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Indiana tunes in to national issues in federal courts

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What happens in Indiana regarding illegal immigration, same-sex marriage, and health-care reform may hinge on what happens with litigation playing out in the nation’s appellate courts.

With the recent federal court rulings on those three issues, attorneys in Indiana and most states are in a holding pattern until higher courts get involved and provide clear guidance on how those issues are to be handled. The exact impact isn’t known, but those who’ve been involved on one or both sides of these issues say they are closely watching what happens.

greg zoeller Zoeller

“Those issues relate to the broader issue of state sovereignty,” Indiana Attorney General Greg Zoeller said through an office spokesman, Bryan Corbin. “Our office has a legal duty to defend the state of Indiana’s sovereign interest to enact and enforce its own state statutes.”

Here’s a look at the three ongoing cases and the legal issues they present, based on the merits and recent rulings.

Illegal immigration

On July 28, U.S. District Judge Susan Bolton for the District of Arizona blocked the most controversial parts of that state’s immigration enforcement law from going into effect, a ruling that temporarily squashed a state policy that had sparked the national debate over immigration.

In her preliminary injunction, Judge Bolton delayed the most contentious provisions of the law, including a section that required officers to check a person’s immigration status while enforcing other laws. She also barred enforcement of parts requiring immigrants to carry their papers and that banned illegal immigrants from soliciting employment in public places ­– a move aimed at day laborers that congregate in large numbers in parking lots across Arizona. The judge also blocked officers from making warrantless arrests of suspected illegal immigrants. She issued the injunction in response to a legal challenge brought against the law by the Obama administration.

“Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested burdens lawfully present aliens because their liberty will be restricted while their status is checked,” said Bolton, a Clinton appointee who was assigned the seven lawsuits filed against Arizona regarding the law.

Other provisions that were less contentious were allowed to take effect, including a section that bars cities in Arizona from disregarding federal immigration laws.

Some states, such as Florida and Utah, have started tweaking their own state laws and proposed changes based on what Judge Bolton ruled. Lawmakers or candidates in as many as 18 states say they want to push similar measures when their legislative sessions start again in 2011, according to published reports.

Some lawmakers pushing the legislation said they won’t be daunted by the District ruling, but they will be watching Arizona to decide how they might proceed.

The same goes for Indiana, according to Sen. Mike Delph, R-Carmel, who’s unsuccessfully fought for illegal immigration legislation in recent years. He expects to introduce new legislation in the coming General Assembly session, and he’s reviewing the Arizona case and how other states are responding to decide how he might draft that bill.

“It’s disappointing that we haven’t had any action from our federal lawmakers, and so we have to stand up for our citizens,” he said. “I’m keeping an eye on the courts to tailor a product that meets our needs. But this is an area that’s uncharted, and my hope is that we’re able to stand up for people who have real problems with illegal immigration.”

Same-sex marriage

U.S. District Chief Judge Vaughn Walker in the Northern District of California ruled Aug. 4 that the state’s constitutional ban on same-sex marriage, known as Proposition 8, was unconstitutional under both the due process and equal protection clauses. The suit involves two gay couples who claimed that the 2008 voter-approved ban violated their civil rights guaranteed by the 14th Amendment.

“Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license,” Chief Judge Walker wrote in a 136-page opinion. “Indeed the evidence shows Proposition 8 does nothing more than enshrine in the California constitution the notion that opposite sex couples are superior to same sex couples.”

Chief Judge Walker originally stayed a decision about whether the ban should be respected or thrown out while appeals happen, but the judge reviewed that decision Aug. 12 and will allow same-sex couples to get married starting Aug. 18 unless a higher court intervenes. Opponents of the ruling have already appealed to the 9th Circuit, and both sides have vowed to take the case to the Supreme Court of the United States to decide.

This California case comes on the heels of one in Massachusetts, where in July a federal judge decided that the state’s legally married same-sex couples had been wrongly denied the federal financial benefits of marriage because of a law preventing the U.S. government from recognizing same-sex unions.

Currently, same-sex marriages are allowed in only four states besides California and Massachusetts – Iowa, Connecticut, Vermont, New Hampshire, and Washington, D.C. Indiana has a state law banning same-sex marriages, and efforts in recent years to weave that into a constitutional ban have been unsuccessful.

Just like in the illegal immigration debate, legal experts and those watching the same-sex marriage topic say those pending cases are likely to play into how states like Indiana approach the issue down the road.

“There’s been an increasing receptiveness to include same-sex couples in people’s definitions of family,” said Indiana University sociology professor Brian Powell, who has written about the issue and studied the state laws and most recent court rulings nationally. “If upheld, the decisions likely will propel even more people to accept and possibly embrace same-sex couples as a family.”

The AG’s office declined to comment on the constitutional element of the same-sex marriage issue, but Corbin said the state is closely watching those cases. He noted Zoeller has successfully defended Indiana’s statutory marriage definition from legal challenges in the past.

Health-care reform

On the health-care reform front, Judge Henry Hudson in the Eastern District of Virginia ruled in early August that the nation’s first lawsuit challenging President Barack Obama’s landmark reform could proceed. He refused to dismiss the state’s lawsuit, which argues the requirement that its residents must have health insurance is unconstitutional and conflicts with state law.

Noting that his ruling is only an initial step in a long line of litigation, Judge Hudson decided the issue the state raised – whether forcing residents to buy something, namely health care, is constitutional – had not been fully tested in court and was ripe for review.

“The congressional enactment under review – the Minimum Essential Coverage Provision – literally forges new ground and extends (the U.S. Constitution’s) Commerce Clause powers beyond its current high watermark,” the judge wrote in a 32-page ruling. “While this case raises a host of complex constitutional issues, all seem to distill to the single question of whether or not Congress has the power to regulate – and tax – a citizen’s decision not to participate in interstate commerce.”

For Indiana, Zoeller has joined with 19 other states in a similar lawsuit filed by Florida that challenges the national health-care law. A hearing is set next month in federal court in that state on whether the case should be dismissed.

While his office is withholding specific comment about how Indiana should proceed in light of the federal cases, Zoeller supports taking the cases to higher courts.

“The unprecedented claim that the federal government has the right to require individuals to purchase a private health-insurance product is a question that ultimately ought to be decided by the Supreme Court,” he said.•

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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