Friday, April 18, 2014

Is $3,500 the Price of Political Influence in Fishers?; Political Leaders Solicit Funds From Business Community For "Exclusive Meetings"

Across my desk came a very disconcerting letter authored by Pete Peterson, the Vice President of Fishers Town Council who is seeking election to the Fishers City Council.  (The Town of Fishers voters recently approved a referendum to become a city.)  The letter, which bears the letterhead, "Royal Tiger Progress Committee," says that $3,500 is the price for "business and industry leaders, consultants, and other professional community advocates" to have "exclusive meetings" about the future of the city.    Here is the letter verbatim:

ROYAL TIGER
PROGRESS COMMITTEE

April 19, 2013

Dear Friend of Fishers,

Throughout the past several years, the Town of Fishers has seen growth and expansion unlike any other in the area.  Despite a slowly recovering economy, we have seen continued interest from the development community as we work to improve the quality of life in Fishers.  It is easy to forget how fortunate we are to have these opportunities that many other communities might not have at this time.

In January of 2012, the Fishers Town Council hit the ground running, and we continue to work hard for the Future of Fishers today.  Many major project, such as the development of the Nickel Plate District, Downtown area, 1-69 & 106th Street interchange, and various road improvement projects throughout the town are quickly becoming a reality.  These projects, along with many others, are essential to maintaining and improving Fishers economic vitality going forward.

With he passage of the referendum in the fall of 2012, Fishers will soon take the biggest step forward in our history.  This step will bring about drastic changes to the way Fishers is governed, with an expanded City Council and our first ever Mayor.  It is more important than ever for us to have elected officials who are committed to improving Fishers' quality of life and managing the enormous growth that is sure to continue.

We have created an advisory committee comprised of business and industry leaders, consultants, and other professional community advocates to meet on a periodic basis and provide a forum to discuss innovative ways in which to make Fishers and [sic] even better place to live and work.  Your opinions and individual expertise are valuable to our elected officials and the future of Fishers.

I invite you to assist us by becoming a Member of the Royal Tiger Progress Committee for an annual membership fee of $3,500, where we can meet to discuss your suggestions and ideas about improving our community.  Members will be invited to exclusive meetings throughout the year in Fishers where we will plan to present a brief program to discuss current issues in the community followed by some open discussion.  We will be able to share information about what is happening in Fishers, in many cases before you hear about it in the news.

Our first meeting for Royal Tiger Progress Committee Members will be on May 1, 2013 from 5:30 pm to 7:30 pm at the home of Mike Williams in Fishers (address redacted).  Please join me and other elected officials including Town Council President John Weingardt, and Town Council Members David George and Renee Cox, and Commissioner Christine Altman as we enjoy cocktails appetizers from Bella Vita, and discussions about the future of Fishers.  I hope you will be able to make it.

Sincerely,

Pete Peterson, Treasurer
Royal Tiger Progress Committee
On the original CFA-2 filed with the Indiana Secretary of State's Office in April of 2013, Pete Peterson is named as the treasurer of the Royal Progress Committee while a gentleman named Andrew Greider is listed as chairperson.  Greider's LinkedIn profile lists himself as Executive Director of the Hamilton County Republican Party and that he had been campaign manager for Andy Cook for (Westfield) Mayor and Jim Brainard for (Carmel) Mayor in 2011.  Mayors Brainard and Cook have been identified on this blog as two of most fiscally irresponsible mayors in the State of Indiana. Brainard, in particular, has made it his practice in office to borrow heavily and redistribute the tax dollars of hard working Carmelites to corporate interests who then, in return, support Mayor Brainard as a thank you for their taxpayer subsidies.  This is known as corporate welfare, a type of crony capitalism that too many Republicans, especially in local government, have started engaging in.

It should also be noted that Pete Peterson, who is also Vice-President of the Fishers Town Council, supported an additional 1% food and beverage tax in Fishers but reluctantly agreed to table it when faced with a public backlash.  According to the Fishers Current, Peterson believes the tax increase will have more support when a specific "economic development deal" is struck for which the tax can be used.   Translation:  Peterson has no problem increasing taxes on Fisherites and then handing that money over to business interests that he (and perhaps members of the Royal Progress Committee) deem worthy.

At some point apparently Greider and Peterson thought better of their direct and unseemly involvement in the Royal Progress Committee.  In an amended CFA-2 filed in November of 2013, Pete Peterson's wife, Robin, is named as the new chairperson and Charles Lannan is listed as the new treasurer.

UPDATE:  An alert reader pointed out that Andrew Greider is working on the Scott Fadness for Fishers Mayor campaign.

Wednesday, April 16, 2014

Despite $160 Million Deal Pacers Will Be Free to Terminate Deal and Leave Indianapolis

Reading the news coverage, it would appear that the $160 million deal approved Monday by the Capital Improvement Board means that the Indiana Pacers cannot move the team until 2027.  These bullet points are from the CIB press release:
• The extension locks in the premier tenants of Bankers Life Fieldhouse—the Indiana Pacers and the Indiana Fever—for up to 13 years; that term coincides with final debt service payments due on the Fieldhouse in 2027.
• The extension also removes the ability of the teams to leave Indiana due to economic losses.
Pacers Owner Herb Simon
But if the first bullet point were true, why would there be a need to include the second?  If the agreement truly locked into the Pacers until 2027, there would be no reason to specifically say the Pacers gave up the team's right under the old contract to move for economic losses.  (Not like the Pacers would ever open up their books to show this.)

The fact is the Pacers aren't locked at all.  Buried in the middle of the new agreement is a provision that deals with the situation when Pacers' sole remaining owner, Herb Simon, who is 79 years old, dies.  (pages 43-47).  In that case the heirs who inherent the team through the Simons Trust may well need to obtain financing to continue operating the team or to refinance existing debts of the franchise.  The Simon Heirs under the provision can demand the CIB assist them with the obtaining "non-recourse" financing, which is a loan the collateral for which is income from the operations of the franchise, i.e. not the assets.  Presumably this would be done by using the CIB's ability to borrow at a lower cost or to loan money directly to the Heirs.

In the event the CIB chooses not to help the Simon Heirs with the debt, the Simon Heirs can issue a Notice of Intention to Terminate the new Agreement.  In that event, the CIB would have the first right, and 45 days, to, purchase the team.  Of course, there is a catch to that.  The Agreement specifically acknowledges several times that current NBA rules would not permit the CIB to own the team. 

If the CIB's offer to buy the team is rejected, an appraisal of the team is done by three appraisers.  If the appraised value of the Pacers is 110% or more of the CIB's offer, the Simon Heirs would be free to terminate the new Agreement.  According to Forbes, the current value of the Pacers' franchise is $475 million dollars.   That is more than 3 times the budget of the CIB.  The odds that, even if the NBA rules allowed the CIB to purchase the Pacers, the CIB could do so is pie-in-the-sky stuff.

Tuesday, April 15, 2014

Indianapolis Council Votes to Take Ballard Administration to Court Over Refusal to Turn Over Public Regional Operations Center Documents

The Indianapolis Star reports:
The City-County Council voted Monday to sue the city for records on how the administration struck a long-term lease deal for the public safety Regional Operations Center.
By a 15-14 mostly party-line vote, the council instructed the clerk of the council to seek a court order in Marion Circuit Court that would force the city's law office to hand over documents.
 







  Get Microsoft Silverlight



Mayor Greg Ballard's spokesman, Marc Lotter, immediately accused the Democrats on the council of "welshing" on a deal struck beforehand to table the motion so the city could have more time to find the records.

"They put politics ahead of factual information," Lotter said.

But Democrats said they had waited long enough for the records.

 ...

Council lawyer Fred Biesecker said only 10 of the requested 30 categories of records have been handed over since then. Corporation Counsel Andrew Seiwert, the corporation counsel, disputed that, saying every document his office could find has been sent to the committee.

Republicans called the vote a stunt to embarrass Ballard administration.

The city's emergency operations moved into 76,000 square feet of the former Eastside shopping center in January 2012, just before Indianapolis hosted the Super Bowl that February. The Indianapolis Metropolitan Police Department's East District moved there in May 2012.
On the 15-14 vote, Democrat Brian Mahern voted against the court action while Republican Christine Scales voted for it.

The notion that, after five months, the administration should be given more times to "find" specifically identified public documents is ridiculous.  Now on the verge of authorizing court action to order the documents be produced, the administration tries to get yet another delay   It is time to stop playing games.  Council Republicans, particularly wannabe attorney Ben Hunter, actual attorney Aaron Freeman, and Jack Sandlin, need to go back and read about Watergate, perhaps watch a documentary on what happened.  Many people lost their careers because they participated in, not the actual underlying offense, i.e. the burglary, but the coverup.

Friday, April 11, 2014

Indiana Teacher Evaluations Lead to Obvious Questions About Accuracy, Value of Merit Pay Based on Those Evaluations

The Indianapolis Business Journal reports:
About 88 percent of teachers and administrators were rated as either effective or highly effective in the 2012-2013 evaluations. Only about 2 percent reported needing improvement, and less than a half of a percent were deemed ineffective.

About 10 percent of educators were exempt, some because their districts have not reopened teacher contracts since the law was passed.

Legislation passed in 2011 mandated each district conduct an annual review for all teachers and administrators. Only teachers in the higher two brackets are eligible for salary increases.

....

[N]o educators at Northern Indiana's F-rated Chamberlain Elementary School in Goshen were ranked below effective, and only one at D-rated Chandler Elementary School was reported as needing improvement.

"We didn't think it was possible for a D or F school to say all teachers are effective or highly effective," State House Education Committee Chairman Bob Behning said. "We thought (the school ratings) would keep schools somewhat a little more honest."

Educators in some school districts were uniformly rated as "effective."

Only one person was ranked "ineffective" from North Lawrence Community Schools in Central Indiana, and every other educator was given a higher "effective" rating.
Over at the blog Indy Democrat, my friend and teacher Jon Easter suggests the numbers are to be celebrated.

Yeah, I don't think so Jon.  Any profession in which only 2 1/2% of those in the profession is deemed "ineffective" or needing improvement is undoubtedly not accurate.  I'd certainly put the number of "effective" teachers higher than lawyers.  But still I don't buy those numbers.  I kind of doubt Jon does either.

On the other hand, one thing I have always parted with my conservative friends on is merit pay for teachers.  I had long harbored doubts that administrators would honestly evaluate teachers and thought the process would become political.  What appears to be happening is that virtually every teacher is given a stamp of approval and therefore made virtually eligible teacher for more pay.

Thursday, April 10, 2014

Crack Negotiators for CIB Agree to Give Billionaire Pacers Owner "Only" $160 Million Over Next Ten Years

The same crack "negotiators" who cut the extremely one-sided lease deal for the Regional Operating Center must also work for the Capital Improvement Board.  The geniuses at the CIB announced today that they had preliminarily agreed to a new 10 year deal with the Pacers which will cost taxpayers even more.  The Indianapolis Star reports:
The Pacers will continue to play basketball in Indianapolis for at least a decade under a $160 million deal the team and the city plan to announce Monday morning. 
The agreement locks the team into Bankers Life Fieldhouse for 10 years, with three one-year renewal options, according to documents obtained by The Indianapolis Star. In exchange, the city will provide $160 million to cover operating costs and facility upgrades.
The city's Capital Improvement Board is expected to vote on the deal Monday.
Pacers Owner Herb Simon
Although the deal is touted as a new 10 year deal, in fact there was already another 5 years on the old deal.  So the extension is actually only for 5 years, not 10.

Mayor Ballard, who is preparing to, once again, push for higher taxes on Indianapolis working men and women, this time for public safety, of course praised the giveaway of tax dollars:
The Indiana Pacers and Indiana Fever attract hundreds of thousands of people to Indy on an annual basis," Mayor Greg Ballard said. "Many Downtown workers and businesses rely on those fans for their income. Amenities like professional sports, art and museums make our community a more vibrant and attractive place to live and do business."
Obviously Mayor Ballard has never had an economics class.  If he did he would understand a concept known as "disposable income."  Pacers' games, which are attended almost entirely by local individuals, are not adding new spending to the city. The team is simply moving disposable income from one part of the metro area to another.  It is one of the reason why economists are almost unanimous in their belief that professional sports teams are a poor investment for cities.

 The Indianapolis Business Journal provides details on the deal:
[The deal] breaks down to $3.7 million for direct operating expenses and $7.1 million for "operating reimbursement" payments, according to a CIB board presentation obtained by IBJ. The $7.1 million figure would rise by 3 percent each year over the course of the deal.   
The CIB also would provide $26.5 million for improvements to Bankers Life Fieldhouse's locker rooms, concession stands and video boards, and another $7 million for capital replacement items including new carpet. About half of those improvements would be completed in 2014.
What could be the sleeper in the deal is the provision that kicks in should Pacers owner pass away, a very likely scenario since Herb Simon is 79.  Under the deal the CIB is to provide financing assistance to the heirs of the team should they have trouble getting financing on their own at Simon's death.  The CIB is given 15 months to help the team find financing and would be entitled to a right of first offer in the event of a sale, a provision which means very little. The Star gives more detail on what this section means:
If the team's lenders call its current loans due, or if those loans mature, the Pacers must seek replacement financing that is secured by collateral, likely real estate. The CIB would have time to ask state lawmakers and the City-County Council to help the Pacers obtain such financing. If the team can't obtain such financing and the Pacers' parent company, Pacers Sports & Entertainment, decides to sell the team, the city is entitled to a right of first offer.
It is not clear whether the deal would allow a new owner taking over the team after Simon's death to move the team.  One thing is for certain though - Indianapolis taxpayers will pay dearly to make our billionaire basketball team owner even wealthier.

Wednesday, April 9, 2014

Marion County Election Board Doubles Down on Defiance of Federal Court Order; Sets Hearing to Investigate Mulholland, Make Possible Criminal Referral

As been reported on these pages before, in the 2012 the Marion County Election Board voted 3-0 to enforce the anti-slate statute against House candidate Zach Mulholland during the May 2012 primary.  The statute says that candidates who pass out literature with their name and anyone other candidate have to file with the Election Board written approval from the other candidate or face a Class A misdemeanor election law violation  The purpose of the rule is to protect the "official" Marion County slate from those dare challenge it.
Zach Mulholland

In a lawsuit in 2003 in which I was plaintiff, the local federal court found the statute unconstitutional and the Marion County Election Board entered into a consent decree agreeing with that decision and to not enforce the statute.  Nevertheless, in defiance of the federal court order, the Board did exactly that in 2012 dispatching what were little more than thugs out to the precincts to seize Mulholland's literature in a hotly contested race he had with eventual winner slated candidate Dan Forestal.

In federal court litigation, Judge Sara Evans Barker dismissed the case, saying that the 2003 decision that the statute was facially unconstitutional only applied to me and Indiana Right to Life, the other plaintiff in the case.  On appeal to the 7th Circuit, Judge Hamilton wrote that a statute can't be facially unconstitutional as to just the plaintiffs in a litigation, that when a statute is facially unconstitutional it's facially unconstitutional to everyone.  
We reject the Election Board’s oxymoronic argument that the judgment in Ogden should be read to mean that the statute is facially unconstitutional only as to the Ogden plaintiffs. We have not encountered before the idea of facial unconstitutionality as applied only to a particular plaintiff. Facial unconstitutionality as to one means facial unconstitutionality as to all, regardless of the fact that the injunctive portion of the judgment directly adjudicated the dispute of only the parties before it. (Citations omitted.)
In his opinion, Judge Hamilton also said that the Board's attempt to continue to enforce a statute that it had admitted was unconstitutional "shaves very close to harassment or bad faith prosecution."

Faced with the rebuke from the Seventh Circuit, what did the Marion County Election Board do? If your guess is engage in yet more behavior to prove beyond any doubt that the Board is involved in harassment and bad faith prosecution regarding its treatment of Mulholland, you'd be correct.   On March 27, 2014, the Board doubled down on its own 2012 arrogant defiance of the 2003 federal court order.by passing a resolution to hold a meeting on April 23rd to determine whether Mulholland violated any criminal laws during the May 2012 primary and whether a referral should be made for his prosecution. 

It is outrageous that the Board continues to use partisan attorneys billing taxpayers to litigate a case that should have been settled immediately.  That bill last year was approaching $150,000.  Further, the attorneys who are involved in this case, including those on the Election Board (all three of those Election Board members were attorneys) who voted to enforce a law in 2012 they knew they were specifically prohibited from enforcing, and the attorneys who participated in thuggish acts of ripping literature out of the hands of Mulholland's volunteers, should be brought before the federal court to explain why they shouldn't be held in contempt. 

During the March 27, 2014 meeting it was discussed that the federal litigation is "pending" and issue of whether the slating statute is constitutional hasn't yet been decided yet.  Wrong.  The statute was determined to be unconstitutional in 2003 and that decision was reaffirmed in the 2013 Seventh Circuit case.  The case is over.  It is time for the Election Board to stop harassing Mulholland and stop using this litigation as an excuse to put money in the pockets of partisan attorneys.

Monday, April 7, 2014

Head of the Disciplinary Commission Retaliates Against Yours Truly For Helping Person Blow the Whistle on Marion County Judge

Saturday afternoon, I received a knock at my door.  It was my postal carrier.  He come bearing a new grievance filed against me by Executive Secretary Michael Witte of the Indiana Supreme Court Disciplinary Commission.  I wasn't surprised.  I know how the Disciplinary Commission has operated under former Executive Secretary Donald Lundberg and now Witte. The Commission has long ceded as its primary mission enforcing the rules to protect the public from unethical attorneys.  Rather, under Lundberg and Witte the Commission has become a tool to go after critics and other attorneys the Commission doesn't like.  They have been relentless in that goal.  When an attorney who fights  charges escapes the disciplinary process with his license intact, other charges almost inevitably follow.  The Commission will continue until it gets the attorney's license or the attorney gives up and leaves the practice of law.
Michael Witte, Executive Secretary
Indiana Disciplinary Commission

Witte's grievance this time is that I wrote about my interaction with Shirley Justice, the young mother who was shot 14 times outside a day care facility on the northwest side of Indianapolis.  Ms. Justice had contacted me about filing a "lazy judge" praecipe against Judge Patrick McCarty who had pending before him a petition for modification of child custody that was over 90 days.  She pleaded with me to represent her.  I told her I couldn't, but discussed the lazy judge process with her, reviewed the docket, and reviewed the lazy judge praecipe she drafted pro se.

She by fax tried to file the lazy judge praecipe Monday morning.  She then contacted me upset, reporting to me that talked to a clerk in the office and that even though she had faxed it nearly the first thing that morning, an order on her case had been entered ahead of the motion.  Her lazy judge praecipe was deemed moot.  As I indicated to her, that's not the first time I had heard it alleged that Judge McCarty will execute an order for filing ahead of a lazy judge praecipe, thereby mooting the praecipe.   Judges hate lazy judge praecipes because they trigger a disciplinary type process in which the judge has to explain to the Supreme Court why a timely ruling was not made.

What to do?  I reported what happened in Judge McCarty's court to counsel for the Judicial Qualifications Commission and the State Court Administrator.  Apparently they didn't buy it either that the order was done before the praecipe.  The Supreme Court ordered that the praecipe be shown as having been filed first. The case was removed from Justice McCarty's court.

I didn't plan on writing about what happened until Ms. Justice, while outside a day care center dropping off her child, was shot 14 times, allegedly by her ex-husband.

In the grievance, Witte fails to identify any disciplinary rule I violated but suggests from the my article in which I reported what Ms. Justice said and her allegations regarding Judge McCarty improperly revealed confidential information from my discussion with the potential client.

It is not clear by what authority Disciplinary Commission Executive Secretary Michael Witte thinks he has to assert a potential client's confidentiality rights.  It is not clear under by what authority that Witte believes that an attorney can be sanctioned for revealing information that a client had no problem revealing.

I have since talked to Ms. Justice.  I confirmed that Ms. Justice had no problem with my including the information of our discussions in the article and, in fact, approves of what I wrote.  She has also talked to the media.  She wants her story out, including what she believes Judge McCarty did to her.

Before filing a grievance asserting that I had violated Ms. Justice's confidentiality rights, neither Mr. Witte nor anyone at the Commission bothered to talk to Ms. Justice.  This is consistent with the fact that the Commission made no effort to talk to me or any of my witnesses before filing charges based on my sending emails criticizing a Hendricks County judge and my writing a letter educating judges about how civil forfeiture proceeds were to be divided.

One thing is clear though.  What Witte did by filing that new grievance against me is nothing more brute retaliation for my criticizing him and the Commission and, in particular, my doing my job of reporting what happened to Ms. Justice in Judge McCarty's court.   I tried to blow the whistle on possible judicial misconduct and Witte doesn't like that.  It's exactly because of Witte's approach that we have Indiana attorneys remaining silent when faced with judicial misconduct.

I am undoubtedly the biggest public critic of Witte and the Commission.   Time after time I have seen the Commission fail to go after unethical attorneys who are doing great harm to the public while instead devoting enormous resources to going after attorneys who allegedly commit petty offenses, but have instead committed the greater offense of offending the Commission.  In that regard, I have no doubt that Witte will continue to file things against me until he assures I no longer have an Indiana law license.  He has devoted enormous Commission resources to that goal and will not quit until he is successful.

The Disciplinary Commission has been allowed to operate with very little oversight and no transparency for years.  It is axiomatic that any government agency that is allowed to operate under such circumstances will at best end up corrupt and at worst will end up with authorities in that agency abusing their power.   Clearly Witte is not above abusing his authority to target critics with the enormous power of the Disciplinary Commission, a fact I've personally experienced multiple times.

Witte, who is actually an appointment by former Chief Justice Randall Shepard, clearly lacks the temperament and judgment to sit as Executive Secretary of the Disciplinary Commission. He needs to be fired and the Commission's activities thoroughly investigated.   Every attorney I know is terrified of speaking out about problems with the Disciplinary Commission because of fear of retaliation. Nobody I have ever met though thinks the Commission is doing a good job or that its processes shouldn't be thoroughly investigated and reforms of the disciplinary process instituted. The time for that is long past due.               

Thursday, April 3, 2014

Former Secretary of State Charlie White Wins Right to Pursue Conspiracy Claims in Federal Court

In a ruling handed down last Friday by Federal Southern District of Indiana Judge Sara Evans Barker, former Secretary of State Charlie White won the right to pursue claims against defendants the State of Indiana, the Indiana State Police, Special Prosecutors John Dowd and Daniel Sigler, Jr., Prosecutors Daniel J. Sigler, Sr., Sonia Leerkamp, D. Lee Buckingham, III, and Jeffrey Wehmueller, and Indiana State Police Detective Paul Hansard.
Charlie White

In a federal civil rights lawsuit in which he represents himself, Charlie White had made the following claims:
I.  Violation of his right to equal protection
II.  Malicious prosecution regarding indictment for fraud against a financial insttitudion against defendants Dowd, Sigler, R., Sigler, Sr. and Hansard
III.  Intentional infliction of emotional distress against defendants Dowd, Sigler, Sr., Sigler, Jr. and Hansard
IV.  Conspiracy in violation of 42 U.S.C Sec. 1986 against defendant Buckingham
V.  Violation of First Amendment rights against defendant Leerkamp
VI.  Conspiracy to violate 42 U.S.C. Sec. 1985 against defendants Leerkamp, Wehmueller, Dowd, Sigler, Sr., Sigler, Jr. and Hansard. 
The Defendants, through the Indiana Attorney General's Office, had sought to dismiss each of the claims.

In the decision written by Judge Barker, White's official capacity claims against the defendants were dismissed with prejudice due to the 11th Amendment which prohibits suits against states in federal
Judge Sara Evans Barker
court.  Judge Barker also found that any allegations relating to matters he was convicted of are barred and dismissed those without prejudice and dismissed White's emotional distress claim.   Judge Barker found, however, that White had sufficiently pled his two claims that the actors identified above were involved in a "far-reaching conspiracy."  White is also also permitted to pursue claims against the prosecutors as to the bank fraud charge for which White was acquitted by the jury.  As Judge Barker noted, while prosecutorial immunity does protect the decision to bring charges, it does not protect prosecutors against the allegation that they directed the investigation that resulted in the charges.

I should note the major effect of this decision is that it now allows White to pursue discovery against the named defendants, discovery that could prove very embarrassing and possibly even incriminating.

In ruling on the Motion to Dismiss, I would commend Judge Barker for sticking closely to the concept of notice pleading.  Too often federal courts, based on a gross misinterpretation of the Supreme Court's Iqbal and Twombly cases, have concluded that notice pleading in federal court is dead.  Plaintiffs are increasingly facing Rule 12(b)(6) motions to dismiss in federal court, regardless of how detailed their complaint is.  The effect is that the motion to dismiss stage in federal litigation has been converted by into a second extremely expensive and drawn out summary judgment stage.    Ironically, Judge Barker ends her opinion with strict instructions to White to follow the notice pleading rule of making a "short and plain statement" of his claim when he amends his complaint.  As someone who practices in federal court, I wish that were enough but too often it isn't.

When is the Hamilton County Prosecutor's Office Going to File a Civil Forfeiture Action Against Colts' Owner Jim Irsay?

Indianapolis Colts Owner Jim Irsay
By now, people who read my blog should be aware of the the abuses of civil forfeiture. That's the tool that allows law enforcement to keep cash and property seized from private citizens through the use of a civil action, an action that employs a much lower standard of proof than the criminal "beyond a reasonable doubt" standard.  Criminal charges do not even have to be filed to pursue a civil forfeiture. The civil action need only allege that the property was used in conjunction with a crime. Although Indiana's civil forfeiture law only allows law enforcement to keep money to cover costs of the law enforcement action (the rest of the money is to go to the Common School Fund), prosecutors all over the state have worked to keep 100% of the proceeds in direct violation of the law.   The Hamilton County Prosecutor's Office is one of those prosecutor's offices which haven't turned over a dime of civil forfeiture money to the Common School Fund for years.

Worse yet, I heard from a defense attorney who practices in Hamilton County that during the person's processing after a seizure in that county (and before charges are filed if they are filed),  law enforcement officials will try to get the person to sign a waiver giving law enforcement everything that was seized.  It is very questionable what happens to the seizures that result from these waivers or whether a civil forfeiture action is ever filed since they have been "settled."  At the conclusion of the case when a determination is being made of which government agencies receive the civil forfeiture money, most judges are just simply signing off on the prosecutor's paperwork that allows law enforcement to keep 100% of the money.  The civil forfeiture defendant does not have standing to challenge that division of the money and thus there is no one to oppose the prosecutor at that point.

Jim Irsay was found with $29,000 in cash on him during his arrest.  Did Hamilton County law enforcement ask him to sign a waiver letting them have the money as they would have with a private citizen?  Apparently not.  As of today, no civil forfeiture action has been filed by the Hamilton County Prosecutor's Office against Irsay.  You can bet that if Irsay were an ordinary citizen, the Hamilton County Prosecutor's Office would have immediately filed a civil forfeiture action against him.

Once again, the Hamilton County Prosecutor's Office demonstrates there are two types of justice in that county, one that applies to people who have money and political power and the one ordinary citizens must face.

The Indiana Law Blog today put up a link to an excellent New Yorker article on civil forfeiture.

Wednesday, April 2, 2014

Governor Pence Urges President Obama to Support Repeal of the Medical Devices Tax

One of the immutable laws of economics that when something is taxed you will get less of that something.  If you tax income, you discourage people from working.  If you tax savings, you discourage people from saving money.  If you tax people buying goods, spending will decrease.  If you tax home ownership, people will be discouraged from owning homes.  Making things more expensive, has consequences.

With that said, probably the worst tax I can think of is the 2.3% tax on medical devices levied by the Affordable Care Act, aka Obamacare.  I can't imagine a worse tax. Why would we want to discourage the development of medical devices, an area where the United States is a leader?

Indiana Governor Mike Pence recently urged President Obama to repeal the tax.  The Indianapolis Business Journal reports:
Governor Mike Pence
Indiana Gov. Mike Pence sent a letter to President Barack Obama on Monday asking him to work with Congress to repeal a 2.3-percent excise tax on medical devices that is helping to pay for the federal health care law.

....

“Repealing the medical device tax will allow companies to expand and grow jobs, not only in Indiana but across our great nation,” Pence said in his letter. “This thriving industry should be allowed to innovate and grow, rather than be hampered by an industry-specific tax.”

The tax is expected to generate about $29 billion over 10 years, according to the Joint Committee on Taxation. That money is being used to pay for subsidies to help lower- and middle-income Americans buy health insurance.

The tax is levied on equipment, stents, pacemakers and other devices manufacturers sell to hospitals and other health care providers. But it doesn’t apply to medical equipment – such as hearing aids – that are sold directly to the public.

...

But Obama previously threatened to veto bills to eliminate the tax. The White House has said the health care industry – including medical device makers – will benefit from additional customers as millions more Americans get insurance through the Affordable Care Act.

But according to Pence, the state’s medical device companies are moving work overseas or cutting costs.

“I have heard from many Indiana-based medical device companies – small and large, start-ups and well-established – that have reduced research and development at their facilities or reduced wages for their employees,” Pence wrote in his letter to the president.

...

Finding Themselves Losing the Political Debate, Climate Alarmists Resort to Censorship

Facing a losing political debate, climate alarmists have increasingly latched onto a new tactic - demanding that their opponents be silenced.  The Los Angeles Times and the Reddit Science website have all decided to stop publishing letters and other commentary that dispute the theory that man is causing dangerous anthropogenic global warming orthodoxy. Other publications have followed suit.

Charles Krauthammer
When long-time columnist Charles Krauthammer decided to pen a column about the "myth of 'settled science,'" the response on the left was a petition campaign to stop the Washington Post from publishing the column.  What did Krauthammer say in the column that was so controversial the left wanted it suppressed?  Let's examine:
I repeat: I’m not a global warming believer. I’m not a global warming denier. I’ve long believed that it cannot be good for humanity to be spewing tons of carbon dioxide into the atmosphere. I also believe that those scientists who pretend to know exactly what this will cause in 20, 30 or 50 years are white-coated propagandists.

“The debate is settled,” asserted propagandist in chief Barack Obama in his latest State of the Union address. “Climate change is a fact.” Really? There is nothing more anti-scientific than the very idea that science is settled, static, impervious to challenge. Take a non-climate example. It was long assumed that mammograms help reduce breast cancer deaths. This fact was so settled that Obamacare requires every insurance plan to offer mammograms (for free, no less) or be subject to termination.

Now we learn from a massive randomized study — 90,000 women followed for 25 years unnecessary radiation, chemo or surgery.
— that mammograms may have no effect on breast cancer deaths. Indeed, one out of five of those diagnosed by mammogram receives

So much for settledness. And climate is less well understood than breast cancer. If climate science is settled, why do its predictions keep changing? And how is it that the great physicist Freeman Dyson, who did some climate research in the late 1970s, thinks today’s climate-change Cassandras are hopelessly mistaken?

They deal with the fluid dynamics of the atmosphere and oceans, argues Dyson, ignoring the effect of biology, i.e., vegetation and topsoil. Further, their predictions rest on models they fall in love with: “You sit in front of a computer screen for 10 years and you start to think of your model as being real.” Not surprisingly, these models have been “consistently and spectacularly wrong” in their predictions, write atmospheric scientists Richard McNider and John Christy — and always, amazingly, in the same direction.

Settled? Even Britain’s national weather service concedes there’s been no change — delicately called a “pause” — in global temperature in 15 years. If even the raw data is recalcitrant, let alone the assumptions and underlying models, how settled is the science?

But even worse than the pretense of settledness is the cynical attribution of any politically convenient natural disaster to climate change, a clever term that allows you to attribute anything — warming and cooling, drought and flood — to man’s sinful carbon burning.

...

Hurricane Sandy was made the poster child for the alleged increased frequency and strength of “extreme weather events” like hurricanes.

Nonsense. Sandy wasn’t even a hurricane when it hit the United States. Indeed, in all of 2012, only a single hurricane made U.S. landfall . And 2013 saw the fewest Atlantic hurricanes in 30 years. In fact, in the last half-century, one-third fewer major hurricanes have hit the United States than in the previous half-century.

Similarly tornadoes. Every time one hits, the climate-change commentary begins. Yet last year saw the fewest in a quarter-century. And the last 30 years — of presumed global warming — has seen a 30 percent decrease in extreme tornado activity (F3 and above) versus the previous 30 years.

None of this is dispositive. It doesn’t settle the issue. But that’s the point. It mocks the very notion of settled science, which is nothing but a crude attempt to silence critics and delegitimize debate. As does the term “denier” — an echo of Holocaust denial, contemptibly suggesting the malevolent rejection of an established historical truth. 
 ...
Which one of the facts that Krauthammer cites in his column is false?  I am guessing none of them as Krauthammer backs up everything with links to authority.  Yet some on the left would still like Krauthammer silenced because his words, though true, undermine the anti-growth political agenda for which global warming, now "climate change" is merely a tool, a means to an end.

What is next?  Is the left going to advocate book burning to suppress views they don't like?

Monday, March 31, 2014

United States Cricket Governing Body Faces Another Key Departure

 ESPN CricInfo reports:
The state of the USA Cricket Association's administration has been dealt another setback after the resignation of USACA board member Brian Walters over the weekend, less than resignation of USACA chief executive Darren Beazley. The Texas resident confirmed his resignation to ESPNcricinfo on Sunday night. 
a week after the

"Due to numerous personal and professional commitments, I have found it difficult to fully dedicate myself to my duties as a member of the board of directors at the USA Cricket Association," Walters wrote in a note that was obtained by ESPNcricinfo. "I have therefore made the difficult decision to resign from the board." 

Walters had been serving as the Central West representative to the USACA board since winning a regional election in 2012 to replace the incumbent Ahmed Jeddy. Walters was the chairman of the USACA Governance Committee over the course of the last year and had been championing governance reform measures along with Beazley that were recommended by an independent review by TSE Consulting. Those measures were postponed from being implemented at the USACA AGM in November.

Friday, March 28, 2014

Future of Cricket in the United States Suffers a Blow as USACA Chief Darren Beazley Resigns

The future of cricket in the United States suffered a blow yesterday.  ESPN CricInfo reports:
Darren Beazley
USA Cricket Association chief executive Darren Beazley has resigned after just 14 months in the role. USACA announced in a press release on Tuesday that Beazley was stepping down in order to return to his native Australia where he will take up a position as the chief executive of Swimming Western Australia. 

Beazley's initial contract was for three years, but his tenure was six months shorter than his predecessor Don Lockerbie, who lasted 20 months before being fired in November 2010 for reasons USACA has never stated. 

 Sources have indicated that the lack of support from the USACA board of directors to implement sweeping governance changes to USACA's administrative structure played a role in his seeking to leave USACA and return to Australia....
 
...

Beazley's resignation also comes in the wake of damning financial data made public last month that USACA was more than $3 million in debt at the end of the 2012 tax year. The returns showed a 47% decline in membership revenue from 2011 as member leagues revolted after the controversial 2012 USACA elections in which 32 out of 47 member leagues were disenfranchised. 

USACA is also under increasing pressure from the American Cricket Federationn (ACF), which was formed in the wake of the 2012 election. Many member leagues have defected for the ACF including the largest league in America, New York's Commonwealth Cricket League. 

Beazley had strong ties with Anderson and ICC top brass in Dubai but his departure may be the last straw for USACA in a series of administrative missteps. USA now faces the very real threat of a third administrative suspension by the ICC in the last decade. 
 The Indiana Cricket Blog opined on Beazley's departure:
Very Sad day! For the USA Cricket, USACA chief Darren Beazley resigns.

It may surprise to many as someone of his stature is resigning in just 14 months at this high level job. (Original contract for 3 years)

He was clearly someone who wished USA cricket to do well, and was trying to implement/reforms that would help cricket in America with Let’s Play Cricket USA theme & his willingness to make Cricket as True American Sport.

His involvement was key to bring ICC twice to visit USA (1st in New York than Indianapolis), and $6 million sports park project to bring USA National Championships to Indianapolis, which is scheduled to launch first USA National Championship in August 2014.

He tried his best with his vision & ambition to improve USA cricket at every possible way.
 ...

Thursday, March 27, 2014

What Authority Did Hamilton County Authorities Have to Redact Test Results from Irsay Arrest Report?

Yesterday, the Indianapolis Star published on-line an "exclusive" story about police reports the newspaper obtained that detailed the arrest of Indianapolis Colts' owner Jim Irsay.  First of all, I am  confused by how this could be an "exclusive" report.  These are public records.  Typically anyone can get any police report simply by going into the office that has the report and paying a modest fee for copying. I'm not sure how the Star could get an "exclusive" story based on public records that undoubtedly every media outlet in town has been asking for.

The Star story begins:
Indianapolis Colts Owner Jim Irsay
Indianapolis Colts owner Jim Irsay had trouble standing, his speech was slurred and he admitted taking several medications but refused to voluntarily submit to a blood test after he was stopped by a Carmel police officer on March 16.

Those and many other new details about Irsay's arrest are contained in police reports obtained Wednesday by The Indianapolis Star through a public records request.

Police also found $29,029 in cash -- most of it in a briefcase and laundry bag where police also found numerous bottles containing prescription drugs -- in the silver Toyota Highlander that the billionaire was driving.

Irsay agreed at the scene to take a portable breath test, though the result of that test was redacted in the records obtained by The Star. Irsay denied having consumed any alcohol, according to the arresting officer, who told a supervisor called to the scene that he "believed Irsay to be intoxicated on a substance other than alcohol."
Under what legal authority does the government agency, I am assuming here the Hamilton County Sheriff's Department or the Prosecutor's Office, have to redact that information on the results of a portable breath test in a police report?  The agency needs to identify what exception in the open records law was used to redact that information, yet, if they did, the Star doesn't mention it.   I have seen a lot of police reports in my time. Never have I seen the results of a portable breath test redacted in a police report. Now if the case went to trial and the report was for some reason admitted into evidence, perhaps for impeachment purposes that result would probably be redacted as that test is generally inadmissible.  But at this stage there is no reason to do this except to shield politically powerful Mr. Irsay from negative publicity.

Like attorney Gary Welsh of Advance Indiana, I have doubts about the Hamilton County Prosecutor's Office which has history of failing to prosecute wealthy, politically-connected members of the community.

Wednesday, March 26, 2014

Book Review: Spanking City Hall by Indianapolis Author Melyssa Hubbard

This past week, I had an opportunity to read Melyssa Hubbard's (formerly Donaghy) new book, Spanking City Hall which this week has become available to the public.  I've known Melyssa for several years.  I probably first met her in the Fall of 2008 after I started my Ogden on Politics blog.  In the blog I had started to publicize my disillusionment with the administration of Indianapolis Mayor Greg Ballard.  Elected as a populist, tea party, limited government Republican, Mayor Ballard turned out to be the direct opposite of Candidate Ballard  I remember so well that election night in 2007 thinking we had done something special in defeating incumbent Mayor Bart Peterson and electing someone who owed nothing to the elite, country club types who controlled this city.  That is when I learned the lesson you can win an election but lose the transition.

While my disillusionment with Ballard was growing in 2008, I was nevertheless eager to to meet the key figure who had instigated a taxpayer revolt that had toppled Mayor Bart Peterson, the formerly popular Democratic mayor.  Indeed the populist revolt Melyssa led in the summer of 2007 gave birth to the Indiana Tea Party.   As a Republican, I have always held to the belief that the success of the GOP was in the ability to reach every day working men and women, not kowtowing to wealthy elites.   Melyssa understand not only the power of populism but also embraced a libertarian live-and-let-live philosophy that was growing in popularity among young Republicans.

At some point, I learned of Melyssa's colorful background as a professional dominatrix.  To her credit, she never shied away from her past and has always offered comparison between that profession and politics.  Without Melyssa's back story and having no knowledge of the dominance and submission lifestyle, I admit I had difficulty grasping how the two relate.  In Melyssa's book, Spanking City Hall, she connects the dots.

Spanking City Hall is the portrait of a young woman finding her way through life, not only being influenced by the environment around her, but influencing that environment of.  Living in a small town growing up, Melyssa was sexually abused as a child.  In the book, she openly discusses that past as well as paints a portrait of how she slowly became intrigued by the dominance and submission (abbreviated as D/s in the book) lifestyle first as a hobby and a later briefly as a way of making a living.  Before Spanking City Hall I, undoubtedly like most people, thought the D/s subject referred to kinky bedroom sex.  I was surprised to learn through Melyssa's book that the subject was instead about how people interrelate to each other.  Some people apparently enjoy ceding power to another person, doing all sorts of menial tasks for their masters at their beck and whim.  The book details submissives doing all sorts of non-sexual, domestic chores for their mistresses, things like cleaning the house and washing dishes.  The tasks can be downright gross.  The book talks about one submissive who failed to clean a bathroom properly and was ordered by a dominatrix named Claudia (who lived briefly with Melyssa) to lick the toilet inside and out...which he proceeded to do.

Melyssa's life took another turn when the morning of May 8, 2003 she was awakened by knocking at
Melyssa Hubbard, Author of
Spanking City Hall
her door.  On the stoop was Jack Rinehart, the crime beat reporter for Channel 6 who informed her that there had been a police investigation of her property.  It turns out that one of Melyssa's clients was an undercover vice officer who had booked a session with Melyssa only to learn that her D/s sessions didn't involve sex.  Although there was nothing criminal uncovered in the investigation, City officials apparently decided to leak the news of the investigation.  Melyssa invited Rinehart in, sans cameras, and allowed him to view the dungeon she had established in her basement.  Rinehart's piece ran during sweeps weeks.

A few years later, the Peterson administration tried a new tack, pursuing Melyssa for a zoning violation. Represented by local attorney Mark Small, the zoning prosecution failed and was ultimately dismissed by the City.  Nonetheless, that small victory in a clash with city hall gave led to a political crusade.  In 2007, property tax assessments in Marion County were soaring, particularly for those with older homes.   In Melyssa's neighborhood of Meridian-Kessler some residents were facing tax bills that had as much as tripled.  People were outraged. It was at that point that Mayor Peterson made what proved to be the fatal political mistake of pushing for a 65% increase in the county option income tax just months before the November 2007 election.

For me, a political junkie, the most fascinating part of the book is Melyssa describing her political work.  She details how she rode her bike throughout her neighborhood (similar to Paul Revere riding his horse through the streets of Boston) to try to rally the neighborhood to oppose taxes that could cost them their homes.   At first Melyssa's efforts was met with indifference by her neighbors, but through her persistence she eventually turned things around with hundreds of protesters turning out to rally against taxes at the Governor's mansion, the Mayor's home, and Monument Circle.  Probably the most effective rally though was the one held during the summer of of 2007 when tax protesters attempted to attend the Mayor's presentation of the budget to the Indianapolis City-County Council.  The presence of tax protesters so rattled Mayor Bart Peterson that he attempted to lock them out in favor of city employees who would be supportive of his budget presentation.  Melyssa made sure that she not only got the protesters inside but also that the Mayor's attempts to lock out the public would be the story on evening news.

The political highlight of the book though was that day in 2007 when a group of elderly citizens assisted by one young man lowered an oversized tea bag filled with property tax assessments from a bridge into the Central Canal running through the heart of Indianapolis.  This is the time many people claim the Indiana Tea Party was born.

The book has a very helpful "glossary of people, places and terms" at the end   I wish every book contained such a glossary, but unfortunately few do.   While the practice is to place a glossary at the back of the book, my preference is for the front so the reader does not get to the end of the book, as I did, only to find this helpful tool was available.

In Spanking City Hall, Melyssa Hubbard tells the story of a young woman who left a life of sexual abuse in a small town to become a big city dominatrix.  If that were not enough of a colorful tale, the book then takes another turn, detailing her transformation from the life of a dungeon master to a political activist who leads a tax revolt that helps defeat a popular Mayor tin one of the biggest upsets in Indiana political history.  Spanking City Hall is an enjoyable read, a fascinating tale of a woman's metamorphosis during her journey through life.

Spanking City Hall can be ordered by going to the author's website.

Tuesday, March 25, 2014

Attorney General Zoeller's Press Release on Duty to Defend Indiana's Marriage Law Ignores His History of Refusing to Defend Laws He Does Not Like

In a press release yesterday, Indiana Attorney General Greg Zoeller articulated his office's philosophy that Indiana laws deserve to be defended in court and, indeed, that is the job he was elected to do:
Several same-sex couples recently filed lawsuits seeking to strike down Indiana’s traditional marriage definition law. As Indiana attorney general, I have been asked why my office is defending the statute in court when some AGs in other states are not defending their states’ traditional marriage laws from similar lawsuits. I explain that I took an oath to represent and defend Indiana’s state government and its existing statutes. I don’t make the laws – that’s the Legislature’s job – but I have a solemn obligation to defend those laws while there is a good-faith defense, and I cannot shirk my duty nor abdicate that responsibility to others.
Attorney General Greg Zoeller
This is not personal advocacy on my part or by the lawyers who work in my office. Whenever the State of Indiana is sued, you – the taxpayers and citizens of the state – are really being sued collectively, and you are entitled to counsel. The correct course of action is for the attorney general to provide a good-faith defense – within the resources already available – until and unless the U.S. Supreme Court decides to the contrary. The justice system cannot work if one side is not represented by counsel or if the attorneys presume that they are judge and jury in their own cases and fail to zealously advocate for their clients.
I agree totally with Zoeller.  Those who want the Attorney General not to defend Indiana law are going down a very dangerous road. If we start allowing our Attorney General to pick and choose which laws he will defend in court that gives him a absolute veto over any law passed by the Indiana General Assembly and signed into law by the Governor.  It makes the Attorney General the most powerful politician in the state.
My problem with Zoeller's press release is that it reeks with hypocrisy.  A few years ago, Zoeller refused to defend the Indiana immigration law in court letting it be declared unconstitutional at the district court (trial) level.  As several attorney members of the Indiana Senate pointed out in exhaustive detail, the Indiana law was different from Arizona's that was declared unconstitutional.  Yet, Zoeller, who vehemently opposed the law when it was passed, told his attorneys to not offer any defense in federal district to the claim it was unconstitutional. Such a position riled the feathers of a few state senators and still does today.
A couple sessions ago, the Indiana General Assembly passed a new new expungement law which let those convicted of crimes clear their record of old convictions thus allowing them to do things like get jobs more easily.  In November 2013, the law challenged as being unconstitutional by Morgan County Prosecutor Steve Sonnega.  The case featured the odd situation where a state official, Sonnega, was challenging the constitutionality of a state law, a situation which would have put the state on both sides of the issue...except for the fact the AG decided not to put up a defense.  With the state absent  from defending the law (the law requires the AG be served and given the opportunity to defend at the trial level the constitutionality of a law), Morgan Circuit Court Judge Matthew G. Hanson found that the section of the expungement law addressing victim input "violates the Indiana Constitution" but because there was no real victim involved in the litigation the challenge failed.  If Sonnega had simply had crime victims as plaintiffs instead of the State he would have undoubtedly succeeded, especially since the constitutionality of the law was not being defended by the Attorney General.
Zoeller's press release also completely ignores the Indiana law provides an option for the Attorney General to step aside to let other counsel represent the state when the Attorney General feels he is unable to offer a defense to the law.  Yet Zoeller has steadfastly refused to exercise that option and, in the immigration case, steadfastly fought the Senators attempt to secure other representation to defend the law in court. Zoeller is using his position of legal counsel to the State to veto laws he does not like - immigration and expungement - by simply not defending them in court.  That, as he points out in his press release, is wrong.  It's too bad he doesn't follow the sound philosophy he lays out in the press release.
See also:

Monday, March 24, 2014

GOP Mayors' Support of Corporate Welfare Is Causing Irreparable Damage to Indiana Republican Brand

Indianapolis Mayor
Greg Ballard
Over the past several years, Indiana cities have been increasingly led by GOP mayors.  But these are not your typical conservative, limited government Republicans.   They are elected officials who have embraced the Hamiltonian notion that it is the role of government to pick the winners in the American capitalist system  To implement that philosophy those mayors have utilized tax increment districts, tax abatements, and direct subsidies to businesses..  In return for the taxpayer giveaways, those mayors have seen their coffers filled with contributions from companies, developers, and law firms which reap the benefit of corporate welfare.

Carmel Mayor Jim Brainard
But that money that is given away by Indiana's mayors does not grow on trees.  Given that money has to be obtained from somewhere, the obvious answer is to reduce the dollars going to basic city services.  But those Mayors can only short services so much, eventually they need more revenue.  Where do those mayors go for that revenue?  The answer inevitably is increasing taxes on working men and women and/or borrowing from future generations to fund current operations. No better example exists than Republican Indianapolis Mayor Greg Ballard, who during his six year tenure, has proposed raising virtually every tax and fee, including local income taxes and property taxes.  Recently Mayor Ballard has gone the route of borrowing from the next generation with a proposal to float a 30 year bond to pay for mostly short-term infrastructure
Westfield Mayor Andy Cook
improvements, things like paving roads, during the months leading up to a possible re-election bid in 2015.   Lest anyone think Mayor Ballard is alone in this approach to government, he or she only look north to Carmel Mayor James Brainard, Westfield Mayor Andy Cook and Marion Mayor Wayne Seybold.  All have enthusiastically embraced corporate welfare.

Marion Mayor Wayne Seybold
The huge campaign contributions that those Republican mayors receive in exchange from handing out corporate welfare has insulated them somewhat from the vagaries of political competition, both in primaries and in the general election.   But as a long-term strategy for building the party, it is a disaster.  Corporate welfare is very unpopular among both Democrats and Republicans. Taxing people more, especially when those tax dollars are being given away to politically-connected companies, angers a lot of people.  In fact, it is exactly that approach to government which led to the rise of the Tea Party on the right and the Occupy movement on the left.

At the end of the day, the approach of the Republican mayors nets considerable contributions but little popular support.  If the Republicans are going to grow the party, they need to take a populist approach to the issues.  Looking out for wealthy corporations will result in considerable campaign contributions, but it does little in the way of gaining popular support among working men and women for the GOP brand.

Saturday, March 22, 2014

Marion County Judge Tells Ballard Administration that Judges Get to Decide Location of Courts

It was an issue I wondered about from the beginning.  How does Indianapolis Mayor Greg Ballard think he has the authority, along with apparently the council, to relocate the courts?  After all, the judges' boss is not the Mayor. Their boss, if they have one, is the voters who elected them.  Apparently the Marion County judges agree.   The IBJ reports:
Marion Superior judges on Friday gave a grudging endorsement to the former General Motors stamping plant site as the location for a proposed criminal justice complex, but not before sending a message to Indianapolis Mayor Greg Ballard that where courts are located is their decision.

Ballard senior policy adviser Kurt Fulbeck made a brief presentation to the Marion Superior Executive Committee on Friday during which he asked for the judges’ recommendation of a preferred site. Ballard prefers the GM site, but the city has left open the possibility of a site at Indianapolis International Airport near the Hendricks County line.

“Who do you think makes the ultimate decision on this?” Marion Superior Judge James Osborn asked. Fulbeck responded the City-County Council and project shareholders.

“With regard to where the courts are located,” Osborn said, “that’s our decision. … Nobody gets to tell us where to go.” Osborn said he was reluctant to offer an endorsement because he said he didn’t want to suggest the courts were ceding their authority.

...

The project announced in December is expected to cost as much as $400 million and would consolidate the Marion County jail, Superior Court criminal division, and prosecutor, public defender, probation and other related functions.

Friday, March 21, 2014

Seventh Circuit Slaps Down Marion County Election Board While Partisan Attorneys Continue Billing Taxpayers

Yesterday, in a 3-0 decision, the federal Seventh Circuit Court of Appeals slapped down the Marion County Election Board for its decision to enforce in the 2010 Democratic Primary to enforce an unconstitutional law the Board had agreed in 2003 that it would not enforce.  Last month, I outlined the facts of the case in a blog post:
Some background ...  When I ran in the Republican  primary for Clerk in 2002 , I had a handout at the poll that featured my name and Joe McAtee's.  McAtee was running for Marion County Sheriff, a position he had held earlier for two terms.  McAtee like me had not been slated by the party.   My handouts, as well as the Indiana Right to Life's list of endorsed candidates, were seized as being in violation of Indiana's Slating Statute which prohibits candidates from handing out literature with multiple names on the handouts unless the literature is first filed with the Election Board along with written approval from the candidates who are featured on the literature.
Zach Mulholland

After the primary, Jim Bopp's law firm out of Terre Haute contacted me about being a plaintiff in a free speech case challenging the Slating Statute.  I agreed to participate.  A lawsuit was filed with me as the plaintiff along with Indiana Right to Life which had its list of endorsed candidates seized at the same primary.  Our complaint asked that the Slating Statute be declared unconstitutional and the Board enjoined from enforcing it.  The Marion County Election Board, which was represented by the Attorney General's Office, entered into an agreed judgment, a consent decree stating that the law was unconstitutional on its face and the Board would be enjoined from enforcing it.  The case's citation is Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003)

Nine years later Zach Mulholland was running for state legislature against Dan Forestal in the Democratic primary in House District 100.  It was shaping up to be a hotly contested race.  Forestal was the slated candidate, but on primary election day Mulholland had every polling place covered with volunteers handing out his literature. 

Mulholland's literature included one handout that suggested voting for President Obama, Joe Donnelly, Andre Carson, John Gregg, and Zach Mulholland.  (Mulholland, an attorney, knew that the Slating Statute had been held to be unconstitutional in my case.)  On the day of the primary, the Election Board met and voted 3-0 to seize Mulholland's literature for violating the Slating Statute, despite the fact that the Board had agreed that law was unconstitutional and the Board would not try to enforce it.  Democratic Party officials went out to the various voting locations and seized Mulholland handouts from the candidate's volunteers.  Mulholland lost by 730 votes to Forestal.

Following the primary, Mulholland retained the ACLU to file a lawsuit. But, in a development that proved perplexing to the Seventh Circuit judges, the ACLU filed the lawsuit, asking for an injunction against the Board enforcement of a statute already declared unconstitutional and for damages, was filed in state court rather than the federal Southern District of Indiana which had entered the injunction in 2012.  Meanwhile the Election Board attempted to conduct an investigation and ordered Mulholland to appear.   Later, Mulholland filed a federal lawsuit again asking that it, again, be declared unconstitutional and that the Election Board, again, be enjoined from enforcing it.

In September of 2013, District Court Judge Sarah Evans Barker dismissed Mulholland's federal lawsuit citing the abstention doctrine set forth by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971).   Basically that case holds that when there is a state court proceeding any subsequent federal litigation on the same topic cannot proceed.  There is, however, an exception to the Younger doctrine namely extraordinary circumstances like "bias or harassment."

In what I found most surprising though was that Judge Barker bought the Election Board's far-fetched argument that the decision in my case that the Slating Statute was facially unconstitutional and the Board would be enjoined from enforcing it, only applied to me and Indiana Right to Life.  For everyone else, according to the decision the statute was still in effect and enforceable.
In the unanimous opinion written by Seventh Circuit Judge David Hamilton, the Younger doctrine was found to be inapplicable and the court rejected the notion that a facially unconstitutional law (which means the particular facts of a case don't matter) could only be unconstitutional as to the particular litigants in a case, a theory that Judge Hamilton stated:
We reject the Election Board’s oxymoronic argument that the judgment in Ogden should be read to mean that the statute is facially unconstitutional only as to the Ogden plaintiffs. We have not encountered before the idea of facial unconstitutionality as applied only to a particular plaintiff. Facial unconstitutionality as to one means facial unconstitutionality as to all, regardless of the fact that the injunctive portion of the judgment directly adjudicated the dispute of only the parties before it. (Citations omitted.)
The Court then dropped a footnote to give the Election Board a stern warning about continuing to enforce the unconstitutional law against non-slated candidates:
If Board members or their agents were to try to enforce the anti-slating statute against other parties at this point, such as in the May 2014 primary elections, we expect that this opinion and the Ogden judgment would make it difficult to invoke the defense of qualified immunity to a damages action under 42 U.S.C. § 1983.
Translation, if members of teh Election Board, and the thugs who enforced the order against Mulholland on behalf of the Board, attempt to pull this stunt again, they could be personally held liable in subsequent federal litigation.

The case was remanded back to the District Court for proceedings consistent with the opinion. District Court judge Sara Evans Barker should do more than that.   Every member of the Election Board (Democrat Mark Sullivan, (now slated Republican judge) Patrick J. Dietrick, and Clerk Beth White) are attorneys.  Some of the people who enforced the illegal Board decision are also attorneys.  Every last one of them knew a federal court had declared the statute unconstitutional and knew the Election Board had agreed not to enforce it in the 2003 case.  Yet they all enforced it anyway in the 2012 primary.  Undoubtedly they knew that they knew they were violating a federal court order, but also knew Mulholland would have no way to be made whole after the election was over.  Worse yet, when Mulholland did sue, the Election Board (over the notable objections of Clerk White) did proceed to hire a Democrat and Republican who have been milking taxpayers over a lawsuit that should have immediately been settled.  Last July the Council approved at least $150,000 in attorney's fees for the case.  (There may well be another bill coming.)

We atorneys are officers of the court.  We are obligated to follow the orders of the court, regardless of whether we like them. The knowing failure to do so is contemptuous, a direct affront to the authority of the court.  These attorneys knowingly violated a federal court order to harm a person they knew perfectly well would have no satisfactory remedy after the election.  Judge Barker should issue a Rule to Show Cause and bring every one of those attorneys who acted to adopt and enforce the illegal Board decision to seize Mulholland's literature into her courtroom to explain why they should not be held in contempt of court for their conduct.