ILNews

Judge sees shift in 'constitutional jurisprudence' in protected speech cases

Michael W. Hoskins
January 1, 2007
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A separate concurring opinion by a Court of Appeals judge describes what he calls "a fundamental shift in Indiana's constitutional jurisprudence."

Judge James S. Kirsch made his statements in the unanimous, 3-0 opinion today in Latoya A. Blackman v. State of Indiana, No. 49A02-0610-CR-893, which involves a woman convicted of disorderly conduct in 2005 for yelling, swearing, and non-compliant behavior toward police officers during a vehicle narcotics search of the car in which she was riding.

The court ruled that Blackman's arrest for disorderly conduct did not violate the law and that her speech was not considered political speech protected by the constitution.

While concurring, Judge Kirsch noted, "I write separately only to note what I believe is a fundamental shift in Indiana's constitutional jurisprudence."

He voiced disagreement with recent cases following a landmark ruling by the Indiana Supreme Court in Price v. State, 622 N.E. 2d 957 (1993), which held that protections were afforded to similar type speech. Since then, the state's justices in January decided J.D. v. State, 859 N.E.2d 341 (Ind. 2007), which held that speech - albeit political - was not entitled to constitutional protection where it consisted of "persistent loud yelling over and obscuring of [the arresting officer's] attempts to speak and function as a law officer." This was an abuse of free speech, the court wrote.

"Without regard to whether J.D. is the death knell of Price and Indiana's independent constitutional jurisprudence, Blackman's speech here falls within that determined to be abusive by the Court in J.D.," he wrote. "Accordingly, I concur in the majority's decision."
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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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