Saturday, June 25, 2016

Reuters Tracking Poll Shows Orlando Bump for Trump is Gone, Clinton Double Digit Lead Returns

Reuters updates today on their tracking poll:
Democratic presidential contender Hillary Clinton regained a double-digit lead over Republican rival Donald Trump this week, according to a Reuters/Ipsos poll released on Friday.
The June 20-24 poll showed that 46.6 percent of likely American voters supported Clinton while 33.3 percent supported Trump. Another 20.1 percent said they would support neither candidate
Trump had enjoyed a brief boost in support following the June 12 mass shooting in Orlando, Florida, as he doubled down on his pledge to ban Muslims from entering the country, cutting Clinton's lead to nine points.
But Trump's rise in popularity appeared to be only temporary, unlike his lasting surge among the Republican field last year after the attacks in Paris and in San Bernardino, California.
Clinton's 13.3 percentage point lead is about the same as she had before the Orlando attack.
No candidate has won the White House by double figures since Ronald Reagan won re-election in 1984, besting former Vice President Walter Mondale by over 18 points.   Before 1984, you have to go back to Richard Nixon's landslide in 1972 and Lyndon Johnson's sweeping victory in 1964 for double figure popular vote victory margins.
The article notes that the poll only captures a portion of the response to the Brexit referendum outcome which many analysts suggest will benefit Trump.

Thursday, June 23, 2016

Presumed Innocent: Indianapolis Councilor Zach Adamson Has Criminal Charge Filed Against Him

The Indianapolis Star reports:
A 19-year-old man accused City-County Council Vice President Zach Adamson of rape, an allegation that Adamson has strongly denied.
The incident was reported to the Indianapolis Metropolitan Police Department on June 20, according to police records obtained by IndyStar. Documents indicate the alleged
incident happened last September.
"We are working with  the Marion County prosecutor’s office on the investigation and any public comment will be released by the prosecutor’s office," said IMPD Lt. Rick Riddle in a statement.
Adamson also issued a statement denying the allegations.
“I’ve only recently become aware of accusations against me, which are completely untrue and without merit," Adamson said. “Unfortunately, it appears I’ve become a target of ridiculous accusations. These allegations of impropriety are false. I can’t say that any more strongly.
“Until it is resolved, I’ll refrain from further comment and refer all questions to my attorney, Kathleen Sweeney."
First, let me just say I consider myself a friend of Zach's and I assume he considers me a friend as well.  Knowing him, I have trouble believing that he has a dark, sinister side that I am not aware of.  The fact that something like this was not reported until 9 months after it supposedly happens makes me doubt the accusation even more.

Contrary to what some may think, "victims" do sometimes make up stories. It is a situation I know all too well. Shortly after graduating from law school,  I had a classmate who I'd been friends with for years file for a protective order against me with the bizarre claim that she was afraid I might attack her....though I had never once done so up to that point.  It was the most bizarre thing I ever experienced. She testified under oath in a deposition she did not know me and had never been alone with me.   It was completely false...we had been very good friends and had been alone together hundreds of times.  Hearing her testify though sent chills up my spine - I think she believed every word she was saying was true and could have probably convinced any jury.  The fact is she had had some mental health challenges, let's call them, and I foolishly did what I thought good friends did - try to be there to help her through her issues.  I had no idea what she was capable of doing.  None.  A painfully long story made short, I got the court to order her to undergo a psych test.  She decided to dismiss the case after her examination but before the psychologist could issue what I expected (I talked to the psychologist) would have been a negative report on her mental health.

From time to time, political enemies of mine will bring up this 26 year old lawsuit in an effort to try to smear my character.  Of course, the story of the "victim" not knowing me and needing a protective order because I might suddenly attack her is, upon reflection, ridiculous. So they conveniently change the allegation to the more believable, but never asserted, "stalking."  I have come to accept that there people who will jump at the chance to lie about what happened to tarnish my reputation.  I'm confident there is a special place in hell waiting for those people who will do that sort of thing.

It is so easy to lodge allegations against someone in court.  Even when those allegations are of a sexual nature, many times they are not true.  That's why our legal system presumes people, with respect to all crimes, are innocent until proven guilty.  My friend, Zach, deserves that same presumption of innocence, and the fact he is a public figure does not change that.

Saturday, June 18, 2016

Lack of Due Process Makes Terrorist List Unusable to Deny Constitutional Right to Keep and Bear Arms

It sounds like an obvious thing thing.  Anyone who is a suspected terrorist such that they land on the U.S. government's Terrorist Watch List should not be able to buy a gun.   The problem though is how people end up on that list and how that list is maintained. ABC News explains:
The process for placing an individual on watch lists begins with “originators,” who range from everyday citizens to federal agents. Social media posts can also trigger a process for placing individuals on the list. Once an originator passes along a name to law enforcement, counterterrorism officials rely on an elastic set of guidelines in order to add an individual.
Appearing in the Intercept
Agencies must have “reasonable suspicion” or “articulable evidence” that the person is a “known or suspected terrorist,” according to a document detailing watch listing guidance compiled by the National Counterterrorism Center in March of 2013 and first obtained by the Intercept. The document admits that “irrefutable evidence and concrete facts are not necessary.”
Information about immediate family members and known associates of “known or suspected terrorists” can also be added to the watch list without any suspicion that they themselves are engaged in terrorism.
It should be emphasized that we only know about how the terrorist watch list works because of a leak.  The federal government didn't voluntarily disclose this information.   And there is absolutely no court oversight to how names added to the list or how the lists are maintained. 

What if you find out you have been wrongly added to the the list?  Can you get your name removed?  Yes...but.  ABC News notes that the problem with this process:
Individuals who believe they have been wrongfully added to a watch list can file a complaint through a redress program, which launches an internal review not subject to oversight by any court or entity outside the counterterrorism community, according to the documents.
Further, during the review you are not permitted to examine witnesses or evidence against you.

But even if you succeed, you may not know it:
The review can result in a removal of an individual’s name, but the individual won’t necessarily be notified because the government maintains a general policy to “neither confirm nor deny an individual’s watch list status,” according to the documents.
Individuals can even be kept on the list after being acquitted of a terrorism charge if authorities still have “reasonable suspicion.”
Several news reports report that the list is only a few thousand people, thus suggesting the ban would affect few people wanting to buy a gun.  But that's wrong.  Those reports are confusing the No Fly List, which only consists of 47,000 people and is simply a subset of the Terrorist Watch List, which list has over one million people listed on it, including 280,000 people who have no known affiliation with terrorist organizations.

Although some liberals are okay with people being stripped of constitutional rights simply based on the arbitrary decision reached by a government official, the Constitution is not.  That document mandates that people be provided due process before they are denied a constitutional right, a fact that even the ACLU understands. 

If you're going to deny people rights based on being on a terrorist list, people need to know they are being added to the list and have the right to contest that decision in a court of law.   They need to be provided the evidence against them and given the right to refute that evidence.  If those due process safeguards are not provided, the person on the list cannot be denied his constitutional right to buy and possess a gun.

Wednesday, June 15, 2016

Polls Show Clinton's Lead Over Trump Expanding to Double Digits (w/Update)

A new poll released yesterday by Bloomberg News shows Hillary Clinton opening up a 12 point lead over Donald Trump in a three way match-up that includes Libertarian Gary Johnson.  Clinton polled at 49%, while Trump was supported by 37% of the respondents, and Johnson, a former Republican Governor of New Mexico, scored 9% support.

The Bloomberg poll is consistent with the Reuters/IPSOS daily tracking poll which until recent days showed Clinton with about a 10.5 point lead over Trump.  With the terror attack in Orlando, Trump has picked up a couple points on Clinton, but still trails by 8.5 points.  Of course, tracking polls are more about identifying movement in campaigns, not accurately predicting election results.
Former Secretary of State Hillary Clinton

One of the most interesting part of the Bloomberg survey was when the pollster asked questions about the various negative issues plaguing the two campaigns.  While people were troubled by the several Clinton issues, more people were concerned about  Trump's.  Below is a summary of those issues and the percent of likely voters who said the issue "bothers" them "a lot.

Trump University Fraud Case  45%
Mexican Judge Comment  55%
Failure to Release Tax Returns  45%
Insults Comments About Women  62%
Claim Mexican Immigrants Are Bringing Crime, Deportation Plans  50%
Temporary Ban on Muslims Entering the Country  50%

Improper Use of Email Server 45%
Paid Speeches to Wall Street banks  50%
Work to Undermine Women's Reputations Who Were Linked Romantically to Bill  34%
Failure as Secretary of State Because of Rise of Middle East Situation and Rise of ISIS  38%
Clinton Foundation Contribution, Possible Favoritism  47%
Clinton Part of Washington Establishment  35%

When a negative issue is polling at the 30% level as a major concern, that probably represents no more than the baseline already supporting the other party's candidate and whose voters are already motivated by these negative issues.  It is when it rises to 40%, 50%, as high as 62% on one of Trump's issues, that the issue seems to be crossing the line to hit independents who are going to decide this election.

Other interesting questions in the poll include a question as to whether a candidate was more or less appealing.  46% said Clinton was appealing while 51% said she was not. But when it came to Trump, 33% said he was appealing and 64%, nearly 2/3 of the electorate polled, said he was not an appealing candidate. 

Surprisingly Clinton also won the enthusiasm question.  43% of Clinton supporters said they were "very enthusiastic" about their candidate while only 33% of Trump supporters responded the same way about Donald Trump.

In another question, 55% of poll respondents said they would "never" support Trump, while 43% said the same thing about Hillary Clinton and a surprising 44% said they would "never" vote for the Libertarian Johnson.

While it is still early, it is difficult to see Trump's path to victory given how much of the electorate has been very turned off by him and his campaign.

UPDATE:  On Wednesday, ABC/Washington Post released a favorable/-unfavorable poll showing a substantial increase in people's negative views toward Trump over the past three weeks.  In a poll conducted on May 20th, 60% of people viewed Trump unfavorably.  Three weeks later, Trump's negatives have risen to an astonishing 70%.  During the same period, Clinton's unfavorable numbers rose from 53% to 55%.

Some of the noteworthy declines during the three week period include black voters (14% unfavorable to 4%), conservatives (58% to 47%), women (32% to 23%), non-college graduates (41% to 31%).

In May, I wrote about the historic unpopularity of the two candidates.  Well, they just got even more unpopular, especially Trump.

Sunday, June 12, 2016

Did Indiana Republicans Nominate a Liberal Democrat as Candidate for Superintendent of Public Instruction?

I wasn't surprised by the result given the winner (obviously) spent much more money on her campaign, but yesterday at the GOP convention the Republican delegates nominated Jennifer McCormick, Superintendent of the Yorktown Schools over Dawn Wooten, a college instructor.

The only problem is McCormick did not appear to be a Republican  Here is her primary voting history:

2004:  Republican
2006:  Democrat
2008:  Democrat
2010:  Democrat
2012:  Democrat
2014:  Republican

It does not take a rocket scientist to figure out that McCormick taking a GOP ballot in 2014 was undoubtedly with an eye to running for Superintendent in 2016 as a Republican.

In defense, McCormick says in her literature that "[i]n many communities, including hers, the primary election is often where the defining race takes place and she wanted to make sure her voice
Dr. Jennifer McCormick,
Superintendent of Yorktown Schools
was heard."  That is an answer that should make the blood of Republican and Democratic party workers boil. People who are committed to their party's principles do not continually switch which ballot they take in the primary.  Further, McCormick is from very competitive Delaware County.  It is not like she is from one party Lake County where virtually all elections are decided in the Democratic primary.

McCormick made the claim that Indiana discarded Common Core in coming up with the standards.  But Wooten, who was actually on the committee that worked on the new standards, blew away that bogus claim on her website, showing a side-by-side comparison of how Indiana's standards in many areas are identical or nearly identical to Common Core.

I made my mind up on the McCormick v. Wooten race on the way down to the candidates' reception Friday night.  McCormick was being interviewed on the Abdul show on WIBC.  If McCormick had not been identified as a "Republican" you would have thought her to be a Democratic candidate to superintendent.  On issue after issue, McCormick spouted typical liberal nonsense. She said she wanted an expansion of pre-K, ignoring the credible studies that show that such programs only have a temporary benefit.   To his credit, Abdul asked her about those studies, but McCormick ducked the follow-up question.

But it is not just pre-K...McCormick wants more education spending across the board.  Further, she is apparently fine with federal involvement in K-12 schools, even though in return for very little money, the feds make enormous demands on our schools.

By her answers, McCormick actually seemed even to the left of Democrat Glenda Ritz.  McCormick's pitch for her candidacy seem to be only that she had a better resume than Ritz and would get along better with the Governor and the Republican legislature. 

Indeed McCormick does have a better resume and she probably would get along better..  However, she is a school district superintendent.  When it comes to all the players in the educational system, superintendents are the the absolute worst when it comes to opposing meaningful education reform and most demanding of more taxpayer money for the status quo.  There was nothing in McCormick's interview, her speech, or her literature, which suggests she is any different from the typical school district superintendent.

During the convention, Wooten gave an outstanding conservative speech on education.   It was very well received, better than McCormick's.  But unfortunately Wooten, undoubtedly because of limited finances, wasn't able to match McCormick's numerous pre-convention mailings.  My only contact with her was the speech, compared to the speech and maybe 5-6 mailings from McCormick.  Given her limited delegate contacts, I was rather impressed that Wooten received 1/3 of the vote.  Another 250 to 300 votes switched and Wooten would have won the nomination.

Those of us who are old enough remember Sue Ellen Reed, a Republican Superitendent of Public Instruction whose liberal policies made her very popular with Democrats but not so much with conservative Republicans.  Unfortunately, it appears Republicans nominated Sue Ellen Reed 2.0 yesterday.

Friday, June 10, 2016

News Report Details How Trump Regularly Stiffs Employees and Contractors

Those of us who have followed Donald Trump's business career know he has a well-earned reputation as a deadbeat, someone who regularly stiffs people to whom he owes money.  USA Today took a look at some 3,500 lawsuits Trump has been named in, many involving working men and women seeking to recover payment for work they did for the New York businessman:
Donald Trump often portrays himself as a savior of the working class who will "protect your job." But a USA TODAY NETWORK analysis found he has been involved in more than 3,500 lawsuits over the past three decades — and a large number of those involve ordinary Americans ... who say Trump or his companies have refused to pay them
At least 60 lawsuits, along with hundreds of liens, judgments, and other government filings reviewed by the USA TODAY NETWORK, document people who have accused
Trump and his businesses of failing to pay them for their work. Among them: a dishwasher in Florida. A glass company in New Jersey. A carpet company. A plumber. Painters. Forty-eight waiters. Dozens of bartenders and other hourly workers at his resorts and clubs, coast to coast. Real estate brokers who sold his properties. And, ironically, several law firms that once represented him in these suits and others.
Trump’s companies have also been cited for 24 violations of the Fair Labor Standards Act since 2005 for failing to pay overtime or minimum wage, according to U.S. Department of Labor data. That includes 21 citations against the defunct Trump Plaza in Atlantic City and three against the also out-of-business Trump Mortgage LLC in New York. Both cases were resolved by the companies agreeing to pay back wages.
In addition to the lawsuits, the review found more than 200 mechanic’s liens — filed by contractors and employees against Trump, his companies or his properties claiming they were owed money for their work — since the 1980s. The liens range from a $75,000 claim by a Plainview, N.Y., air conditioning and heating company to a $1 million claim from the president of a New York City real estate banking firm. On just one project, Trump’s Taj Mahal casino in Atlantic City, records released by the New Jersey Casino Control Commission in 1990 show that at least 253 subcontractors weren’t paid in full or on time, including workers who installed walls, chandeliers and plumbing.
The actions in total paint a portrait of Trump’s sprawling organization frequently failing to pay small businesses and individuals, then sometimes tying them up in court and other negotiations for years. In some cases, the Trump teams financially overpower and outlast much smaller opponents, draining their resources. Some just give up the fight, or settle for less; some have ended up in bankruptcy or out of business altogether.
The article cites Trump, and his daughter, Ivanka's, laughable response to the USA Today investigation - if someone is not paid in full by the Trump organization, that means that person didn't do a good job. Simply being dissatisfied with work does not give one a right to withhold payment for work performed.

The USA Today article paints the portrait of a man who stiffs working men and women at every opportunity and bullies them in court when they attempt to use the legal process to get paid. Trump is no hero of working class Americans.

Thursday, June 9, 2016

Indiana GOP Delegates Face Real Choices in Nomination Contests for AG, Superintendent of Public Instruction

Republican delegates elected from across Indiana will meet Friday night and Saturday morning in Indianapolis to decide who will represent the party for Attorney General and Superintendent of Public Instruction.  While a Lt. Governor candidate is also nominated at the state convention held on those two days, the only candidate for that position is Eric Holcomb, the current Lt. Governor under Governor Mike Pence.

Quite often state political party conventions are merely pep rallies.  But the contests for AG and Superintendent are being fiercely contested.  Let's look at the candidates for those contested contests.

Attorney General

The AG's race features four candidates.  Steve Carter, who was Indiana's Attorney General from 2001 to 2009 is running.  Another candidate is Abby Kuzma, who is currently an Assistant Attorney General under current AG Greg Zoeller, who was Carter's right hand-man when Carter served as Attorney General.

Carter and Kuzma face off against two "outsiders," Elkhart County Prosecutor Curtis Hill and State Senator Randy Head.
State Senator Randy Head

As an elected delegate, I am still pondering what to do in this race. I doubt I could supporter Carter or Kuzma. As an attorney, I've seen how the Attorney General's office has operated during the Carter-Zoeller years and I strongly believe there needs to be a change in direction. Consumer protection has been horrible during the past 16 years.  On another issue, while Carter (and his successor Zoeller) both went after gas stations that were "price gouging,"  the fact is the law gave him absolutely no legal authority to do so absent an emergency declared by the governor, fact I've written about on my website.  As far as Zoeller goes, his claim that he can pick and choose which laws get defended in court is untenable. It is a position that gives the AG an absolute veto over laws passed by our legislature.

I find Hill to be an intriguing choice.  Apparently he is well-liked by his staff, an important consideration for managing an office as diverse as the Attorney General.  But I am appalled by his insistence on pursuing felony murder charges against the Elkhart Four, a situation for which the law by any logical review of the facts did not apply - a fact the Indiana Supreme Court held.  Also, Prosecutor Hill's decision just last year to subpoena a reporter's notes in another case was an unacceptable attack on the idea of a free press.  In a letter to Prosecutor Hill, the NewsGuild attacked the decision:
On behalf of the 25,000 members of The NewsGuild-CWA, the union, until recently known as The Newspaper Guild-CWA, that has been representing professional journalists since 1933, I am writing to condemn your reckless, unconstitutional and shameful misconduct toward Elkhart Truth reporter Emily Pfund.
We call on you to rescind immediately your subpoena for Ms. Pfund’s testimony and her notes and other materials stemming from an interview with an inmate who accuses authorities of interrogating him under duress while needing medical care for a concussion and broken nose.
If you are genuinely concerned about the abuse-of-power allegations that Ms. Pfund’s interview raised, you can follow up with inmate Freddie Rhodes, with the police officers involved, and with the medical personnel who treated Mr. Rhodes’ injuries.
Instead, your pursuit of Ms. Pfund suggests a chilling attempt to punish her and the newspaper for publishing Mr. Rhodes’ charges, and to silence further such reporting. And it is not just the journalists’ First Amendment rights that are at stake. Your community has a fundamental right to know what its elected and appointed officials are doing, as well as the right and responsibility to hold those officials accountable.
I could not agree more. The prosecution of the Elkhart Four and going after a reporter's notes causes me to be concerned about Prosecutor Hill's judgment and temperament. Still, Attorney General is a completely different position than being a county prosecutor, the latter of which carries prosecutorial power while the former does not.

That leaves Randy Head. I know little about Senator Head, but his literature does suggest he disagrees with Zoeller and that all laws passed by the legislature should be defended in court. That's a major plus in my book.

Superintendent of Public Instruction

Two candidates square off for the position of Superintendent of Public Instruction, Jennifer McCormick, the superintendent of the Yorktown Community Schools, and Dawn Wooten, a college instructor.   I don't know much about the two candidates, but I suspect the fight will focus on Common Core.  On her website, McCormick insists that Indiana totally abandoned Common Core in its standards:
Indiana is not a Common Core state. Indiana standards are not Common Core, and Indiana does not utilize Common Core testing. The Common Core standards have been repealed in Indiana because of concerns related to federal overreach. Indiana crafted and implemented our own state standards with input from Hoosiers. We deserved better standards, and we now have better standards.
Wooten, who was involved in crafting the new standards, disagrees and includes on her website a very compelling side-by-side comparison of Indiana standards and Common Core to prove her point.

Monday, June 6, 2016

Democrats Call on Hoosier Republicans to Condemn Trump for "Mexican Judge" Comment

Fox59 reports:
Hoosier Democrats came out in support of a judge with Hoosier roots who’s come under attack from presumptive Republican presidential nominee Donald Trump.
Trump, who has made comments critical of Mexicans and touted his plan to build a wall at the U.S.-Mexico border, said Curiel is upset with Trump’s policies toward Mexico and shouldn't oversee the Trump University case.
Indiana Democratic Party Chairman John Zody lashed out against Trump’s comments
Judge Gonzalo P. Curiel
Monday morning, but he also criticized Indiana Republicans for failing to come to Curiel’s defense. While Trump has received some criticism from Republicans nationally, Zody said the Indiana contingent has remained quiet.
“We’re here to publicly call out the Indiana Republican Party and its candidates and elected officials for turning a blind eye and not sticking to the morals we know as Hoosiers,” Zody said. “We’re asking Republicans to put politics aside and join us in an effort to protect the well-being of Indiana and everyone who calls themselves a Hoosier by condemning these remarks against a Hoosier.”
Zody called for Hoosier Republicans, naming Gov. Mike Pence and Rep. Todd Young and others, to condemn Trump’s remarks.
“Hoosier Republicans should be held accountable for their blind support of their presumptive nominee,” Zody. “We’re not really talking about politics. We’re talking about the Golden Rule and how we treat one another.”
“The silence is deafening, and it should be a wakeup call for Hoosiers,” Zody said. “We’re hearing nothing from our Hoosier elected officials.
As the article notes, several national Republicans have condemned Trump's comments, including Newt Gingrich who on Sunday said the comment was "inexcusable.  Gingrich said the "judge is not a Mexican.  He's an American."  Trump responded to Gingrich who is supposedly on the Trump Vice-President short list scolding the former Speaker's public criticism of his comment as "inappropriate."

As I have pointed out on this blog, the biggest obstacle to Governor Pence's re-election is figuring out how to handle "The Donald" problem.  If the Democrats in this state are smart, they are going to continually link Pence to Trump and demand he denounce the GOP presidential nominee.  However, if Pence distances himself from Trump, he could alienate his own base, including most prominently Tea Party people.  But on the other hand if Pence doesn't distance himself from Trump he is likely to be tarnish his image with conservatives.

Saturday, June 4, 2016

GOP's Plans to Run Against an Unpopular President Obama Appear to Be Fading

One thing that has flown under the political radar is the substantial improvement in President Obama's approval numbers over the past several months.  Rasmussen does almost daily polling on the President's approval rating.  In early December, when there were 17 GOP presidential candidates chomping at the bit to take on the Obama legacy, Rasmussen's polling showed 43% approved of the President's performance in office while 55% disapproved.  As of yesterday, the polling had flipped to 52-46, an 18 point swing.

Rasmussen's polling is not an outlier.  Gallup also tracks Presidential popularity. Obama's approval rating as of today is +10, 53-43.  In late November, it was -7, 44-51.  So the Gallup swing is 17 points.

Why does this matter? Because the 2016 election will be primarily a referendum on President Obama's eight years in office.

Many Republicans will put their heads in the sand, pretending that all polls should be dismissed because on occasion some prove to be inaccurate when it comes to prediction election outcomes.  To summarily dismiss the importance of polling is extremely foolish.  Polling is an inexact science, no doubt, but it is a science nonetheless.  In considering political strategy, Republicans need to be honest with themselves about the political field on which they will play the 2016 election.  If Obama is popular, then the GOP campaign for President has to be about presenting a positive alternative, not just bashing the President and likely Democratic nominee Hillary Clinton.

Friday, June 3, 2016

Governor Pence Decides to Apply for Federal Dollars for State's Pre-K Program

In a disappointing move, Governor Pence announced he will be seeking federal dollars for Indiana's pre-K program.  The Indianapolis Business Journal reports:
Indiana Gov. Mike Pence reversed a previous position and announced on Thursday that he will seek federal money to help expand a pre-kindergarten program for disadvantaged children.
"I am committed to opening the doors of opportunity to the most vulnerable children in our state," the Republican governor wrote in a letter to the U.S Department of Health and
Gov. Mike Pence
Human Services, inquiring about federal funding.
Pence strongly advocated for the state's existing On My Way Pre-K pilot program, which was launched across five counties in 2015 and has since sent about 2,300 low-income children to preschool at annual cost of about $10 million.
But many early education supporters were surprised at the time when Pence, whose name was being floated as a possible GOP presidential candidate, announced he would not seek $80 million in federal pre-kindergarten funding amid lobbying from religious conservatives, tea party groups and a network of home schoolers opposed to accepting the federal money. 
Since then, the state's pre-K program has proven popular, though the majority of families who applied have been turned away because demand has outstripped funding.
At the time, Pence said his administration decided not to seek federal funding because it would have required "us to expand our pre-K pilot before it is even up and running."
The Governor's position is that it would have been foolish to commit the state to taking federal dollars until the state saw how the pre-K pilot program was working.  Contrary to the Democrats' claim, that is a reasonable position. 

The problem though with taking federal money is that those dollars come with tremendous strings attached.  Although only about 7% of the dollars spent on public school K-12 education in the United States comes from the federal government, the feds use that miniscule funding level as leverage to force local schools to comply with an assortment of requirements, including most recently the Obama administration's restroom mandate.

But there is a second problem with more tax dollars being spent on pre-K. The credible studies out there indicate that pre-K programs offer no long-term benefits to students.  The Department of Health and Human Services looked at the Head Start program and found no long term benefits.  Vanderbilt University looked at Tennessee's pre-K program and found no long term benefits.  The liberal Brookings Institute looked at pre-K programs and found no long term benefits...and criticized unscientific studies being used to tout early childhood education.  I wrote about these studies in February of last year:
In voting to spend millions of dollars on pre-K, city-county councilors ignored studies showing early childhood education doesn't work.  A independent and comprehensive study of Head Start commissioned by the Department of Health and Human Services found that the program offers no long term benefits.  Last year that 2005 study was updated to look at high v. low quality Head Start program and still found it made no difference...there was still no lasting impact.
Applying these analytic innovations to the experimental HSIS evaluation data, we find little evidence that Head Start’s impact varies systematically by the level of quality in the program for the available, limited quality measures. The frequency of statistically significant differences in impacts by quality levels is no greater than one would expect to observe by chance alone when no true differences exist. The one exception to this pattern is the discovery that, for 3-year-olds, lower exposure to academic activities is associated with more favorable short-run impacts on social development. There is almost no indication that either high or low quality Head Start in any dimension leads to Head Start impacts that last into third grade for either age cohort, consistent with the overall findings of the Head Start Impact Study not disaggregated by quality level.
A 2013 study by Vanderbilt University of Tennessee's voluntary pre-K program found the same thing:
The relatively large effects of TN‐VPK on the Woodcock Johnson achievement measures found at the end of the pre‐k year were greatly diminished and no longer statistically significant at the end of the kindergarten year. The only exception was a marginally significant negative effect on Passage Comprehension such that nonparticipants had higher scores at the end of the kindergarten year than TN‐VPK participants.
Similarly, at the end of first grade, there were no statistically significant differences between TN‐VPK participants and nonparticipants on the Woodcock Johnson achievement measures with one exception. There was a significant difference that favored the nonparticipant group on the Quantitative Concept subscale.
These diminished effects were not entirely unexpected in light of the findings in other longitudinal studies of the effects of early childhood programs on economically disadvantaged children. For preschool programs, a typical finding is that the cognitive effects are not sustained for very long after that initial year. Though none of those other studies investigated the effects of a single year of a scaled up state‐funded public pre‐k program, many involved even more intensive programs that nonetheless failed to show effects on cognitive achievement measures that were sustained for very long. Like TN‐VPK, however, these programs did not involve any continuous, focused support in subsequent years for sustaining the gains made during the initial program year.
Grover J. Whitehurst of the liberal Brookings Institute concerned about the "weak evidence behind the groundswell of advocacy for public investments in statewide universal pre-k" wrote an article in 2014 discussing the pre-K advocates' misuse of unscientific studies purporting to show the programs work:
The previous tables and descriptions refer to 13 separate studies (including 3 similar studies of district programs and two similar studies of statewide programs in Oklahoma and Georgia).  Of these 13, six report enduring and meaningful impacts beyond the pre-k year, four report null, negative, or very small positive impacts beyond the pre-k year, and three do not report findings beyond the pre-k year.
It would be easy for someone without the training to carefully evaluate these studies or someone with a strong motive to advocate for the expansion of publicly funded pre-k to summarize this research by saying that the preponderance of evidence supports universal pre-k for four-year-olds. After all, of the 10 studies I’ve reviewed that have long-term follow-up, 60 percent report substantive positive outcomes.  Libby Doggett, the Obama administration’s point person on Preschool for All, has been singing exactly this song at every opportunity:
You have to look at the preponderance of the evidence. Better high school graduation rates, social and emotional stability, less crime and other results speak for themselves.
But results do not speak for themselves.  Rather, it is the combination of results and the research designs that produce them that do the speaking.  And some of the combinations speak a lot louder than others.
Not one of the studies that has suggested long-term positive impacts of center-based early childhood programs has been based on a well-implemented and appropriately analyzed randomized trial, and nearly all have serious limitations in external validity.  In contrast, the only two studies in the list with both high internal and external validity (Head Start Impact and Tennessee) find null or negative impacts, and all of the studies that point to very small, null, or negative effects have high external validity. 
(Emphasis supplied.)  In general, a finding of meaningful long-term outcomes of an early childhood intervention is more likely when the program is old, or small, or a multi-year intervention, and evaluated with something other than a well-implemented RCT.  In contrast, as the program being evaluated becomes closer to universal pre-k for four-year-olds and the evaluation design is an RCT, the outcomes beyond the pre-k year diminish to nothing.
I conclude that the best available evidence raises serious doubts that a large public investment in the expansion of pre-k for four-year-olds will have the long-term effects that advocates tout. 
I have never had any doubt a voluntary pre-K program would be popular with parents.  Why wouldn't it be popular?  It is, after all, essentially publicly funded day care.  But taxpayers, who would balk at paying for day care, are easily duped into believing there are long-term educational and other benefits to pre-K when in fact the credible studies out there simply do not show those benefits exist.

Monday, May 30, 2016

Trump Blasts "Mexican" Judge Presiding Over Trump University Fraud Lawsuit

I have no problem with public comments on a lawsuit.  The First Amendment protects the right of people to talk about a lawsuit, even one that is pending.  (Whether it is wise though is a different issue.)   A judge who can't handle public criticism, or allows it to affect his or her decisions, needs to find a new line of work.

But Donald Trump's rambling and disjointed commentary, quoted below, is alarming for numerous
Donald Trump
reason. First, it suggest the speaker is incapable of approaching issues logically and advancing arguments, pretty important qualities for a President. 

Second, the pedestrian language used in the rambling commentary indicate Trump, despite his constant bragging about his "very good brain," is not an intelligent man.    Not that one has to be a rocket scientist to be President.  But a minimum level of intelligence should be expected.  Liberals like to joke that President George W. Bush was a dummy and pointed to his frequent butchering of the English language as proof.  But for all his grammar faux pas, Bush had no problem making coherent arguments for public policy positions.  (Not saying people agreed with those policies, which is a different issue.)  You can't say the same for Donald Trump.

Third, Trump's comments contain a suggestion that his election as President would have an influence on the fraud case.  While he falls short of lodging a threat against the judge here, in the past he has indicated he would use the Office of the Presidency to settle political and personal scores.  Several commentators have written that a Trump Presidency would be "Nixon-on-Steroids," i.e. that a President Trump would use the agencies of government to target his enemies.  (Here is one such example.)  It's hard to believe exactly that as he has repeatedly said his enemies better watch out for retribution while on the campaign trail.

Fourth, what is the purpose of Trump even bringing up  the judge's supposed "Mexican" heritage?  (The judge was born in Indiana and went to Indiana University Law School.) Trump makes clear he loves Mexicans, a point which he makes while at the same time bringing up the judge's supposed ethnicity.)  It is clear that the only reason to do that is to bait the audience into a visceral response against the judge.

South Texas College of Law Professor Josh Blackman provides the transcription of Trump's comments on his blog.  (The full rally is on YouTube and is below.):
Does everybody have a little time? [cheers and applause] so I end up with a lawsuit, and it ends up in San Diego in federal court. It is a disgrace the way the federal court is acting, because it is a simple lawsuit. Everybody that took the so-called course. Trump University is in San Diego. The trial, they wanted it to start while I am running for president. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald Trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .
But I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler.
And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barrack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us.

The good news is it is a jury trial. We can even get a fully jury. We are entitled to a jury, and we want a jury of 12 people. And you are going to watch. First of all, it should be dismissed. Watch how we win it was I have been treated unfairly. Very much like with the veterans, where I raised all that money, but on Tuesday I am announcing all of the groups we are giving almost $6 million to. You turn things around. Here is the story. We have a law firm named Robin Skeller. It is the spin-off of two law firms. Two of those partners went to jail for an extended period of time for doing very bad things legally. This same group is the lawyers against. So what happens is the judge, who happens to be, we believe Mexican, which is great. I think that is fine. You know what? I think the Mexicans are going to end up loving Donald Trump when I give all these jobs. I think they are going to love it. I think they are going to love me. . . .
A lot of people said before you run you should settle. I said I don’t care. The people understand it. And they use it. So when I have 10,000 people, and when we have mostly unbelievable reviews, how do you settle? And in fact, when the case started originally, I said how can I settle when I have a review like this? Now I should have settled, but I am glad I didn’t. I will be seeing you in November either as president. And I will say this. I have all these great reviews, but I will say this. I think Judge Curiel should be ashamed of himself. I think it is a disgrace he is doing this. I look forward to going before a jury, not this judge, and we will win that trial. We will win that trial. Check it out. Check it out, folks. You know, I tell this to people.  November 28. I think it is scheduled for. It should not be a trial. It should be a summary judgment dismissal. . . .
It is a disgrace. It is a rigged system. I had a rigged system, except we won by so much. This court system, the judges in this court system, federal court. They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace. Ok? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case? Where everybody likes it. Ok. This is called life, folks. . 
See also: "On Donald Trump and the Rule of Law" by Temple University Law Professor David Post.

Saturday, May 28, 2016

Will Libertarians (Finally) Be Competitive in the Presidential Race?

This weekend, Libertarians from across the country are meeting in Orlando to nominate a candidate for President.  No Libertarian presidential candidate since 1980 has broken 1% of the popular vote.  But this year, with the major parties nominating the two candidates who are the most unpopular presidential candidates ever, the Libertarians, with their fifty state ballot access, find themselves possible players in the presidential sweepstakes.

The leading candidate going into the Libertarian convention is former New Mexico Governor Gary Johnson who was the nominee last year.  Johnson though apparently committed a sin before the convention in picking as his running mate, William Weld, the former Republican governor of Massachusetts.  Johnson was booed at the convention for the unpopular choice of a card-carrying Republican as his VP. But Johnson is a former Republican himself. Apparently though Johnson has
Austin Petersen
been able to cleanse himself of his sin of being a GOP elected official.

My impression is that many Libertarians are not serious about winning elections.  Libertarian meetings too often seem about socializing and pontificating about political issues.  Many Libertarians seem to have a holier-than-thou attitude criticizing Republicans and Democrats, with the chief topic being criticizing people in the two parties for being philosophically inconsistent.  Yet the past couple years, the Libertarians displayed their own philosophical hypocrisy, rushing to embrace the Supreme Court decision mandating that the 50 states permit same sex marriage while apparently forgetting the party's long-time opposition to judicial activism and support of federalism.  Then many Libertarians showed that they only like certain parts of the Constitution, and that the Free Exercise Clause of the First Amendment was a provision they could live without.  Libertarians insisted they were okay with religious freedom in the Constitution, they just didn't support court decisions and laws that would actually protect and implement religious freedom.

Still this election presents an historic opportunity for the Libertarians...if the party can get its collective act together.  While Johnson is favored to take home the nomination, another candidate, Austin Peterson, might prove to have broader appeal.   Peterson is founder of the libertarian movement news and commentary site Libertarian Republic.  He was also a staffer on Judge Napolitano's Fox Business News show Freedom Watch.  The problem though is that Peterson is very young, only 35, and obviously doesn't have the electoral experience of a former Governor.  Experience though didn't seem to mean too much to voters this election cycle, however.  I would imagine that Peterson, a conservative with a libertarian bit, a man whose philosophy is similar to Sen. Rand Paul, could pull in mainline conservatives unhappy with the GOP failure to nominate a conservative this cycle.  Peterson could also appeal to younger Sanders voters who want a fresh, anti-Establishment candidate.

The other candidate is John McAfee, founder of the virus software company.  During his convention speech, McAfee complained about Republicans taking over the party.

In recent polls, Johnson was polling at 10% and 11%.  Most of that undoubtedly is a protest vote against the two party's candidates. But regardless of how those votes come, if the Libertarian candidate can get to 15% in the polls that candidate will join the Trump and Clinton on the main stage. After that, all bets are off.

If the Libertarians can't be competitive in this year's presidential contest, the party will never be competitive.  I'm just not sure that Libertarians are serious about winning elections.  So what if many people casting a vote for the party are people who are voting against Trump and Clinton?  It is time for Libertarians to grow up and the party to become a major player in American politics.

Wednesday, May 25, 2016

Market Rate to Hire a Contract Attorney is $20 an Hour

A legal recruiting firm notifies me whenever contract attorney positions are available.  Yesterday, I received notice about a temporary contract attorney opening in Kansas City.  More on that in a second.

Work as a contract attorney usually involves sitting in a cubicle staring at a computer screen in order to review page after page of documents to determine which are relevant to a discovery request.  The
work is pure drudgery.  There are no benefits, no expenses paid.  The positions tend to last anywhere from a couple weeks to maybe as long as a couple months.  The work may be done at a law firm, at a company, or even in a warehouse.  The attorney is typically forbidden to talk to the employer during the assignment regarding employment opportunities afterward.

Earlier this year The American Lawyer had a lengthy piece on contract attorneys:
Figures are scarce on the staffing of document reviews at the high end of the profession, but in last year's survey of Am Law 200 leaders, 78 percent said they use contract lawyers. Of about 200 clients surveyed the prior year by the Magic Circle firm Allen & Overy, 63 percent employed temp lawyers, with higher numbers reported in the U.S., the U.K. and finance.
Document discovery remains essential to the high-stakes deals and cases that are the
bread and butter of Am Law 100 firms. Although technology has cut the number of eyes needed per document, the number of documents has multiplied. Quinn Emanuel Urquhart & Sullivan reports using up to 170 contract lawyers at a time, and that's not unusual. Beneath the base of the law firm pyramid a vast substratum has been built, out of sight and out of mind.
The finances of this hidden world aren't healthy. According to the Posse List, the national average rate for a contract lawyer has dropped from $38 per hour in 2005 to $27 today—a 40 percent decrease, accounting for inflation—while overtime pay has in many places gone from the standard to the exception. For a typical temp, that might translate into a $50,000 income, with $125,000 in student debt.
The Great Recession did more than create a lawyer glut. It also inspired legal clients to seek requests for proposals from temp agencies and e-discovery vendors. The result is a race to the bottom, with gigs ranging as low as $12 an hour. A McDonald's manager now does better than an average legal temp in Tennessee, according to Bufithis. A millennial Posse List member named Josephine Reimnitz says that, accounting for the cost of living, she did better as a nanny in Utah than as a $22 per hour contract attorney in Washington, D.C.
The focus of The American Lawyer is millennial attorneys, namely that many of their job opportunities for younger lawyers are limited to these contract positions.  But in reality even older attorneys face a job squeeze if they wish to change jobs.  The knowledge and experience an attorney has accumulated during his or her legal career should be highly valued...and compensated.   But those qualities are not.  Rather, the only thing the new law firm is interested in is whether the attorney, if hired, will bring a substantial book of business with him or her.

There is no purer demonstration of the legal job market than what contract attorneys are paid.  Talking to the recruiter last year, I was told that $23 is the market rate for contract attorneys in Kansas City. That $23 figure, sans benefits, is what employers have found to lure just enough unemployed and underemployed attorneys for a project.  The notice I received yesterday on the Kansas City job was for $20 to $21 an hour.  Although Indianapolis does not appear to have as many contract attorney jobs as Kansas City, I have heard of contract attorneys here paid as little as $15 an hour.

Is it wise to incur as much as $100,000 or more in student loan debt to become a lawyer and get paid $20 an hour?  I don't think so.

Tuesday, May 24, 2016

Indiana Public Access Counselor: IHSAA Meetings Should Be Open to the Public

Every since I was a high school athlete, long before the beginning of this century, I turned against the Indiana High School Athletic Association.   We baseball players one day decided to get together to practice.  That day we decided on was a Sunday.  Afterwards, I recall the stern warning we received that I we needed to keep quiet about what we did or we players, or the entire team, could be suspended by the IHSAA.  (I hope the statute of limitations has run out but with the IHSAA you're never quite sure.)  From that point on, I witnessed the IHSAA issue one arbitrary decisions after another with seemingly no accountability for the organization's actions.

As an attorney, I have had the opportunity to witness more closely how the IHSAA operates.  It is not pretty.  My original instincts about the IHSAA were absolutely correct.  It is an organization that operates in an arbitrary and capricious manner (which was the finding of a Marion County judge who looked at how the organization handles athletic transfers.) 

The IHSAA is utterly callous when it comes to how it deals with thousands of parents and children whose lives are impacted by its decisions.  For example, the organization enforces, in a very random
and uneven manner, transfer rules that are hopelessly antiquated in an era of open enrollment, charter schools, and private school vouchers.  But lest any parent dare challenge an IHSAA decision, the organization will aggressively drive up that parents' attorney bill and fight to recover its own fees. 

If parents are not adequately intimidated by the IHSAA's overly litigious nature and the prospect of having to pay huge attorney bills, the organization has another weapon in its arsenal.  If a school, pursuant to a court order, plays a student that the IHSAA originally found ineligible, that school faces forfeiture of games if a higher court later restores the original IHSAA decision.  To reiterate, even though a school follows a court order in playing the student, the IHSAA can still sanction it with forfeited games.  The practical effect is that few schools will want to play a student until the legal proceedings and appeals are completely exhausted, which almost certainly will be after the student graduates.

Over the years, the Indiana General Assembly has considered bills to reign in the IHSAA.  Very little has been done, however.  While the legislature did establish a Case Review Panel in the Indiana Department of Education that is supposed to give parents a more favorable forum to consider IHSAA transfer decisions before going to court, all that does is add another level of litigation for financially strapped parents facing the deep pockets of the IHSAA.

The transfer rules are just one set of rules that are poorly written, hopelessly outdated and randomly enforced by the IHSAA.  There are others. But at the core of the (lack of) accountability problem with the IHSAA is that the organization has been allowed to operate in almost complete secrecy.  The public is not allowed to see the IHSAA's records and its meetings, at which decisions are routinely made as to public school students and their parents, are completely closed to the public. 

The IHSAA operates in secrecy under the dubious theory that the organization is a private, voluntary organization.  The IHSAA is not private.  The schools which are members of the IHSAA are overwhelmingly public and the organization is funded with the public's money.  As far as being "voluntary," the IHSAA has a monopoly on high school athletics.  If an Indiana school wants to have an athletic program with any credibility, it has no choice but to join the IHSAA.

Earlier this year, I called about attending an IHSAA meeting and was told the organization's meetings are not open to the public.  I filed an Open Door Law complain with Indiana's Public Access Counselor.  I am happy to report that the PAC agreed with me that the IHSAA needs to open its door to the public, albeit not because it is public but because high school athletics "is inextricably intertwined with education" and it is the duty of the state to regulate education.

Here is relevant part of the PAC decision:
High school athletics in the State of Indiana is under the exclusive dominion of ISHAA’s procedures, rules and scrutiny. The State has outsourced the regulation of high school athletics to a non-profit entity. See Ind. Code § 20-26-14. When the State delegates one of its essential duties to a private entity, the private entity may become subject to the Open Door Law or Access to Public Records Act. While IHSAA is not directly established by statute, it has assumed the responsibility to enforce the state’s power.
The Indiana Court of Appeals recently addressed a similar issue in ESPN, Inc. v. Univ. of Notre Dame Sec. Police Dep't. The Court held the Notre Dame’s police department was subject to the APRA because the department “was acting as a governmental entity by exercising a governmental function.”
While police power and athletic oversight are mutually exclusive, the U.S. Supreme Court also determined the exercise of high school athletic regulation is akin to police power in Brentwood Academy, v. Tennessee Secondary School Athletic Association3. In that Opinion, Justice Souter stated:
The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it.
The same holds true in the instant case in applying Ind. Code § 5-14-1.5-2(a)(1). The Education Clause, Article 8, Section 1, of the Indiana Constitution, states:
Knowledge and learning, generally diffused throughout a community, being essential to the preservation of a free government; it shall be the duty of the General Assembly to encourage, by all suitable means, moral, intellectual, scientific, and agricultural improvement; and to provide, by law, for a general and uniform system of Common Schools, wherein tuition shall be without charge, and equally open to all.
The Education Clause of the Indiana Constitution clearly shows it is the duty of the State to regulate education, up to a secondary school level, to its citizens. The act of providing education is not solely a state function – private school institutions would not be subject to the Open Door Law or Access to Public Records Act4 – however, the regulation of education is certainly a state function.   
And so it is with high school athletic competition, which, by ISHAA’s own admission, is inextricably intertwined with education. By creating rules and enforcing its regulations, IHSAA acts as the administrative, executive, legislative and judicial authority. The ISHAA lists the following activities as part of its mission statement:
• Regulates, supervises and administers interschool athletic activities among its member high schools as an integral part of the secondary education program. A tournament series is sanctioned in 21 sports, 10 for girls, 10 for boys and one co-ed (unified track and field). This school year, more than 160,000 students will compete in IHSAA-sanctioned tournaments. 
• Cooperates with all agencies vitally concerned with the health and educational welfare of secondary school students.
• Determines qualifications of individual contestants, coaches and officials.
• Provides written communications to facilitate athletic relations among member schools.
• Establishes standards for eligibility, competition and sportsmanship while providing protection against exploitation of schools or students.
Moreover, similar to the Brentwood case, the members of IHSAA’s Board of Directors and Executive Committee are high school administrators, coaches and employees, the majority of them from public high schools (“The Association is not an organization of natural persons acting on their own, but of schools” id.).
But for IHSAA, the regulation of organized high school athletics would not exist. Its membership is voluntary in name only as the IHSAA procedurally works as a clearinghouse for all official high school athletic competition. It is likely IHSAA avoids audit as their revenues are mainly comprised of ticket sales from events as opposed to membership dues paid out of public money coffers. Nonetheless, scores of governing bodies statewide do not have budgets, expenditures or appropriations, yet they are subject to the Open Door Law because they exercise a government function.
For the foregoing reasons, it is the Opinion of the Indiana Public Access Counselor that IHSAA exercises functions listed under Ind. Code § 5-14-1.5-2(a)(1) and should be considered a public entity subject to the Open Door Law.
I do believe the same principal that results in the application of the ODL to the IHSAA also governs the records of the organization, i.e. that the IHSAA is also subject to the open records law.

Monday, May 23, 2016

Will Candidates for Indiana Attorney General Continue the "Zoeller Doctrine" Giving AG Absolute Veto Power over State Laws?

Fresh out of law school, I had the opportunity to work as a Deputy Attorney General under then Attorney General Linley Pearson. During Pearson's tenure he pointed to a provision in Indiana law that says that if the Attorney General is uncomfortable representing a state party or defending a state law in court, the AG could defer to other legal counsel who then represents the state.  There were times Pearson used the law to defer legal representation to other counsel.

The tenure of Attorney General Greg Zoeller, which is set to conclude this year, brought for what I refer to as the "Zoeller Doctrine," the idea that when it comes to litigation, the Attorney General is in fact the attorney and the client, i.e. he doesn't have to do what the people he represents in court tells him to do.  I highlighted Zoeller's position in a story I wrote last year:
Attorney General Greg Zoelelr
Attorney General Zoeller has consistently taken the position that the Attorney General position is "unique" because of the need to "harmonize the law" among the several agencies and entities.  In doing so, he has claimed he has absolute authority when it comes to deciding how legal issues involving the State of Indiana are handled.  Thus, it doesn't matter if a state agency wants to settle a case, or whether the Governor wants to take a certain legal position or the General Assembly wants a law defended, the Attorney General, and only the Attorney General, gets to decide, on behalf of the State, what position will be taken.   This is a position that essentially makes the Attorney General not only the attorney for the State of Indiana, but also the client.

Zoeller's position regarding the authority of the Attorney General is certainly not shared by everyone.  In addition to the State Senators in this case, most of the attorneys I've talked to do not agree that the Attorney General has an unfettered right to decide the State of Indiana's legal position. Rather they see the Attorney General as the attorney for the State of Indiana with a duty to follow his state client's wishes as long as they are within the ethical boundaries of legal representation.   As far as multiple state agencies creating a mishmash of legal approaches, there is a singular boss of those agencies, the Governor of the State of Indiana.  The AG could always appeal to the Governor to bring a consistent approach to how the agencies approach litigation.
Last session, state senators Mike Delph, Brent Steele and Mike Delph introduced a bill requiring the Attorney General to step aside for legislators to employ other counsel when the AG wasn't adequately defending a statute in court. This was a reference to the dispute over Zoeller's refusal to defend Indiana's immigration bill.
While that bill did not pass, a bill has been introduced in the State Senate this session that takes direct aim at addressing Zoeller's claim that unlike every other attorney in the State of Indiana, he is not obligated to actually do what his government clients want.  The new language in Senate Bill 257, which is authored by Republican Delph and Steele and Democrat Timothy Lanane, states:
When the attorney general represents:
(1) the state;
(2) a state agency;
(3) a political subdivision; or
(4) any other party;

in a judicial or administrative proceeding, the attorney general owes the same obligations to that party that any other attorney owes to a client under the rules prescribed by the supreme court.
In 2013, when the Pence administration was in its infancy, Zoeller even had a bill introduced in the Indiana Senate which would have given the Attorney General an office in Washington, DC where an employee of his office could lobby Congress and federal agencies.  I wrote about that on my blog as well.  I wrote about it on my blog.
A similar dispute over who speaks for the State of Indiana at the national level appeared to be breaking out earlier this year.  Attorney Marcia Oddi, publisher of the Indiana Law Blog and who has had a long career in Indiana's executive and legislation branches, published an article titled "Ind. Gov't. - Who Speaks for Indiana at the Federal Level" on legislation that was introduced allowing the AG to place a deputy in Washington, D.C. with particular responsibilities.  Her article, which also contains links to stories she wrote in 2009, 2010 and 2012 on the subject of who speaks for the State of Indiana at the federal level, identifies Senate Bill 36 as one of the bills involved in establishing the D.C. based deputy.  That bill included this directive for what the responsibilities that this Deputy Attorney General would have:
1) Review and monitor legislation, regulations, administrative actions, and other activities of the federal government that may affect Indiana. 
(2) Take any action the attorney general finds necessary and appropriate to respond to, address, or influence any proposal, enactment, promulgation, action, order, adjudication, or activity described in subdivision (1).
My reading of the highlighted language of Senate Bill 36 opens up the possibility of having the Governor and Attorney General advocating, on behalf of the State of Indiana, completely different positions as to proposed federal legislation and the promulgation of federal rules.  However, this potential conflict appears to have been averted as the bill was amended in committee to eliminate the lobbying language contained in subparagraph #2 above.   SB 36 is now set for third reading in the Indiana Senate.
Four people have filed for the Republican nomination for Attorney General:  State Senator Randy Head, Elkhart County Prosecutor Curtis Hill, Former Attorney General Steve Carter, and Assistant Attorney General Abby Kuzma.  On the Democratic side, Lorenzo Arredondo, a retired circuit court judge and former teacher is running.  The question remains: will the next Attorney General promise to ensure that ALL the laws passed by the Indiana General Assembly are defended by legal counsel, contrary to what has happened during Attorney General Zoeller's tenure?

See also:

Saturday, January 11, 2014, State Senate Bill Seeks to Check Power of Indiana Attorney General Greg Zoeller

Monday, December 30, 2013,
Attorney General Zoeller Encroaches on Governor's Power as He Lobbies for More Federal Funding for School Resource Officers  

Saturday, September 8, 2012, Republican State Senators Spar with Attorney General Over Representation in Indiana Immigration Case; AG Zoeller Claims He is Both State's Attorney and Client

Saturday, May 21, 2016

Annoited New Marion County GOP Chairman Is Unlikely to Rebuild the Party

News came this week that Marion County Republican Chairwoman Jennifer Ping is resigning her position.  A new Indianapolis ethics ordinance forbids those who have appointment power from doing business with the city.  Ping is a principal with the Bose Public Affairs Group, which has contracts with the city and lobbies Indianapolis government on behalf of clients.  Rather than give up that gig, Ping chose to resign as party chair.  She had only been elected to her position in the party in December of 2015.

Of course that begs the question as to why in the world a lobbyist was picked (I hesitate to use the word "elected" given how the process is so easily rigged) to be a county chair in the first place.
Mike McQuillen

Unfortunately the next anointed county chair, Mike McQuillen, comes with a conflict of interest just as serious, if not more so, than Ping.  McQuillen is minority leader on the Indianapolis City-County Council.  While on the Council, McQuillen has demonstrated he has a tin ear when it comes to the animosity the GOP grass roots had toward the constant tax and fee increases and corporate welfare that marked Mayor Greg Ballard administration.  McQuillen was chief cheerleader of policies Republican Ballard pushed that he as chairman (and council minority leader) he will have to criticize when those polices are advocated by Democrat Mayor Joe Hogsett.  I am pretty sure local Democrats will not hesitate to point out McQuillen's hypocrisy. I doubt many grass roots Republicans will forget McQuillen's attacks on good conservatives like Christine Scales who pushed back against Ballard's tax and spend policies.

Long ago I put together an extensive memo on how to rebuild the grass roots of the Marion County Republican organization.  One of the suggestions was to ban elected officials, people like McQuillen, from serving in management positions in the party organization due to their inherent conflicts of interest. 

If the Marion County GOP organization is ever going to return to power, the leadership of the party needs to be willing to give up dictatorial power over the organization to restore that power to the grass roots workers.  They need to have opportunities to be appointed to key positions and to advance in the party leadership.  And the leadership of the Marion County GOP needs to understand that issues, not the benefits of pay-to-play corporate welfare, is what motivates the average Republican voter to go to the polls. 

I have seen nothing from McQuillen's tenure which suggests he has the foggiest idea of what is wrong with the Marion County Republican Party.  Or possibly he just doesn't care.   Either way don't expect the Marion County Republican organization to improve any time soon.  Instead expect the same dictatorial power structure within the organization to continue.

Friday, May 20, 2016

The Pence Re-Election Dilemma: "What About Donald?"

A recent poll shows Republican Gov. Mike Pence with a slight 4 point lead (well within the margin of error) in the Governor's race over Democrat John Gregg.  Democrats are celebrating the closeness of the poll.  They shouldn't be.  After all the fire the shots Pence has taken during his tenure, and the constant unflattering media coverage, Gregg should be ahead. Now we're moving into the paid media stage of the campaign which is likely to be more favorable to Pence.  The Governor should be able to polish and improve his image with plenty of 30 second spots touting his economic record and leadership.

Gov. Mike Pence (R-Indiana)
That's the good news for Republicans. The bad news is that Gregg has an ace card up his sleeve, the GOP candidate who will be at the top of the ticket, Donald Trump.

During the Indiana Republican primary, Pence walked a fine line endorsing traditional conservative Texas Senator Ted Cruz while also praising Donald Trump for bringing certain issues to the forefront.  Pence successfully straddled the fence, managing to make neither side angry in the contentious primary.

Now moving into the general election the "What About Donald" question becomes much more problematic for Pence.  If Pence distances himself from the controversial GOP nominee, he is likely to anger the Indiana Tea Party crowd which has fully (and strangely) enthusiastically embraced the liberal New York businessman.  Pence is not popular with the Tea Party and fully supporting Trump would shore up support among a constituency that is critical to his base of support.

But embracing "The Donald" carries enormous risk.  Trump has insulted women and Latinos, and is extremely unpopular with those two groups.  Trump's womanizing makes Bill Clinton's look like a rank amateur.  His mafia ties have also been exposed. Trump has mocked a disabled reporter and encouraged violence at his rallies.

Imagine every day on the campaign trail Pence being asked whether he agrees with a controversial thing that Trump said or did and whether the Indiana Governor still supports the GOP candidate. Trump thus far has been able to escape being held responsible for his words and deeds.  But Pence enjoys no such Trump Teflon.  He is likely to be tarnished with the fallout from "The Donald."  It won't help any that Indiana likely will be a general election battleground in the presidential contest. 

The Pence campaign faces a dilemma in figuring out how to deal with the Donald problem.  It seems like either choice will cost Pence votes.

Wednesday, May 18, 2016

Come Celebrate the Life of Gary Welsh

Gary Welsh
Please come and join us to remember and celebrate of the life of Advance Indiana blogger Gary Welsh. Additional information will be forthcoming, but pertinent information thus far is that the date, time and location of the event is as follows:

Thursday, June 2, 2016   6:30 - 8:00 p.m.
Northside Knights of Columbus

2100 E. 71st Street
Indianapolis, IN
(just west of the intersection of E. 71st Street and Keystone Avenue)

I would like to get a headcount so if you could RSVP to me on Facebook or at my email ( that would be great.

We will be asking that people who feel so moved to share a particular memory about Gary during the event.  We will also have a memorial table to share physical memories of Gary and his life.  Afterwards we will toast a beer (or other beverage) in thanks to all Gary did and in remembrance of a great person who left us far too early.