Sunday, November 30, 2008

Sign of a Bad Economy? When Animals Start Committing Suicide

The Indianapolis Star reported that five deer lept to their death off the an I-69 overpass. Deer committing suicide? Things are worse with the economy than I thought.

Carmel Mayor Brainard Lies to Voters About Cost of Keystone Avenue Project

I have several friends who live in Carmel. I have for years teased them about their big spending Republican Mayor and warned them that the day would come when the piper would have to be paid for Carmel's big spending ways. I figured that date would be 10-15 years down the road. It appears it has arrived earlier than that.

The Indianapolis Star today reported the Carmel Mayor James Brainard and the Carmel City Council (all members are Republican) knew in February 2007 that the Keystone Avenue project would cost much more than the $90 million price tag touted by Mayor Brainard during 2007 re-election campaign.

Quoted from the article:

A study in February 2007 put the total cost of the six-roundabout Keystone traffic improvement project at $138.6 million if the rebuilding took place over an 11-year period, according to calculations by project manager Jeremy Kashman.

However, running the project on a three-year timetable shaved inflation costs, Kashman said, and put the estimate at $112 million.

Brainard took that number and, figuring he could earn interest on the money and cut costs, publicly committed to finish Keystone with the $90 million the state gave Carmel to take over the road. He declined to bring the higher estimates to the attention of his constituents, who re-elected him by a wide margin two months later.

I'm not sure about the reporter indicating he was reelected "two months later" after the February 2007 report was issued. Apparently the reporter was referring to his May Republican Primary which, given the Republican dominance in Carmel, is tantamount to winning the general election.

Although Brainard tries to spin his way out of his misrepresentation, let's be honest. He blatantly lied to his constituents and should be held accountable. Likewise, the City Council members who knew the numbers were faulty should likewise be held accountable for acquiescence in Brainard's efforts to mislead Carmelites.

As a Republican I hate to say it, but this is what you get when you have complete one party (in this case, Republican) dominance of an area. The two-party watchdog system is not present to ensure that the interests of the public are being defended.

Republicans need to clean up their act in Carmel. Brainard has had Republican opposition before and has been able to squelch it. That Republican opposition needs to rise again and bring back the principles of good government to Indy's fast growing neighbor to the north.

As a side note, a good government measure would be for more documents like the Carmel Keystone Avenue study to be placed on line for everyone to see. Mayor Brainard's misrepresentations would have been discovered much earlier with such a policy. Taxpayers should not have to depend on newspapers making open records requests to expose to public scrutiny documents that are by nature public documents and everyone is entitled to view.

Finally, I can't end this without giving kudos to the Indianapolis Star and reporter Heather Gillers for the investigative work on this story. The Star has often been criticized, I believe rightly, for not investigating news tips and falling into the trap of simply reporting what others are saying or doing. In this case though, the Indianapolis Star and Gillers acquitted themselves quite well and showed the importance of a free media to keep the politicians honest.

Friday, November 28, 2008

World's Oldest Woman Edna Parker Dies

Edna Parker, the world's oldest person died yesterday at 115 at her Shelbyville, Indiana home. That means the former Indiana teacher collected social security for over 50 years. Finally someone who actually received a good return on the money they "invested" in social security.

A Bold Republican Legislative Agenda: A Call for the Indiana General Assembly to End Gerrymandering

Probably no "good government" proposal falls on deaf ears more than ideas to eliminate the political gerrymandering of legislative districts after every decennial census. The strategy is that, by looking at past election results, the majority party can craft districts that maximize that party's political advantage by 1) putting as much of the minority party's vote in as few districts as possible creating districts they intend to lose by margins such as 20%-80%; and 2) spreading out the majority party vote as much as possible to create a larger number of close but safe seats, margins, for example, that favor they majority party candidate by 60% to 40%.

The practice, which both Democrats and Republican engage in, results in misshapen districts that wind around picking up the necessary votes to ensure one party or the other wins. It is a unpopular practice that deliberately deprives voters of competitive legislative elections.

Republicans in the Indiana House have borne the brunt of gerrymandering during the past two cycles as Democrat majorities have redrawn districts to ensure the party usually retained those majorities even though most Hoosier voters have cast ballots for Republicans during those two decades. Republicans, just a handful of seats short of a majority in the House, are going into the critical 2010 election that will decide which party has thee majority necessary to draw the districts. The issue is all but decided in the Indiana Senate, where Republicans have a commanding majority that will survive the 2010 election.

There is a way Republicans in the House can ensure the GOP captures a majority of House seats in 2010: come out in favor of a bold "good government" plan that includes eliminating political gerrymandering. The law proposed would turn over that responsibility over to another entity that would not be allowed to consider the political impact of drawing district lines. Here are things that could be considered:
  • Every district must be approximately equal in population
  • Districts must be contiguous; in other words each part of the district must be connected somehow
  • Districts must be drawn to be compact
  • Communities if at all possible shall be kept together
  • Voting rights rules regarding creating majority black and Hispanic districts must be followed.
  • The residence of particular legislators or candidates may not be considered in drawing the districts. Current legislators will be grandfathered in so that they do not have to strictly comply with the residency requirements as to the new districts.
A lot of good government types will object about a grandfathering provision exempting current legislators from strict compliance with the new districts created under the plan. While I would agree with those objections, the fact is that without the grandfathering mechanism the bill simply will not pass. Is it not better to get 90% of what you want and pass the bill, rather than insist on 100% and fail completely?

A question remains regarding the "who" would be drawing the new maps. I am very leery about swapping politics out in the open with the legislature with politics behind closed doors with a supposedly "independent" or "bipartisan" commission. Indiana appellate court judges although immersed in politics when appointed through our version of the Missouri Plan, are virtually free from politics after appointment. I would suggest that each panel of three Court of Appeals judges in each of the five districts appoint one member to serve on a five person Redistricting Commission to come up with the plan using the criteria noted above. Of course, that Commission may not consider politics in the crafting of their decisions. Once the plan is crafted, both the Democrats, or Republicans or private citizens can appeal the decision of the Commission to the Indiana Court of Appeals or the Indiana Supreme Court.

The idea of eliminating gerrymandering could be part of a bold "good government" agenda that helps the Republicans wrest back control of the Indiana House. It is something that should be considered during this legislative session.

Wednesday, November 26, 2008

Cheap Ethics CLE: "Public Trust, Private Interests"

I will be a panelist on a discussion of open, honest and accountable government. For lawyers, it's a good chance to get end of the year CLE, and I believe it will count toward the ethics requirement.

The luncheon is sponsored by Common Cause. Common Cause is one of those groups, like the ACLU, that I strongly agree with half the time and strongly disagree with the other half of the time. The ACLU seems to pick and choose which constitutional rights it wants to protect and which interpretations it will support. It is that inconsistency why the ACLU is disliked by many people, including by Libertarians who are much more consistent with respect to the Constitution. I applaud Common Cause for fighting for honest and open government...and pointing out the abuses in our own legislature. I think though the emphasis on public financing of elections is misplaced and the fight against the voter ID requirement was very misguided. This last election, where the county voter rolls many of which exceeded 100%, proved beyond a doubt that requiring a voter to show an ID is a good thing.

Anyway, Julia Vaughn of Common Cause went looking for a Republican for the panel and settled on me after not being able to get an elected official to participate. Below is a blurb on the program from the Common Cause website. There is also a link to the brochure:
Public Trust, Private Interests

Please join us for a luncheon seminar for legislators, lobbyists, attorneys and citizens on Friday, December 5 from 11am to 1pm at the IU School of Law-Indianapolis.Our keynote speaker will be Common Cause President Bob Edgar, who will discuss the importance of open, honest and accountable government. Other panelists include Dr. David Orentlicher, professor of legal ethics at IUPUI and a former legislator; former Indiana Secretary of State Joe Hogsett, and Indianapolis attorney Paul Ogden, who has been an outspoken advocate of the public interest in Indianapolis. The discussion will be moderated by Indianapolis radio host Abdul Hakim-Shabazz.

Read the Brochure
Reserve your place today!

Mayor Ballard's Trip to Asia; My Unsolicited Media and Political Advice

Today's Indianapolis Star reports on the Mayor's trade mission to Asia, which the article indicates is being funded by taxpayer dollars. I am not going to reflexively criticize any Mayor or Governor for going on a foreign trade mission, or even using tax dollars to do it. While I do believe that is generally the responsibility of the Governor, I can certainly see the efficacy of a mayor of a large city like Indianapolis reaching out to try to get foreign investment and business to locate in our city. As long as the trips are not too many or too lavish, they might be worth the taxpayer investment.

My immediate concern,as a Republican wanting to win in 2011, is the public relations/political angle. Let's go out on a limb - a really, really long limb - and say that the Mayor retained me to give him political and media advice. Here's what I would have reviewed with him prior to the trip:
  • What are the headlines going to be when the story comes out? Those represent the immediate perception of the story through the eyes of the editors. How can we spin those stories differently so editors use a different headline?
  • On a related point, how can we present the story so it looks as much like a business trip as possible?
  • Let's try to find some private funds so you can take your wife without it being on the taxpayer dime. Don't try to sell it as customary in Asia to see husband and wife teams on business trips. (I'm no expert on Asian culture, but my understanding is that exactly the opposite is true.) It really starts to look like a vacation when you take along the spouse. If she goes, at least make sure taxpayer money is not used to pay her way.
  • How are Democrats going to approach the issue? Do not be fooled by the mild reaction thus far. The Dems are not so stupid as to shoot the ammunition you might be giving them in 2008 when the election is in 2011.
  • What are the Democrats' ads on the issue going to look like? (And, trust me, there will be ads.) Right now it would be a piece of cake to cut a negative ad leaving viewers with the impression of a jet-setting mayor vacationing around the world with his wife in tow, all at taxpayer expense.
  • Exactly what are you going to be doing on the trip? Be careful of social events and outings captured on video. Everyone has a camera these days.
  • How have you approached explaining the trip to the media? People unschooled in media relations always believe they can keep things quiet and the questions simply will not be asked. But that just creates a perception you are hiding things and the stories and headlines will be more negative because the reporters and editors smell, rightly or wrongly, a cover-up. The best thing you can do is be candid and fully disclose. Reporters are much more likely to write favorable stories if they think the elected official is being honest and open with them.
  • Mayor, you need to approach every issue as if you are in a fish bowl...because you are. Every decision you make should be viewed in the context of something you will have to explain publicly and defend politically.
Good luck on the trip, Mayor. Let's talk before you go on the next one.

Restrictions on Teen Age Driving

A bill has been introduced by Sen. Travis Holdman (R-Markle) in the Indiana General Assembly to essentially raise the driving age by six months and to only allow those under 18 to operate a vehicle with certain restrictions. Drivers under 18 would not be allowed todrive from 11 p.m. to 5 a.m. Sunday through Thursday or 1 to 5 a.m. Friday and Saturday. Exemptions include work, school or church-related function.

The Star article on the bill, which includes a handy summary of the proposed new restrictions can be found here:

Many people may lament this as more government restriction on rights. I do not agree at all. Minors do not have nor should they have the same rights as adults. (I'm not going to go down the road of mislabeling driving a privilege and not a right. Driving is not a "privilege" but a right you have if you meet certain conditions established by state law. Most rights have conditions to them.) I think it is pure insanity that we allow 15 year olds probationary licenses and 16 year olds virtually unlimited driver's licenses. Kids, and they are kids, simply do not have the maturity yet to make the best decisions when behind the wheel of a 2000 pound vehicle. Many of our children pay for these mistakes with their lives.

A few years ago, I found myself on a highway running north and south through Miami. The traffic was going 70 miles an hour, bumper to bumper, cars cutting in and out. It was a nerve-wracking, frightening experience. But because I was older, I had the maturity to not lose my cool. I held my position and eventually got out of the traffic. I would hate to think of a 16 year old facing that situation.

Our driving laws date back from when Indiana was primarily a farming state with little in the way of urban areas or heavy traffic. The age of 16 to drive made sense in the days when children were often called upon to perform tasks around the farm that involved driving. Today though we live in a completely different society, one more urbanized with many more traffic hazards. Driving today is an adult responsibility that many people under 18 are not mature enough to assume. Let's not risk their lives and ours by continuing with the folly of giving children the same right to operate a vehicle as adults.

Tuesday, November 25, 2008

Corn-Based Ethanol: A Terrible Idea Brought to You by Our Government

John Ketzenberger this morning writes about the glut in the ethanol market. For 50 years, corn prices had been steady at $2 a bushel. Farmers were able to weather the stagnant prices by becoming more productive. By this past July though corn prices had risen to $8 a bushel.

Growing up in a farming community in southeastern Indiana, I saw first-hand the poor returns farmers would receive for the hours of hard work they put in to farming. Many had to have second jobs because farming alone would not pay the bills. So when I see farmers getting paid more, my immediate reaction is to say that's a good thing.

But that 400% increase in corn prices was fueled (pardon the pun) by an alternative fuel source - ethanol - that exists almost completely because of large government subsidies, both for the ethanol producers and for the fuel itself. I enjoy reading articles by ethanol defenders who try to use circular arguments to argue that the increase in corn prices has nothing to do with ethanol production. Although the duck looks like a duck and quacks like a duck, etchanol defenders would like people to believe it is actually a cow.

Even if we were to convert every last ear of corn to ethanol we still would not come close to meeting the energy needs of the United States. Additionally, the fuel is not terribly efficient and, according to some sources, requires as much energy to produce as is provided by the fuel source. Because of those reasons and the increase in food costs driven by ethanol, most energy analysts appear to now have concluded that corn-based ethanol was a mistake.

So we can phase out the subsidies and move to a better alternative fuel source, right? Ah, that's not how government works. There is now a whole industry, built up by taxpayers, in place. Farmers and ethanol producers have made a lot of money converting corn to fuel. That industry now has some very powerful defenders, including some Hoosier politicians. Dismantling what should not have been built is not something democratic governments do easily.

As a side note, if you want a classic example of government bureaucracy once established being difficult to eliminate, read the classic story of severals Presidents' attempts to do away with the Board of Tea Tasters.

Increased Holiday Patrols Funded by Federal Tax Money

This morning's Indianapolis Star brings a report that the Indiana Criminal Justice Institute will be handing out $250,000 to local law enforcement agencies for increased patrols this Thanksgiving holiday. One of the things officers will be looking for is seat belt usage. Great. So instead of having law enforcement out there catching violent criminals, they'll be looking in the windows of cars to see if passengers are wearing their seatbelts.

In response to that sarcastic answer, the article assures us that this is extra money since it is a grant from the federal government. Translation: we are taking money not from the taxpayers' right front pocket, but rather from their left pocket. Like that is supposed to make it okay. The policing function being funded has nothing to do with those functions served by the federal government. If state and local governments wants an increased police presence over the holidays, it should be state and local governments paying for it. (My guess is that taxpayers would not approve of limited police resources being used to pull people over for seat belt violations.) This shell game only makes it easier for government officials to justify spending taxpayer money.

Monday, November 24, 2008

Going in the Right Direction: Councilor Ryan Vaughn's Op-Ed Piece

This morning's newspaper brings an editorial from Councilor Ryan Vaughn in which he discusses his sponsorship of the Indianapolis Mayor Greg Ballard's effort to stop and reverse the increases in the county option income tax (COIT) that were part of the reason Mayor Greg Ballard's predecessor Mayor Bart Peterson was defeated in 2007.

The proposal certainly signifies an indication that administration is moving in the right direction and should be applauded. However, the Mayor's strategy as reflected in the editorial is missing a key ingredient: a willingness to confront and reverse the corporate giveaways that have for the last few decades been governing philosophy of Republican and Democrat administrations. It is exactly because of that corporate welfare mentality that there has been such a pressure on spending. While the Mayor might not want to go down this unchartered road, the fact is unless he takes this populist course his chances of re-election are slim and none.

Here are some agenda items the Mayor should latch onto if he wants to fight for the taxpayers:
  • Put the contracts for all vendors doing business with the city on-line where they can be seen by everyone. Full disclosure should be a requirement of doing business with the City.
  • Open up the records of the Capital Improvement Board. The Board, which is the source of much of the corporate welfare, still believes it can operate without the full scrutiny applied to other governmental entities.
  • Remove the leadership of the CIB, Bob Grand, who is the managing partner of Barnes & Thornburg. Grand has far too many conflicts of interest to have ever been appinted to that position. In addition to his job with a law firm which receives substantial business from the city, he represents the Simons, owners of the Pacers (who will be renegotiating their deal soon with CIB), and sits on the board of the Sports Corporation which benefits from money directed by CIB to the Sports Corporation. Replace Grand (and other members of the Board when possible) with individuals who are willing to fight for Joe Taxpayer and against the entrenched corporate interests who are simply after more taxpayer money.
  • Start demanding that the Colts foot the bill for the operating deficit in the new Lucas Oil Stadium.
  • Do not agree to give away more taxpayer money to the Pacers when they come knocking at the door for the same giveaways the City gave to the Colts.
  • Stop fighting taxpayer efforts aimed at recovering taxpayer funds Mayor Peterson's administration successfully and, we have argued in a lawsuit illegally, diverted to the Indiana Sports Corporation during the last few days before he left office. The Mayor's Office should not be using taxpayer money (i.e. City Legal) against taxpayers in an effort to get the lawsuit dismissed. One has to wonder who would have advised the Mayor to take the fall for last minute shenanigans pulled by the Democrat Peterson administration in favor of Democrat Susan Williams who runs the Indiana Sports Corporation. Quite likely it is someone who benefited from the deal and does not want to see it exposed during the discovery process.
  • Demand full disclosure of law firms receiving city legal business. Their contracts (all of them) need to be made public as well as their billing records. Those of us in law know how those firms regularly inflate their bills when taxpayers are the ones paying. Note: Mayor Ballard told me before the election that the fleecing of city taxpayers by the big law firms would cease under his watch. Well it has not. Barnes & Thornburg, which has connections at virtually every level of the current administration, is the worst offender. Vaughn, who had been an up and coming member of the council, would have been the ideal person to speak out against this and in favor of taxpayers ... except that a month after becoming chairman of the Public Safety and Criminal Justice Committee he was hired by, you guessed it, Barnes & Thornburg.
  • Demand full accountability from private vendors who contract with the city. I know from my experience in corrections litigation that privatization contracts are simply not enforced, including provisions requiring that those vendors indemnify government for attorney's fees and judgments when the vendor's wrongdoing results in government getting sued. (Quite often these private companies are shelling out big campaign contributions not only to secure the contract to begin with, but to entice government officials to look the other way when it comes to their compliance with the contracts.) The City could recoup hundreds of thousands of dollars if not millions if it simply enforced these provisions.
  • Appoint a bipartisan commission to study the corporate welfare and giveaways in this county that are adding to our tax burden. The Commission needs to be made up by people who truly represent taxpayers as opposed to those with corporate ties.
The public-private partnerships touted by the City leaders the past few decades have too often been nothing more than a convenient excuse to channel taxpayer money to private companies. In return, those private companies hire big law firms connected to the city and kick back campaign contributions to the City's politicians. It is the ultimate revolving door. If Mayor Ballard decides to challenge the corporate welfare culture that exists in this City, he has a solid chance at re-election in 2011. If he chooses not to, my Marion County Republican Party is due for a big defeat in that election.

Saturday, November 22, 2008

Fun and Games in Washington Township

Apparently there were fireworks at the recent Washington Township Board Member where board members, by a 4-3 margin, voted to increase their pay from 2,000 to 3600, an 80% increase.

I must admit that there are occasions when I believe public officials are underpaid. State legislators went for more than 20 years with a salary of $11,600. What happened when the salary wasn't raised, which it should have been, is that legislators tried to back door compensation by raising benefits and giving themselves a cushy pensions, far better than what other state employees received. No, legislators should have received a fairer (i.e. higher) base salary and the exact same benefits part-time state employees receive - which is none, including no pension. Legislators did deserve fair, above the board, compensation for the work they did. I worked in the legislature for three sessions. I think the average person would be shocked at how many hours legislators put in.

But I digress. Township board members only have to attend a few meetings a year and deal with the occasional constituent phone call. With government consolidation, the limited duties of board members are being decreased. Now is certainly not the time to increase those salaries, and certainly not by 80%.

It does not bother me so much though that they increased their pay, but rather the attitude of the majority to anyone who dared question their pay increase. If you can't explain to the public why you're voting for something, then perhaps you need to think of another line of business besides being a public official.

My friend Melyssa over at Hoosiers for Fair Taxation has a number of stories on the subject including links. My favorite link is the Norm Cox's interview with Ray Baker. Please check out the stories on Melyssa's blog.

Brand Encourages Universities to Be Dishonest About Cuts in Sports Programs

NCAA President Myles Brand recently stated that universities may have to cut out some sports due to the bad economy and said those universities should not blame Title IX, a federal law which forced universities to add more women's sports to bring equality to men and women's sports programs.

The fact is most of the cuts will come in men's sports because if the cuts come in women's sports, the universities cannot meet the requirements of Title IX. So more popular men's sports will end up being cut before less popular women's sports. Jim McCarthy of the College Sports Council, an advocacy group for men's sports sums Brand's comments better than I possibly could:

"That is utterly disgraceful," said McCarthy. "He knows perfectly well Title IX is going to force schools to target men's sports first. He is asking schools to join him in a whitewash."
Regardless of whether Title IX is a good thing or bad thing, Brand has no business encouraging academic institutions to be anything less than honest when it comes to explaining the cuts.

Friday, November 21, 2008

A Good Government Proposal for Indianapolis: Require That All City Contracts Be Posted On-Line

Having worked in and out of government for 20 plus years, one thing I have learned is that the best government is government that operates in the open. When government operates behind closed doors or hides things from the public, greed, self-dealing and even corruption can enter the picture. I strongly believe in open records law for that purpose.

Unfortunately, even with open records laws, our government still often fights tooth and nail to keep secrets. That is aided by the fact that with the open records law if you do not know exactly what to request, you probably are not going to get a response. Even if you know what to request, the City has been known to be less than willing to produce documents. For example, it took our law firm longer than a month and the filing of a complaint with the Public Access Counselor to get City Legal to produce a privatization contract the Sheriff had entered into with CCA. Now City Legal is back to dragging their feet on producing additional privatization contracts involving the Sheriff we requested last week. By contrast, under the Goldsmith administration I used to be able to walk into the City-County Building and immediately be provided any private vendor contract with the city I requested. Apparently the folks over at City Legal harbor the very mistaken belief the have the right to control the viewing of city contracts.

There is a very simple good government step that either the Mayor's Office or the City-County Council can take. Adopt a policy (or in the case of the council an ordinance) that anyone or any company that contracts to do business with the city is required to have that contract with the city posted on-line. The contracts are already public record. Posting of the contract is a very simple procedure that would cost the city virtually nothing and be a tremendous step to open government. If the vendor wants taxpayer money, they should be required to agree to the posting of the contract. If they don't want to agree, then they should not be allowed to do business with the city.

I know such a proposal would bring howls of protest from many vendors, including some law firms, which would prefer that the full measure of the work they receive from the city not be be made public. Many of those vendors who do business with the city are political contributors or are politically connected. That's happens with every administration. To me though, that is all the more reason that the information needs to be made public.

This is a good government measure that is made possible by modern technology. It is something for the Mayor's Office or the Council to consider.

Indianapolis Star Wants "Clear Rules" Involving Religion and Government? Yeah, Good Luck With That

The Indianapolis Star this morning publishes an editorial discussing many of the recent cases involving religion in the public arena and suggests we need "clear rules" so it is clear what is allowed and what is now allowed. The fact though the law in most instances is a bright shade of gray, not the black and white the Star editors would prefer.

A quick primary on the 1st Amendment religion clauses. First, there are two religion clauses, the Establishment Clause and the Free Exercise of Religion Clause. Neither when they were passed even applied to states. The Bill of Rights initially only applied to limit the authority of the national government. It wasn't until the 14th Amendment, which was ratified in 1896, and the resulting case by case "incorporation" of the Bill of Rights, that States (and local governments) became subject to the those amendments. It was not until the Everson v. Board of Education case in 1947 that the Supreme Court got around to applying the Establishment Clause to the states.

I don't think there is any doubt that those who were behind the Establishment Clause did not intend for its broad application the court interpreted it to mean in Everson.. They were concerned about the "establishment" of an official religion in the United States as had been the case in England. They did not want the various christian religions fighting to establish their religion own religion as the dominant one.

In Everson though the court expanded the meaning of the Establishment Clause to mean that government cannot be seen as "endorsing" or "promoting" one religion over another, or religion over non-religion. The Free Exercise Clause meanwhile has been interpreted to say that government must "accommodate" religion even in the public sphere.

So under those two interepretations government has to tread a middle ground. Government has to allow religion and religious activity to take place, even in the public sphere; goernment just can't be seen as endorsing or promoting that religious activity.

Sometimes in the zeal to try to avoid "promoting" or "endorsing" religion, a government entity will foolishly adopt rules that do not accommodate religious practices. For example, the State of Indiana cannot adopt a policy that says that its employees can't wear crosses or crucifixes around their neck. That is individual expression of one's religious faith. It would be a reach to say that government allowing an individual to wear a religious symboil is government endorsement of that individual's faith.

That brings me to the "BE GODS" license plate prohibited by the new BMV policy. While the case law can lead to a lot of "gray area" situations, I don't think that is one of them. The fact an individual personally chooses a license plate that might have some religious meaning isn notgovernment endorsement of religion. Further, the BMV policy appears to be in violation of the Free Exercise Clause that says government must "accommodate" religion. Just as the State can't tell its employees they can't wear crosses in public, the BMV should not have a policy that prevents people from choosing a plate that has a combination of letters with significant meaning. I don't think the "BE GODS" controversy is a close call. The State would be wise to consult with a good constitutional attorney before spending money in court defending it. I think in the long run it is a loser case for the BMV and the State of Indiana.

The "In God We Trust" license plates is a much closer constitutional question. There I think the argument is much stronger that the State is "endorsing" or "promoting" the plates by having an official design for the plate even though people have the right to choose it personally. (I should emphasize that I'm merely stating my legal opinion regarding the policy based on current court precedents, not my personal opinion of what the law should be.) I don't think though the lawsuit though focused on the constitutional issue so much as state law claims, including the fact that individuals were not required to shell a fee for the IGWT plates like people have to with other speciality plates.

I have already commented on the legislative prayer case. The challenge was lost on appeal due to standing and the merits were not reached. I highly doubt though the decision (which specifically prohibited references to "Jesus" during prayer) would have survived appeal on the merits though. While I think the prayers went overboard certainly and legislative leaders would have been wise to reign them in, the fact is we have had prayer in legislative bodies for 220 years, including the constitutional convention. For a court to start picking and choosing which religious prophets cannot be referenced during a legislative prayer violates a fundamental principle that the rules, whatever they are, must apply across the board equally. Further. I thought the decision violates the separation of powers. Legislatures cannot tell courts how they are going to conduct business any more than courts can tell legislatures how they are going to conduct their business.

Moving on to the Southport City Council meeting, there they adopted a "moment of silence" to replace a prayer. That was their choice. While I do not think the prayer before the meeting violated the Constitution, there is nothing that requires the council or the mayor to continue the prayer tradition. The protester did not have the right to interrupt the meeting. That sort of reminds me of people who think they have a right to "shout down" a speaker on a college campus they disagree with. No, that protester's free speech rights do not include the right to prevent someone else from speaking.

Those are the decisions handed down this morning by Judge Ogden.

Thursday, November 20, 2008

In Defense of Television - A Vast Wasteland No More

There is a sharp division between people who work in my law office. The division is not between Democrats and Republicans... okay there is that, but a deeper schism exists between those who praise the options provided by modern television broadcasting and those who see television as an evil or not very important. People in the former camp, such as me, have cable or satellite with a plethora of channels. Those who believe in the latter are still getting their television by using rabbit ears. One associate actually talked about pulling the plug on television completely in February when the date for digital conversion hits. I tried to assure her that would be child abuse to her young son, but thus far my warnings have fallen on deaf ears.

In 1961, Newton Minow, in his first public address as head of the Federal Communication Commission spoke how television had become a "vast wasteland." Today, 47 years later, I hear people continue talking about how there is nothing good on the tube, and decry the harmful effect of television. To those detractors of television, I have to ask...what planet have you been living on for the last 20 years? There has been an explosion of new educational channels filled with programming that enriches the viewing experience. Let's start with the channels. Here's what I found on a random trip through my Comcast viewing choices:

History Channel, Travel Channel, Discovery Network, The Learning Channel, Animal Planet, House and Garden, Food Network, Military Channel, A&E, History Channel, the Education Channel, Discovery Health Network, C-SPAN 1, 2 and 3, National Geographic, Science Channel, the Green Channel, BBC, Biography, History International, and DIY (Do It Yourself) Network. As far as news choices, I have CNN, Fox News, MSNBC, CNBC to name just a few. If for some reason I don't find a quality viewing choice on any of those commercially supported networks, I can tune into PBS or the local PBS affiliate WFYI. The number of good quality, educational choices on television today is virtually unlimited.

What have I been able to watch on these stations? Well, recently I watched an excellent four hour biography on Lyndon Johnson. I learned from watching several shows on the Science Channel about the plan to take a mission to Mars. I saw the documentary called "The Smartest Guys in the Room" which detailed the fall of the Enron Corporation. Maybe the best television ever was Ken Burns "The Civil War" which appeared on PBS. I saw high definition television footage of the most arid place in the world, an isolated portion of Antarctica which has not seen rainfall or any other sort of precipitation for over a million years. I have watched shows about the development of our 4.5 billion year old planet and how we have had global warming and global cooling, long before Al Gore arrived on the planet to warn us of climate change.

Television is a powerful medium that today provides a wide assortment of quality viewing choices. The opportunities to learn from television today are endless. The fact that some people choose to vegetate in front of the television watching Jerry Springer and Maury Povich, doesn't change the fact that television can be a wonderful educational tool for those who choose to use it wisely. Television is a vast wasteland no more.

Wednesday, November 19, 2008

Indiana's Lemon Law Applies to Used Cars- Misinformation on Indiana Attorney General's Website

In preparation for a client this morning who bought a lemon used car, I did some research into Indiana's Lemon Law. My understanding of the law was that it only applied to new cars. That impression had mostly come from the Indiana Attorney General's Office. I was in fact a Deputy Attorney General when the law originally passed.

If you look at the AG's consumer protection website, here is what it says the Lemon Law covers:

Did you buy or lease for personal use:

A car or light truck?
Within the last 18 months?
With less than 18,000 miles?
From an Indiana dealer?

If you answered yes to these questions, your vehicle may be covered by the Lemon Law.
That website leaves the clear impression that if you buy a car with more than 18,000 miles or more than 18 months old, you can't make a claim under Indiana's Lemon Law.

Ah, but here's the hitch. Indiana's Lemon Law does not say that.

The Lemon Law statutes fall under IC 24-5-13 et seq.

Look at these statutes:

IC 24-5-13-1: Application of chapter Sec. 1. This chapter applies to all motor vehicles that are sold, leased, transferred, or replaced by a dealer or manufacturer in Indiana.
IC 24-5-13-3"Buyer" defined Sec. 3. As used in this chapter, "buyer" means any person who, for purposes other than resale or sublease, enters into an agreement or contract within Indiana for the transfer, lease, or purchase of a motor vehicle covered under this chapter.
IC 24-5-13-5"Motor vehicle" and "vehicle" defined Sec. 5. As used in this chapter, "motor vehicle" or "vehicle" means any self-propelled vehicle that:
(1) has a declared gross vehicle weight of less than ten thousand (10,000)
(2) is sold to:

(A) a buyer in Indiana and registered in Indiana; or
(B) a buyer in Indiana who is not an Indiana
resident (as defined in IC 9-13-2-78);

(3) is intended primarily for use and operation on public highways; and
(4) is required to be registered or licensed before use or operation. The term does not include conversion vans, motor homes, farm tractors, and other machines used in the actual production, harvesting, and care of farm products, road building equipment, truck tractors, road tractors, motorcycles, mopeds, snowmobiles, or vehicles designed primarily for offroad use.


Nowhere in any of the statutes does it say the law only applies to a buyer of a "new" car. Where does the 18 month/18,000 mile language cited by the Attorney General come from then? Take a look at IC 24-5-13-7:

Sec. 7. As used in this chapter, "term of protection" means a period of time that:

(1) begins:

(A) on the date of original delivery of a motor vehicle to a buyer; or
(B) in the case of a replacement vehicle provided by a manufacturer to a buyer under this chapter, on the date of delivery of the replacement vehicle to the buyer; and

(2) ends the earlier of:
(A) eighteen (18) months after the date identified under subdivision (1); or
(B) the time the motor vehicle has been driven eighteen thousand (18,000) miles after the date identified under subdivision (1).
Read the above statute closely. The "term of protection" under the Lemon Law runs 18 months/18,000 miles (whichever comes first) from the time the person receives the car. That section does not say the lemon law protection applies only to a car with less 18,000 miles on it or less than 18 months old. To interpret it that way is to totally misread the express language of the statute.

I read the other statutes in the chapter; none I can find say Indiana's Lemon law is limited to "new" cars, which is exactly the way I believe the Attorney General's Office has been interpreting and applying the law for 20 years.

One of the most amazing things about law is how everybody can think the law says one thing, yet nobody bothers to read the actual statutes. If indeed my reading of the law is correct, the Attorney General's Office needs to correct misinformation on its website as well as adjust its handling of consumer complaints that are being dismissed because the cars Hoosiers are complaining about are used.

Legislative Prayer: Round Two Beginning?

Today's Indianapolis Star features a story entitled "Clergy-led prayer returns to House" written by Mary Beth Schneider. In the story, Schneider reports that the Indiana House is returning to minister led prayer for the first time in nearly 3 years. The practice had been disbanded over a lawsuit filed against the practice which was eventually dismissed for lack of standing of the plaintiffs.

Let me say from the outset that I think many of the prayers have gone way over the line in terms of propriety and should have been reigned in by legislative leaders. However, having said that, I think it is highly unlikely the merits of any legal challenge would have held up on appeal, even if the Plaintiffs had standing. The fact is that there has been prayer before legislative sessions for 220 plus years. At the Constitutional Convention, the delegates started each day with a prayer. During the debates, they quoted from scripture. The first Congress that considered the Bill of Rights, including the Establishment Clause, started each day with a prayer as did the state legislatures which ratified the first 10 amendments.

The exercise of bad judgment and a lack of "inclusivity" in the prayers selected does not equate to a constitutional claim. That's even before you get to the separation of powers principle that says that legislatures cannot tell courts how they are conduct business any more than courts can tell legislatures how they are going to operate. The lawsuit was destined to fail. Again, that's not saying the prayers did not go overboard - clearly they did. They just were not unconstitutional.

I do get a kick out of reading the comments many readers post about how the Founding Fathers would be outraged by public expressions of prayer in the Indiana General Assembly and elsewhere. Those people need to go back and actually read about those Founding Fathers said during the early days of our country rather than simply mouth politically-correct slogans unsupported by history.

Tuesday, November 18, 2008

Kickin' Marion County Clerk Beth White

Today the Indianapolis Star reports that Republican Chairman Tom John criticized Democrat Marion County Clerk Beth White for running a poor election citing as proof the recent discovery of 446 uncounted absentee ballots in the Clerk's Office.

Let me say from the outset, I do not think there is a more difficult job than that of Marion County Clerk, a job I ran for and lost in the Republican primary of 2002. The Clerk is stuck with an antiquated voting system that requires thousands of volunteers to show up at 6 a.m. on Election Day and do their job all day long with very little pay. It's a system where failure is inevitable, especially in these times when civic volunteerism is low and expectations are high.

That's before you get to the job of handling the court filings in all the Marion County Courts. Again, you have an antiquated system. Every day mounds and mounds of paper are created. When I talked to a former Marion County Clerk before running in 2002, she told me there was no backup system for the closed files stored in the basement of the City-County Building. A fire down there, and the only record of those cases gets wiped out permanently.

Returning to elections though, I think honesty about job performance would be welcome. The fact is while Democrat Beth White's election performance wasn't perfect, most certainly neither was Republican Doris Anne Sadler. Does anyone remember running out of ballots in many precincts during one of Sadler's elections? It is because of that mistake that poll workers today receive about twice as many ballots as voters in their precincts, which unvoted ballots we have to lug all the way back downtown.

Where I would fault White and Sadler is when they use their office in a partisan way. I see the Clerk's job as being similar to being a judge. You approach the election in an objective, fair matter and do not bend the rules so that your party has an unfair advantage. Sadler was being partisan in the ballot design dispute of a few years ago and White was being partisan in failing to purge non-voters as required by federal and state law.

Beth White has a chance in the upcoming legislative session to push for a reform that will greatly improve voting in Marion County: the adoption of voting centers to replace the precinct polling place system that dates from the days of the horse and buggy. It will be interesting to see if White takes on this needed reform and whether Tom John and the rest of the Marion County Republicans leadership support it. The time for voting centers has come. Instead of engaging in partisan games, maybe it is time for the parties to come together and adopt a reform that is in the best interests of the voters of Marion County and those hard-working individuals who staff the polls every election.

Sunday, November 16, 2008

Blacks & The Republican Party; The Telephone Call That Changed History

There is little I enjoy more than "what if" history games. Basically the game involves taking some historical event and discussing how history would have been changed should that event never have happened. As I look at the exit polls in the 2008 election, I see that McCain only garnered 4% of the African-American vote. Were it not for a slight twist in American history, things could have been much different.

We know from our history books that Democrat Franklin Delano Roosevelt won a landslide victory over Republican President Herbert Hoover in 1932. What is rarely discussed is that FDR only received 23% of the black vote in that landslide election. Hoover continued the tradition of Republicans capturing the African-American vote.

The depression hit black communities particularly hard though and by 1936, FDR's government programs brought him new support among black voters. That year he received 71% of the African American vote, while the Republican candidate received 28%.

Although the Depression saw a shift in the allegiance of black voters, Republicans continued to garner a sizable minority of black votes. In 1956, Republican President Dwight Eisenhower, captured 39% of the black vote.

The the 1960 election. the Vice President Richard Nixon, a Republican, faced off with Democrat Massachusetts Senator John Kennedy. Kennedy's civil rights record in the Senate was at best spotty. Kennedy had voted against the 1957 Civil Rights Act, the first civil rights act since Reconstruction. The Act was pushed by the Republican Eisenhower administration to protect the voting rights of blacks. Kennedy also voted against a federal lynching law and during the campaign curried favor with segregationist Democrats. Martin Luther King, Jr. had not endorsed a candidate in 1960, and had made positive comments regarding Nixon's support of civil rights. Nixon himself had come out for civil rights in a television ad during the campaign.

In October 1960, King was jailed in Georgia on a probation violation for participating in a sit-in, At the urging of his advisers, JFK called King's pregnant wife to discuss helping King get out of jail. As a result, Kennedy secured the endorsement of King and highlighted his phone call, and Nixon's failure to make a similar call, in a pamphlet passed out at black churches the Sunday before the election. As a result of King's endorsement and Kennedy's exploiting of the phone call, hundreds of thousands of black votes that would have otherwise gone to Nixon went to Kennedy. Kennedy won the 1960 election by a razor thin margin. Almost assuredly King's last minute endorsement made the difference. Still, Nixon ended up with 32% of the black vote that election.

Kennedy's support of civil rights continued to be tepid at best after his election. It wasn't until the television coverage of water cannons and dogs being turned on peaceful black protesters that public opinion shifted in favor of intervention in the South. Then, and only then, did Kennedy start to assert himself on the issue. Still Kennedy's support of civil rights was more rhetoric than substance. It was Democrat President Lyndon Johnson and Republicans in the Congress who deserve the most credit for passing the 1964 Civil Rights Act and the 1965 Voting Rights Act. Republicans supported the measure by more than 80% (Democrats support was around 60%) and it was Republicans who helped stop a Democrat filibuster against the bills in the Senate.

Returning to the issue of the phone call, what if it had never been made? King probably would have continued with his neutral position on the election. Kennedy could not have used the issue the way he did to peel off a sizable percentage of the otherwise Republican black vote in the 1960 election. While most of the focus on the 1960 election is on likely vote fraud by Democrats in Chicago and Texas that cost Nixon the election, it is not a stretch to say that King's turning black vote in favor of Kennedy also led to Nixon's defeat.

If Nixon had won the 1960 election, he would have been the President facing down the Southern Governors and other elected officials, almost all of which were Democrats, who insisted on continuing the Jim Crow laws and violently putting down civil rights protests. Unlike Kennedy who was always concerned about losing the support of segregationists in his own party, it is unlikely Nixon would have been politically constrained from taking on those Southern Democrats, especially after the political climate had shifted in favor of civil rights. It is almost certain Nixon, who was considered a moderate in his party, would have joined the moe than 80% of his Republican Party who supported civil rights legislation in 1964 and 1965. If Nixon had won the 1960 election, historical events and political opportunities would have almost certainly credited him with advancing the civil rights of African-Americans, not Kennedy or Johnson.

But history was destined to be written differently. Kennedy did make the politically-calculated phone call. King endorsed Kennedy and Kennedy won the election. After Kennedy died, Lyndon Johnson then took up the by then popular cause of civil rights. In 1964, he faced one of the few Republican Senators who had opposed the 1964 Civil Rights Act, Barry Goldwater. Goldwater ran a racially-tinged campaign in which he talked about the danger of minorities taking over government. King strongly encouraged African-Americans to vote for Johnson which they did in record numbers. Black support for the Republican presidential nominee plummeted from 32% in 1960 to 6% in 1964. Goldwater only won his own state of Arizona and a handful of states in the Old Confederacy, the first time Republicans had ever won those states since Reconstruction immediately after the civil war.

In 1968, Nixon ran again. This time faced with a strong challenge from third-party segregationist, Alabama Governor George Wallace, Nixon used arguably racially-tinged rhetoric in an attempt to prevent Wallace from winning the south. While Wallace ended up prevailing in many of those old Confederacy states, Nixon won the election.

Since the Johnson-Goldwater election of 1964, Republican presidental candidates have never received more than 15% of the black vote. McCain's 4% support among African-American voters, is less than half of the black support Bush received in 2000 (9%) and 2004 (11%).

Today Democrats like to brag about being the party of civil rights. But in fact, were it not for a phone call that quite likely changed the results of the 1960 election, Richard Nixon and his Republican Party might well be viewed by African-Americans as the heroes of the civil rights movement.

See related posts:

Niece of Martin Luther King, Jr. Corrects the Democrats' Revisionist Civil Rights History (11/15/2008)

Democrats & Civil Rights: A Shameful Legacy (9/28/2008)

Saturday, November 15, 2008

Niece of Martin Luther King, Jr. Corrects the Democrats' Revisionist Civil Rights History

I found an an excellent article written by Dr. Alveda C. King, the niece of slain civil rights leader Martin Luther King, Jr. She does an excellent job of setting the historical story straight regarding what I call the greatest political spin ever...that the Democratic Party is the historical champion of the civil rights of African-Americans. Dr. King points out that her uncle, Martin Luther King, Jr., the greatest civil rights leader of all time, had been a Republican (a fact which when cited tends to send Democrats into convulsions) and that it was the Republican Party and not the Democratic Party, that led the charge on civil rights. Here is an excerpt from the article:

In light of the emergence of a black man as a presidential contender this election season, we might do well to take note that it is not the political party or the man, but the message that is imperative. In his “I Have a Dream” speech, my uncle, Dr. Martin Luther King, Jr., said: “I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.” Today, as enlightened, informed African-Americans living in America, we must demand that candidates represent our views — and always vote your values!

As a Republican, my goal is always to seek the will of God for good government, and then to demand accountability from all elected leaders. We are off track, seeking solutions from government, when we should be seeking the grace of God! A brief history lesson can reveal how we got to a place of looking to man instead of God for answers. In 1960, Senator John F. Kennedy defeated sitting Vice President Richard Nixon in the bid to become president.

The black vote swung the tide! My grandfather, Dr. Martin Luther King, Sr., or “Daddy King”, was a Republican and father of Dr. Martin Luther King, Jr. who was a Republican. Daddy King influenced a reported 100,000 black voters to cast previously Republican votes for Senator Kennedy even though Kennedy had voted against the 1957 Civil Rights Law. Mrs. King had appealed to Kennedy and Nixon to help her husband, and Nixon who had voted for the 1957 Civil Rights Law did not respond. At the urging of his advisors, Kennedy made a politically calculated phone call to Mrs. King, who was pregnant at the time, bringing the attention of the nation to Dr. King’s plight.

Moved by Mrs. King’s gratitude for Senator Kennedy’s intervention, Daddy King was very grateful to Senator Kennedy for his assistance in rescuing Dr. King, Jr. from a life threatening jail encounter. This experience led to a black exodus from the Republican Party. Thus, this one simple act of gratitude caused black America to quickly forget that the Republican Party was birthed in America as the antislavery party to end the scourge of slavery and combat the terror of racism and segregation. They quickly forgot that the Democratic Party was the party of the Ku Klux Klan. Banished from memory was the fact that the Democratic Party fought to keep blacks in slavery and in 1894 overturned the civil rights laws of the 1860’s that had been passed by Republicans, after the Republicans also amended the Constitution to grant blacks freedom, citizenship and the right to vote. Forgotten was the fact that it was the Republicans who started the HBCU’s and the NAACP to stop the Democrats from lynching blacks. Into the dust bin of history was tossed the fact that it was the Republicans led by Republican Senator Everett Dirksen who pushed to pass the civil rights laws in 1957, 1960, 1964, 1965 and 1968.

Removed from memory are the facts that it was Republican President Dwight Eisenhower who sent troops to Arkansas to desegregate schools, established the Civil Rights Commission in 1958, and appointed Chief Justice Earl Warren to the U.S. Supreme Court which resulted in the 1954 Brown v. Board of Education decision ending school segregation. Meanwhile Democrats in Congress were still fighting to prevent the passage of new civil rights laws that would overturn those discriminatory Black Codes and Jim Crow laws that had been enacted by Democrats in the South. There would have been no law for President Lyndon Johnson to sign in 1964 had it not been for the Republicans breaking the Democrats’ filibuster of the law and pushing to have that landmark legislation enacted.

No one batted an eye when President Kennedy opposed the 1963 March on Washington by Dr. King. Hardly a ripple of protest was uttered when President Kennedy, through his brother Attorney General Robert Kennedy, had Dr. King wiretapped and investigated on suspicion of being a Communist. Little attention was paid to the fact that it was a Democrat, Public Safety Commissioner Eugene “Bull” Conner, who in 1963 turned dogs and fire hoses on Dr. King and other civil rights protesters. No one noted that it was a Democrat, Georgia Governor Lester Maddox, who waved ax handles to stop blacks from patronizing his restaurant. Nor was heed paid to the fact that it was a Democrat, Alabama Governor George Wallace, who stood in front of the Alabama schoolhouse in 1963 and thundered: “Segregation now, segregation tomorrow, segregation forever.”

None of those racist Democrats became Republicans. During this time of turmoil, completely forgotten was the fact that it was Democrat Arkansas Governor Orville Faubus who in 1954 had blocked desegregation of a Little Rock public school. To their eternal shame, the chief opponents of the landmark 1964 Civil Rights Act were Democrats Senators Sam Ervin, Albert Gore, Sr. and Robert Byrd, a former Klansman. All of the racist Democrats that Dr. King was fighting remained Democrats until the day they died. How can anyone today think that Dr. King, my uncle, would have joined the party of the KKK?

There is a law of unexpected outcomes. Who could have predicted that the black exodus from the Republican Party to the Democratic Party in the 1960’s would have also ushered in decades of destruction which continue to plague our communities today? So what happened during those ensuring decades? Let’s review the saga that continues.

Read the rest of her article here.

See also: Democrats & Civil Rights: A Shameful Legacy (9/28/2008)

Friday, November 14, 2008

Applauding The Mayor's Tax Cut

It's on-line edition, the Indianapolis Star reported today that Mayor Ballard is proposing a slight tax increase next year.

I would agree with the Mayor's comments that the cut, albeit minor, is a move in the right direction. He deserves credit for, at least, cutting the unending increase of taxes under Mayor Peterson's leadership.

Let's hope that Mayor Ballard takes up the cause of the taxpayers he seemed to forget about during his first year. He needs to take on the corporate welfare culture that both Democrat and Republican mayoral administrations have supported at the cost of the taxpayers. Should Ballard choose to go in that populist direction (his only chance for re-election in a county that is 60-40 Democrat) that means better scrutiny of public-private partnerships and saying "No" to corporations like the Pacers who want to renegotiate their deal to get their hands on more taxpayer money. If the Mayor gets a handle on corporate welfare, he'll be able to in the future give tax breaks worth a lot more than $12.

As a side note, I assume Robert Vane is not on board to handle the media yet. No media person worth his salt would release a positive news story for his client on a Friday afternoon. Friday evening news broadcasts have some of the lowest viewership because many people go out on Friday evening. Further the story ends up in Saturday's newspaper, the least read newspaper of the week. It's the negative story you release on Friday afternoon, not the positive one.

Message to My Fellow Republicans: Taxpayer Money is Not a Slush Fund for Big Corporations

As the McCain folks continue trash Sarah Palin in an attempt to blame her for their own shortfalls and a loss preordained by history, some Republicans are beginning the serious business of re-evaluating the future of the GOP.

Clearly the philosophy of the Republican Party has gotten off track. As I have mentioned in these pages before, it would be unwise if the blame lands on the backs of social conservatives. Indeed it has been the support of social conservatives who kept the GOP and Bush alive, well after the party's pulse was barely beating.

I chuckle at those Republicans who idolize Barry Goldwater's economic conservatism and social liberalism as the model for the party. In 1964, Goldwater demonstrated that such a coalition is a definite minority when he lost in one of the worst landslides in presidential history. Let's not also forget that Goldwater, one of the few Republicans who voted against the Civil Rights of 1964, helped to continue drive away African-American voters from their historic support of the GOP. Goldwater is not this Republican's hero.

As I've pointed out here, the problem is not that Republicans lost majority support because it embraced social conservatism, but rather because the party lost the fiscal conservative voters who are the essential part of the Reagan coalition. Voters no longer see the GOP as the party of limited government and lower taxes. Republicans became the party of big government and lost fiscal conservatives in the process.

Once in power courtesy of the Reagan Revolution, Republicans set about using the tools of government to assist their supporters, big business. While in days of past, Republicans decried the Democrats for handing out government largess to the poor and working class, not coincidentally voters likely to vote for the Democrats, Republicans took taxpayer money and gave it to corporations. While the Democrats often are guilty of demagoguery, the charge that Republicans were for corporate welfare stuck, and rightfully so because it was true.

In days of past, Republicans fought for their business patron by standing for a competitive marketplace and lower taxes. Today's headlines are that the Republican Treasury Secretary is reconsidering which corporations are going to receive taxpayer bailout money. On its deathbed, the Reagan Revolution spends its remaining days picking which corporations will be rewarded for their failures with taxpayer money. Fortunately, Reagan, a true hero to Republicans, is not alive to see how far his heirs strayed from the principles for which he stood.

Today, corporate welfare takes many forms and exists as much on the local and state stage, as the national. As you drive around the city of Indianapolis, you see monuments built with taxpayer money to help corporate interests. Two of the most prominent on the city's skyline are the Lucas Oil Stadium and Conseco Fieldhouse. Those buildings built by so-called public-private partnerships are simply ways of channeling taxpayer money to big corporate interests. It is the new patronage. Rather than shake down low-paid government workers for part of their paycheck, politicians receive campaign contributions in exchange for sending taxpayer money to big corporations.

The cousin of public-private partnerships is privatization. Republicans in the 1980s and 1990s rightfully touted privatization on the very Republican principle of bringing market competition into the provision of public services. Then Republicans proceeded to forget those principles, privatizing services for which there were only one or two vendors able and willing to provide the service. Then, in orther to further protect their corporate patrons, government handed out long-term contracts to sheild those companies from competition. Worse yet, office-holders, undoubtedly blinded by the campaign contributions they received from these companies, fail to monitor the private company's compliance with the privatization contract.

As Republicans study the damage to their party and look to the future, we need to revisit the philosophical roots of the Reagan Revolution. Those roots were not about handing over taxpayer money to corporate patrons in a public-private partnership or privatization deal. The philosophy was about keeping taxes low and fighting for a competitive marketplace for business. If Republicans continue to treat taxpayer money as a slush fund for corporate interests, they will continue to suffer the consequences at the polls

Note: See related post on privatization, including my rules for doing it correctly.

Thursday, November 13, 2008

The Passing of Judge Charles Dieter

On the very day that my hero and mentor, Judge Paul H. Buchanan, Jr. was laid to eternal rests, comes news that Marion County Probate Judge Charles Dieter passed away of late-stage lung cancer, which is in itself a surprise since Judge Dieter was a non-smoker.

It's a sad day for the Marion County courts. While I was only in front of Judge Dieter only on a handful of occasions, I have had a number of cases that have gone through the Marion County Probate Court, which were handled by his court commissioners and other staff. Virtually every attorney talks about how well the Marion County Probate Court is run and how much of a pleasure it is to file cases in that court. The staff, from the commissioners to the bailiffs, to the clerks, are first rate, helpful, and pleasant to work with. We always joked that there must be something in the water over there because the probate court is not staffed with run of the mill government bureaucrats just going through the motions. Judge Dieter's staff are professionals who understand that their job is to serve the public.

More importantly, Judge Dieter's staff stays on top of every probate case. They expect to see inventories filed on time and properly done. They want estates wrapped up in a timely matter. If an estate stays open longer than normal, the executor or attorney would have to come to court to explain why.

Right now I represent an heir in a probate matter in an estate case in a county just outside of Marion. It was originally a several million dollar estate; now there is reportedly less than a million dollars left in the state. Of course, we wouldn't know since the Estate has been open for more than 3 years and the executor has never so much as required to file a proper inventory listing the value of decedent's property as of the time of death. Three of the four children of decedent's are heirs, while the fourth, himself a business man with intermingled business interests with the decedent, was named as the Executor. So, in short, the decedent put in charge of his several million dollar estate, the one child he stiffed on an inheritance. This should have spelled trouble from the outset. Yet the Executor wasn't required to post a bond and was originally allowed to open the estate unsupervised. The Executor has admitted in court documents misappropriating tens of thousands of estate assets for his own business. (Actually we believe the amount misappropriated has been hundreds of thousands if not more.) Yet the court, doesn't require him to file a proper inventory, won't let an accounting be done of the estate assets, and hasn't removed him despite his own admission he breached his fiduciary responsibilities. The heirs are left completely in the dark as the value of the estate continues to mysteriously decline more than three years after the decedent's death.

Whenever I tell attorneys this story, their response is that that never would have happened in the Marion County Probate Court. Marion County is blessed with a top-notch probate court that stays on tops of cases so that they are handled properly. That is a lasting tribute to Judge Charles Dieter. Thanks, Judge, for a job well done. We will miss you.

Wednesday, November 12, 2008

Will Changes in Daniels' Second Term Include the Public Access Counselor's Office?

One of the changes Governor Daniels' needs to make in his second term is to replace Public Access Counselor Heather Willis Neal.

There is nothing I believe in more than open records and open meetings. When government is permitted to operate in secrecy it is inevitable that fraud and corruption seep in. While our open records law in particular needs to be stronger, the Public Access Counselor's Office, which interprets that law and issues advisory opinions, will only be as good as the person heading it.

There is a very well understood approach to the government's handling of consumer complaints. You get the complaint and then forward it to the party for a response. Then once the response is received, it is forwarded to the original complainant for a rebuttal. That practice is standard just about everywhere and is the same approach employed by judicial courts.

Public Access Counselor Heather Willis Neal, however, does not take that approach. When she receives a consumer complaint about open records, she forwards it to the agency for a response. Then after receiving the response from the agency, she immediately writes her opinion ...without bothering to send the agency's response to the original complainant for rebuttal.

What happens if the agency's response contains factual errors? It doesn't matter to Ms. Neal. All "facts" suggested by the agency are assumed as true when she writes her opinion.

Earlier this year my law firm requested documents from the Indiana Department of Insurance pursuant to the Open Records Law. Months passed and the documents were not produced, many of which could have been produced in a matter of minutes. We finally filed a complaint with the Public Access Counselor's Office. Ms. Neal's office forwarded it to IDOI for a response. Next thing I know, we are receiving a decision from the Public Access Counselor's Office completely based on IDOI's answer to our complaint that we had never seen. When we finally obtained IDOI's answer from Ms. Neal's office (which response should have been served on us from the beginning by IDOI), we found that it was riddled with factual inaccuracies which Ms. Neal's office had simply assumed where true when she wrote the PAC's published opinion in favor of IDOI.

When we asked Ms. Neal's office about her failure to check out the accuracy of IDOI's facts by asking for a rebuttal, her response was that her office was simply "too busy" to send agency's responses to the complainants to get a rebuttal. So instead, she assumes that all the "facts" cited by agency are true. She did not care that her opinion was expressly based on the incorrect facts. She stubbornly refused to change her opinion even when we pointed out the repeated factual inaccuracies contained in that opinion.

Later, we asked for a contract the Marion County Sheriff had with a private correctional company. An Indianapolis Star reporter who asked for the same document received it via email within an hour or so. When weeks passed and the Sheriff's office still had not produced the document, we filed a complaint with the PAC. Again, Ms. Neal's office issued a published opinion based on an answer from the Sheriff's office we did not receive. Her opinion was that as long as the Sheriff produced the document within a month from the time of the original request, he was not in violation of Indiana's Open Record's Law. Of course, that's not the time frame for a response set out in the open records law which is 24 hours with an in person request and 7 days for one made in writing.

What a great message to send to our government agencies. You can ignore open records requests for as long as you want, and the Public Access Counselor will issue an opinion excusing the conduct. (In fact, with regard to IDOI, that agency had not even acknowledged two open records requests until we filed a complaint with the Public Access Counselor's Office.) While the legislature wrestles with giving the PAC 0ffice more authority, such an effort is meaningless without a stronger leader who is serious about the need for agencies to comply with the open records law.

Hopefully in his second term Governor Daniels will replace Heather Willis Neal with someone who believes in being a strong advocate for open government. Open government is good government.

Tuesday, November 11, 2008

Legislative Recommendation: Adoption of Voting Centers to Replace Antiquated Precinct Polling System

Linda Rhoton in today's Indianapolis Star pens an excellent letter to the editor discussing her conversation with poll workers about the fact that the polling place she voted at in Indianapolis lacked poll workers and the ones who staffed the polling place had to work all day without a break.

The comments reflect what I experienced working as a clerk at the polls. I thought Marion County reducing the numbers of precincts in order to reduce the number of polling places and workers needed was a strange approach to the labor shortage and would backfire in high turnout elections. Indeed the long lines at many polling places in Marion County was due as much to the increased size of the precincts than the higher turnout.

The answer to the problem in Marion County was not to increase the size of the precincts, but to scrap the precinct polling place all together and to go to fewer, larger voting centers where voters can vote anywhere in the county. The labor required to put on an election could be reduced dramatically and voters would have the convenience of voting at any voting center they choose. It could also improve the security of the ballot and better assure election rules are followed. I know it is not always the Republican way to make voting easier, but voting centers is an idea whose time has clearly come, not only for Marion County, but for all counties in Indiana. Let's hope the Indiana General Assembly makes it happen.

Secretary of State Todd Rokita's Chief of Staff Quits

The Indianapolis Star is reporting that Secretary of State Todd Rokita's Chief of Staff Matt Tusing has quit and suggests that it was a result of an email exchange he had with Kip Tew, a senior advisor to Obama's Indiana campaign.

Reading the excerpts from the emails published by the Star, it seems doubtful they were the reason for Tusing's resignation. It seemed like a pretty mild exchange between the two.

As I've noted on these pages before, many of my conservative friends encouraged me to support Todd Rokita's opponent at the State Convention when he first ran for Secretary of State. Supposedly he was not right on some conservative issues, which the Secretary of State has nothing to do with.

At the Title Insurance Division, I had interaction with the section of the Secretary of State's Office that regulates mortgage brokers. I was really impressed by the enthusiasm they approached their jobs. My only negative about the experience was that I thought their efforts were hampered by a lack of experience and understanding of what goes on in a real estate transaction, a problem that is perhaps inevitable with low salaries and high turnover. Nonetheless they were very eager to learn and worked well with my title insurance regulatory staff in joint efforts undertaken by our the two offices.

Likewise, I have been very impressed by the job Rokita's election division has done. When the Attorney General did not investigate voter fraud registration in Lake County, although clearly permitted to do so by the Indiana Code, Rokita took on the task himself and issued an opinion. Rokita has a strong understanding of election law and is at the forefront of one of my favorite election reforms, voting centers.

If Greg Zoeller, the Attorney General-elect, wants someone to emulate in office, it should not be his boss Steve Carter, but Todd Rokita. I like elected officials who understand the powers of their office and do not hesitate to exercise their powers or to take a position. Todd Rokita has done exactly that.

Monday, November 10, 2008

Why Republicans Should Celebrate Obama's Victory

It's a strange idea. Why should Republicans celebrate the election of a Democrat? In fact, Obama's election is the culmination of the very principles upon which the Republican Party was created, In 1854, the Republican Party was founded on the principles of anti-slavery and against the aristocracy that controlled the slave trade. Republicans believed that free market labor was superior to the slave trade and that a meritocracy was superior to the aristocracy which had repressed not only blacks but poor whites in the South.

In 1860, the Republican Party nominated Abraham Lincoln who went on to win the Presidency. To many people today, the Civil War that dominated Lincoln's Presidency was the Republicans' last battle for the civil rights of blacks citizens. Actually it was the first. For the next hundred years plus it was Republicans, not Democrats, who were on the front lines of the civil right battles. The 1964 Civil Rights Act and the 1965 Voting Rights Act garnered much more support among Republicans than Democrats in Congress. In fact, it was Republicans who by voting for cloture, helped break a Democrat-filibuster of the bills in the U.S. Senate.

If you look back at the leading segregationists of the 20th century, people like Richard Russell, James Eastland, Lester Maddox, George Wallace, they have one thing in common. They were Democrats. Those elected Mayors and elected Sheriffs in the south who turned loose vicious dogs and fire hoses on civil rights protesters? Yep, all Democrats.

Republicans lost a substantial amount of the African-American vote during the 1930s because of the popularity of the Democrats' New Deal program. In the aftermath of the 1970s, Republicans lost more black voters because of the "Southern Strategy" aimed at picking up southern conservatives disenchanted with the Democratic Party. A lot of Democrats claim that Republicans simply adopted the racist policies of the old Southern Democrats. But while the long-term effect of the Republican strategy may have been fool-hardy, the Republicans have certainly never supported anything remotely close to the legal segregation and Jim Crow laws Democrats supported in the South. You want to study real "voter suppression?" Go look at what the Democratic Party did to blacks in the states of the old Confederacy for nearly a hundred years after Reconstruction. There were whole counties in Mississippi that were majority black and barely had an African-American registered. Checking one's ID at the polls, as advocated by Republicans, is hardly comparable to poll taxes, literacy tests, and White Primaries, all policies advocated and adopted by Democrat-dominated legislatures during the 20th Century for the purpose of disenfranchising blacks.

What happened after the 1970s was that the Civil Rights Movement, having won the battle to knock down legal barriers and end discrimination in public accommodations, turned its attention to securing special benefits employing the argument that centuries of discrimination had left blacks in an inferior position best remedied by affording minorities special benefits. Republicans, who led the charge against legal discrimination and for equal treatment under the law, philosophically balked at programs that would not treat people equally regardless of skin color. Democrats, who are better at using the spoils of government to solicit and retain supporters, took over. What happened from there was masterful political spin by Democrats to portray the Republicans opposition to those measures as racist, when in fact it is the Democratic Party which has an atrocious civil rights history. You ask the average Joe citizen on the street which political party has a lengthy history of supporting legal discrimination and repressing the votes of blacks, and the answer almost invariably will be the Republican Party. It just ain't so, Joe.

Why should Republicans celebrate the election of Obama? Certainly not because of his liberal policies which are antithetical to what Republicans should stand for. Rather his election represents the ascendancy of the Republican principles of racial equality and meritocracy. The tree of equality planted by Republicans in 1854 will have finally borne fruit on January 20, 2009. Democrats do not realize it, but on that very day of Obama's inauguration, the Democrats' support among African-Americans will begin to decline. Obama's victory will help end a racial spoils system Democrats have played masterfully, albeit disingenously, to saddle Republicans with their atrocious racial baggage. The meritocracy is alive and well. Thank you Barack Obama.

See also: Democrats & Civil Rights: A Shameful Legacy (9/28/2008)