Valpo Law Blog

Analysis of current legal issues and cases in the Seventh Circuit Court of Appeals

Category: Public Policy

Legal Malpractice and Violations of Professional Rules Now Have Significant Bankruptcy Consequences

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Azariah Jelks
Juris Doctor Candidate, 2016
Valparaiso University Law

Lawyers will now have more reasons to avoid committing malpractice. In Estate of Cora v. Jahrling, the Seventh Circuit held that a lawyer filing for bankruptcy could not discharge a malpractice judgment if it constituted defalcation while acting in a fiduciary role.

Illinois attorney John Jahrling represented ninety-year-old Stanley Cora in a real estate transaction to sell his home. Unfortunately, Mr. Cora only spoke polish, and Jahrling was unable to communicate with his client. However, the opposing attorney was conversant in Polish so Jahrling relied on him to translate and communicate with his client.

The transaction ended in a windfall for the adverse parties, with Mr. Cora agreeing to sell his home for a mere $35,000. The home was actually valued at $106,000 and the buyers eventually resold the home for $145,000. Mr. Cora also believed one term of the transaction gave him a life estate that would allow him to live in the upstairs apartment of the house free of charge. This agreement was lost in translation either intentionally or accidentally, and it was not included in the sale contract.

Mr. Cora sued in state court for malpractice, but passed away before the suit could take place. His estate then continued the lawsuit on his behalf. The estate eventually received a malpractice award of $26,000 plus costs.

Jahrling later filed for Chapter 7 bankruptcy, and Mr. Cora’s estate argued that the judgment was not dischargeable in bankruptcy under 11 U.S.C. 523(a)(4), which prohibits discharging debts obtained “for fraud or defalcation while acting in a fiduciary capacity”. The bankruptcy court found in favor of Mr. Cora’s estate, holding that his conduct not only amounted to a defalcation of a fiduciary duty, but that he clearly disregarded a risk that he would violate this duty by relying on an adverse party to meet his client’s interests.

“Defalcation” is an abstruse term that courts have been struggling to define. The Seventh Circuit noted that it is, “a word only lawyers and judges could love”. But generally, it refers to the misappropriation of money when someone breaches a fiduciary duty.

The Seventh Circuit applied Supreme Court precedent Bullock v. Bank Champaign, which held that debts occurring from defalcation while acting in fiduciary manner are not dischargeable. Bullock also established the state of mind required to show whether defalcation occurred. Under Bullock, defalcation requires gross recklessness or knowledge of the improper nature of the fiduciary behavior.

The Seventh Circuit affirmed the bankruptcy court’s analysis under Bullock that Jahrling’s violation of the professional rules of conductwas circumstantial evidence that he acted with gross recklessness. The fact that Jahrling made no effort to communicate with Mr. Cora except through adverse counsel despite the obvious risks associated with this conduct was also sufficient circumstantial evidence of his recklessness.

Committing malpractice and violating rules of professional responsibility have now become even more significant through this ruling. Unlike with legal malpractice cases, violations of professional responsibility are not proof of legal breaches of duty. Nonetheless, both violations have been held to be permissible circumstantial evidence of recklessness that ultimately may leave bankrupt lawyers on the hook for non-dischargeable judgments.

In Search of Asylum

By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Lishou Wang, a native and citizen of China, used to farm in a village in the eastern province of Shandong.  In 1988, he and his wife bore a child.  Shortly thereafter, China’s officials ordered an intrauterine device (IUD) implanted in his wife.  Five years later, Wang’s wife got pregnant again because the IUD fell out, and the officials forced an abortion.  In 2000, his wife again gave birth.  Again, government officials showed up at their house and threatened to sterilize either him or his wife.  Outraged, Wang fought against the official’s orders.

Wang recalled being kicked to the floor and hit with batons until he passed out.  He woke up in the hospital and felt excruciating pain from a fractured foot.  Government officials surgically inserted “Norplant” into his wife’s arm while Wang remained hospitalized.

In 2009, Lishou Wang entered the United States on a business visitor’s visa for three months and overstayed.  Wang applied for asylum and withholding of removal over a year after the visa expired.  In his search for asylum, Wang alleged that China’s officials tried to prosecute him for resisting birth control demands.

At the asylum hearing, Wang testified through an interpreter.  The decision hinged on Wang’s inconsistent statements.  He testified that China’s officials forced tubal ligation, a form of sterilization, and implanted Norplant in his wife, a form of contraceptive.  The court interpreter misinterpreted “Norplant” for “tubal ligation.”  The National Institute of Justice (IJ) said that the two procedures were so “markedly different” that it is impossible to confuse the two in any way.  The IJ reasoned that even if Wang had told the truth, he “could not establish past persecution because he had resisted only an implant, not a forced abortion or sterilization.”  The IJ, under 8 U.S.C. § 1227(a)(1)(B), ordered Wang’s removal for overstaying his visa.

The Board of Immigration Appeals (Board) affirmed the IJ’s findings and Wang petitioned for judicial review.  On August 4, 2015, the United States Court of Appeals for the Seventh Circuit heard arguments in Lishou Wang v. Loretta E. Lynch.  The IJ mistook Wang’s innocent confusion between the two birth control procedures to incorrectly conclude that it never occurred.  The IJ did not have enough evidence to reject Wang’s honest mistake to discredit his inconsistent testimony about what procedure was forced on his wife.

The Seventh Circuit rejected the IJ’s holding because the statute protects those who were punished for opposing the population control program.  According to 8 U.S.C. § 1101(a)(42), Wang only had to show that he resisted a coercive population control program to establish relief said the Seventh Circuit because it “is not limited to only forced abortions and sterilizations.”  On October 26, 2015, the three judge panel remanded the case to the Board for further proceedings.

Court interpreters play a key role in the democratic process.  Many non-native English speakers rely on court interpreters to guide them through the legal system.  A court interpreter’s error can result in the law being misapplied.  Many are discouraged to utilize the courts because they do not speak fluent English nor understand the legal process.  Court interpreters are key players in the courts and their assistance is highly valued.  Like attorneys, court interpreters must show great attention to detail because one wrong interpretation can cost a case.

Child Custody Battle From Over the Border

<> on April 1, 2014 in Nogales, Arizona.

By: Macey Albert
J.D. Candidate, 2017
Valparaiso University School of Law

We all know child custody gets ugly within the United States, but what happens when it becomes tug-a-war between U.S. jurisdiction and jurisdiction outside of the U.S.? Judge Ripple wrote the opinion for a three- judge panel to better understand this battle in Ortiz v. Martinez.

Mr. Ortiz and Ms. Martinez lived together with their two children, A.O, a seven year old, and L.O, a sixteen-year-old boy. They all lived together in Mexico City. On August, the couple purchased round-trip tickets to Chicago to visit Martinez’s family. Ortiz was scheduled to return to Mexico on the 13th, and the rest of the family on the 20th. Ortiz retuned, but Martinez and the children did not. She informed Ortiz that her and the children would not be returning. Keeping the children in the United States would secure the safety of the children. In particular secure the safety of, A.O., from being sexually molested and emotionally abused by Ortiz.

Ortiz filed action under conditions of the Hague Convention seeking the return of the two children to Mexico. Martinez asserted that Ortiz had acquiesced to her retention of the children in the United States, permitting the district court to deny the return of the children under Article 13(a). Ms. Martinez claimed she had a claim under Article (b) because the children faced “grave risk” of harm if returned. She lastly presumed that the return would contravene with laws of the State of Illinois, the U.S. Constitution, and fundamental principles of human rights. Later, Martinez invoked Article 13, expressing L.O.’s desire to remain in the United States.

Dr. Machabanski, a psychologist, was appointed by the court to evaluate the children. The district court held a three-day hearing. It heard testimony from Martinez, Ortiz, and family members, and a camera interview was conducted for the two children. The court heard substantial evidence supporting the claim that Mr. Ortiz had sexually abused A.O. Martinez, including inappropriate touching of their daughter in the vaginal area. The doctor first told her that the rashes were diaper rashes and a cream was prescribed; however, the rashes reappeared. Martinez first perceived inappropriate contact when A.O. was three years old in the bathroom, where A.O. was naked and against the wall and Ortiz on his knees, naked in front of her.

A.O. corroborated this testimony explaining with gestures, and words. Dr. Machabanski testified that A.O. exhibited behavior consistent with having being sexual abused and she portrayed negative emotional toward her father, Ortiz, during playtime. The court dismissed the best wishes of the child defense, and independently found that L.O. was old enough and mature enough to make his own decision.

The Seventh Circuit reviewed the lower courts factual finding for clear error and its conclusion that those facts established a grave risk of harm de novo. The Court found that Mr. Ortiz’s evidence lacked credibility. Their reasoning was that Martinez wanted to flee to the states because he was having an affair, and brainwashed A.O. to testify. The Court found that the claim that Ortiz sexually abused his daughter meets the clear and convincing standard. The evidence of sexual abuse was substantial and thus met the grave risk exception.

Weighing the Options of Care

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By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Over 23,000 mentally disabled people were on the waiting list to receive housing and medical care from any of the eight state-operated developmental centers (SODC) in Illinois.  Another 600 were in emergency situations awaiting services. The State of Illinois could not provide essential services to those on the waitlist because it already cared for nearly 25,000 people.  In 2012, Illinois planned to close roughly a third of its SODCs to save costs. The state chose to close the Warren G. Murray Development Center, an SODC. Residents of Murray faced relocation due to the planned closure. The state tried to shift the residents of the SODCs to community-based facilities because it is cost effective.

Before the residents are moved, the state must assess their fitness. The assessment determines what kind of facility the disabled person will be placed in. Standing in the state’s way were the guardians of the Murray residents; the guardians wanted to prohibit the state from carrying out the assessment without their consent. The Illinois League of Advocates for the Developmentally Disabled represented the plaintiffs. They sued the Illinois Department of Human Services under 42 U.S.C. § 12132 of Title II of the American with Disabilities Act.  Plaintiffs alleged discrimination by a public entity.

The guardians claimed treatment of residents at community-based facilities are worse than at SODCs.  In addition, the guardians claimed the state left them with no other choice but to accept the relocation of the wards. Plaintiffs filed for a preliminary injunction against the assessment and transfer of the wards.  The case went before the district court of Northern Illinois.  The district court denied the plaintiff’s request.  Plaintiffs appealed to the Seventh Circuit Court of Appeals.

Judge Posner, Manion, and Hamilton presided over Illinois League of Advocates for the Developmentally Disabled, et al. v. Illinois Department of Human Services, et al. and affirmed the district court’s holding.  Plaintiffs failed to prove mistreatment of their wards at community-based facilities. The judges relied on factors such as emotional benefits of community-based facilities, the likelihood of residents having his or her own room, and the lack of irreparable harm on the plaintiffs in affirming the decision.

First, the judges reasoned that community-based facilities are emotionally beneficial for the residents. Being near stores, parks, restaurants, or movie theaters bring emotional benefits that allows them to feel free. Second, the chances of residents having his or her own room is better than at SODCs where less than 29 percent have their own room. Community-based facilities are less crowded than SODCs.  Finally, the judges thought that granting the preliminary injunction would impose irreparable harm on the state because of the financial distress.

SODCs are isolated medical centers cut off from society. Although the mentally disabled are severely hindered in life, it does not mean that they cannot experience the joy of being a part of the community. Academic studies show that severely disabled persons feel less isolated at community-based facilities.  Yes, parents or guardians should have the ultimate say in the care of their wards, but at times the state is in a better position to know what’s best in weighing the options of care.

The Unlawful Inquisition

By: Jonathan Joseph,  MBA, CPA
J.D. Candidate, 2016
Valparaiso University School of Law

How much information may a judge solicit from a telephonic interview? When does an oral interview become an unlawful interrogation? A recent case decided by the Seventh Circuit attempts to answer these very questions.

After serving a term in an Illinois state prison for a sex crime, the plaintiff was committed to a Treatment and Detention Facility, pursuant to the civil Sexually Violent Persons Commitment Act. He had a job in the facility’s dietary services department, but was fired. He filed suit against four dietary department staff members under 42 U.S.C. 1983. The plaintiff alleged that he was fired in retaliation for previous lawsuits he had brought against staff members. As required by 28 U.S.C. § 1915(e)(2), the district judge screened the complaint at the outset of the case to determine whether it “fail[ed] to state a claim upon which relief may be granted.” The judge found that the lawsuit “contained only conclusory allegations [in which] the plaintiff simply stated he had filed previous lawsuits and assumed people knew about it.” He ruled that the complaint did, indeed, fail to state a claim, and dismissed the suit with prejudice.

The judge had interviewed the plaintiff by telephone. During the interview, which the judge characterized as a “merit review,” no transcript or audio recording was kept. One could characterize the interview as inquisitional in its nature. The term “inquisition” has ominous overtones to those familiar with European medieval religious history, but today, an inquisitorial hearing is defined as “a hearing in open court in which the judge examines the parties to the suit rather than leaving examination to the lawyers, which is adversarial rather than inquisitorial.” In this case, the district judge went beyond the inquisitorial in its modern sense, because he examined the plaintiff in “secrecy being secured by the absence of a transcript, or even a judge’s or reporter’s notes.”

The Seventh Circuit reversed the district judge’s decision, noting that it previously rejected ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim. The court recognized that there are circumstances that merit telephonic interviews. These  can involve parties who are incarcerated and are done in order to save the time and expense of transporting a prisoner to court. However, these circumstances do not allow for questioning regarding the validity of the case. It is permissible for the judge to interview a pro se detainee plaintiff to determine what the facts of the case are, but not whether the plaintiff’s case is meritorious.

When a judge conducts any questioning of a witness, plaintiff, or defendant, that interview must be recorded and entered into the record. The judge must ensure that a transcript or recording of the interview be made to allow appellate review and prevent a reversal of a case that even the Seventh Circuit felt was weak: “barebones—maybe so thin that it could have been dismissed without further ado.” The court was obligated to take the judge’s error as grounds for reversal.

Citing Williams v. Wahner, the Court did not “mince words” when declaring that the use of ex parte telephonic interrogation as a method of screening complaints to determine whether they state a claim is unlawful. The court said that 28 U.S.C. § 1915A(a), a screening provision similar to § 1915(e)(2), does not contemplate an oral examination of a party by the judge designed to elicit answers that will enable the judge to resolve contestable factual issues. “If the validity of a claim depends on the accuracy of the plaintiff’s factual allegations, and their accuracy can’t be resolved without an oral hearing, it is a matter to be resolved at trial, in conformity with the procedures that govern trials. . . We expect that when this court declares a procedure employed by a district judge, or district judges, of this circuit unlawful, the procedure will be abandoned. Regrettably, not all the district judges have abandoned it.”

If a judge needs additional information from a detainee to determine the merits of a lawsuit going forward, the judge can make a limited appointment of counsel specifically for the purpose of fact-finding and release the attorney after sufficient information has been gathered. That may only involve a single interview or even a telephone call, which would satisfy the judge’s need for information and uphold the lawfulness of the manner in which it was obtained. Inquisitions, however, are unlawful and viewed with prejudice by the Seventh Circuit.

Practicality of Actual Injury in Data Breach

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By: Duke Truong
J.D. Candidate, 2017
Valparaiso University School of Law

Imagine being one of four million members under the care of Advocate Health and Hospitals Corporation (Advocate) and waking up to news that thieves have stolen your confidential information.  This is exactly what happened the morning after July 15, 2013, when burglars stole four password-protected computers from Advocate.   The computers contained patient’s confidential information: social security numbers, Medicare and Medicaid data, medical record numbers, health insurance data, and medical diagnoses along with names, addresses, and date of birth.  Advocate, whom patients entrusted with the duty of protecting their data, did not notify them of the breach until August 23, 2013.  Despite these facts, no proof of improper access or improper use of the confidential information actually occurred.

Matias Maglio and other affected patients brought a class action suit against Advocate in the circuit court of Lake County and Kane County.  Both lawsuits alleged claims of negligence, invasion of privacy, and violations of the Consumer and Deceptive Business Protection Act and the Illinois Personal Information Act.  Yet, plaintiffs failed to allege any unauthorized uses of their private information.  Despite the fact plaintiffs did not suffer any actual injury, they moved forward with their lawsuits anyhow.

Advocate moved to dismiss the complaints under the Rules of Civil Procedure for failure to state a claim and for lack of standing.  The plaintiffs did not suffer an injury-in-fact and only speculated that their stolen confidential information may lead to increased risk of identity fraud.  The doctrine of standing requires a plaintiff to raise issues of a real injury to which the law can recognize so to provide a remedy.  The complaints only alleged future, uncertain risk of identity fraud. The district courts of Lake County and Kane County dismissed the complaints in May and July of 2014, respectively.

However, the plaintiffs appealed to the Appellate Court of Illinois on grounds that the lower courts erred in its decisions.  The appellate panel consolidated the cases from the two counties and affirmed the district court’s decisions in Maglio v. Advocate Health and Hospitals Corporation on August 6, 2015.

The appellate panel reiterated that plaintiff’s failure to establish any specific injury makes the lawsuits insufficient.  To date, only two of the 4 million members suffered actual identity theft and they are not parties in the lawsuits.  The court held that this fact alone does not prove that plaintiffs face certain imminent risk of substantial harm.  Speculating about a future injury or harm is not grounds for a claim in the court of law.  To move forward, plaintiffs must show that their medical records were in fact disclosed to third parties.

Although the breach did not result in unauthorized use of information, speculation is not a cause for action.  To help lessen the burden on the courts, plaintiffs have to make sure their claims contain actual injuries otherwise it is a waste of resources for parties involved.  It may seem minor to determine actual injury, but the practicality is priceless.  As society increasingly depend on technology to store confidential information, employers (especially healthcare providers) should make data security one of the top priorities.  Employers should consider safeguards such as encryption and periodic audits to lessen the likelihood of a data breach. Proper training about HIPAA, security regulations and data privacy laws will further guard against a breach.

Physician assisted-suicide and state ‘Death with Dignity’ laws

UntitledBy: Anjelica Violi
Valparaiso University Law School
J.D. Candidate, 2016

The controversial issue of physician-assisted suicide in the U.S., mostly sparked in the 1990s by the infamous Jack Kevorkian, is becoming a serious consideration in more and more states. It not only fuels political debates, but moral ones as well.

A bill to legalize assisted suicide was introduced by two state senators in California this past week that mirrors Oregon’s Death With Dignity law. Supporters of this and similar bills include Debbie Ziegler, mother of Brittany Maynard, who moved to Oregon in the fall of 2014 to end her life after being diagnosed with terminal brain cancer at age 29. California’s bill would require two doctors to confirm that a patient has six months or less before prescribing a drug that accelerates death, and that the patient makes a request to a physician that the patient wants to die. The patient would also have to make two requests to two separate witnesses confirming that the patient seeks death.

For example, Washington’s Death with Dignity Act, enacted in March 2009 states, “This act allows terminally ill adults seeking to end their life to request lethal doses of medication from medical and osteopathic physicians. These terminally ill patients must be Washington residents who have less than six months to live.”

Since Brittany Maynard chose to end her life, 14 state legislators have either introduced or plan to introduce right-to-die bills. The following states have enacted laws to allow those who are terminally ill to get prescriptions of lethal doses of medication from their doctors: Oregon (1997), Washington (2009), and Vermont (2013). New Mexico, as of 2014, allows terminally ill residents to obtain aid in dying and is considers it to be a constitutional right. (However, this ruling is currently being appealed). Montana established in 2009 that doctors are legally protected when they write lethal medication prescriptions for terminally ill patients.

Since 1998,  1,173 people were prescribed “Death with Dignity” drugs, with 752 people actually dying from taking the prescriptions. Additionally, 79% of patients who chose to take lethal doses of medication suffer from malignant tumors.

However, there are two strong sides to physician-assisted suicide: those strongly in support of Death With Dignity laws, and those who are strongly opposed to assisted suicide altogether. The following are the most common arguments for both viewpoints.

Advocate viewpoints:

  • Death with dignity laws provide patients with a choice of when to die on their own terms.
  • Death with dignity laws are not replacements for end of life care because patients still have the choice of dying in their own homes and receiving alternative care.
  • Death with dignity laws allow patients to avoid life support that would extend the dying process. In many cases, life support patients are unconscious and are not able to voice their personal choice, unlike these laws that would allow a patient to voice their decision before getting to the point of life support.
  • These laws allow patients to avoid unbearable physical pain and suffering towards the end.

For example, in Holzman v. City of South Bend, the Plaintiff was a terminally ill man suffering from an array of diseases. In brief, he tried contacting Oregon’s assisted suicide hotline but accidentally called a private ambulance service, which in turn led to the local police department going to the Plaintiff’s home. This case decision was about unlawful entry and excessive force, but is still an example of the desperation some patients feel to end their physical pain and suffering from terminal illness.

Lemmer v. Schunk, a Wisconsin Appellate decision, also illustrates how people may go to extremes to put themselves out of their physical pain and suffering. The case involved a decedent who suffered from a terminal illness and shot himself to death in the chest and whether family members providing him with a gun constituted “unlawful and intentional killing.” One could argue that legalizing physical assisted suicide would provide a more controlled and safe environment, rather than leading to violent and gruesome acts of desperation.

However, there are negatives to legalization of physician-assisted suicides.

Opposing viewpoints:

  • Patients could be pressured to take their own lives by people close to them, such as family members, who cannot financially sustain the burden of care.
  • When lethal medication is available, anyone can administer the medication, which could be a problem if the patient has lost mental or physical faculties.
  • Aid in death care is less expensive than end of life care, conceivably prompting insurance companies and doctors encourage patients to choose death with dignity, rather than continuing expensive treatments.
  • Assisted suicide goes against the medical profession because the fundamental premise is the commitment of doctors to care for all people and not to doubt whether a patient is worth the effort.
  • Patients have fewer options because assisted suicide is a cheap option compared to long-term care.
  • Many patients might die before their time if they are not as terminally ill as they think and make a hasty decision to end their life.
  • The American Medical Association believes that doctors shouldn’t be involved in life-ending treatment, which goes against the profession.

What do you think about physician-assisted suicide and Death with Dignity laws? Will this trend become legalized in a majority of states in the near future? How will physicians reconcile their conflicting roles in this matter? If this practice becomes widely accepted, what other moral and ethical considerations will that present?

Drunk In Public? Legal. Drunk and Annoying In Public? Illegal

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By: Alex Steciuch
Valparaiso University Law School
J.D. Candidate, 2015

After a long break from final examinations and a winter holiday, it is good to be back from our hiatus. Much has happened in the Seventh Circuit and the states it covers. While this article may be too late to cover this ruling in time for the festivities of the winter holiday season, it is nonetheless important to report that the Indiana Supreme Court recently upheld the state’s public intoxication statute against claims that it is unconstitutionally vague.

We previously covered this area early last year when an Indiana Appellate court struck down Indiana Code § 7.1-5-1-3(a)(4) as so vague as to violate Due Process rights. That statute states that it is a misdemeanor for a person to be intoxicated by alcohol in public if that person “harasses, annoys, or alarms another person.” Mr. Rodregus Morgan ran afoul of the statute one early August morning when a police officer woke him up and told him to exit an Indianapolis bus shelter. Mr. Morgan refused to leave initially, but when he did, he exhibited signs of intoxication. The officer arrested him when he became agitated, stating that he was publicly intoxicated and annoying.

Mr. Morgan challenged the statute as being too vague, stating that “annoying” was not defined by the statute and that reasonable people would disagree on what is annoying. The Indiana Supreme Court did agree with Mr. Morgan that reasonable people could disagree about what constitutes annoying behavior, so it may seem strange to many that it then upheld the law. In doing so, the Court noted that a long line of Supreme Court cases have shown that laws do not have to be written with bright line precision. Rather, they must merely give enough notice to a reasonable person that the law covers their conduct or actions. As long as an ill-defined statute is not applied in a way that produces absurd results, statutes that may appear vague can survive.

The Indiana Supreme Court’s discussion here perfectly sums up a long running problem that lawmakers sometimes run into when drafting laws. It’s a problem that I discussed here just last year with the thorny issue of upskirt photos. Legislators know what sort of behavior or actions they want to regulate, but how do you best convey that to the public? If legislatures list prohibited activities, those who seek to evade the law adjust their behaviors while continuing to practice their unsavory ways. On the other hand, if a law is broad, so as to cover any potential situation that may come up, it might cover activities or behaviors not meant to be covered and be unconstitutionally vague.

Interpreting laws that others feel may be unconstitutionally vague as the Indiana Supreme Court has done here can be seen as recognition of the fact that drafting effective laws is difficult and shouldn’t suffer from far fetched, abstract hypotheticals that could show potential for abuse. As vague as a term like “annoying” can be, it would be hard to argue that the Indiana Supreme Court came to the wrong decision in vacating Mr. Morgan’s conviction. Sleeping while sitting upright on a bench in a bus shelter is not annoying behavior, so the police officer was wrong to arrest Mr. Morgan when there was no one else around for Mr. Morgan to annoy. This seems a reasonable response to an unreasonable arrest.

It might make people uncomfortable that a vague term like “annoying” can be incorporated into a law and that people are expected to understand what it means, but a finer solution has yet to appear in the history of lawmaking. Until the day when someone does find a better way though, it might just be safest to avoid being drunk in public.

Net Neutrality v. Net Profits

Public Service Message

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

Earlier this year, the federal appeals court struck down the FCC’s new rules governing Internet Service Providers that would essentially dissolve the concept of network neutrality. On May 15, 2014, FCC Chairman, Tom Wheeler, proposed similar rules in order to create a two-tier system over the internet. The FCC voted 3-2 to approve proposed net neutrality rules.

Net neutrality is the idea that broadband internet service providers (such as Comcast, Time Warner and Verizon) should treat everything that flows across the internet evenly. Under net neutrality, every website must be equally accessible to those who use the internet. This idea of neutrality is a basic principle of anti-monopoly regulation known as “common carrier” law, which, in the past, has been used to regulate widely used industries such as railroads, phone companies, and toll roads.

The court decision temporarily put a halt on the possibility of internet providers slowing down the user’s ability to stream content on the internet; however, the FCC has continued to propose rules that would create a two-tier internet system. The impact on the average user will likely not be immediate; however, over time, websites would eventually have to pass on to consumers the costs of paying for high-speed access. Additionally, the proposed FCC rules could allow broadband internet providers to charge their users in order to access certain websites and making it difficult to view certain websites owned by companies that can’t afford to pay for access to the internet fast lane.

Telecommunications services are regulated under Title II of the Communications Act. This legal principle applies “common carrier” obligations and consumer protections to their services, which the cable and phone companies oppose. Title II would make it illegal to charge extra fees to companies for access to their customers. Tom Wheeler— Obama appointee as Chairman of the FCC and former telecommunications lobbyist—has proposed not to use Title II for internet providers. Wheeler instead proposes to regulate internet service providers relying on Section 706 of the Communications Act.

Section 706 is an irregular way to regulate internet providers, because it’s not really intended to be a regulatory regime. The bill was written in 1996 with the intent to deal with the ‘digital divide’ in an attempt to get all Americans internet access. It is not limited to phone and cable companies, but includes web companies. The court decision earlier this year found this authority limited only by “the boundaries of the Commission’s subject matter jurisdiction and the requirement that any regulation be tailored to the specific statutory goal of accelerating broadband deployment.”

The proposed rules could affect not just entertainment, but other aspects of life as well. Take education, for example. If schools use an online curriculum made by a company that cut a deal with Verizon, students who subscribe to Verizon’s Internet service at home would have an advantage over other students who subscribe to another provider.

The FCC argues that these deals continue to be fair because internet providers would be required to demonstrate how they handle traffic, how much they charge for access to “fast lanes,” and whether they give preferential treatment to their own content. The last component could become exponentially important as internet providers are increasingly becoming a player in the entertainment industry. For example, Comcast owns NBC Universal, which includes 30 cable networks, 26 local TV stations and part of the streaming service Hulu.

Politics, Policy, & Pre-K – Indiana Governor Mike Pence Puts the Break on Applying for Federal Pre-K Grant

school bus

By: Jessica Marie Sullivan
Valparaiso University School of Law
J.D. Candidate, 2015

Right on the heels of Indiana pulling out of the Common Core Standards comes another interesting decision by Governor Mike Pence. He made the decision to not submit Indiana’s Application for $80 million dollars in federal Pre-K grant funding for low-income students.

The federal government is offering states the opportunity to apply for Preschool Development Grants. These grants are meant to support states in their effort to

“build, develop, and expand voluntary, high quality preschool programs for children from low-and moderate-income families.” The Preschool Development Grant program was created in response to President Barack Obama’s call to rethink our approach to education. President Obama in his 2013 State of the Union Address called for Congress to work towards expanding access to high quality Pre-K education programs. There are two levels of grant funding development for states that have little or no Pre-K programs and expansion grants for states that have larger programs and/or a Race To the Top-Early Learning Challenge Grant.  Only 16 states currently are eligible for the Development Grant, including Indiana.

According to the Indianapolis Star, Indiana had been building momentum for reform in terms of preschool education. The state made its first investment in preschool and there were major pushes from the city of Indianapolis, as well as corporate and philanthropic organizations. Indiana Public Media reports that earlier this year, the General Assembly approved a new state run Pre-K pilot program for five counties that would begin in most places in January. Yet, on Thursday October 16, 2014, Gov. Pence surprised the Hoosier education community by announcing the decision not to pursue the funding.

Why did Gov. Pence decide to pull the plug? According to an internal e-mail that was sent to the Indiana Early Advisory Committee (a committee created by Pence in 2013): “While accepting federal grant dollars can at times be justified to advance our state’s objectives…when it comes to early childhood education I believe Indiana must develop our own pre-K program for disadvantaged children without federal intrusion.”

In an editorial response to his critics, he stated that Pre-K should be expanded “the Indiana-way.” But according to the grant application, states are afforded the opportunity to develop their own plan. Applicants would be selected based on their plan to accomplish a variety of objectives, such as demonstrating their commitment to implementing high-quality pre-school plans, implementing state-level infrastructure and quality improvements, as well as ensuring they create sustainable programs.

Other than “federal intrusion” and doing things the “Indiana-way” Gov. Pence explained that his apprehension to apply for federal funding came because “…many early learning programs across the country have not been successful over the years.” He goes on to further state, “It is important not to allow the lure of federal grant dollars to define our state’s mission and programs.” Gov. Pence further stated that the pilot program needed to be studied before it was expanded.

Gov. Pence’s decision has been met with both applause and criticism. Sen. Joe Donnelly, – D is critical of Gov. Pence’s decision. In a letter to the Governor, Sen. Donnelly seems to be reaching out to get more specific information on the following:

  • What federal guidelines/consideration would impede the expansion of Pre-K in Indiana?
  • What outstanding policy questions need to be answered by the state’s pilot program in order for the state to pursue expansion?
  • What is the state’s plan to fund and implement expansion?

State School Board Superintendent Glenda Ritz stated that this was a “huge missed opportunity.” Ritz explained that the grant did not require a state or local match, nor did it require children to take a test to qualify for entering kindergarten. Without the funding, the board is left without the ability to provide high quality early childhood education to all children.  The Indiana State Teacher Union (ISTU) stated that “thousands of Indiana’s neediest children will once again pay the price for loyalty to narrow political agendas.”

Social Conservatives, Tea party groups, and other conservative political/public policy groups considered this a victory. Hoosiers Against the Common Core felt the grant was just “taxpayer funded day care.” The American Family Association of Indiana was also in support of Gov. Pence’s decision not to go forward because they were “…skeptical of the benefits of preschool programs and dubious of putting 4 year olds into government programs.”

Others suspect that Pence’s decision was not made from a right v. left position, but rather from the position of Gov. Pence as a possible candidate in the 2016 Presidential Election.

What happens in the mean time for the children in the five counties, including Lake and Marion counties, that have high populations of “at-risk” children? What happens to the counties that were not chosen for the pilot program for Pre-K? It seems that Hoosier parents and their children are subject to a tug-o-war between politics and policy, a situation in which there doesn’t seem to be a clear winner on the horizon.

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