Wednesday, September 17, 2014

Northwest Indiana Officials Trample on the Constitution on Constitution Day

On Constitution Day, no less.  The Northwest Indiana Gazette has this interesting story:
A Hammond man is behind bars tonight being held without bail. 25 year old Kevin Kirby of Hammond posted the following Facebook comment yesterday:

Shortly thereafter, the comment went viral. The Gazette received it from several sources. Today the Gazette has learned that bond for Kirby has been revoked on an unrelated Felony charge. In May of this year, Kirby was charged with resisting arrest as a result of an incident that occurred in Highland. He was out on bond for that offense. After Kirby’s comments went viral, prosecutors quickly moved to revoke his bond on that charge. According to Court documents, Prosecutors faxed a notice of hearing to Kirby’s attorney on September 16. A hearing was scheduled for September 17 but neither Kirby nor his attorney showed. At that time, the Court issued a warrant for his arrest for failure to appear which was quickly executed.
Information as to the nature of the revocation hearing was not available at the time of this article. Presumably, the revocation had something to do with his comments. Nonetheless, the case raises a serious due process issue. There is no indication in the record that Kirby’s lawyer actually received the notice of hearing. Absent actual notice, a failure to appear warrant should not issue absent an imminent and specific identifiable threat. On the other hand, if action was not taken and someone was injured, we may be having a different conversation.

My immediate thought was that there is also quite possibly a free speech violation.  Kirby's comment was crass, even reprehensible, but crass and reprehensible comments are still protected speech.  Punishing that speech by revoking one's bond could be considered to be chilling of Kirby's free speech rights in violation of the First Amendment.  

Then, as the Gazette notes, you have the issue of the arrest on a failure to appear for a bond hearing with the notice of the hearing only being given by a faced order to the man's attorney one day before the hearing.   Obviously with such a short notice, it's not surprising that the defendant and the attorney weren't there.   Yes, there could be a due process problem.

It really looks like a bunch of people - police officers, the prosecutor, and judge - exercised extremely poor judgment in overreacting to Kirby's comment.  It might be time too for them to take a refresher course on the Constitution.

Friday, September 5, 2014

Judge's Order Requiring Male Attorney to Wear Socks May Violate the Equal Protection Clause

By now most people have heard about the saga of Todd A. Glickfield, the attorney who was admonished by Dean A. Young, Blackford Circuit Court Judge, for not wearing socks.  In the "Order Directing Proper Attire Be Worn By Todd A. Glickfield," which was distributed to all members of the Blackford County bar, the Judge Young the facts that led to the order:
During a break in the proceedings the Court advised Attorney Glickfield that he was not
Todd A. Glickfield
appropriately dressed as required by Local Rule, and that the Court would insist upon him wearing socks should he choose to present cases in the Blackford Circuit Court in the future.  Attorney Glickfield advised the Court that "I hate socks" and that he's had "this conversation with other judges in other courts," and that unless the Judge of the Blackford Circuit Court could show him applicable "orders or other legal authority" he would continue his habit of appearing sockless in court."
The judge responded by issuing an order detailing the dress code that Attorney Glickfield needed to follow, including that socks be worn.  Most commentators around Indiana and even the country (the story has been picked up nationally) agree, or at least assume, that the judge had the right to set and enforce this dress code in his courtroom. 

But there is a problem.  Rhetorical Paragraph #5 of the order states:
That the Blackford Circuit Court considers socks to constitute a part of "appropriate business attire" for male members of the bar presenting cases before the Court." (emphasis supplied)
In other words, the wearing socks rule doesn't apply to female attorneys who appear in Judge Young's court.

Judge Young may well not be aware of it but earlier this year the Seventh Circuit handed down Hayden v. Greensburg Community Schools in which the Court held a hair length limit enforced by the boy's basketball team violated the equal protection clause when that hair lengthy limit didn't apply to girl basketball players at the school.  In that case, Greensburg Schools pointed out that they were different teams and that if girls played on the boys' team they would be subject to the hair length limit.  That didn't matter to the Seventh Circuit.  Here, the argument of separate teams isn't even available as a defense to the constitutionality of Judge Young's order.  Lawyers, both male and female, appear before the Blackford Circuit Court.

Here is a portion of the Hayden decision:
The Haydens plainly have made out a prima facie case of discrimination. The hair-length policy applies only to male athletes, and there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. Why, then, must only members of the boys team wear their hair short? Given the obvious disparity, the policy itself gives rise to an inference of discrimination. 
The same thing could be said for socks.  There is no reason for treating male and female attorneys differently in terms of wearing socks other than the adopted rule reflects traditional differences in how men and women dress.   Clearly tradition alone is no longer a sufficient reason to treat the genders differently in imposing a dress code, even in a court of law.

Note:  A special thanks to The Indiana Law Blog for putting the Glickfield order online.