Courts rule on driving under the influence, fraternities, lawyer liability, and more

Courtroom Weekly The latest and greatest in court cases around the nation Join Our Mailing List Email: For Email Marketing you can trust In this issue… Featured case News from Connecticut News from Indiana News from Michigan News from Montana News from Nebraska

Featured case Hide your guns while napping in your car in New Jersey [hide]  Court: New Jersey Superior Court, Appellate Division In 2009, Dustin Reininger took a nap in his car behind a bank in New Jersey. Police officers peeked into his car and noticed two gun cases. Upon waking him, Reininger stated he was in the process of moving from Texas to Maine and denied having guns in the car, despite two gun cases laying on the back seat of his SUV. The officers subsequently searched Reininger’s car and found a total of 21 guns.[1] Reininger was immediately arrested and charged with “illegal possession of shotguns, rifles, hollow-point bullets and a high-capacity magazine.”[2] A jury in New Jersey convicted Reininger in 2010; he was sentenced to five years in prison but is eligible for parole after three years. Reininger appealed the conviction. On May 20, 2013, the New Jersey Superior Court, Appellate Division refused to reverse the jury’s verdict. Reininger will remain in a New Jersey prison for now. The trial court had found that the presence of the guns fairly raised the public safety doctrine and allowed the police to conduct the warrantless search and seize the dangerous items to protect the public. Reininger’s attorney appealed on the basis that the police conducted an illegal warantless search of his client’s car. The state countered Reininger’s argument by stating the gun cases in the back seat were in plain view and thus raised the requisite suspicion necessary, coupled with Reininger’s denial of possessing any guns, to search the car without a warrant. The appellate court’s three-judge panel, which heard the appeal, agreed with the state, holding: “police are allowed to conduct a warrantless search under a ‘plain view’ exception, if potentially suspicious evidence is within their view and they were unaware of its existence beforehand.”[2] The appellate judges found probable cause existed for the officers to search the car. The “plain view discovery of firearm cases on the back seat, and defendant’s subsequent admission that he was transporting long arms to Texas” gave the officer probable cause to believe Reininger possessed firearms illegally.[2] Additionally, Reininger’s attorney asserted that New Jersey’s guns laws violate the Second Amendment, which protects a person’s right to bear arms. The court summarily rejected this argument, however.   Reininger’s attorney has stated he will appeal the appellate court’s decision to the New Jersey Supreme Court.[1]

News from Connecticut Connecticut lawyers can’t be sued for fraudulent activity in court [hide]  Court: Connecticut Supreme Court The Connecticut Supreme Court cited the doctrine of “absolute immunity” in ruling that lawyers cannot be sued for fraud based on their conduct in court cases. Bob Simms, a former NFL player and founder of Simms Capital Management Inc., has been in an ongoing legal battle over divorce proceedings with his ex-wife, Donna Simms, for 30 years. Bob recently tried to sue Donna and her lawyers for withholding information about approximately $360,000 in inheritance money that she received in 2006 and 2008. A court order brought the facts of the inheritance to the surface in 2008, but a lower court judge ruled that the information had been improperly withheld. At the Supreme Court, however, the justices were focused on a different point: whether or not Donna’s lawyers were liable for the alleged fraud. They ruled 5-1 on May 10 that the lawyers could not be sued for fraud, citing the old doctrine of absolute immunity, as well as decisions by the U.S. Supreme Court and other federal courts. Absolute immunity started in medieval England. It was created as a way to encourage free speaking during court proceedings without fear of future lawsuits. Justice Peter Zarella, in the majority’s opinion, wrote, “ The mere possibility of such (fraud) claims, which could expose attorneys to harassing and expensive litigation, would be likely to inhibit their freedom in making good faith evidentiary decisions and representations and, therefore, negatively affect their ability to act as zealous advocates for their clients.”[3] ”   Justice Richard Palmer, the lone dissenter, argued that the decision was “unduly protectionist of attorneys.”[3]	News from Indiana Fraternity will answer in court for alcohol-related student deaths [hide]  Court: Indiana Court of Appeals In a decision that may influence the structure of Greek organizations nationwide, the Indiana Court of Appeals ruled that national fraternity Delta Tau Delta must stand trial over the death of a Wabash College freshman.[4] Eighteen-year-old Johnny Dupree Smith was found dead in 2008 with a blood alcohol level of nearly .40, according to the complaint his family filed in the wrongful-death case. Smith, originally from Tucson, Arizona, attended a mandatory chapter party known as a “pledge family drink night.” After a night of beer and vodka he was unable to walk, consequently falling down a stairwell. He was later left on an upstairs mattress where he was found dead the next morning.[4] By and large, national fraternities exercise moderate to minimal authority over the behavior of individual chapters, but this scenario and many recent ones like it are prompting them to more closely consider their role—essentially, whether to take their hands off local chapters completely or more actively monitor everyone. Hazing, defined as “any action taken or situation created intentionally … to produce mental or physical discomfort, embarrassment, harassment, or ridicule,” is nominally forbidden by Delta Tau Delta but is still commonplace in Greek life.[4][5] The ruling came as a reversal of an order by Circuit Court Judge Don Daniel, which granted summary judgement to the fraternity based on an affidavit from the chapter’s vice president and the testimony of two freshman pledges. As determined in the appellate court‘s reversal on May 8, these statements contained conflicting information and the two witnesses had not been properly certified.[4][5] Wrote Patricia A. Riley in the opinion, “ We hold that the trial court abused its discretion by admitting certain paragraphs of [the vice president]’s affidavit and by admitting two unsworn, unverified, and uncertified statements. Additionally, we find that the trial court erred in granting Delta Tau Delta’s motion for summary judgment as there is a genuine issue of material fact that (1) an agency relationship existed between the national fraternity and its local chapter and (2) the national fraternity assumed a duty to protect its freshmen pledges.[5] ”   The case has been remanded for further proceedings.
News from Michigan Toking then driving OK’d by Michigan Supreme Court [hide]  Court: Michigan Supreme Court In 2010, when Rodney Koon was pulled over for speeding, he admitted to the police that he was a registered medical marijuana patient and that he had smoked marijuana five to six hours before the traffic stop. Koon’s subsequent blood test was positive for THC, and he was charged with driving under the influence of a Schedule 1 narcotic.[6] At conflict in Michigan were two separate laws: (1) the Michigan Medical Marijuana Act (MMMA) which allows a person to use medical marijuana without fear of prosecution; and (2) the Michigan Vehicle Code which prohibits a person from operating a motor vehicle if that person has any amount of a Schedule 1 controlled substance in their body. The issue before the Michigan Supreme Court was whether “MMMA’s protection supersedes the Michigan Vehicle Code’s prohibition and allows a registered patient to drive when he or she has indications of marijuana in his or her system but is not otherwise under the influence of marijuana.”[6] Both the District Court and the Circuit Court held in favor of Koon, finding that the MMMA superseded the Michigan Vehicle Code and that, under the MMMA, patients are only prohibited from driving a vehicle if they are “under the influence of marijuana.” Therefore, the prosecution needed to show that Koon’s ability to drive was actually impaired by the presence of THC in his bloodstream.[7] The Michigan Court of Appeals believed otherwise and reversed the lower courts’ decision, holding instead that the ‘ “zero tolerance” provision of [the Michigan Vehicle Code] which prohibits operating a motor vehicle with any amount of a Schedule 1 controlled substance in the driver’s body, still applies if the driver used marijuana under the Michigan Medical Marihuana Act (MMMA).”[8] On May 21, 2013, the Michigan Supreme Court reversed the Court of Appeals and unanimously held for Koon. The Supreme Court disagreed with the Court of Appeals’ strict reading of the Michigan Vehicle Code and stated that… “ “[w]hen the MMMA conflicts with another statute, the MMMA provides that ‘[a]ll other acts and parts of acts inconsistent with [the MMMA] do not apply to the medical use of marihuana…’ [and] [c]onsequently the Michigan Vehicle Code’s zero-tolerance provision, MCL 257.625(8), which is inconsistent with the MMMA, does not apply to the medical use of marijuana.”[6] ” However, the Supreme Court noted that the MMMA does not provide a definition for the meaning of “under the influence”. They decided it must mean something more than having just any amount in a person’s system – it must require to the marijuana to have some effect on that person. In conclusion, the Supreme Court acknowledged that the MMMA was an imperfect statute and invited the Michigan State Legislature to make amendments and clarify any further issues.[6]	News from Montana Montana Supreme Court reverses lower court’s decision releasing Barry Beach [hide]  Court: Montana Supreme Court Last week, in a 4-3 ruling, the Montana Supreme Court reversed former District Judge E. Wayne Phillips’s 2011 decision to allow a retrial for Barry Beach. Beach was convicted of murdering classmate Kim Nees in 1979, but has maintained his innocence in recent decades, claiming that his earlier confession to the murder was coerced.[9][10] The 2011 decision by Judge Phillips allowed Beach 525 days out of prison, during which he had settled into a new life with a house and a job.[11] The Supreme Court’s decision last week sent Beach back to a cell, where he could remain for the rest of his life.[12] “ It was hard enough to be innocent to begin with. But to be going back, still innocent, for the second time, is just unbelievable.[12] – Barry Beach ” Former Judge Phillips said the Supreme Court’s opinion weighed heavily upon him, explaining, “ I am troubled that I got it wrong. I am, however, much more deeply troubled — from the heart outwards — that I may have done a soul-wrenching injustice to Mr. Beach. By my error and giving him a taste of freedom based on that error, he now faces an almost unimaginable return from the freedom any right thinking person cherishes to the confines of a prison cell.[11] ” Justices Beth Baker, Jim Rice, Laurie McKinnon and District Court Judge Richard A. Simonton concurred with the reversal of the district court’s decision, while Justices Patricia Cotter, Michael E. Wheat, and Justice Brian Morris dissented, agreeing with the lower court’s decision to grant a re-trial.[13]   Read the full decision here: State of Montana v. Barry Allan Beach, May 14, 2013
News from Nebraska Nebraska Supreme Court places limits on school searches [hide]  Court: Nebraska Supreme Court The Nebraska Supreme Court made a decision on Friday, May 17, 2013, which was a matter of first impression for the court.[14][15] The relevant facts of J.P. v. Millard Public Schools are as follows: “J.P.”, a student at Millard West High School in Omaha, left school grounds without permission and retrieved items from his pickup truck, parking off-campus on a public street across from the school. Upon returning to the campus, the assistant principal searched the student and the student’s backpack and wallet. This search resulted in nothing of consequence, which led the assistant principal to search the student’s truck, not only without consent, but against J.P.’s direct refusal. The search of the truck resulted in the discovery of drug paraphernalia, which brought about J.P.’s nineteen day suspension. J.P. requested a hearing as allowed by the school’s student handbook, but the school board upheld the suspension. Judge James Gleason, a district judge for the Fourth District Court in Nebraska, reversed the decision of the school board and ordered that J.P.’s record be expunged. Gleason’s decision held that the search was in violation of J.P.’s Fourth Amendment rights.[15][16] An appeal by the school board brought the case before the Nebraska Supreme Court, which affirmed the decision of the Fourth District Court.[15] This case was the first time that the Nebraska Supreme Court had addressed the off-campus rights of students in regards to searches that do not occur at an off-campus school function.[14] Both the lone dissenting judge and the school district relied on the U.S. Supreme Court case, Morse v. Frederick, where the Court held that schools are allowed to regulate the speech of students at off-campus school functions. The Nebraska Supreme Court majority disagreed with dissenting Chief Justice Mike Heavican and found this situation “readily distinguishable” from that in Morse v. Frederick, according to the opinion written by Justice John Wright.[15] The Nebraska Supreme Court stated that, not only did this case involve a search while Morse did not, but the act of driving to school and parking off-campus did not constitute a “school-sponsored event” which might justify the school’s attempt to regulate the student’s actions.[15] The court’s opinion also stated that this decision does not leave schools without a course of action should suspicion of criminal conduct arise in relation to a student while off-campus. A Nebraska statute actually requires the principal, or a principal’s designee, to report suspected violations of Nebraska‘s criminal code to law enforcement personnel, who are better trained in the circumstances that would allow a lawful warrantless search of a vehicle.[15]   In a colorful analogy, Rich McGowan, the attorney for J.P., compared off-campus searches by school officials to the “tactics…employed by the dean of students in the movie ‘Ferris Bueller’s Day Off.’”[14] The overzealous dean’s attempt to catch Ferris Bueller in the act while playing hooky led the dean to conduct an “illegal search” of Ferris’s home. While the methods of the movie’s dean were outlandish, and would not likely ever be at issue in the future, McGowan used this example to “convince the Millard schools to overturn the suspension of his client”, according to an Omaha World Herald article.[14]

For a District by District break down, see: Federal Court Vacancy Warning System

The vacancy warning level for the U.S. Federal courts is currently set at Blue. There were three new confirmations this past week, leaving the final tally at 79 vacancies or approximately 9.1% of the total Article III posts currently unfilled. The vacancy information for the various court levels is as follows:

There are currently 9 Supreme Court posts, 179 appellate court posts and 680 district court posts for a total of 868 Article III judges. This count includes four temporary posts, one each in the Northern District of Alabama, District of Arizona, Southern District of Florida and the Central District of California. This also includes two shared post between the two Missouri districts and the two Kentucky districts, which count as two posts with separate vacancies.

Weekly map

The new weekly map feature will be updated every week and posted here and on the vacancy warning level analysis page.

New confirmations

Northern District of California

On May 15, 2013, the United States Senate confirmed William Orrick III to an Article III post for the United States District Court for the Northern District of California with a vote of 56-41.^[1][2] Orrick was originally nominated on June 12, 2012, by President Barack Obama to the seat vacated by Charles Breyer. At the time of nomination, he was the Deputy Assistant Attorney General in the Civil Division of the United States Department of Justice. He was rated Unanimously Well Qualified by the American Bar Association. He had a hearing before the Senate Judiciary Committee on July 11, 2012 and you can find his Committee Questionnaire Available Here, his Questions for the Record Available Here and his Renomination Questions for the Record available here. ^[3] The confirmation fills the one of three vacancies on the court of fifteen, leaving the vacancy warning level unchanged at Yellow.

Middle District of Florida

On May 20, 2013, the United States Senate confirmed Sheri Chappell to an Article III post for the United States District Court for the Middle District of Florida with a vote of 90-0.^[1][4] Chappell was originally nominated on June 25, 2012, by President Barack Obama to the seat vacated by Gregory Presnell. At the time of nomination, she was a federal magistrate judge of the United States District Court for the Middle District of Florida. Chappell was rated Unanimously Qualified by the American Bar Association. She had a hearing before the Senate Judiciary Committee on September 19, 2012 and you can find her Committee Questionnaire Available Here, her Questions for the Record Available Here and her Renomination Questions for the Record available here. ^[3] The confirmation fills the one of two vacancies on the court of fifteen, lowering the vacancy warning level from Yellow to Blue.

District of Oregon

On May 20, 2013, the United States Senate confirmed Michael McShane to an Article III post for the United States District Court for the District of Oregon with a voice vote.^[1][5] McShane was originally nominated on September 19, 2012, by President Barack Obama to the seat vacated by Michael Hogan. At the time of nomination, he was a judge on the Multnomah County Circuit Court in Oregon. McShane was rated Majority Qualified, Minority Well Qualified by the American Bar Association. He had a hearing before the Senate Judiciary Committee on February 13, 2013 and you can find his Committee Questionnaire Available Here and his Questions for the Record available here. ^[3] The confirmation fills the only vacancy on the court of six, lowering the vacancy warning level from Yellow to Green.

New vacancies

There were no new vacancies this past week.

New nominations

Tenth Circuit

On May 16, 2013, President Barack Obama nominated Carolyn B. McHugh to the United States Court of Appeals for the Tenth Circuit to fill the vacancy left by Michael R. Murphy.^[6] McHugh is currently the Presiding Judge of the Utah Court of Appeals. She attended University of Utah, graduating magna cum laude with a B.A. in 1978 and her J.D. in 1982. She graduated from law school as Order of the Coif and served on the editorial board of the Utah Law Review. President Obama commented on the nomination, stating:

If confirmed, the nomination would fill one of three vacancies on the court of twelve.

District Courts

On May 16, 2013, President Barack Obama nominated three to the United States District Court bench. Obama commented on the nomination, stating:

Northern District of Mississippi

President Obama nominated Debra M. Brown to the United States District Court for the Northern District of Mississippi to fill the vacancy left by Allen Pepper.^[6] Brown is currently a shareholder at the law firm of Wise Carter Child & Caraway, P.A. She attended Mississippi State University, graduating with a B.A. in 1987. She went on to attend University of Mississippi School of Law, earning her J.D. in 1997.^[8] If confirmed, the nomination would fill the only vacancy on the court of three.

Eastern District of Tennessee

President Obama nominated Pamela L. Reeves to the United States District Court for the Eastern District of Tennessee to fill the vacancy left by Thomas Phillips.^[6] Reeves is currently a partner at the law firm of Reeves, Herbert & Anderson, P.A. She attended University of Tennessee, graduating with a B.A. in 1976 and a J.D. in 1979.^[8] If confirmed, the nomination would fill the only vacancy on the court of five.

Western District of New York

President Obama nominated Elizabeth A. Wolford to the United States District Court for the Western District of New York to fill the vacancy left by Charles Siragusa.^[6] Wolford is currently a partner at The Wolford Law Firm LLP in Rochester, New York. She earned her B.A. from Colgate University in 1989. She went on to earn her J.D. in 1992 from the University of Notre Dame Law School.^[8] If confirmed, the nomination would fill the only vacancy on the court of four.

“This is a new way to look at how a state leans politically,” said Geoff Pallay, lead author of the study. “After running the partisan trifecta analysis, we found that seven states ended up in a different column than the presidential vote analysis. By examining party control of state governance, it is possible to know if a state is ‘moving blue’ or if it is ‘moving red.’”

In 2012, voters in six states with Republican trifectas cast their ballot for President Obama. These states are Florida, Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin. West Virginia, on the other hand, voted Republican for president while maintaining a Democratic trifecta for state government. Over the period studied, seven states moved from one partisan column to the other, while single party control of state governments has doubled in the past ten years.

Ballotpedia’s report, which analyzes data from 1992 to 2013, is part one of a three-part series. In addition to exploring the partisan trifecta, reports two and three will aggregate a variety of state rankings to create a quality of life index and overlay the partisan data with that index.

“To the extent that pundits, journalists or members of the voting public want to praise or blame political parties for the real-world economic, educational, health, or other quality of life outcomes at the state level, the degree of redness or blueness of partisan composition may be relevant. Pinpointing a state’s partisan trifecta could be vital to winning elections in the future, and potentially influencing how a state votes from the top of the ticket down,” added Pallay.
About Ballotpedia
Established in 2007, Ballotpedia is a nonprofit and nonpartisan collaborative wiki encyclopedia designed to connect people to politics through the free and open sharing of information. It includes information about the U.S. Congress, state legislatures, ballot measures (including ballot measure law, school bond and tax elections, recall elections and local ballot measures), and state executives. Ballotpedia’s staff includes 23 researchers and writers, as well as volunteer writers and editors. Ballotpedia is published by the non-profit, non-partisan Lucy Burns Institute, which is based in Madison, Wisconsin.

SACRAMENTO, California: Election day is here for City of Los Angeles voters. May 21st marks the sixth date in 2013 when local ballot measure elections are scheduled to take place in California. Polls open at 7 am and close at 8 pm PT. Today voters will decide on ballot measures, mayors and school boards. Below are quick links to each of those issues.

Three seats on the board of the Los Angeles Unified School District are up for election in 2013, covering Districts 2, 4 and 6. Incumbents Mónica García and Steve Zimmer won Districts 2 and 4. District 6, however, remained pending following the March 5 elections.

Incumbent Nury Martinez did not run for re-election in District 6, campaigning instead for the District 6 seat on the Los Angeles City Council. Antonio Sanchez and Monica Ratliff emerged as the top two candidates in the March 5 elections. Both will face-off in today’s elections. In the March primary, 44% of voters voted for Sanchez, while 34% selected Ratliff. Through May 15, 2013, a total of $244,298.17 has been contributed to all direct candidate campaign committees in 2013 school board elections. An additional $2 million had been spent via independent expenditure; all independent expenditures were spent on behalf of just one District 6 candidate, Antonio Sanchez. Click here for more campaign finance details.

Los Angeles elections

• Ballot measures:
  • City of Los Angeles Limits to Campaign Spending and Rights of Corporations, Measure C (May 2013)
  • City of Los Angeles Medical Marijuana Dispensaries, Measures D, E and F (May 2013)
• Mayoral elections:
  • Los Angeles mayoral election, 2013
• School boards:
  • Los Angeles Unified School District elections (2013), District 6 runoff election between Monica Ratliff and Antonio Sanchez.

This week, there are five new certifications to report: two for 2013, two for 2014 and one for 2016. In Colorado, the legislature approved HB 1318. As a result of this bill’s passage, two legislatively-referred state statutes will appear on the ballot in the general election on November 5, 2013. One, the Colorado Marijuana Excise Tax, would implement a 15% excise tax on all marijuana sales within the state, if voters choose to approve the measure in November. The revenue from this excise tax would be put toward school construction projects. The other, the Colorado Marijuana Sales Tax, if approved, would enact a 10% sales tax on marijuana. This would be in addition to the existing 2.9% state sales tax and any additional local taxes. The revenue from the sales tax would be used to oversee and regulate the retail marijuana business in the state.^[1]

The legislature in Missouri has passed HJR 11, and, as a result, voters will decide whether or not the Missouri Right-to-Farm Amendment, which would explicitly detail the rights of farmers and ranchers to partake in their livelihoods and provide food for others, should be included in the state constitution. This legislatively-referred constitutional amendment will appear on the ballot in the general election on November 4, 2014. The Missouri Cattlemen’s Association and other agricultural groups have expressed support for the amendment. However, Sen. Rob Schaaf has expressed concerns over the public’s safety if the amendment is adopted, saying that this could lead to a situation in which it is more difficult for state regulators to control super-food poisoning bugs created as a result of feeding antibiotics to livestock.^[2][3]

Another 2014 certification has been confirmed in Arizona. The legislature approved SCR1016, thereby landing a legislatively-referred constitutional amendment on the ballot for the general election on November 4, 2014. If passed by voters, this amendment would create a direct mechanism by which the use of state personnel and financial resources are guaranteed to be employed only for purposes that are congruent with the Constitution.^[4] This state sovereignty measure comes on the heels of a defeated amendment that would have granted sovereignty over Arizona’s natural resources based on “equal footing.” This measure was rejected by 67.7% of the voters.^[5]

Finally, Minnesota is the first state to certify a ballot measure for the general election on November 8, 2016. The Minnesota Legislative Pay Council Amendment will give voters the opportunity to decide whether or not members of the state legislature should have their pay determined by an outside board. If this measure is approved, a special council will be created and tasked specifically with determining the pay of lawmakers. The council would determine new salary rates every two years. Presently, Minnesota legislators haven’t received a raise since 1999.^[6]

2014 watch

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In Michigan, the group, No Taxes for Abortion Insurance, is mobilizing to begin collecting signatures for an initiated state statute, the Michigan Ban on Insurance Coverage of Abortion, that will seek to ban Michigan health insurance plans from covering discretionary abortions. If this initiative is approved by voters, those desiring insurance coverage for such procedures would be required to purchase a separate, supplemental plan. Gov. Rick Snyder vetoed similar legislation last year, explaining that he is open to limitations on abortions covered by state-provided health insurance but is opposed to requiring optional abortion policy provisions in private insurance plans. If the measure survives the initiative process, it will be featured on the ballot for the general election on November 4, 2014.^[7]

Attorney General Mike DeWine certified the summary of a proposed initiated constitutional amendment and confirmed that the sponsoring group, the Ohio Rights Group, has collected the required 1,000 valid signatures to move forward in their effort to put the Ohio Cannabis Rights Amendment before voters in 2014. If the measure is eventually passed, it would institute a commission to regulate the use of medical marijuana and allow Ohio residents to grow marijuana for industrial purposes, such as creating paper or clothing. The group must now collect a total of 385,247 in order to qualify for the ballot.^[8]

Quick hits

Supporters of grocery store wine sales in Oklahoma relaunch initiative efforts: After delays from legal challenges ended an attempt to place the Oklahoma Wine Purchase Amendment on the 2012 ballot, supporters have announced that they are revitalizing their efforts. Oklahomans for Modern Laws has announced that they plan on resubmitting their proposal this summer with their goal being the 2014 general election ballot. The measure would allow grocery stores to begin selling wine, however, not every county would qualify. Specifically, the amendment would allow counties with a population of 50,000 or more to vote on whether to approve wine sales in retail outlets of at least 25,000 square feet. Last year the Oklahoma Supreme Court rejected legal protests brought against the measure, but the decision came too late for petition circulation to begin.^[9]

New initiative could submit California doctors to random drug tests: Bob Pack, a former executive at AOL and NetZero, has filed an initiative that would require doctors to be subjected to random drug and alcohol testing. Pack announced the so-called “Pee in the Cup” with a poll citation showing 85 percent of California voters in support of the tests for doctors. According to reports, the initiative might also seek lift the cap on damages in medical malpractice cases. The measure will require 504,760 signatures to get a place on the 2014 ballot.^[10]

Spotlight

Pacific Grove City council members use a 2008 legal theory to sidestep sending controversial pension reform initiative before voters

Pacific Grove city hall

Wednesday’s city council meeting was the second time the Pacific Grove council members avoided a decision on a controversial pension reform initiative, keeping it from going on the ballot before voters.^[11]

This initiative, known as the “initiative to void ordinance 02-18 which illegally enacted a 3% at 50 pension benefit increase to public safety employees”, seeks to overturn a 2002 decision to increase public safety employee pensions. When the initiative was first presented to the council for adoption or inclusion on a public ballot on May 1^st, the council unanimously voted to postpone a decision and commission a report on the initiative. On Wednesday of last week that report, which concluded that the measure was likely to be illegal, was presented to the council. The city council members voted 6-0, with one absentee, to seek judicial relief under the theory of Widders v. Furchtenicht (2008) 167 in order to receive a court ruling on the legality of the initiated measure.^[12][13]

The thwarted supporters of this measure argue that the increase in pensions that happened over a decade ago was done illegally and in the midst of withheld information and understatement of fiscal effects. Daniel Davis, an initiative backer, said that the 2002 pension increase decision was “an issue of government corruption” and “that we just can’t let it go.” Other supporters focus on the future and argue that escalating costs under the state Public Employees Retirement System are pushing Pacific Grove towards financial disaster.^[11]

But, as courts have repeatedly ruled that existing pension plans are “vested rights” and cannot be reduced, city officials wanted to avoid expensive litigation resulting in the measure being overturned in court despite possible public approval, as happened in the case of Measure R, a 2010 Pacific Grove pension reform ballot measure. Councilman Ken Cuneo said that the the council members need to know whether the ballot measure “is going to be a turkey or if it will fly.”^[11][12]

Arizona California Idaho Oregon Wisconsin

Meanwhile, today’s local elections in California, Oregon, Idaho, Arizona and Wisconsin feature nearly $400 million in requested bond money and measures concerning marijuana dispensaries in Los Angeles as well as many more important local issues.

For links to all local ballot measure elections covered by Ballotpedia in 2013 visit this page.

Ballot Law Update

More laws aimed at the initiative process gain momentum in Arizona: On Wednesday, May 15, a Senate panel voted to approve Senate Bill 1493, a piece of legislation aimed at clamping down on regulation governing initiative petitions. According to reports, the bill would require that petition sheets be organized by county of residence of signers, by the circulator on that signature sheet, and by the name of the person who notarized each. It would also reverse a court ruling that allowed for petitions to be certified as valid if they were in “substantial compliance” with the law. SB 1493 requires that election officials void any and all petitions not deemed to be in “strict compliance” with the law.^[14]

Initiative creating alternate route to primary ballots announced in Utah: The group Count My Vote Utah has announced plans to discuss a possible initiative campaign that would revamp the state’s process for deciding who gets to be a candidate in the primary elections. Currently candidates can only get on the primary ballot if their party certifies them at the party’s convention. This limits the names submitted by whatever rules the party might have. Count My Vote’s proposal would offer candidates an alternative route to the ballot by allowing them access if they collect the signatures of at least two percent of a registered party’s members in their jurisdiction. Supporters have until April 15, 2014, to collect the just over 101,000 signatures needed to place the initiative before voters.^[15]

Weekly highlight

Last week, Missouri and Vermont ended their legislative sessions. Here is a brief look at issues making headlines across the country:

• Illinois: A bill lowering the voting age in primaries to 17 years old was approved 43-9 by the Illinois State Senate. This bill sponsored by Senator Terry Link (D) would still require voters to be 18 years old by general elections. A similar bill passed the House in April and Governor Pat Quinn supports the legislation.^[1]
• Louisiana: Sen. Fred Mills, Jr. (R) has sponsored legislation that would allow Louisiana residents to add the line “I’m a Cajun” on their driver’s license for a nominal fee if they are of Cajun descent. The $5 fee would go to the Council for the Development of French in Louisiana to help fund scholarships across the state. The bill has already passed the senate and a house committee, leaving it in the hands of the house.^[2]
• Minnesota: The Minnesota State Senate approved a bill allowing same-sex marriage by a 37-30 vote on May 13. The House voted 75-59 for approval on May 9 and Governor Mark Dayton signed the bill into law a day after Senate approval. Same-sex couples can legally marry in Minnesota starting on August 1, 2013.^[3]
• New York: Rep. Vito Lopez (D) announced his resignation at the end of the session on June 20 following accusations that he sexually harassed a number of women. Speaker Sheldon Silver (D) announced plans to start the expulsion process to immediately remove Lopez from the chamber.^[4]
• Vermont: The Vermont House of Representatives voted 75-65 to approve legal protections for physicians who prescribe medications that aid the deaths of terminally ill patients. This bill was passed 17-13 in the Senate and Governor Peter Shumlin will sign the legislation. Vermont becomes the first state to approve “aid in dying” measures through legislation.^[5]
• Wisconsin: Both chambers of the Wisconsin State Legislature are scheduled to vote on a measure that would forgive state taxes of dead soldiers. Fifteen other states and the federal government offer such forgiveness already, and Gov. Scott Walker (R) has endorsed the bill.^[6]

Click here to read the full report.

A man on death row, a disgruntled teacher, and a woman seeking to adopt her grandchild get second chances

Courtroom Weekly The latest and greatest in court cases around the nation Join Our Mailing List Email: For Email Marketing you can trust In this issue… Featured case News from Mississippi News from New York News from Tennessee News from Utah

Featured case California Supreme Court allows cities to ban marijuana dispensaries [hide]  Court: California Supreme Court On May 6, 2013, the California Supreme Court ruled cities and towns can continue to enact local bans concerning the distribution of marijuana. The case before the court involved the marijuana dispensary, Inland Empire Patient’s Health and Wellness Center, which sued the California city of Riverside for shutting down their business. The Wellness Center argued that the city had violated California law which ensures “access to marijuana for the seriously ill who need it in a uniform manner throughout the State.”[1] The Court ruled in favor of the city, however, saying, “ While some counties and cities might consider themselves well-suited to accommodating medical marijuana dispensaries, conditions in other communities might lead to the reasonable decision that such facilities within their borders, even if carefully sited, well managed, and closely monitored, would present unacceptable local risks and burdens.[1] ” Medical marijuana advocates called the ruling a step backward in the regulation of the drug. Karen O’Keefe from the Marijuana Policy Project commented, saying that this ruling may lead to more patients turning to the criminal market or growing their own supply.[1] The Drug Policy Alliance said this could also lead to more communities banning dispensaries. “ While there are more than 50 localities within California that have adopted ordinances that comprehensively and successfully regulate medical marijuana and provide meaningful patient access, many others have enacted bans over frustration and hostility at the burden of medical marijuana regulation falling at the local level. It is likely that the court’s decision today, absent action by the state Legislature, will lead to more localities enacting bans.[1] – Drug Policy Alliance ”   The ruling will not have an effect on laws in other states.[1]

News from Mississippi Man’s capital punishment successfully appealed hours before his scheduled execution [hide]  Court: Mississippi Supreme Court In an unprecedented decision, a Mississippi man’s lethal injection was postponed indefinitely by the state’s Supreme Court just hours before his execution.[2] Willie Jerome Manning, convicted of killing two college students in 1994 and scheduled to be executed on May 7, appealed last week to retest DNA evidence for hair and fingernail samples linked to the crime. The request came in light of a recent FBI acknowledgement that, during the 1994 hearing, one of its agents had given erroneous testimony about evidence analysis.[2] The agent, Chester E. Blythe, had testified that hair from an African American had been found in one of the victims cars, a statement which, according to the Justice Department, “exceeded the limits of science.” They determined that it was out of an examiner’s scope to attribute the hairs to a particular race and that Blythe should have instead only testified that the hairs had traits similar to those of an African American. There was speculation that this element of the case was only highlighted out of racial prejudice, as Manning is black.[2][3] David Voisin, Manning’s lawyer, wrote in the appeal, “ Willie Manning is about to be put to death based in part on testimony that the FBI and the Department of Justice now admit was false. Mississippi officials cannot stand by and let this execution proceed.[2] ” Added the court’s only black jurist, Associate Justice Leslie D. King, “ It is clear that the sole purpose in presenting the hair evidence was to have the jury conclude (1) hair from an African American was found in the car . . . (2) Manning is an African American, (3) therefore, Manning killed [the victims].[2] ”   The stay of execution, granted by the court in an 8-1 majority, will give the FBI time to retest the DNA evidence with new technology before further evaluating the case.[4]

News from New York Court rules teacher can’t be fired for inappropriate Facebook post [hide]  Court: New York Supreme Court, Appellate Division The New York Supreme Court, Appellate Division has protected the job of Christine Rubino, a teacher who turned to Facebook to vent her frustrations about her students. The Facebook post, which followed news of the drowning of a NYC student during a field trip, was as follows: “ After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn![5] ” When one of Rubino’s friends commented about letting a student float away. Rubino responded, “I wld (sic) not throw a life jacket in for a million!!”[5] One of Rubino’s Facebook friends told the school’s assistant principal about the remarks, which led to an investigation and a recommendation by a hearing officer to terminate her. However, Rubino challenged the recommendation and was supported in both trial and intermediate appellate courts. The courts pointed to Rubino’s 15 years of experience as a teacher and the fact that her comments did not reach any of her students, but only her Facebook friends. The trial court stated, “ [W]hile students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society.[5] ”   The Appellate Division, in their ruling on May 7, 2013, explained that the termination “has been held to shock one’s sense of fairness where the petitioner had a long and otherwise unblemished employment history.”[5]

News from Tennessee Horse-soring suspect charged and evicted [hide]  Court: Blount County General Sessions Court, Tennessee On May 8, 2013, Blount County General Sessions Court Judge William R. Brewer ordered Larry Joe Wheelon evicted from a horse barn he had been renting in Maryville, Tennessee. The owners of the barn sought his eviction after Wheelon had been charged with aggravated cruelty to livestock.[6] Earlier this year, on April 18, the Office of the Inspector General of the U.S. Department of Agriculture raided Wheelon’s barn and found nineteen horses with their legs wrapped in plastic, a chemical odor in the air, and nearby containers of mustard oil – all indicative signs of soring.[7] Soring, according to the Humane Society of the United States, involves the “intentional infliction of pain to a horse’s legs or hooves in order to force the horse to perform an artificial, exaggerated gait. Caustic chemicals—blistering agents like mustard oil, diesel fuel, and kerosene—are applied to the horse’s limbs, causing extreme pain and suffering.”[8] Such a practice is widely used in the Tennessee Walking Horse Show industries, where judges often reward the horses whose artificial gaits, known as the “Big Lick” gait, can be contrived by the practice of soring.[8] Other methods of soring include pressure shoeing, whereby either a foreign object, such as a screw or golf ball, is inserted between the front hooves and the shoes, or the hooves are cut painfully close to the quick and the horse shoe is nailed directly on to the exposed and often bleeding surface. Another method involves the use of chemicals to cause open wounds to the front legs and then wrapping metal chains around the legs so that the chains continue to abrade the sores each time the horse walks. The prized Big Lick gait is then accomplished when the horse must shift its weight to its back legs in order to avoid the pain caused by the soring to its front hooves.[8] Soring is often used on the Tennessee Walking Horse which has been bred to create a distinct gait and docile nature. The practice of soring has been illegal since the passage of the Horse Protection Act (HPA) in 1970, a federal law that specifically addresses soring and is enforced by the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture (USDA). [9] In addition to his eviction, Wheelon has been charged with one felony count of animal cruelty and may face additional charges. He is currently out on a $5,000 bond and will appear in court later this month.[7]   The horses were seized by the Blount County Society for the Prevention of Cruelty to Animals and, in conjunction with Horse Haven Rescue of Tennessee and the Humane Society of the U.S. and Tennessee, were transported to an undisclosed location where they are now in the process of recovery and doing great.[7]

News from Utah Grandmother’s adoption fight gives more people a ‘right to be heard in court’ [hide]  Court: Utah Supreme Court In 2011, Seana Collins fought hard to prevent a foster family from adopting her grandson. The child of her 14-year-old daughter, Collins raised the boy as if he were her own until 2010, when the state removed the boy from her home due to parental neglect (on the part of the 14-year-old). When Collins petitioned for custody but failed repeatedly to meet the deadlines imposed by the state to prove she was a fit guardian, the state allowed another family to adopt the child, who is now 5 years old. The state is strict with its designated deadlines, explaining that they are important because moving from family to family is traumatic for a child.[10] Collins was unable to afford counsel when she initially brought suit in 2011, but she now has a team of attorneys. Those lawyers have taken her appeal all the way to the Utah Supreme Court. On May 9, 2013, that court determined that the juvenile court which first heard the case erred when it allowed the adoption to proceed as a result of a procedural/clerical problem. As a result, the case has been remanded for a new hearing. The question presented during oral arguments, heard in October 2012, was “whether an apparent filing mistake should prevent Collins from being considered to adopt him.”[10] Justice Thomas Rex Lee appeared to be disappointed with the rigid procedural decision of the juvenile court. He stated, “ putting blinders on and ignoring a competing adoption petition, particularly when it’s a relative . . . how can that be in the best interests of the child?[10] ” “Best interests of the child” is a popular phrase in family law. It is the typical standard by which cases concerning anything related to a child’s well-being are usually decided. It is broad in scope, thus covering an immense amount of concerns, including who is best suited to care for a parent-less child.[11] Though the state was quick to point out that the Utah Supreme Court’s ruling does nothing to currently change the custody situation, Collins’ attorney Ronald Wilkinson praised the decision. He explained that it sets a precedent for putting the best interests of children first.[12] Further, another attorney representing Collins, Sara Pfrommer, said “the decision means everyone who has an interest in adopting a child now has the right to be heard in court.”[12]   Collins will get another day in court to prove she is a able to care for her grandson, though the battle may be harder this time around. She will now oppose not only the state but the boy’s adoptive parents.

For a District by District break down, see: Federal Court Vacancy Warning System

The vacancy warning level for the U.S. Federal courts is currently set at Blue. There were two new confirmations this past week, leaving the final tally at 82 vacancies or approximately 9.6% of the total Article III posts currently unfilled. The vacancy information for the various court levels is as follows:

There are currently 9 Supreme Court posts, 179 appellate court posts and 680 district court posts for a total of 868 Article III judges. This count includes four temporary posts, one each in the Northern District of Alabama, District of Arizona, Southern District of Florida and the Central District of California. This also includes two shared post between the two Missouri districts and the two Kentucky districts, which count as two posts with separate vacancies.

Weekly map

The new weekly map feature will be updated every week and posted here and on the vacancy warning level analysis page.

New confirmations

Middle District of Louisiana

On May 9, 2013, the United States Senate confirmed Shelly Deckert Dick to an Article III post for the United States District Court for the Middle District of Louisiana with a voice vote.^[1][2] Dick was originally nominated on April 25, 2013, by President Barack Obama to the seat vacated by Ralph Tyson. At the time of nomination, Dick was a partner in the law firm Forrester, Dick & Clark in Baton Rouge, Louisiana. She was rated Substantial Majority Qualified, Minority Not Qualified by the American Bar Association. She had a hearing before the Senate Judiciary Committee on December 12, 2012 and you can find her Committee Questionnaire Available Here, her Questions for the Record Available Here and her Renomination Questions for the Record available here. ^[3] The confirmation fills the only vacancy on the court of three, lowering the vacancy warning level from Orange to Green.

Southern District of New York

On May 9, 2013, the United States Senate confirmed Nelson S. Roman to an Article III post for the United States District Court for the Southern District of New York with a vote of 97-0.^[1][4] Roman was originally nominated on September 20, 2013, by President Barack Obama to the seat vacated by Richard Berman. At the time of nomination, Roman was a judge on the New York Supreme Court, Appellate Division, First Department. He was rated Substantial Majority Well Qualified, Minority Qualified by the American Bar Association. He had a hearing before the Senate Judiciary Committee on January 23, 2013 and you can find his Committee Questionnaire Available Here and his Questions for the Record available here. ^[3] The confirmation fills the one of four vacancies on the court of twenty-eight, leaving the vacancy warning level unchanged at Yellow.

New vacancies

There were no new vacancies this past week.

New nominations

On May 9, 2013, President Barack Obama nominated two to serve as United States District Judges. President Obama commented on the nomination stating: {{Quote|I am pleased to nominate these distinguished individuals to serve on the United States District Court bench.

Northern District of Alabama

President Obama nominated Madeline Haikala to the United States District Court for the Northern District of Alabama to fill the vacancy left by Inge Johnson.^[6] Haikala is currently a United States Magistrate Judge in the Northern District of Alabama. She attended Williams College, graduating with a B.A. in 1986. She went on to attend Tulane University Law School, earning her J.D. magna cum laude in 1989. ^[5] If confirmed, the nomination would fill the only vacancy on the court of eight.

Southern District of New York

President Obama nominated Gregory Howard Woods to the United States District Court for the Southern District of New York to fill the vacancy left by Barbara Jones.^[6] Woods is currently the General Counsel at the United States Department of Energy. He earned his B.A., graduating magna cum laude, from Williams College in 1991. He went on to earn his J.D. from Yale Law in 1995.^[5] If confirmed, the nomination would fill the one of three vacancies on the court of twenty-eight.

MADISON, Wisconsin: This edition of The Executive Summary features a breakdown of the current partisan count and takes a look at recent action involving an office that normally sees little news coverage – the state auditor.

Partisan count

Ballotpedia currently covers 13 major state executive official positions across the country, totaling 729 officials. As of today, May 16, Republicans hold 214 (29%) of those seats, Democrats hold 128 (17.5%), 1 (0.13%) is an Independent, and 385 (52.9%) are officially non-partisan.

Looking at just the 344 seats that are partisan affiliated, Republicans control 57.6 percent, Democrats 40.1 percent, and Independents hold 0.52 percent. In each position Republicans hold more seats than Democrats, with the exception of Attorney General, where Democrats hold 26 and Republicans 24, and Controller and Natural Resources Commissioner, where the two parties are tied.

In the top four offices – Governor, Lieutenant Governor, Attorney General, and Secretary of State – Republicans hold 110 seats (57.6%), Democrats have 78 (40.1%), and Independents have 1 (0.5%).

Note: The partisan office of Florida Lieutenant Governor is currently vacant.

Here’s a full breakdown by position.

Office	Democratic	Republican	Independent	Nonpartisan	Total seats
Governor	19	30	1	0	50
Lieutenant Governor	14	29	0	0	44
Secretary of State	19	27	0	1	47
Attorney General	26	24	0	0	50
Treasurer	17	19	0	12	48
Auditor	11	14	0	11	36
Superintendent of Schools	3	6	0	41	50
Insurance Commissioner	5	7	0	38	50
Controller	5	5	0	3	13
Agriculture Commissioner	1	11	0	38	50
Natural Resources Commissioner	1	1	0	46	48
Labor Commissioner	0	3	0	47	50
Public Services Commissioner	7	38	0	148	193
Total	128 (17.5%)	214 (29%)	1 (0.14%)	385 (52.9%)	729

Click here to read the full report.

RICHMOND, Virginia: All three state executive offices up for election this year in Virginia are occupied by Republicans, and none are seeking re-election to their current posts. Term-limited Governor Bob McDonnell cannot run, and Attorney General of Virginia Ken Cuccinelli is vying for the seat. Cuccinelli has already secured the 2013 GOP nomination for governor, being the only member of his party to file by the convention’s Jan. 13th deadline,^[1] whereas the lieutenant governor and attorney general primary fields are both contested. Seven Republican candidates filed for retiring Lt. Gov Bill Bolling’s seat, while two entered the race to replace Cuccinelli as attorney general. This upcoming weekend, delegates of the Republican Party of Virginia will vote to decide which two of their party’s candidates will appear on the general election ballot for the offices of lieutenant governor and attorney general.^[2]

Here is a complete list of candidates competing in the May 17-18 Republican primary convention:

The Democratic candidates for governor, lt. governor, and attorney general will compete in the taxpayer funded primary election on June 11, 2013. The winners will face the Republican convention nominees in the general election taking place November 5, 2013.