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Friday, July 03, 2009
Courts - Federal Court Tells Out-of-State (Indiana) Wine Stores to Stay Out of New York
Mitch Frank of Wine Spectator reports in a story that begins:
New Yorkers who order wine online from retailers in other states are breaking the law, according to a decision handed down Wednesday by a federal appeals court. The ruling is the latest salvo in the war over wine shipping, and only promises to spark further legal fights.This New York Law Journal story by Mark Hamblett is dated July 6, 2009.A three-judge panel on the Second Circuit Court of Appeals ruled unanimously that New York's law permitting in-state retailers to ship wine directly to consumers but forbidding out-of-state retailers from doing the same is constitutional and within the state's rights under the 21st Amendment. The ruling upheld a 2007 district court decision, Arnold's Wines, Inc. v. Boyle. An Indiana store and two New York consumers sued to overturn New York's law, arguing that the Supreme Court's 2005 Granholm v. Heald decision, which forbids states from discriminating between in-state and out-of-state wineries, also applies to wine retailers. The district judge dismissed the case and the appellate court has now concurred.
The 31-page opinion is Arnold's Wines, Inc. d/b/a/ Kahn's Fine Wines & Spirits v. Boyle - access it here - Counsel for Plaintiffs-Appellants: Peter E. Seidman, Milberg LLP, New York, NY, (Sanford P. Dumain, Milberg LLP, New York, NY, James A. Tanford, Indiana Univ. School of Law, Bloomington, IN, and Robert D. Epstein, Epstein Cohen Donahoe & Mendes, Indianapolis, IN, of counsel), for Plaintiffs-Appellants..
Posted by Marcia Oddi on Friday, July 03, 2009
Posted to Courts in general
Ind. Courts - More on: Injunction against Governor not needed after all, but interesting
On July 1st the ILB quoted from a story in the Anderson Herald Bulletin that:
Fearing lawmakers might fail to produce a budget, Hoosier Park and other state gambling sites went to court Tuesday and got an order to prevent a state shutdown in such an event.The ILB has now obtained a copy of Judge Hanley's 4-page temporary restraining order, filed June 30, 2009.Marion County Superior Court Judge John F. Hanley issued an injunction that barred Gov. Mitch Daniels and state agencies from closing casinos and race tracks if a budget had not been approved. Hanley sided with casino operators who said the state had no grounds to close the sites amid the budget crisis.
Daniels had threatened Tuesday to close the gaming sites if a budget had not been approved by midnight. He had claimed that state gaming regulators were nonessential state employees who would be furloughed without a budget.
And what about the state lottery?
Could the Governor have threatened to shut down the state lottery? Of course.
Need the lottery have complied? In other words, is the Hoosier Lottery a state agency under the command of the Governor?
Indiana Legislative Insight and Indiana Gaming Insight looked at that question this week and pointed to the federal court decisions in past months holding that the Hoosier Lottery is not a "state agency" and is not "an arm of the State."
See Burrus, et al. v. State Lottery Commission, a 7th Circuit opinion by Judge Manion, upholding a district court ruling by Judge Barker. For background, see this ILB entry from May 31, 2008.
ILB: And why on earth would he want to shut down any of these revenue-producing entities anyway?
Posted by Marcia Oddi on Friday, July 03, 2009
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Ind. Trial Ct. Decisions | Indiana Government
About the ILB - Problem reading the ILB from a mobile device?
A reader on vacation in a western state wrote yesterday to say she was unable to access the ILB from her Blackberry -- she got a message saying it was too large. I responded:
Here is what I think may be happening. The ILB "page" that is loaded in when you access the blog is pretty long because it is set to show a set number (I forget exactly how many) entries as you scroll down. So if some of those individual entries were very long, the "page" might total be too big, memory-wise, for your reader. This would vary.Yes, it did work! And another thing you can do, once you are on a specific day's page, is use the arrows at the top of the page to move forward or backwards through the days. (But don't go to "main," because that is the long home page.)If page length is the problem, this might work -- Looking at the blog entries for one day at a time. Use this link:
http://indianalawblog.com/archives/2009/07/01/index.html
That is the link for July 1 entries. If it works, then change the "01" to "02" to see today's entries, etc. Let me know.
Posted by Marcia Oddi on Friday, July 03, 2009
Posted to About the Indiana Law Blog
Law - Impact of Ricci on private employers in NE Indiana
Jenni Glenn and Marty Schladen have a story today in the Fort Wayne Journal Gazette headed "Local job tests avoid bias: Applicant quizzes unlikely to defy high court ruling, area experts say." The story begins:
A U.S. Supreme Court ruling this week involving employment likely will have little effect on the practices of northeast Indiana’s private employers, several observers said.For more on Ricci, see this June 29th ILB entry.Private-sector employers usually don’t rely on written tests when deciding whom to promote, hire and fire. Those that do are careful to avoid bias based on age, race, gender or other irrelevant factors, they said.
“We don’t do that type of testing,” said Roy Wiley of Warrenville, Ill.-based Navistar International Inc. Navistar subsidiary International Truck and Engine Corp. employs about 1,300 in Fort Wayne. “I can’t imagine any corporation like us does.”
Fort Wayne employment lawyer John W. Bowers said the issue decided by the court was a close one. It said an employer can’t throw out the results of a test just because of the results.
“I don’t know that it’s going to make a great deal of difference,” Bowers said.
The Supreme Court didn’t rule whether the New Haven, Conn., fire department’s test questions were acceptable, said George Raymond, vice president of human resources and labor relations for the Indiana Chamber of Commerce. The decision said employers couldn’t use tests to discriminate against racial groups. It might encourage employers who use tests to review them to ensure they’re fair, he said.
Two local employers – Grabill Bank and Indiana Michigan Power – say the ruling won’t change the aptitude tests they give job applicants.
Posted by Marcia Oddi on Friday, July 03, 2009
Posted to General Law Related
Law - "Law Firm Cost Recovery Is Here to Stay"
An article today by Robert C. Mattern at Law.com details the results of a survey on what law firms recover from clients for their "support services operation -- reprographics, facsimile, printing, scanning, overnight services and digital services (litigation support). Additional areas covered in the survey were legal research, telephone, word processing, catering and contract attorneys."
Posted by Marcia Oddi on Friday, July 03, 2009
Posted to General Law Related
Ind. Decisions - Federal judge throws out stun belt conviction
From an ILB report April 26, 2007 on the Supreme Court opinion in the case of John Stephenson v. State of Indiana, quoting from a story in the Evansville C&P: "Among the nine issues Stephenson's appellate attorneys raised was the fact that some jurors knew that Stephenson was made to wear a stun-belt restraint device during his trial. The supreme court found that was not grounds to reverse Stephenson's conviction or death sentence."
From an Aug. 13, 2008 ILB entry quoting from an AP story by Tom Coyle:
In a 2-1 decision, a panel of the 7th U.S. Circuit Court of Appeals in Chicago on Tuesday affirmed a ruling by District Judge John Daniel Tinder that Wrinkles could not demonstrate prejudice because the jury was not aware he was wearing the stun belt. * * *Today, from an Evansville Courier & Press story:At the time of the trial, Vanderburgh Circuit Judge Richard Young informed Wrinkles he had to wear a shackles or a stun belt because it was the court’s policy. A stun belt is a battery-powered device devices designed to deliver electric shocks to wearers if they become violent.
In 2001, the Indiana Supreme Court banned the use stun belts to restrain defendants in courtrooms, ruling the devices could interfere with a person’s defense. That ruling was the result of the appeal by Wrinkles.
But the high court rejected Wrinkles’ claim that his attorneys were ineffective because they did not object to him being forced to wear the belt. Wrinkles’ trial attorneys chose the device over shackles because they believed it would not be visible to jurors.
Although Wrinkles presented affidavits from three jurors who claimed to have seen the stun belt during the trial, Tinder ruled that Wrinkles did not prove that the belt was visible or that the jury knew about it. The Appeals Court upheld that finding.
FORT WAYNE, Ind. — The death sentence and guilty verdict of John Matthew Stephenson, 45, convicted in 1997 of a triple murder in Warrick County, were thrown out by a federal judge Wednesday.Here is Judge Springmann's 26-page July 1, 2009 opinion in Stephenson v. Levenhagen. The opinion concludes:U.S. District Judge Theresa Springmann ruled Stephenson did not have effective counsel because his attorney did not object to the defendant having to wear a stun belt in the courtroom, violating his right to presumption of innocence, when he appeared before the jury that convicted him. * * *
Springmann's ruling came in the fourth appeal since Stephenson was condemned to death by lethal injection in June 1997. While awaiting sentencing, Stephenson indicated he welcomed death. * * *
In a previous appeal, Bruce Hargrave, Warrick County's sheriff when the killings occurred, and other law enforcement officers testified: "... That to their knowledge Stephenson posed no security threat and had exhibited no behavior that would demonstrate a specific need for a restraining device at trial." Hargrave declined to comment on Wednesday.
Stephenson has demonstrated that there was an unacceptable risk that impermissible factors came into play in the determination of his guilt. Therefore, he has demonstrated prejudice under both the Holbrook and Strickland standards, and habeas corpus must be granted. Due process mandates that John M. Stephenson is entitled to what he was denied: a trial without restraints unless the State can demonstrate a particularized justification for doing so at his retrial. Therefore, habeas corpus relief must be conditionally granted. “Conditional writs enable habeas courts to give States time to replace an invalid judgment with a valid one.” Wilkinson v. Dotson, 544 U.S. 74, 87 (2005) (Scalia J., concurring). Thus the State of Indiana is free to re-try John M. Stephenson, providing that it files appropriate documents in the State trial court seeking such relief within 120 days of this Order. If he is re-tried, nothing in this Opinion prevents the State from again seeking the death penalty.
Posted by Marcia Oddi on Friday, July 03, 2009
Posted to Ind Fed D.Ct. Decisions | Ind. (7th Cir.) Decisions | Ind. Sup.Ct. Decisions