Tuesday, May 31, 2011

Is Indianapolis Mayoral Candidate Melina Kennedy Playing It Too Safe?

Over the holiday weekend, Indianapolis Star' Matthew Tully had a column on the Indianapolis Mayoral candidates' education agenda.  Basically Tully's analysis came down to this - while Melina Kennedy had proposed education plan lacking in substance, she is still ahead of Mayor Greg Ballard who does not have an education agenda.

Melina Kennedy
Tully is of course right that Ballard could be more aggressive in highlighting his plans for education reform, which failure I ascribe mostly to a bad campaign. The Mayor of Indianapolis, after all, is the only mayor in the country who can sponsor charter schools.   Add that fact to the bully pulpit position of the office and the dismal state of IPS which affects all things Indianapolis, the public has a right to expect that the mayoral candidates will have a position on education reform.
Tully in his column though was being too kind to Kennedy.  The fact that Mayor Ballard comes up short in articulating an education agenda surely does not excuse Kennedy's vague, non-descript education "plan." 

From watching Melina Kennedy's campaign performance thus far, I am reminded of those football teams that are sitting on a lead trying to run the clock out by running the ball up the middle every time.  In playing the mayoral political game, Kennedy seems to have employed the strategy of trying not to lose. 

Contrary to what some people think, Mayor Ballard is a relative long-shot to win re-election.  In 2010, a year Republicans won virtually everything in Indiana, Republicans were losing Marion County races by 10%.  It is unlikely that the turnout of 2007 will be repeated.  Also, Mayor Ballard does not have any popular issues to campaign on and has handed the Democrats a boatload of issues to use against him.  Ballard's plunge in the polls and 10% or so loss is virtually inevitable.

I have said the only thing that can stop Melina Kennedy from defeating Ballard is a felony.  That was a joke.   It would behoove the Kennedy camp to throw the ball once in awhile.

Friday, May 27, 2011

Supreme Court Upholds Arizona Immigration Law; Senator Delph is Vindicated

Yesterday the United States Supreme Court in Chamber of Commerce v. Whiting, found 5-3 that the Arizona immigration law was not prohibited by federal immigration legislation.  For all those critics who were certain the law was unconstitutional, Sen. Mike Delph, author of the Indiana immigration bill, has been vindicated. 

Ironically only the day before, the American Civil Liberties Union filed a  constitutional challenge to Sen. Delph's bill.  The Indiana Law Blog has links to the complaint as well as other documents related to that filing.

State Senator Mike Delph
Let me be the first to say I don't agree with Senator Mike Delph's immigration bill, especially as it was originally introduced.  I have enough experience with immigration law to know the system is horribly broken. While I am all for better enforcement of immigration laws, I believe any enforcement crackdown needs to be pursued within the context of comprehensive immigration reform.

Having said that, I did not agree with those opponents to Delph's bill who were absolutely certain that states were barred from passing laws on immigration.

The Constitution contains a list of matters that Congress can legislate on.  Most of those matters are outlined in Article I, Section 8, the so-called enumerated powers.  Any law passed by Congress is is supposed to relate to a specific power granted to the federal government by the Constitution..

State power works just the opposite.  Unless there is a provision in the U.S. (or state) Constitution, denying certain power to the state, the state can exercise that power and pass a law on the subject. 

If you sketch out these two concepts, you'll find an area where the federal and state governments have overlapping power.  In that area, states can still pass laws, but the validity of those laws is governed by the Supremacy Clause.  The issue of immigration falls within that area of overlapping powers.

In reviewing the impact of the Supremacy Clause, the first thing you look at is whether the federal government has "preempted" the area.  "Preemption" is a fancy word that means that the federal government has completely taken over the area and no state legislation on the subject will be allowed.  Preemption is determined by looking at the legislative intent of Congress as well as the pervasiveness of the regulation.  An example of an area that has been preempted by the federal government is the regulation of the airline industry.

Even if the federal government is not determined to "preempt" the area the state law still might not be valid.  The issue in this analysis is whether the specific state law conflicts with federal law on the same subject.

These are the issues the United States Supreme Court was wrestling with in Chamber of Commerce v. Whiting.  Those who were certain that it was a slam dunk issue, that only the federal government can legislate on immigration, well that was never the case at all.    One can question whether Delph's bill is good policy, but almost certainly, after Whiting, they can't say it is unconstitutional.

Thursday, May 26, 2011

Attorney General Greg Zoeller Argued for Expansive Barnes v. State Holding; Said the Only Thing Homeowner Should Be Able To Do Is Hold Door Against Unlawful Police Entry

Indiana Attorney General
Greg Zoeller
Attorney General Greg Zoeller has stated publicly that his office didn't ask for the Supreme Court's expansive ruling in Barnes v. State and has now asked for a rehearing to narrow it. Given Zoeller's track record of a lack of candor in public statements, I decided to go to the Clerk's Office and read the petition for transfer briefs myself.  It turns out my suspicion the Attorney General did ask for the broad ruling was right.

In the Attorney General's Petition to Transfer, Zoeller's Office asked that the Indiana supreme Court find that the right of a person to resist unlawful entry into one's home by a police officer be limited to holding the door shut against the attempts of the officer to open it.  According to the position enunciated by Deputy Attorney General Karl Schonberg, any touching of the officer to remove the officer from the home would be a battery and should not be considered "reasonable force."

The Attorney General cites the Court of Appeals case, Robinson v. State, 814 N.E.2d 704 (Ind. App. 2004), a case which seems to mix up the concept of resisting an unlawful entry and resisting arrest.  More importantly the case predates the 2006 "no retreat" amendments to IC 35-41-3-2.  That statute now says in pertient part:
(b) A person:

(1) is justified in using reasonable force, including deadly force, against another person; and

(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
Not only did the Attorney General's Office completely overlook that statute which is a defense to the charge of battery, so did the Vanderburgh County Public Defender's office.  In its Response, the Vanderburgh County pointed out that the issue of whether it was a "battery" or "reasonable force" is a jury question.
The Attorney General's Office either doesn't understand the law or doesn't care to.  That you are using "reasonable force" to repel an unlawful entry to one's home is a defense to a battery on a police office.  Interpreting the law so that battery is never "reasonable force" is to render the legal defense to battery meaningless.  Now that the Indiana General Assembly enshrined into the Indiana Code the legal principle that a homeowner can use "reasonable force" to protect himself from unlawful entry by (and there is no exception for police officers) into one's home, the Court can't simply read that statute out of the Code.  In this case though, the it appears the Indiana Supreme Court simply missed the statute.

Wednesday, May 25, 2011

Barnes v. State: Why the Constitution Doesn't Matter

Today I attended a rally at the Indiana Statehouse, a protest against the Indiana Supreme Court's opinion in Barnes v. State which held that "the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."

Most of the discussion at the protest rally centered on the importance of upholding the Constitution and how the decision rips apart the 4th Amendment while ignoring hundreds of years of precedent.  But in fact, the Constitution, as well as the case law discussed by the majority in the opinion, are irrelevant.

That the Constitution doesn't matter might come as a shock to those who attended the rally.  However, one of the most fundamental principles of federalism is that states are always free to give you more rights than what is provided by the Constitution.  In 2006, the Indiana General Assembly did passed Public Law 189-2006, the so-called "No Retreat" law.  Here is how that law is summarized on the Clark County Prosecutor's website:
P.L. 189-2006 amended the self-defense statute, IC 35-41-3-2, to make clear that a person has no duty to retreat before using force or deadly force...
IC 35-41-3-2(b) states:
A person:
(1) is justified in using reasonable force, including deadly force, against another person; and

(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
There is no exception in the law for police officers who do the unlawful entry.   With the adoption of the statute, it doesn't matter that the Constitution may not provide protection to the homeowner against the law enforcement officer entering the home unlawfully.  Again, states are always free to provide more legal protections than that mandated by the Constitution.  Unless the statute is contradicted by another statute or is somehow unconstitutional, then the statute would control.   The court appears to have completely missed IC 35-41-3-2(b) in its analysis in Barnes.

Governor Daniels was also confused by the Court's overlooking the no retreat law, i.e. IC 35-41-3-2(b).  The Indiana Law Journal reports:

Earlier today at Gov. Daniels’ media availability at IUPUI, reporters asked him for his thoughts about the recent Indiana Supreme Court decision regarding illegal entry. The governor said he was puzzled by the ruling.

To expand on that comment, David Pippen, the governor’s general counsel, said this afternoon the governor’s questions relate to the no retreat law the governor signed in 2006, which seems to be in conflict with the ruling and would trump the case law basis for the court’s determination. That statute was not raised during the course of the case. The no retreat law unequivocally strengthened the rights of Hoosiers to be secure in their homes, and the existence of the statute seems to provide ample reason for a rehearing.
Looking at the facts of the case, the police officers' entry seems perfectly justified under existing law.  There seemed to be no need to create new 4th Amendment law.  Nonetheless, the 4th Amendment doesn't matter once the Indiana General Assembly passes a law giving homeowners the right to prevent or terminate an unlawful entry.  I am not sure how the Court overlooked IC 35-41-3-2(b).

Tuesday, May 24, 2011

Another Bogus "Healthiest City" Report

The Indianapolis Star reports:
Minneapolis-St. Paul, blessed with abundant parkland, has banned smoking, increased its number of farmers' markets and spent several million dollars on preventing chronic diseases.

It's no wonder it rose to the top of a national "fit city" ranking, while the Indianapolis-Carmel metropolitan area slipped for the third year in a row.

The 10-county area dropped one position to 45th among the top 50 most populous U.S. areas in the American College of Sports Medicine's American Fitness Index. Last year, it tumbled to 44th, from 36th.

The area's ranking is low for many reasons: higher-than-average levels of smoking, physical inactivity, obesity, asthma, cardiovascular disease and poverty, and lower numbers of parks, playgrounds, recreation centers and people using public transportation or bicycling to work.
I wish the media would stop publishing these bogus listings which are always based on flawed  methodology.  Here they looked at such thing as amount of parkland, smoking ban (we have one already in Indy that covers 90% of businesses), number of farmers; markets and how much money is spent on certain programs,to conclude whether an entire metropolitan area is "fit." 

These listings are all about promoting more taxpayer spending on projects that the authors of the study deem important.  The listings are not about gauging the health of a community.  If they were doing that they'd do look at weight, blood pressure, life expectancies, diabetes and cancer rates, etc.  But hey are facts really important when you have a political agenda to support through bogus ratings that the media will always report without question?

Monday, May 23, 2011

Radio Host and Businessman Herman Cain, A Tea Party Favorite, Announces for the White House

Herman Cain. Ever heard of him?  Actually I had to look him up.  Here's some biographical information from his website:
I was raised in Atlanta, Georgia by loving and hardworking parents. We gew up poor, but we grew up happy. Things weren't always easy, but my mom and dad knew that if they kept their faith in God, faith in themselves and their faith in the greatest country in the world, they, too, could achieve their American Dream.
 That dream, we discovered, was for my parents to own their own home and watch their two sons graduate from college. Those dreams required that my father work three jobs to support our family.
The first dream was realized in a brick home on Albert Street. I can still recall the excitement of the day, as he surprised us—even my mother—when he drove us to our new home.
Radio Host Herman Cain
Their second dream was realized when I proudly accepted my degree in mathematics from Morehouse College in 1967 and my brother graduated from Morris Brown College. Both of my father’s American Dreams were achieved. Now, I set off to achieve mine.
One year after graduating, I married the love of my life, Gloria. And together, we started our journey to achieve our Dreams. This meant relocating to Indiana where I would begin my Master’s degree program at Purdue University, while working full-time as a mathematician at the Department of the Navy.
After earning my Master’s degree and six years working for the Department of the Navy, we returned home to Atlanta, where I began to climb the corporate ladder with the Coca-Cola Company. I faced challenges, but I always remembered the values my parents taught me. With enough faith and determination, I knew I could go as high in corporate America as I desired.

I enjoyed a successful career at the Coca-Cola Company and later moved to the Pillsbury Company. Within a short period, I rose to the position of Vice President. When I got there, I thought I had already achieved my American Dream on the 31st floor of the new Pillsbury Corporate Headquarters with a corner office. But I quickly realized I wanted something more.

I resigned my position and started on another path- the restaurant industry. I knew that in order to be successful, I had to start from “the ground up.” This meant broiling hamburgers at Pillsbury’s Burger King division. After nine months of a grueling restaurant experience, I was assigned to lead a low performing region of 450 Burger King restaurants. Within three years, we became the best-performing region in the U.S.

I could have been content with my executive role with one of America’s biggest corporations. Instead, after consulting with my wife, we decided to take one of the biggest risks of our marriage: picking up our young family, relocating yet again and accepting the call to become CEO and President of Godfather’s Pizza, a company teetering on the edge of bankruptcy.

In 14 months, we turned the company around and returned it to profitability, and I ultimately led my management team to a buyout of Godfather’s Pizza. The company never went bankrupt, and today, there are still hundreds of locations across the U.S.

My success at turning around Godfather’s got the attention of fellow restaurateurs around the nation who invited me to join the Board of Directors of the National Restaurant Association and later elected me its chairman. In 1996, they retained me as the full-time President and the CEO of the National Restaurant Association, working on behalf of thousands of small businesses and entrepreneurs.

In 1994, as chairman of the National Restaurant Association, I had the opportunity to speak with President Clinton during a nationally televised town hall meeting. Here, I challenged the President regarding the impact on businesses if his health care overhaul proposal were passed.

President Clinton attempted to assure me and the millions of viewers watching at home that his legislation would not harm American business owners and their employees.

I was skeptical. “Quite honestly Mr. President, your calculations are incorrect,” I said. “In the competitive marketplace, it simply doesn’t work that way.”

Through these and other appearances on behalf of the National Restaurant Association, I began working with business leaders across all sectors of the American economy. This led to my acceptance of a position on the Board of Directors of the Federal Reserve Bank of Kansas City, and I was subsequently elected their chairman.

Today, I host a radio talk show, “The Herman Cain Show,” on Atlanta’s WSB 750 AM/ 95.5 FM. I serve as a regular contributor on several broadcast networks and as a keynote speaker at conferences and events around the nation.
Despite the many professional commitments of my life, I continued to enjoy most the time spent with family and friends. As my children got married and had their own children, I knew that I had an extraordinary obligation to do what I could to make this a safe and prosperous nation for them. The paramount joys in my life are my wife, Gloria, our children and our grandchildren.

I am grateful for the many professional successes I have enjoyed. I am grateful for the steadfast loyalty and unwavering love of my family and friends. And I am grateful for this country that is so exceptional that I was afforded the opportunity to achieve my American Dreams.
What are Cain's views on the issues?   The businessman has produced a brochure titled "Common Sense Solutions" which outline his positions on a number of issues.  The brochure suggests that Cain is a small government, conservative Republican. Several publications refer to the African-American Cain as a favorite of the tea party crowd, which seems contrary to the left's bogus attempt to paint the tea partiers as a bunch of white racists sans only the white robes and burning cross.

While Cain is an impressive speaker and I like his stand on virtually every issue, I am always skeptical when a political novice seeks in his first outing high elective office.  I am also skeptical when people suggest that being a business executive provides a great background for elected office.  While understanding business is important for a politician, the political game is completely different from the world of business. The skill set which lets one succeed in business is not the the same skill set a successful politician needs.

Politics is the only job where you tout your inexperience as a qualification for the position.  But political experience can be critical to the success of an elected official.  Indianapolis knows all too well the dangers of electing a political novice to the mayor's office.  To this day, Greg Ballard seems completely oblivous to the fact he's surrounded by sharks who are simply using his position of power to enrich themslves and their friends.

I like what I've read and seen about Herman Cain. But President of the United States as his first elected office?  Uh, no.

Sunday, May 22, 2011

Governor Daniels Chooses Not to Force His Family to Relive the Past, Opts Out of Presidential Race

By now virtually everyone has seen the news that Governor Mitch Daniels has decided not to run for President.  While I wouldn't have been surprised by this decision in January when I thought there was about a 15% chance he'd run, the last several months have all pointed to a Daniels' candidacy.  This past week, I was about 70% sure he'd run.

Often when politicians claim to opt out of a race because of family reasons, "family" is merely an excuse. With Daniels though I believe him.  Everyone downplayed the issue here in Indiana, but the fact is Cheri Daniels' decision to leave the marriage and four daughters behind to marry someone else and move to California in the 1990s. was an issue that would have become front and center should the Governor decided to run for President.

Contrary to the claims by some that the "far right" would not like the divorce and remarriage part of the story, religious conservatives would love the reconciliation and celebrate it as emblematic of family values.  The story unfortunately is more involved than that.  Cheri Daniels' decision to leave behind her young daughters in Indiana to move to California and marry another man, created a political problem.  It wouldn't have been a problem just with conservative voters, but with voters of all political stripes, and especially with mothers who would never forgive her leaving her young daughters behind.  On the presidential campaign trail, Cheri Daniels and the four (now) adult daughters would be asked repeatedly about what happened.  The questions were not going to go away.

Governor Daniels could have put his political ambition first and expose Cheri and their children to constantly reliving a painful episode from the past.  Instead Daniels chose to protect his family, putting their interests ahead of his own.  In a day and age of selfish male politicians having affairs at the drop of the hat, Daniels' dedication to his family is a breath of fresh air.

Friday, May 20, 2011

The Indiana Tech School of Law: Would the For Profit School Be Accredited by the American Bar Association?; Again, When is the Indiana State Bar Association Going to Weigh In?

A friend of mine, more knowledgeable than me about the subject, expressed doubts that an Indiana Tech Law School would be accredited by the American Bar Association. Without ABA accreditation, graduates of the Indiana Tech School of Law couldn't sit for the Indiana Bar exam.

I found this in an article from he Fort Wayne Journal-Gazette from February:
The American Bar Association has a rigorous accreditation process, McNamara said, and if a law school can successfully attain that, it would be worthwhile to the community.

The American Bar Association does not accredit many for-profit law schools, and no correspondence or online law schools are accredited. To get through that process, he said, requires a school to be up to the task of educating men and women to practice law.
Indiana Tech is a for-profit school, unlike the other state's universities which have law schools: Indiana University (campus in Bloomington and Indianapolis), Notre Dame and Valparaiso.  Indiana Tech focuses on business and engineering but now wants to get into the more profitable business of educating future unemployed and underemployed lawyers.  The school says its tuition will be $28,500 per student.

Indiana Tech says that its first class will be in 2013.  The school won't be accredited by then and may never get accreditation since the ABA doesn't like to accredit for-profit schools.

This is all about a for profit school taking advantage of naive young men and women who think a legal education is going to be the ticket to a high-paying job.  It is time that the Indiana State Bar Association get off its rear and take a stand on the need for this fifth law school in light of the saturation of attorneys in the job market.

Indiana Supreme Court Refuses to Accept Charlie White Appeal

Indiana Secretary of State
Charlie White
When Charlie White's counsel filed to appeal Marion County Superior Court Judge Louis Rosenberg's decision sending the case back to the Election Commission for a decision on the merits, I wasn't quite sure how they were taking the appeal since there had been no final judgment.  Without a final judgment, you have to follow the interlocutory appeal rules which require getting permission of the trial and appellate court to take the appeal.

In an opinion today, the Indiana Supreme Court today jurisdiction of the appeal and dismissed it for the reason noted above - no final judgment.  The Court also opined that it would be unlikely it would consider a discretionary interlocutory appeal:
To the extent the trial court might certify its orders of April 7 and May 2, 2011, for discretionary interlocutory appeal in the future pursuant to Appellate Rule 14(B)(1), this Court retains jurisdiction to consider whether to permit such an appeal under Appellate Rule 14(B)(2).  However, this Court would be disinclined to accept such a discretionary interlocutory appeal in light of the benefits to be obtained by prompt resolution of all of the matters now pending.
While I believe the Republicans are right about the merits of the case, I applaud the Court's decision.  I have said for awhile that the appellate courts are taking far too many discretionary interlocutory appeals.   Whenever litigants get a bad preliminary ruling from a trial judge, there is the increasing tendency to run off to the appellate courts and ask for relief.  Permissive interlocutory appeals should rarely be permitted and only under such circumstances that the litigants face some sort of irreparable harm from the trial court's preliminary decision. The trial and appellate courts (you need the approval of both to take an interlocutory appeal) should let the record be fully developed and not constantly second-guess the decisions of trial judges.   My only wish is that the Supreme Court would have used the White case to provide more guidance to trial and appellate courts when considering whether to grant a permissive interlocutory appeal.

Thursday, May 19, 2011

Barnes v. State Exposes the Division Between Law-and-Order Conservatives and Libertarian Conservatives; A Test for Determining the Difference

Barnes v. State, which holds that there is no longer a right for a homeowner to resist an unlawful police entry into the person's home, has exposed a deep division among conservatives.  First, there are the law-and-order conservatives. Those conservatives emphasize security and believe that giving law enforcement officials more authority and discretion makes the world a safer place.  Second, you have libertarian conservatives, those who emphasize liberty and believe that giving law enforcement more authority and discretion leads to the abuse of that authority.

I definitely fall into the latter.  I believe in the quote often attributed,m correctly or incorrectly, to Benjamin Franklin:  "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety."

If you want to figure out which camp of conservatives you fall into ask yourself the following questions:
1.  Do you believe that a homeowner should have the right to reasonably resist an unlawful police entry into the person's home?

2.  Do you believe that sobriety or drug checkpoints should be permitted giving police officers the right to stop cars without probable cause?

3.  Do you think police officers should be permitted to pull someone over for allegedly not wearing a seat belt?

4.  Do you think there should be criminal public intoxication laws that let police officers  arrest a person simply based solely on the officers' observation that the person is intoxicated while in a public place?

5.  Do you think police officers should be able to seize property which they suspect has been used in a crime even though the owners of the property are never charged with a crime?

6.  For those of you who know about the case, do you think Fred Sanders had the right to defend himself and his home when Matt Faber and another officer proceeded to knock in the door of his apartment when Sanders refused to talk to them?  (If you don't know the case, you can discard this question.)
The Libertarian Conservative answers are as follows:  Yes, No, No, No, No, Yes.  Libertarian Conservatives will almost always answer as I outlined.  Law-and-Order Conservatives might hedge on one or two at the most.

Finally, I would point out there are Law-and-Order Liberals and Libertarian Liberals.  One would think liberals would be more libertarian on the above issues, but I'm not sure that's true at all.  Some of the biggest defenders of giving law enforcement officials more power are liberal Democrats.

IMPD to Set Up Checkpoints to Crack Down on Seat Belt Crime

Fox 59 reports that Marion County law enforcement officers will be conducting seat belt and car seat check points over the next several weekends:
Indianapolis— It's that time of year again. You better buckle up behind the wheel because police officers will be watching. The annual "Click It Or Ticket" campaign kicked off Thursday. More than 260 state and local law enforcement agencies are taking part in the program. As a result, drivers can expect to see many more police officers patrolling Indiana's roadways, looking for people breaking the state's seatbelt enforcement law.
Really?  So in the aftermath of Barnes v. State, this is a good time to set up checkpoints so police can stop cars to see if people are wearing their seat belts?   It is time that people stand up and say "enough is enough."

Barnes v. State: Time for Attorney General Greg Zoeller to Stand Up for Citizens of Indiana and Their Right to Resist Unlawful Police Entries

Indiana Attorney General
Greg Zoeller
With the exception of some law enforcement officials, virtually everyone else in the state is unhappy with the Barnes v. State in which the Indiana Supreme Court held that "In sum, we hold ... that the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."  While I haven't seen the briefs, it seems possible that the Court went beyond what the Attorney General's Office  requesting.  One would hope that Attorney General Greg Zoeller's office wasn't asking that this historic right that citizens have be tossed aside.  

Apparently when asked about the case, Attorney General Greg Zoeller has refused to comment.  It is time for Attorney General Greg Zoeller to step forward and tell the public whether he believes that citizens should have the right to defend themselves and their homes from unlawful police entries.  After all, Zoeller could opt to join with the Defendant and ask for a rehearing and that the case on much narrower grounds.  My bet is that Zoeller will not. Whenever Greg Zoeller has been given the chance to reign in law enforcement absues, he has chosen instead to look the other way.  In the case of civil forfeiture, he even went so far as to write an obviously erroneous legal opinion to justify the law breaking by law enforcement officials, an opinion which contains reasoning that no one, including the Supreme Court, buys.

The public should be demanding that Attorney General Greg Zoeller answer the question whether he believes citizens have the right to defend themselves and their homes from unlawful police entries.   Attorney General Zoeller should not be permitted to say "no comment" to the public while having his attorneys, funded by our tax dollars, fighting to take rights away from the public.

Wednesday, May 18, 2011

Number of People Believing in Global Warming Has Declined Dramatically in the Past Three Years; Can Any Republican Presidential Candidate Pass This Litmus Test Issue?

Over the last few years, there has been a dramatic shift in public opinion as to the global warming issue.   According to Pew Research Center, in 2006 79% of Americans believed there was solid evidence of global warming and 50% said it was caused mostly by human activity. By the 2010, a Pew Report poll showed those numbers were down to 59% and 34%.

The public opinion shift is even more dramatic among Republicans. In 2007, 62% of Republicans believed there was solid evidence of global warming.  Just three years later, only 38% of Republicans believed there was solid evidence of global warming and only 16% said that the warming is due to human activity.

The dilemma for the field of Republican candidates is that virtually all of them signed on board with the global warming agenda, such as Cap-and-Trade, before public opinion turned.

The Atlantic reports:
Nowadays, you'd be hard pressed to find a Republican who supports the policy, after conservatives railed for two years against "cap-and-tax" as a job-killing government overreach. Backlash against the policy helped Republicans take over the House in November, after House Democrats passed Rep. Henry Waxman's (D-Calif.) cap-and-trade bill in June 2009 over resistance from the GOP minority. Republican candidates campaigned against cap-and-trade en masse in 2010, and it worked out in their favor.

After all that, Republican White House hopefuls have revised their previously held energy stances.

Former Minnesota governor Tim Pawlenty supported cap-and-trade in 2007 but has since urged Congress to reject it. He won plaudits from RedState's Erick Erickson for apologizing for his prior cap-and-trade support in the first Republican presidential debate, held last week in South Carolina.

Mitt Romney has incorporated President Obama's support for cap-and-trade into fundraising pitches, but in 2005 Romney supported an early emissions-capping system -- a regional agreement that would require Northeastern states to cut power-plant emissions by 2020.
Politifact deemed Sarah Palin to have flip-flopped on cap-and-trade, but it's a bit more complicated -- she began to supported it as McCain's runningmate. VP candidates generally adopt the presidential candidate's platform when tapped to join a ticket, though Palin continued to differ with McCain on other matters.

Newt Gingrich, meanwhile, told Frontline in 2007 that "I think if you have mandatory carbon caps combined with a trading system, much like we did with sulfur, and if you have a tax-incentive program for investing in the solutions, that there's a package there that's very, very good. And frankly, it's something I would strongly support." And he cut a TV ad with then-speaker Nancy Pelosi in 2008 calling for action on climate change. Since then, he's campaigned against it.

Des this mean none of these candidates can win the 2012 Republican presidential nomination?

Indiana Governor Mitch Daniels
Probably not, and for this simple reason: There's no one around to criticize them. Cap-and-trade flip-flops could pave the way for a second-tier candidate like Herman Cain or former senator Rick Santorum (R-Pa.), but, with so much of the top tier having held the same stances just a few years ago, climate flip-flops are actually the norm in the Republican field. None of these candidates risks getting hammered on cap-and-trade by a gang of substantial and threatening rivals, because no such gang exists.
But what about our very own possible presidential candidate, Governor Mitch Daniels?  Could he take advantage of a Republican presidential candidates weighed down by climate change opinions that have now found disfavor with the public and especially the Republican electorate.

Well fortunately for Daniels, he was ahead of the curve on cap-and-trade.  On March 15, 2009, a column appeared in the Wall Street Journal in which he criticized the bill.  Here are some snippets from the essay:
This week Congress is set to release the details of the Waxman-Markey American Clean Energy and Security Act, a bill that purports to combat global warming by setting strict limits on carbon emissions. I'm not a candidate for any office -- now or ever again -- and I've approached the "climate change" debate with an open-mind. But it's clear to me that the nation, and in particular Indiana, my home state, will be terribly disserved by this cap-and-trade policy on the verge of passage in the House.
The largest scientific and economic questions are being addressed by others, so I will confine myself to reporting about how all this looks from the receiving end of the taxes, restrictions and mandates Congress is now proposing.
The Waxman-Markey legislation would more than double electricity bills in Indiana. Years of reform in taxation, regulation and infrastructure-building would be largely erased at a stroke. In recent years, Indiana has led the nation in capturing international investment, repatriating dollars spent on foreign goods or oil and employing Americans with them. Waxman-Markey seems designed to reverse that flow. "Closed: Gone to China" signs would cover Indiana's stores and factories.
And for what? No honest estimate pretends to suggest that a U.S. cap-and-trade regime will move the world's thermometer by so much as a tenth of a degree a half century from now. My fellow citizens are being ordered to accept impoverishment for a policy that won't save a single polar bear.
No one in Indiana is arguing for the status quo: Hoosiers have been eager to pursue a new energy future. We rocketed from nowhere to national leadership in biofuels production in the last four years. We were the No. 1 state in the growth of wind power in 2008. And we have embarked on an aggressive energy-conservation program, indubitably the most cost-effective means of limiting CO2.

Most importantly, we are out to be the world leader in making clean coal -- including the potential for carbon capture and sequestration. The world's first commercial-scale clean coal power plant is under construction in our state, and the first modern coal-to-natural gas plant is coming right behind it. We eagerly accept the responsibility to develop alternatives to the punitive, inequitable taxation of cap and trade.

Our president has commendably committed himself to "government that works." But his imperial climate-change policy is government that cannot work, and we humble colonials out here in the provinces have no choice but to petition for relief from the Crown's impositions.
However, Governor Daniels position on global warming might not be as popular as one might believe from the Wall Street Journal article.  According to a March 18, 2011 article in American Thinker entitled "The Case Against Mitch Daniels," the conservative magazine cited as a a reason to not support Daniels for President is that he "believes in anthropogenic [man-made] global warming and that humanity needs to act urgently to stop it."  The source for this conclusion is not clear as it is not sourced.

The reason so many Republicans elected officials are caught on the wrong side of this issue is nothing more than intellectual peer pressure.  For years, we heard the mantra....that all the smart scientists had gotten together and all agreed that the Earth was dramatically warming and we needed to take dramatic action or the Earth would face a calamity.  Anyone who questioned this "scientific consensus" was labeled as ignorant.  You weren't even allowed to debate the issue because we were told the debate was over.  Quite frankly, smart guys like Newt Gingrich, Tim Pawlenty, Mitt Romney, Mike Huckabee and perhaps Mitch Daniels, probably accepted the global warming theory as fact, because they did not want their intellect questioned.

Now though several scientists have publicly challenged the global warming theory.  Supporters of the theory were caught discussing how to frame and edit the scientific evidence to support their political agenda in emails. Public opinion has dramatically shifted.  Now the political intelligentsia, at least those wearing Republican stripes, find themselves on the wrong side of the issue.  Global warming is heading to the scrap heap of history to join that other scary theory I remember growing up, global cooling.  The political debate is over.  You lost, Al Gore.

Barnes v. State: Dissenters Are Correct that Court Goes Too Far in Tossing Out the Right of a Homeowner to Resist Unlawful Entry by a Police Officer; Did Court Completely Miss IC 35-41-3-2?

I've been tied up with work the last few days and had not had a chance to review Barnes v. State.  Now having had the chance to read it, I definitely have a view about the case.

One of the principles of crafting judicial opinions that I learned clerking at the Indiana Court of Appeals is that you decide cases by the least means possible.  In other words, instead of creating some new legal principle which overturns hundreds of years of precedent, you first try to decide the case by looking at the facts involved, relevant state law statutes, etc.  Here the dissenters criticize the majority for overreaching to create a precedent on an issue which apparently the State had not even advocated.

Justice Steven David wrote
the Barnes v. State opinion
First, let's look at the holding in the case:   "In sum, we hold that Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law."

The majority in its analysis opines that the 4th Amendment case law no longer support the right to resist unlawful entries and that the centuries old common law right to resist unlawful entry should no longer exist due to policy reasons and the evolution of society in protecting rights of those who are arrested.  While I don't necessarily agree with that, what about about IC 35-41-3-2, a statute that is never discussed in the Court's opinion?  It says in pertinent part:
(a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:

(1) is justified in using deadly force; and
(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

(b) A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;

if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.

(c) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:

(1) is justified in using deadly force; and
(2) does not have a duty to retreat;

only if that force is justified under subsection (a).
(e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:

(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
(3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.
The above statute enshrines into our law the common law principle that you have the right to defend yourself and your house from unlawful entry.  There is no exception in the statute for police officers who might be doing the unlawful entering.   Unless there is a conflicting statute or the statute is somehow unconstitutional, that statute would apply and the Court is wrong in holding as it did. 

As I said previously, if the facts of the case lend itself to disposition there is no need for the Court to go forward and make sweeping declaration of new law.   Let's look at the facts as outlined in the Court's opinion:
On November 18, 2007, Richard Barnes argued with his wife Mary Barnes as he was moving out of their apartment. During the argument, Mary tried to call her sister but Barnes grabbed the phone from her hand and threw it against the wall. Mary called 911 from her cell phone and informed the dispatcher that Barnes was throwing things around the apartment but that he had not struck her. The 911 dispatch went out as a ―domestic violence in progress.

Officer Lenny Reed, the first responder, saw a man leaving an apartment with a bag and began questioning him in the parking lot. Upon identifying the man as Barnes, Reed informed him that officers were responding to a 911 call. Barnes responded that he was getting his things and leaving and that Reed was not needed. Barnes had raised his voice and yelled at Reed, prompting stares from others outside and several warnings from Reed.

Officer Jason Henry arrived on the scene and observed that Barnes was ―very agitated and was yelling.‖ Barnes ―continued to yell, loudly‖ and did not lower his voice until Reed warned that he would be arrested for disorderly conduct. Barnes retorted, ―if you lock me up for Disorderly Conduct, you‘re going to be sitting right next to me in a jail cell.‖ Mary came onto the parking lot, threw a black duffle bag in Barnes‘s direction, told him to take the rest of his stuff, and returned to the apartment. Reed and Henry followed Barnes back to the apartment. Mary entered the apartment, followed by Barnes, who then turned around and blocked the doorway. Barnes told the officers that they could not enter the apartment and denied Reed‘s requests to enter and investigate. Mary did not explicitly invite the officers in, but she told Barnes several times, ―don‘t do this and ―just let them in.‖ Reed attempted to enter the apartment, and Barnes shoved him against the wall. A struggle ensued, and the officers used a choke hold and a taser to subdue and arrest Barnes. Barnes suffered an adverse reaction to the taser and was taken to the hospital.
Unlike the infamous case involving Fred Sanders, there is nothing in the Barnes facts that suggest the police officers did anything wrong in entering the Barnes house.  They had no way of knowing if Mary had been threatened or would be harmed. They had every right under current law to continue their investigation into the family's apartment and Barnes had no right block their entry.  There was no need for the Supreme Court to address the issue it did, overturning hundreds of years of common law while ignoring the Indiana legislature's decision to enshrine that common law into the code of the State of Indiana in 1976.

The two dissenters, Justices Dickson and Rucker (Republican and Democrat if you're scoring at home) agree that the Court unnecessarily went too far.  Here's part of the Dickson dissent:
In my view, the wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad. The case before us involves police action in response to a report of domestic violence in progress. Such events present a heightened urgency for police presence for the protection of the dwelling's occupants and to diffuse enraged emotions and animosity. It would have been preferable, in my view, for the Court today to have taken a more narrow approach, construing the right to resist unlawful police entry, which extends only to reasonable resistance, by deeming unreasonable a person's resistance to police entry in the course of investigating reports of domestic violence. Such a formulation would have been more appropriate for the facts presented and more consistent with principles of judicial restraint. Such a more cautious revision of the common law would have, in cases not involving domestic violence, left in place the historic right of people to reasonably resist unlawful police entry into their dwellings.
Here is a portion of Justice Rucker's take:
But the common law rule supporting a citizen‘s right to resist unlawful entry into her home rests on a very different ground, namely, the Fourth Amendment to the United States Constitution. Indeed, ―the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.‖ Payton v. New York, 445 U.S. 573, 585 (1980). In my view it is breathtaking that the majority deems it appropriate or even necessary to erode this constitutional protection based on a rationale addressing much different policy considerations. There is simply no reason to abrogate the common law right of a citizen to resist the unlawful police entry into his or her home.
What Justice Rucker is saying is that the common law right to resist unlawful police entry springs from the 4th Amendment, while the majority treats the common law and 4th Amendment case law as being separate.  Nonetheless, both Justices Dickson and Rucker agree that majority is overreaching, creating a new legal precedent where one is not necessary.

I agree with the dissenters.  The Barnes case appears to be good old fashioned judicial activism.  I can't say "conservative" judicial activism, because there are just as many conservatives as liberals, if not more, who decry the Court's intrusion on the right of homeowners to protect themselves and their property from unlawful police entry.  Rather this is pro-police judicial activism.  The majority goes out of its way to reach a holding that is completely unnecessary from the facts. The holding also appears to have overlooked a statute which would appears to directly contradict the Court's holding.  Again, there is no exception in that statute for police officers.  It appears to have been adopted by the General Assembly for the purpose of putting into the Indiana Code a long-standing common law principle that the Court has now thrown out with Barnes v. State.

Tuesday, May 17, 2011

Credit Where Credit is Due: Mayor Greg Ballard and Council President Ryan Vaughn Propose Ordinance to End Predatory Towing

Indianapolis Mayor Greg Ballard
About 1 1/2 years ago, I began discussing predatory towing in this city.  Eventually others picked up the topic, including Fox59, WTHR and WRTV.  All did excellent investigations on a problem that was growing increasingly worse.  Unfortunately the only state law on the subject - that vehicles must be tagged for 24 hours before they are considered "abandoned" and can be towed (with a couple exceptions), was routinely ignored.  We needed local ordinances to clarify the state law and provide more protection for vehicle owners.  Into that void Indianapolis Mayor Greg Ballard and Council President Ryan Vaughn stepped and made what appears to be a very sensible proposal.  Here are the highlights according to Fox59:
  • Cap towing fees for passenger vehicles at $150.
  • Cap storage fees at $30 per day
  • Require detailed receipts listing all charges
  • Prohibit payments from tow operators to property owners/lot managers per vehicle towed
  • Signs listing lot hours and vehicle redemption information must be approved by the City
  • Vehicles must be towed directly to secure storage lot inside Marion County, unless within 10 miles of pick up
  • Motorists must be able to claim their vehicle 24 hours per day, seven days a week
  • Towing operators and their storage lots must accept cash or credit cards
    Council President
    Ryan Vaughn
  • Representative of property owner, not affiliated with the tow company, must sign tow order for each vehicle prior to towing
These are good ideas.  There might be a problem with  the 24/7 pickup for small towing companies that aren't able to staff 24/7.  I've also heard that the credit card option is a problem as well.  People often  challenge credit card charges for towing companies doing non-consensual tows.

Instead of just the $150 cap on non-consensual tows, I would put in a provision in saying that towing companies cannot charge more for a nonconsensual tow than they charge for a consensual tow.  The ordinance also needs to address charges for mileage and other add-ons that inflate towing bill.   This proposed ordinance though appears to be an excellent start.

For some time, I've criticized Mayor Ballard and Councilor Vaughn for putting the wishes of establishment insiders ahead of what is best for the people.  I wanted them to take a more populist approach to their positions, proposing measures that put the people first ahead of those special interests.  In a county that's only 45% Republican, that was the only way the Mayor could have been re-elected.  Now 3 1/2 years into the Mayor's term, he appears to finally have gotten the message.  While it is too little and too late to save his re-election, both the Mayor and Councilor Vaughn deserve credit for doing the right thing.

It's Time for State's Judges to Enforce Civil Forfeiture Law By Demanding a Case-By-Case Calculation of Law Enforcement Costs With Rest Going to Common School Fund

In today's paper, the Indianapolis Star has an editorial pointing out the need for there to be changes to clarify the civil forfeiture law.  This is one area where I've always disagreed with the Star.  The problem is not so much that the civil forfeiture law is "vague" as it simply not followed by the county prosecutors and law enforcement officials.  More importantly though the problem is that the state's trial court judges are not enforcing the existing law. 

Let's go back to Saturday's Indianapolis  Star and examine comments made by two individuals involved in forfeiture, Tom Michalek chief financial officer of the Department of Public Safety and Chris Gambill a private attorney who does civil forfeiture on a contract basis with several county prosecutors.  Here's the article in part:
Marion County forfeiture funds make up only a little over 1 percent of Marion County law enforcement costs, but they pay for the majority of the Metro Drug Task Force, which runs on about a million dollars per year, said Tom Michalak chief financial officer for the city of Indianapolis' Department of Public Safety.

"The Marion County taxpayer doesn't pay for (the Metro Drug Task Force)," Michalak said. "The Marion County criminal pays for them."

The budget of the Marion County prosecutor's office anticipates receiving $300,000 in forfeiture funds this year -- and not receiving those funds will make it more difficult for the agency to do its job, Prosecutor Terry Curry said last month.

For now, Michalak said, Indianapolis won't change its practice of putting the money toward law enforcement. And Chris Gambill, an attorney who handles forfeitures for several Indiana counties on a contract basis, noted that the Supreme Court opinion was nonbinding and said he would want stronger legal guidance before he would encourage his clients to part with their seized asset money.
Michalek and Gambill both seem to believe that THEY get to decide how much money is kept by law enforcement as "costs of law enforcement" under Indiana's civil forfeiture law.   Wrong.  Under the law,  judges are supposed to be making the determination of law enforcement costs, not law enforcement officials.  Let's examine the relevant statutes:
First, a civil forfeiture action is only authorized for the recovery of law enforcement costs:
IC 34-24-1-3(a) The prosecuting attorney for the county in which the seizure occurs may, within ninety (90) days after receiving written notice from the owner demanding return of the seized property or within one hundred eighty (180) days after the property is seized, whichever occurs first, cause an action for reimbursement of law enforcement costs and forfeiture to be brought by filing a complaint in the circuit, superior, or county court in the jurisdiction where the seizure occurred...
Another statute details the procedure, including that judges are supposed to make a determination of law enforcement costs, language that certainly seems to require that the county prosecutor produce evidence of the costs involved it the action:
IC 34-24-1-4(d) If the court enters judgment in favor of the state, or the state and a unit (if appropriate), the court shall, subject to section 5 of this chapter:

(1) determine the amount of law enforcement costs; and

(2) order that:

(A) the property, if it is not money or real property, be sold under section 6 of this chapter, by the sheriff of the county in which the property was seized, and if the property is a vehicle, this sale must occur after any period of use specified in subsection (c);

(B) the property, if it is real property, be sold in the same manner as real property is sold on execution under IC 34-55-6;

(C) the proceeds of the sale or the money be:

(i) deposited in the general fund of the state, or the unit that employed the law enforcement officers that seized the property; or

(ii) deposited in the general fund of a unit if the property was seized by a local law enforcement agency of the unit for an offense, an attempted offense, or a conspiracy to commit an offense under IC 35-47 as part of or in furtherance of an act of terrorism; and

(D) any excess in value of the proceeds or the money over the law enforcement costs be forfeited and transferred to the treasurer of state for deposit in the common school fund.
In Marion County, officials are not required to put forth any evidence of law enforcement costs.  Instead they disingenuously claim that law enforcement costs refer to ALL law enforcement costs in the county and unless civil forfeiture covers all those costs (it currently is about 1%) then the county doesn't have to pay anything to the Common School Fund.

Wrong.  In 1998, he Indiana legislature passed IC 34-6-2-73 to make clear that "law enforcement costs" are to be calculated on a case-by-case basis, not how Marion County does it.
IC 34-6-2-73 "Law enforcement costs", for purposes of IC 34-24-1, means:

(1) expenses incurred by the law enforcement agency that makes a seizure under IC 34-24-1 (or IC 34-4-30.1 before its repeal) for the criminal investigation associated with the seizure;

(2) repayment of the investigative fund of the law enforcement agency that makes a seizure under IC 34-24-1 to the extent that the agency can specifically identify any part of the money as having been expended from the fund; and

(3) expenses of the prosecuting attorney associated with the costs of proceedings associated with the seizure and the offenses related to the seizure.
The problem is that the law enforcers, including county prosecutors, who are sworn to uphold the law,  have no problem breaking the law if it lets their agencies keep moor loot.   The people who are supposed to put a stop to these legal violations is the state's trial judges.  It is time that those judges step up and do their jobs.   Judges need to start making law enforcement officials PROVE their law enforcement costs on a case-by-case basis and demanding that a check for the excess by cut to the Common School Fund.  That's what the existing law requires.  There is nothing vague about that.

Monday, May 16, 2011

Indiana Tech Ignores Saturated Attorney Job Market, Announces New Law School; Indiana State Bar Association Continues to Overlook Law School Lies About Salaries and Employment

In the previous post, I remarked that the job market in Indiana is so saturated that many law firms don't even bother paying salaries anymore...many new associates receive commission only on the work they bring into the firm.

The saturation of lawyers in Indiana hasn't stopped the states' law schools from lying to potential students about the salaries and job opportunities offered by the legal profession.  Every year hundreds of Indiana law students amass millions of dollars in student loan debt only to find the jobs aren't there to even pay that debt back.   The fact that these universities lie to potential students about job prospects and marketability offered by a law degree has been covered by many recent publications.  (For recent examples, see at the bottom of this blog post.)

Unbelievably in this saturated legal market, Fort Wayne's Indiana Tech recently announced plans to open another law school.   Fortunately, the ever alert The Indiana Law Blog picked up on the story, otherwise I might have missed it for a few days.  Here are some highlights from the university's press release:
Fort Wayne, Ind. – The Indiana Tech Board of Trustees has unanimously approved a proposal to move forward with establishing a law school in Fort Wayne.

The proposal was discussed and voted on after presentation of a feasibility study during the university’s quarterly board meeting on May 13. The feasibility study explored the demand for legal education, the job market for individuals with a law degree, the university’s capability of providing a unique educational experience in the field of law, and the benefits a law school would provide to the community.
Factors that influenced the board’s decision in favor of establishing a law school include:


 •The number of lawyers in Indiana: The state is under-served in terms of the number of lawyers relative to the state’s population and economic activity.

•Indiana residents attending law school out-of-state: About half of all Indiana residents who enroll at American Bar Association-approved law schools do so out-of-state.

“There are potential students who desire a law school education who cannot get that education in this area, and there are people in our state who need legal services who don’t have access to them,” Snyder said. “Indiana Tech can help close those gaps.”

During the press conference, it was revealed that first year tuition at the Indiana Tech law school would be $28,000.
According to Indiana Tech, we don't have enough lawyers in the State of Indiana. Try telling that to recently admitted attorneys who hit the job market only to find there are no jobs.  Every year, Indiana licenses hundreds of new attorneys. Yet if you look at university job boards, you'll regularly see maybe 4 or 5 legal job openings listed.  The math is not good.  Near the end of the press conference, a reporter said that perhaps a law degree could be useful in other areas, an idea which the Indiana Tech spokesman endorsed. That's not reality. The reality is that once you have that law license, you're pigeonholed as an attorney and you're probably not going to be considered for non-lawyer jobs.

I found the Indiana Tech press conference revolting. The university tried to spin opening the new law school as serving the need for more lawyers.  No.  What it is all about is academic types taking advantage of mostly young people who naively believe fictionalized law school employment statistics and think a law degree is the ticket to financial security. For most students coming out of law schools today, that couldn't be further from the truth.

William Henderson, a law professor at Indian University said it best in the must-read New York Times article "Is Law School a Losing Game" published in January of 2011:
“Enron-type accounting standards have become the norm,” says William Henderson of Indiana University, one of many exasperated law professors who are asking the American Bar Association to overhaul the way law schools assess themselves. “Every time I look at this data, I feel dirty.”

It is an open secret, Professor Henderson and others say, that schools finesse survey information in dozens of ways. And the survey’s guidelines, which are established not by U.S. News but by the American Bar Association, in conjunction with an organization called the National Association for Law Placement, all but invite trimming.
Again, I ask why does the Indiana State Bar Association continue to stay on the sidelines while Indiana law schools and Indiana Tech lie about legal job opportunities and salaries?

Other recent articles and blogs of note:

Served: How law schools completely misrepresent their job numbers (New Republic, April 25, 2011)

Watch Out, Law Schools: A United States Senator Wants You To Stop Lying (March 31, 2011)

Law School Graduates Don't Make $160,000 (Forbes Blog, March 23, 2011)

The Incredible Shrinking Law School?  It's the Vision of Two NY Deans (Wall Street Journal Blog, March 4, 2011)

Irate law school grads say they were mislead about job prospects (NJ Star-Ledger, August 15, 2010)

Lawyers Against the Law School Scam blog

The Law School Lie: Plenty of Jobs and Great Salaries; Where is The Indiana State Bar Association? (Ogden on Politics, January 12, 2011)

Lies, Damn Lies and Law School Employment Statistics; The Sordid Truth Behind the Numbers  (Ogden on Politics,  April 22, 2009)

Indiana Tech Misses Memo; Will Open Law School (Restoring Dignity to the Law blog, March 16, 2011)

Sunday, May 15, 2011

New Lawyer Career Realities: Commission Only on Legal Fees Brought Into the Firm

Friday I was in a court office in a suburban county courthouse.  A young woman was there talking with the court staff and the judge about how she had passed the bar and would be sworn in as a new lawyer in another week. 

As a clerk at the law firm she said she was getting paid an hourly rate, but when she gets sworn in as an attorney she will strictly be on commission i.e. only getting paid a percent of the work she brings into the firm.  In other words working at the law firm for no salary and not even so much as the minimum wage hourly rate.   I would add that most new lawyers don't have the capability to bring much in the way of work into a law firm.

The lawyer to be then went on to say that she would have to start paying back her student loan soon and that the payments would be $1,200 a month.

No hourly, no salary...commission only.  That's the future for many people who are now graduating from law school.  Partners don't have to pay for associates any more.  The market is so saturated, quality new attorneys are willing to work for next to nothing.

The judge said he always tells people considering entering into the legal profession to not do it.  While I did not want to speak up given I wasn't part of the conversation, I'd like to now just say "Amen" to the judge's comment.

Friday, May 13, 2011

Governor Mitch Daniels Vetoes Forfeiture Bill That Would Have Provided Windfall to Law Enforcement; Attorney General Greg Zoeller Fibs About How Forfeiture Works in Practice

Indiana Governor Mitch Daniels
Today, it was announced that Governor Mitch Daniels vetoed Senate Bill 215 which would have given prosecutors and law enforcement officials more than 85% of all civil forfeitures.  Governor Daniels veto statement is as follows:
Dear President Pro Tem Long and Members of the Indiana State Senate:

By the authority vested in me as Governor of Indiana, under the provisions of Article 5,
Section 14, of the Constitution of the State of Indiana, I do hereby veto Senate Enrolled
Act 215, enacted during the regular session of the 117th General Assembly, as violative of
the Indiana Constitution, which provides that the proceeds from “all forfeitures” shall go
to the Common School fund.

The Indiana Supreme Court, on April 27, reinforced that point, possibly excepting the
“limited diversion” of the actual expenses of obtaining those proceeds. Fairness to the
General Assembly requires noting that legislators did not have the benefit of the court’s
opinion, which was issued in the session’s final days.

This bill would take more than ninety cents of every dollar collected through forfeiture
for the “expense of collection” rather than sending it to the Common School fund. That
is unwarranted as policy and constitutionally unacceptable in light of the Supreme
Court’s recent guidance and the plain language of Article 8, Section 2 of the Indiana


Attorney General Greg Zoeller
Mitchell E. Daniels, Jr.
Despite being slapped down by the Indiana Supreme Court and the Governor in one week's time, Attorney General Greg Zoeller continued to defend his position that law enforcement gets to keep civil forfeiture proceeds:
“I respect the Governor’s position, and as Attorney General I will continue to work with legislators, prosecutors and judges in an effort to reform the current civil forfeiture system so that there is more clarity over how criminals’ seized assets are apportioned and to more strictly regulate the use of outside counsel. Civil forfeiture is an effective weapon that can be used appropriately and effectively against well-funded drug traffickers who seek to make inroads into our state. It is my hope that another legislative proposal can be developed for the 2012 session that would address the concerns that have been raised. In the meantime, there is currently a judicial determination for every civil forfeiture action a prosecutor files, since a judge always must review it before it is approved, and the veto hasn’t changed that,” Zoeller said.
To characterize Zoeller as being disingenuous is charitable.   Many forfeitures are simply handled through out of court settlements with the only thing that will be in the court file is a stipulation of dismissal.  There is no judicial oversight over those cases.  In most cases, the defendant never responds to the complaint and a default judgment issued.  Then there are cases where they're settled before they're even filed in court, the so-called "roadside forfeitures."

Regardless in virtually no cases do the courts make a determination of law enforcement costs as Zoeller is suggesting.  They simply just rubberstamp whatever is given them. There is only county in the state where judges regularly sign off on a calculation of law enforcement costs is one - Wayne County.  (Disclaimer there are some 20-25 counties that don't do civil forfeiture or rarely do it.)

Only $95, 500 was paid to the common school fund in the last three years, with only five counties paying anything.  (Marion County has paid nothing.)  That is out of tens of millions of dollars.  That means about 99.9% of the funds are "law enforcement costs" according to Zoeller. Does Zoeller really believe the courts are approving that law enforcement keep 99.9% of civil forfeitures as "costs" of the cation.

Maybe it's time for Attorney General Zoeller to do his job and enforce the law with respect to civil forfeitures.

Wednesday, May 11, 2011

Miscellaneous Thoughts on Politics and the Law

Having been tied up the last couple days with a legal writing project I of course waited until the last minute to complete (well actually I had till midnight to file and finished at 7 pm, so I should get some credit), I thought I'd do some quick observations on things pertaining to politics and the law.  Feel free to jump in with comments.
    Senator Richard Lugar
  • Is everyone on Lugar's staff tone deaf when it comes to politics? Attacking Republican county chairmen, suggesting they are fools who are easily manipulated, doesn't seem to be the route to go to get party support. Lugar's political clock is running out. He'd be better off retiring with dignity rather than have to give a concession speech come election night.
  • I really think Planned Parenthood made a mistake trying to get a preliminary injunction.  That requires a showing of "irreparable damage," an almost impossible hurdle to clear.  They probably would have been much better just shooting for the permanent injunction. Now their injunction is viewed as a loser in the public's eye when in fact that's not what a ruling against a temporary injunction means.
  • It is amusing watching the Indianapolis Star, Jim Shella of WISH-TV and some of the other television stations try to spin the Rokita report on Charlie White into being another nail in the Secretary of State's political career coffin.  Did they even bother to read the report, or even the summary?  The Rokita report simply reviewed documents already made public and discussed how the law might be applied. The report was careful to reach no conclusions and to point out that any claim of legal violations could be refuted by evidence White might present.   That didn't fit with the media agenda of crucifying White so they simply made up their own conclusions. 
  • Speaking of the Rokita report, did a single media outlet mention that White was cleared of any misconduct for reading the report?  If they did, they downplayed it.  There was nothing whatsoever confidential in the Rokita report and I would question why it was ever deemed as attorney work product when Rokita, as Secretary of State, had no power to conduct investigations into supposed election law violations.
  • I've left the blogging about the Duke-IURC scandal to Advance Indiana's Gary Welsh who has followed it more closely and offers great commentary.  However, one thing I read in today's Star article jumped out at me.  Did I read correctly that an IURC official Michael Reed emailed a Duke official and suggest that that official talk to David Lee Hardy, then IURC Commissioner about the Edwardsport case pending before the IURC?   That would be ex parte communication by the Commissioner and it is a felony.  Maybe I just read it wrong.
  • Dr. Eugene White has officially lost it.  The Star reports that he has a plan to prohibit studentts who switch to neighboring districts or charter schools from returning to IPS after September count day.  Such a policy would not even remotely be legal.  Apparently Dr. White thinks he is the law in the State of Indiana.
  • I read Matthew Tully's puff piece on Sen. Richard Lugar and it got me to thinking...is there anything liberal reporters and columnists love more than Republicans who turn their backs on traditional conservative values?  The Star simply loves Lugar, Indianapolis Mayor Greg Ballard, and Carmel Mayor Jim Brainard.  Ballard and Brainard, in particular, are two of the most fiscally liberal mayors in the State of Indiana regardless of party. 

Monday, May 9, 2011

Governor Daniels Needs to Veto SEA 215, New Indiana Supreme Court Opinion Suggests New Law Giving Law Enforcement Civil Forfeiture Windfall Is Unconstitutional

Supreme Court Chief Justice
Randall T. Shepherd
Under Indiana's civil forfeiture statute, prosecutors and law enforcement officials are only entitled to keep proceeds relating to the cost of the particular law enforcement action.  The rest is to be paid to the Common School Fund.  Last year a number of news reporta and a lawsuit filed by my law firm exposed the fact that prosecutors and other law enforcement officials were pocketing 100% of civil forfeiture proceeds, including Marion County which hasn't a dime to the Common School Fund in years.  According to the Marion County Prosecutor's Office "law enforcement expenses" means all law enforcement expenses in the county regardless of whether they are connected to the seizure, an interpretation that is contradicted by the definition of "law enforcement costs" in IC 34-6-2-73.  Other county prosecutors have differing interpretations, almost all of which lets them pocket all civil forfeiture proceeds. 

Caught with their hand in the proverbial cookie jar, county prosecutors, their advocate Executive Director of the Indiana Prosecuting Attorney's Council Stephen Johnson, and Attorney General Greg Zoeller, helped pushed through Senate Bill 215, which allow prosecutors to deduct "administrative costs" before giving 85% of the booty to law enforcement.  Education would only get 15% of what is left.  For inexplicable reasons, Superintendent of Public Instruction Tony Bennett went along with this lopsided deal that hurts schools.

It should be noted that in the one county - Wayne - that followed the law, only 26% of the civil forfeiture proceeds were deemed law enforcement costs with an average of 74% of the money being paid to the Common School Fund.

Indiana Attorney General
Greg Zoeller
Many people have questioned whether any proceeds can be diverted from the Common School Fund as the Constitution (Article 8, Section 2) says that that fund is to be made up of "all forfeitures."  Faced with questions regarding the constitutionality of law enforcement pocketing civil forfeiture proceeds, Attorney General Zoeller in 2010 wrote an advisory opinion for "his clients" which said that "all" as used in the constitutional didn't actually mean "all" and that the legislature could divert civil forfeiture proceeds to law enforcement.

On the eve of consideration of Senate Bill 215, Chief Justice Shepherd, writing for a unanimous Supreme Court, sent a clear message to the General Assembly that what they were about to be doing would be considered unconstitutional.  In particular, Footnote #3 of Serrano v. State is most telling:
From the proceeds, the court may except law enforcement expenses incurred ―"for the criminal investigation associated with the seizure" and a prosecutor‘s expenses associated with the forfeiture proceeding and the expenses related to the criminal prosecution. Ind. Code § 34-6-2-73 (2008). Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that ―"all forfeitures" be deposited in the Common School Fund is an unresolved question. (emphasis supplied.)
Serrano dealt whether the State established sufficient evidence that the truck was used in connection with the transportation of cocaine. A divided Indiana Court of Appeals ruled against the State, overturning the forfeiture of Serrano's truck.  The issue of the division of proceeds between law enforcement and the Common School Fund wasn't even raised in the trial court or at the Court of Appeals.

Since the Supreme Court was inclined to uphold the Court of Appeals decision, the Court could have simply denied transfer.  Instead the Supreme Court went out of its way to discuss the history of the Constitution and the Common School Fund.  The Court in Footnote #3 clearly rejected the Zoeller opinion, finding unanimously that the constitutional "all" includes civil forfeitures and that at best only the "limited diversion" of "actual" law enforcement expenses might be permitted under the Constitution.  

Translation:  while the status quo regarding deducting "law enforcement expenses" might be constitutional (assuming the law regarding calculating law enforcement costs is actually followed contrary to present practice in most counties whee law enforcement pockets 100% of the money), certainly the 85% bill, which gives law enforcement a windfall at the expense of schools, will be found unconstitutional.

This is a bill that definitely deserves a gubernatorial veto.