generally applicable laws whether the regulated entity  agrees or not. Society cannot function if persons may opt out of things that offend them. As Galileo once said, “I do not feel obliged to believe that the same God who has endowed us with sense, reason, and intellect has intended us to forgo their use in the discussion of religion.”

Many people, business, and civil rights groups have expressed their outrage over the new law. Connecticut Gov. Dan Malloy on Monday signed an executive order banning state-funded travel to Indiana, and the mayors of San Francisco and Seattle enacted similar bans. Apple, the NCAA and other companies have joined opposing groups in speaking out against the law.

The backlash has resulted in negotiations about how to fix the law. Governor Pence and members of the legislature are meeting this week in an attempt to balance the competing interests of business leaders and social conservatives. Pence issued a statement, “After much reflection and in consultation with leadership in the General Assembly, I’ve come to the conclusion that it would be helpful to move legislation this week that makes it clear that this law does not give businesses a right to deny services to anyone.”

 

Scales of Justice 01By: Alex Steciuch
J.D. Candidate, 2015

Trying to fake your way out of a criminal conviction is risky to begin with and now it’s punishable within the Seventh Circuit with an added charge of obstruction of justice.

In 2002 Anthony Wilbourn was convicted of robbing a bank in South Bend, Indiana. The court enhanced his sentence for obstruction of justice due Wilbourn’s attempt to delay his trial by faking mental incompetence. This enhancement raised the applicable sentencing guidelines for his base crime to a higher level. At his initial arrest, Wilbourn tried to mimic catatonia and made false statements to authorities. He told them he didn’t know what year it was, what a bank was, and that he didn’t know how to tell time or read. Wilbourn’s claim to mental incompetency was determined very quickly to false after a psychological evaluation. Thereafter, Wilbourn quickly regained his mental competency and ability to read and communicate with his lawyer—handily, just in time for his trial.

But should the court punish people who fail to succeed with a claim of incompetency to stand trial? Wilbourn asked this question on appeal. He argued that if a court can enhance the for obstruction the sentences of those who are found competent, after requesting a competency hearing, lawyers will be afraid to raise the issue at all. Wilbourn’s policy point expresses a serious concern. After all, what lawyer would risk the frustration of the court and additional charges for the client by requesting a competency hearing, if there were a real risk of heavy consequences for doing so?

The Supreme Court has long held that it violates a mentally incompetent defendant’s due process rights to be forced to stand trial. Some people cannot adequately defend a criminal charge, due to their mental condition. These defendants are often not able to understand the charges against them or adequately assist their lawyers to defend them. Such an unfortunate defendant would never be able to have a fair trial, and an injustice would be done, if those who should have their mental competency examined forgo the opportunity, due to fear of enhanced punishment. But, for Judge Posner, trial judges should be given more credit than to impose an enhancement arbitrarily. Just because judges have the ability to find that a defendant is obstructing justice by wrongfully claiming incompetency does not mean that enhancements will automatically follow. Like many considerations at the trial level, the determination of whether an enhancement is justified or not will turn on the facts of the case, and. If that determination is wrong, it can be dealt with on appeal. That may be cold comfort to many defense lawyers, for few decisions within the discretion of the trial court are reversed on appeal. Criminal defense lawyers in the Seventh Circuit must now factor the possibility of an enhancement into their trial strategy in every case where competency is a close question.

But, Wilburn’s was not a close case. There was no doubt that he was faking, and not at all well. It appears from the record that the deception was comically bad. Just consider his pretense that he didn’t know what courts and police officers were, despite being a career criminal. With the Seventh Circuit’s affirmation of the lower court’s decision the circuit joins several other Court of Appeals in concluding that obstruction of justice occurs when a defendant exaggerates or fakes their symptoms at a competency hearing. In affirming the trial court, Judge Posner has concluded that the benefits of potential enhancements outweigh any chilling effect on the rights of defendants to claim the status.

Dixie Highway in Markham, near where the events of the original case occurred.

Dixie Highway in Markham, near where the events of the original case occurred.

On March 23, the Seventh Circuit granted prisoner Lawrence Owen’s habeas corpus appeal of his murder conviction, giving the government 120 days to either retry the case or release him. The case stands out as a rare example of a federal appeals court actually granting a habeas petition.

The decision came more than a decade after the original conviction, and after multiple unsuccessful appeals in state and federal court.

Judge Richard Posner wrote for the three-judge panel. He did not mince words, referring to the trial judge’s stated rationale for the conviction as “nonsense.”

The events of the case took place in the Chicago suburb of Markham in 1999, when a young man named Ramon Nelson was knocked off his bike and killed by a blow from a baseball bat. At his death, Nelson was riding away from Mackie’s Lounge and Liquor Store, which then stood at the corner of 159th and Dixie Highway, near the boundary between Markham and Harvey. The police found that Nelson had 40 baggies of crack cocaine, packaged for sale.

Someone had murdered him. But who?

In the opinion, Judge Posner recited the entirety of the evidence against Owens at trial:

Maurice Johnnie identified Owens as the murderer from a photo array of six persons and from a lineup—although Owens was the only person in the line-up who also was in the photo array, thereby diminishing the probative value of the second identification. The other eyewitness, William Evans, identified Owens as the murderer from the same photo array and a lineup. But at the trial, though Owens was present in the courtroom, Evans twice pointed to a photo of someone else in the photo array as being Owens.

Nothing else linked Owens to the crime. Still, Judge Posner agreed with the other courts that had rejected Owens’ appeals that even this inconsistent eyewitness testimony could have been enough to find Owens guilty beyond reasonable doubt.

The problem, though, was that the trial judge actually said why he was finding Owens guilty, and it had nothing to do with any of the evidence that was introduced. At the end of the closing arguments, the trial judge described the “real issue” as that “Larry Owens knew [Nelson] was a drug dealer. Larry Owens wanted to knock him off. I think the State’s evidence has proved that fact.”

But in fact, the State had introduced no evidence on that point at all.

The Illinois Court of Appeals had previously examined this problem, but decided the judge’s statement was harmless error, since it related only to Owens’ motive and not identification. But as Judge Posner concluded, “[g]iven that the entire case pivoted on two shaky eyewitness identifications, Owens might well have been acquitted had the judge not mistakenly believed that Owens had known Nelson to be a drug dealer and killed him because of it.”

Thus, the error was not harmless, and Owens’ petition was granted.

The lack of coverage of the original case is striking. A search of the online archives of the Chicago Tribune, Sun-Times and even the local Southtown Star turns up not a single story about the murder or the ensuing trial.

Then as now, it seems, some lives are cheaper than others. And not only in the South Suburbs.

By: Samuel Henderson
Valparaiso University Law School
J.D. Candidate, 2016

Untitled

By Andrea J. LaMontagne
Valparaiso University Law School
J.D. Candidate, 2016

While safety concerns in dealing with prisoners must be balanced against certain violations of prisoners’ privacy, there are still circumstances where supposed safety measures go too far. For instance, while strip searches of prisoners are typical and reasonable safety measures, requiring a prisoner to wear a transparent jumpsuit is not. The Seventh Circuit Court of Appeals reviewed such an instance this week in King v. McCarty, et al., when a prisoner was left emotionally scarred by the “safety measures” encountered from his guards.

Prior to being transported from a county jail to a state prison, Illinois prisoner Marshall King, was forced to wear a jumpsuit that left him exposed. The jumpsuit was not the typical garment administered by prison personnel, and left King’s genitals and rear exposed for an extended amount of time in front of both male and female guards and other male prisoners. King was chained to other prisoners during the transport and noticed that they were not similarly outfitted. After requesting garments with which to cover himself, King was mocked and advised that he should be grateful that he was not being transported in winter.

Although the guards responsible have failed, thus far, to comply with discovery requests that would require them to deliver the jumpsuit in question, they denied the jumpsuit’s translucency but stated that it was “less than opaque” and admitted that it was not standard issue. The guards further stated that providing him the jumpsuit was due to security concerns, despite the fact that King was strip searched on both sides of his transport to the new prison.

According to the Seventh Circuit Court of Appeals’ opinion, King brought suit on the following grounds: that the acts of the guards “amounted to an unjustified and humiliating strip-search that violated his rights under the Fourth and Eighth Amendments to the federal Constitution.” However, the district court found after reviewing King’s complaint (under the Prison Litigation Reform Act of 1995) that he had not stated a viable claim under the Eighth Amendment for cruel and unusual punishment, but allowed him to go forward with the Fourth Amendment theory of unreasonable search. The district court later granted summary judgment in favor of the defendants because King had failed to exhaust all administrative remedies to his problem under the Prison Litigation Reform Act. King subsequently appealed.

In reviewing King’s complaint, the Seventh Circuit decided that King’s transfer from one prison to another “made it impossible” for him to follow the grievance procedures against the guards that he would have otherwise been allowed. After being transferred, King wrote to the jail to obtain the proper grievance form, but received no response.

In response to the claim by defendants that he had not followed the proper grievance procedures, “King… responded with a number of affidavits and sworn pleadings stating that: (1) he tried to resolve his complaint informally by complaining to the guards on the day of his transfer; (2) he lacked access to writing materials with which to request the grievance form until more than a week after his transfer; and (3) he wrote to the jail as soon as he could, explaining his complaint and requesting the proper paperwork, but never received a response”, which tends to prove that King did exhaust all viable options in attempting to contact the county jail with his grievance.

The Seventh Circuit reversed and remanded for further proceedings after clarifying that an Eighth Amendment claim of cruel and unusual punishment was valid in this situation. It held that the Eight Amendment claim that King attempted at the district court level was plausible because the “unusual” jumpsuit King was forced to wear did not have a corrective purpose, but was rather used for humiliation. The Seventh Circuit explained that even in prison individuals must be protected against unreasonable intrusions to their bodies.

Such a holding by the Seventh Circuit Court of Appeals will hopefully encourage prisons to uphold standards of prisoner dignity in day-to-day operations. This decision demonstrates to those who would harass and embarrass prisoners for the sake of their own amusement that such sickening and intrusive behavior will not be tolerated.

OLYMPUS DIGITAL CAMERAOn March 10, the Seventh Circuit Court of Appeals issued its ruling in Foxxxy Ladyz Adult World v. Village of Dix, which pits a small conservative town in Illinois against a strip club. Judge Flaum wrote for the three-judge panel.

The Village of Dix is a town of less than 500 people, straddling Interstate 57 in southern Illinois. The Village is not merely a conservative place; it is that increasingly rare phenomenon even in the rural Midwest: a “dry town,” where the sale of alcohol is strictly prohibited. (Fans of irony will note that Dix is also the hometown of the founder of NORML.)

To say the least, a dry town is not a welcoming place for adult entertainment, let alone an establishment like Foxxxy Ladyz, which is BYOB and offers fully nude dancing. One remarkable thing about this case, then, is that the strip club seems to have been operating in the Village of Dix for several years before the village board took action. (The village enacted a series of ordinances targeting the strip club in 2010, but did not serve Foxxxy with a cease and desist notice until 2013.)

That delay might have been at least in part due to a factor that also weighed in the Seventh Circuit’s decision: the strip club was located on the opposite side of I-57 from the residential areas of the town. Perhaps, for a time, out of sight was out of mind. But that distance also led the Seventh Circuit to question whether Foxxxy was really imposing the kind of harm needed to justify the town’s ordinance.

When the town finally did take action in 2013, Foxxxy sued in the Southern District of Illinois under 42 USC §1983, arguing that its constitutional rights had been violated. In the district court and also on appeal, the core issue was whether the town’s ordinance against nude dancing violated the First Amendment.

The district court dismissed the suit under Rule 12(b)(6), ruling that was sufficient for Dix’s ordinance to be modeled on ones that had been approved elsewhere. The Seventh Circuit reversed, allowing the suit to live to fight another day in the Southern District.

In reaching its decision, the Seventh Circuit sorted through a long series of fractured plurality opinions on this question from the Supreme Court. Under these opinions, nude dancing is symbolic expressive conduct. As a result, any governmental restriction on nude dancing is subject to “intermediate scrutiny”: the restriction must further an important government interest, and must be substantially related to that interest.

Turning to the situation in Dix, the Seventh Circuit looked closely at two of its own previous rulings on this issue from 2009, in which it ruled that a municipality trying to impose these kinds of restrictions on adult entertainment must “demonstrate a reasonable connection between the cited evidentiary basis for its regulation and the specific facts and circumstances on the ground.”

The mere fact that such ordinances had been upheld in other towns was not enough. Rather, Dix will have to show that the ordinance would serve a legitimate interest in its case as well.

Judge Flaum emphasized that the town might well prevail in the end. But at this stage of the case, he wrote, the village “has not pointed to sufficient secondary effects evidence to permit disposing of plaintiffs’ claim altogether.”

Foxxxy had also brought suit against the town’s new ordinance against BYOB establishments. But since merely preserving the town’s dry status was enough to provide a rational basis for the ordinance, Foxxxy lost on that one. At least according to the Seventh Circuit, bringing your own beer is not an expressive activity.

This case shows some of the oddities that arise in constitutional law. Surely, like almost any town that wants to prevent adult entertainment within its borders, Dix isn’t really concerned about impacts like increased crime or littering. Even if research showed conclusively that the strip club’s net impact was zero, the town would still want it gone. But it can’t win in court unless it does a good enough job of pretending that those secondary effects were the real reason for its ordinance.

What do you think? Should nude dancing be protected as speech? And if nude dancing is speech, should municipalities be required—or allowed—to twist themselves around in moves worthy of an exotic dancer so that they can restrict it?

By: Samuel Henderson
Valparaiso University Law School
J.D. Candidate, 2016

“It is hard to see how someone so deficient in the defense of his own interests could be an effective advocate for the interests of clients.” Circuit Judge Easterbrook

By: Jonathan Joseph, CPA, CGMA
J.D. Candidate, 2016

Jurisdiction refers to a court’s legal authority to render judgments and decisions. In a recent case before the Seventh Circuit Court of Appeals, the Court had the challenge of determining whether a district judge had the authority to render the judgment upon which the plaintiff’s appeal was based. Vernon T. Jones v. Association of Flight Attendants-CWA sheds light on the importance of following the jurisdiction’s defined legal authority in order to determine whether an appeal can be heard.

Vernon T. Jones, a fifteen-year veteran flight attendant, was fired for misconduct by United Airlines in 2010. Jones subsequently sued his former union, the Association of Flight Attendants on the basis of racial animus and settled that suit with a plea agreement heard by a magistrate judge. Under the plea agreement, the union agreed to file a grievance with the System Board of Adjustment on Jones’ behalf and Jones agreed to dismiss his lawsuit with prejudice. Both parties signed a stipulation of dismissal under Federal Rule of Civil Procedure 41(a)(1)(A)(ii) in June 2013.

Two weeks later, Jones filed a pro se submission with the District Court requesting new counsel and the return of his lawsuit to the district court for further action. This submission was disposed of by the magistrate judge in a minute order stating that “the suit already had been dismissed with prejudice and terminate.” Jones subsequently filed a second submission requesting that his lawsuit be reinstated, despite the fact that he acknowledged that the union was pursuing his grievance according to the terms of the plea agreement. The magistrate judge disposed of this submission in another minute order, “explaining that the court had not retained jurisdiction to enforce the settlement.” This triggered a third submission from Jones, who filed a “motion to establish court’s jurisdiction.” The same magistrate judge ruled that “the court could not exercise jurisdiction over a case that had been dismissed with prejudice” and Jones appealed that decision.

Did the district judge have subject-matter jurisdiction to address Jones’ three submissions after rendering final judgment in the civil case between Jones and the Association of Flight Attendants? If the appeal was based on the original case, sufficient time had passed so that Federal Rule of Civil Procedure 60(b) would be the only source of authority for action. In its decision, the appellate court found that the Court did not perceive the filing to be a Rule 60(b) filing. Jones would have a case under contract law if there was a disagreement over the terms of his plea agreement settlement. That would create a new case; one in which the magistrate judge would have no jurisdiction unless assigned by a district judge. The magistrate’s error had consequences for the original ruling that was under appeal, because the appellate court had no jurisdiction to review it. The appellate ruling included the opinion that a district judge determine whether the federal claim “provides supplemental jurisdiction over Jones’s state-law claim for breach of the settlement contract” under 28 U.S.C. § 1367. This case illustrates the need to determine proper jurisdiction before rendering legal judgment to prevent its ultimate dismissal on jurisdictional grounds.

Beep Beep

By: Alex Salvi
Valparaiso University Law School
J.D. Candidate, 2016

The Obama administration has agreed to allow Governor Mike Pence of Indiana to apply state-specific provisions so long as it attempts to expand Medicaid.

The Affordable Care Act was signed into law by President Barack Obama on March 23, 2010 and upheld by the Supreme Court on June 28, 2012. The Supreme Court left open a critical loop-hole in the very structure of Medicaid when it ruled in a 2012 decision that the federal government didn’t have the power to force the states to expand as a condition of staying in the program. This decision ultimately gave the states a choice: expand the healthcare program in accordance with The Affordable Care Act, or keep the version of Medicaid that was in existence before the law passed.

Since the application of The Affordable Care Act, Medicaid programs have been diversified from state to state. Many states have attempted to expand the programs while many states have taken an experimental approach in order to apply new policies. Inevitably, this has created confusion among healthcare providers and clients alike.

The primary intent of The Affordable Care Act—commonly referred to as Obamacare—was to simplify the wide-range of Medicaid programs in order to make healthcare more accessible throughout the country. Specifically, the Act was attempting to create a more uniform healthcare system to address the 17.87% of the country without it.

The ability to flat out reject the Medicaid expansion—denying the Obama administration a victory and limiting poor residents’ access to health coverage—has given governors leverage to bargain on just what kind of Medicaid program they want. Indiana is one of the states that has taken the approach to expanding its Medicaid program under Obamacare.

Last month, the programs were extended to be accessible to any individual earning less than $16,000 a year. This does not mean that healthcare is free for these individuals. The newly enrolled recipients will have to pay monthly premiums or be blocked from the system. This is not a provision that targets only low income earners; higher-earning beneficiaries who fail to pay their premiums will be shut out of the program for six months. Additionally, people who use the emergency room at a higher rate will be charged higher co-payments. Like the 27 other states that have expanded Medicaid under the Affordable Care Act, the federal government will cover the entire cost through this year and at least 90% in future years.

The recent expansion provisions in Indiana, while attempting to address the primary issues of the Act itself, seem to redirect the purpose. These provisions are essentially designed to enforce the conservative idea of personal and fiscal accountability in regard to their healthcare decisions. The Obama administration has seemed to pick their battles in regard to this matter, allowing these types of provisions to be permitted in exchange for the collective expansion of Obamacare.

Despite Governor Pence being a high profile Republican and potential presidential candidate, he and the Obama administration were able to agree on Medicaid expansion funds—possibly setting a precedent for other Republican led states that have opposed the application of Obamacare in the past. One thing you don’t see often in Washington is compromise; these two sides managed to show the application of compromise and demonstrated that a result could be reached.

Nonetheless, when Governor Pence, announced the news, the focus of his speech was less about his state’s decision to embrace this part of Obamacare than about the special concessions he’d been able to extract from the Obama administration. “I believe Medicaid is not a program we should expand. It’s a program that we should reform and that’s exactly what we’re accomplishing,” Pence said Tuesday at a speech announcing the plan’s approval.

The actions of Governor Pence don’t go without precedent, however. Although every state participating in the program must follow all the rules as established at the federal level, there have always been opportunities for states to make changes when they want to go beyond the program. The Medicaid program itself is designed to be a federal-state partnership that would allow some ability for the states to make adjustments. These adjustments include waivers that would allow states to conduct experimental projects that test theories about cost and how best to care for patients. This is what Governor Pence’s argument depends on.

The coming years will be both crucial and defining for researchers. They will be given the difficult task of analyzing and comparing the many approaches states have taken while expanding the program in a search for the best ways to provide health insurance to everyone—even those who can’t afford it. Nonetheless, it is going to be in a different form and provide a different future than the one that and congressional Democrats envisioned when they designed the Affordable Care Act.

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