Marion County Law Enforcement Partnership Encourages Those Celebrating on New Year's Eve to Violate State's Public Intoxication Law

From the Indianapolis Star:

State's agency's logo encourages people
to violate public intoxication law

Local police will conduct extra patrols and sobriety checkpoints across Indianapolis from 11 p.m. Saturday through 5 a.m. Sunday as part of an effort to get impaired motorists off the roads. The Downtown Indianapolis area and other places near popular drinking spots will be the focus of the effort.

The effort, called "DUI: Taskforce Indiana," is a project of the Marion County Traffic Safety Partnership.

Oficers from five agencies are involved: the Indianapolis Metropolitan Police Department, Cumberland Police Department, Speedway Police Department, Lawrence Police Department and the Indiana State Police. 

A grant from the Governor's Council on Impaired and Dangerous Driving funds the effort. Officials with the partnership advised anyone considering drinking alcohol to pre-arrange transportation options that don't involve getting behind the wheel -- such as riding with trusted designated drivers or hiring cab drivers.

Here's the thing.  Even if you use a designated driver or ride in a cab, under the current interpretation of our law you are in a "public place" and can be convicted of public intoxication.
Here's part of what I wrote on my blog after the Supreme Court ruled on that issue last summer:

On Tuesday, the Indiana Supreme Court handed down Brenda Moore v. State of Indiana. A recitation of the facts are in order:

[Brenda Moore] had consumed two tall cans of beer at her sister's house on the evening of December 5, 2008. A friend of [Moore's] brother asked for a ride to visit a friend. [Moore] explained to him that she could not drive because she had been drinking but he could drive her car if he had a license. The brother's friend then drove the [Moore's] car with [Moore] riding as a front seat passenger. When an Indianapolis Metropolitan Police Officer pulled over the car because the license plate was not working, the officer determined that the driver did not have a valid driver's license and that [Moore] could not operate the vehicle because she was intoxicated. The car was stopped on a public roadway, East 13th Street in Indianapolis. The officer observed that [Moore] had red, glassy, bloodshot eyes and slurred speech; she needed to lean against the car for balance; and she admitted that she had been drinking that night. She admitted, "I couldn't walk. So I couldn't have driven."

Moore was charged with Public Intoxication, a class B misdemeanor.

An Indiana Supreme Court decision in 1966, Miles v. State, 216 N.E.2d 847 (Ind. 1966), declared that a person parked alongside a highway was in a public place for the purposes of the public intoxication statute. Moore's argument was that considering the inside of a car to be a public place was against what the legislature intended when it passed the public intoxication law. She also argued that it was against the public policy of encouraging sober drivers to drive those who are too intoxicated to get behind a wheel.

Senator Michael Young
(R- Indianapolis)

Here's what I wrote in a followup article:

...Next year, when Senator Mike Young (R-Indianapolis) reintroduces his bill to reform Indiana's public intoxication law, he will be met with fierce resistance from law enforcement officials and prosecutors who will plead that the legislature not limit their "law enforcement tools" and who will assure the legislators they will exercise "discretion" wisely in using those tools. 

If they will exercise their discretion reasonably, why did the IMPD officer use his "discretion" to not arrest Brenda Moore? Why did the Carl Brizzi's Marion County Prosecutor's Office exercise the "discretion" to not prosecute her? Here's another question, why did Attorney General Greg Zoeller appeal the decision to the Supreme Court to get the Court of Appeals decision in favor of the passenger thrown out and in the process deal a blow to successful designated driver programs all over the state, including programs run by the Indiana State Police who Zoeller represetns? Zoeller had the "discretion" to not appeal the case to the Supreme Court.

Here are some other questions. Will Chief Paul Ciesielski use his "discretion" to order IMPD officers to NOT arrest passengers of designated drivers for public intoxication? Will Marion County Prosecutor Terry Curry use his "discretion" to say he will not prosecute passengers of designated drivers for public intoxication? Oh, and here's a question for the organization Mothers Against Drunk Drivers (MADD): Do you support the Brenda Moore decision?

Remember folks, this case originated out of Marion County.  IMPD, one of the law enforcement agencies involved in the partnership encouraging people to use designated drivers, did the arrest of Brenda Moore.   The Marion County Prosecutor, who is head of this partnership, is the one who did the prosecutioni of Brenda Moore.  The Attorney General represented the State on appeal in the Brenda Moore case in an effort to uphold her public intoxication conviction.  The State also encourages people to violate the law. This from the Governor's Council on Impaired and Dangerous Driving located on the Indiana Criminal Justice Institute website:

Impaired driving is no accident - nor is it a victimless crime. It's not easy to tell when you' ve had way too many, but even one too many means you shouldn't drive. Tragedies that result from alcohol-related crashes can be prevented if everyone exercised some simple precautions: 

• Plan ahead. If you expect to consume alcohol, designate a sober driver before going out and give that person your keys;
• If you are impaired, call a taxi, use mass transit, or call a sober friend or family member to get you home safely;

These suggestions can get you arrested for public intoxication.

Senator Greg Taylor
(D- Indianapolis)

Will these same agencies in 2011 support Senate Bill 97, introduced by Senators Mike Young and Greg Taylor so that passengers of designated drivers can no longer be arrested for public intoxication?  Don't bet on it.  Law enforcement officials love the discretion to arrest people using the public intoxication law which, by the way, does not require a chemical test to verify the person is actually intoxicated.

I have other questions.  Will IMPD pledge to not arrest people for public intoxication when they are using a designated driver or taking a cab ride home after celebrating on New Year's Eve?  Will Prosecutor Curry pledge to not prosecute people for public intoxication if they are acting responsibly by using a designated driver or taking a cab?  Such a position has been taken by Hancock County officials.  Yet our Marion County law enforcement officials and prosecutor thus far have refused to make that same pledge...all the while encouraging people to violate the law.

Latest Iowa Poll Shows Santorum Surge, Three Way Tie At Top With Six Candidates in the Running

Insider Advantage released a poll today that shows how extremely competitive next Tuesday's Iowa caucus should be. Three candidates - Texas Congressman Ron Paul, Former Massachusetts Governor Mitt Romney and former Speaker Newt Gingrich are all tied at 17% (when rounded off).  Three other candidates - former Pennsylvania Senator Rick Santorum, Minnesota Congresswoman Michele Bachmann and Texas Governor Rick Perry are all in double figures.

Let's look at the detailed polling results.

Total Support
Paul  17.3
Romney 17.2
Gingrich 16.7
Santorum 13.4
Bachmann 11.8
Perry 10.5

Support Among 18-29 year olds
Bachmann 24.6
Paul 21.6
Gingrich 16.3

Support Among 30-44 year olds
Paul 20.9
Bachmann 20.2
Gingrich 19.6

Support Among 45-64 year olds
Santorum 19.5
Paul 17.5
Romney 17.0
Gingrich 16.l8

Support of those older than 65
Romney 28.3
Perry 15.8
Gingrich 13.4

Men
Paul 23.1
Gingrich 16.8
Bachmann 15.5

Women
Romney 23.3
Gingrich 16.7
Santorum 15.8

Independents
Paul 32.9
Santorum 14.6
Gingrich 12.8

Note:  There were not enough black or Hispanic voters polled to offer reliable comparisons of the support each candidate had within particular races/ethnicities.

Insider Advantage conducted a poll just 10 days earlier.  Here is the result of that poll.

Iowa (12/18)
Paul 23.9
Romney 18.2
Perry 15.5
Gingrich 12.9
Bachmann 10.1
Santorum 2.9

Conclusions:

• The conventional wisdom is that Paul, Romney and Gingrich are competing for first place in Iowa.  Actually this poll shows it is more open than that.  Santorum, Bachmann and Perry all have an outside shot of winning the caucus. 
• Santorum seems to surging, taking advantage of the support for other candidates dropping.  His numbers went from 2.9% to 13.4% in just 10 days.
• Gingrich's support actually went up from 12/18 to 12/28, from 12.9% to 16.7%.  That doesn't seem consistent with other polling which shows support for the former Speaker wilting under constant attacks.
• Romney has the most appeal to women while Paul is strongest among male voters.
• Paul has a strong appeal to Iowa independents.  He is undoubtedly will bring new voters to the Iowa caucus.
• Romney does not appeal to independents in Iowa.  Only 9.5% of the independents in that state identify Romney as the candidate they would support.  He is not just behind Paul when it comes to independents, he's also behind Santorum (14.6%) and Gingrich (12.8%).

Santorum Surges in CNN Poll of Iowa Voters While Romney Takes Lead

Rick Santorum

CNN released an interesting Iowa poll today.

Iowa (12/21-12/27)
Romney 25
Paul 22
Santorum 16
Gingrich 14
Perry 11
Bachmann 9

In reviewing whether there has been movement in polls, it is best to compare a recent poll to an earlier poll conducted by the same polling outfit.  CNN did a poll in Iowa back in late November, early December.

Iowa (11/29-12/6)
Gingrich  33
Romney 20
Paul 17
Perry 9
Bachmann 7
Santorum 5

Public Policy Polling also released a poll today.  PPP's poll though showed Paul maintaining a lead.

Iowa (12/26-12/27)
Paul 24
Romney 20
Gingrich 13
Bachmann 11
Perry 10
Santorum 10

PPP released an Iowa poll ten days ago that looked like this:

Iowa (12/16-12/18)
Paul 23
Romney 20
Gingrich 14
Perry 10
Santorum 10
Bachmann 10

CONCLUSIONS:  I have always expected one of three of the non-Romney candidates, former Pennsylvania Senator Rick Santorum, Minnesota Congresswoman Michelle Bachmann, or Texas Governor Rick Perry, to defy expectations and be deemed a winner with a second or third place finish in Iowa.  If it is Perry or Bachmann it would be a resurrection. But given the CNN poll, I'm more inclined to think it will be Santorum going to New Hampshire with momentum.  The campaigns of the two other candidates will be on life support.

Former Speaker Newt Gingrich appears to be in real trouble.  His Iowa expectations have already been built up but his numbers are falling like a rock.  He's likely to end up in 3rd or worse in Iowa, but more importantly as measured against expectations he is almost certainly to fail.

Congressman Ron Paul and former Massachusetts Mitt Romney appear positioned to fight it out for the top spot in the Iowa caucus.  I think though Romney's surge is unfortunate for his campaign.  He wasn't expected to win Iowa, but suddenly some polls are showing him leading that state.  But I doubt he can compete in that state against Ron Paul's superior organization and enthusiastic supporters.

As of today, I expect the media will deem Ron Paul (1st place) and Santorum (2nd or 3rd place) as the "winners" of the Iowa caucus.

Ron Paul's Success Pushes Republican Party in a More Libertarian, More Isolationist Direction

After the election last month, I wrote an open letter to my Libertarian friends arguing that the third-party strategy was not working and suggested if the party adherents were to become involved in the Republican Party (the party to which most Libertarians lean) they would immediately become an impact player influencing policy and election outcomes.

Texas Congressman Ron Paul

That letter undoubtedly irritated many of my Libertarian friends.  I have a lot of respect for Libertarians, especially their consistent dedication to a philosophy I share at least 80% of the time.  Libertarians make up some of the brightest minds in politics today and while the party organization is small, they are very well-organized and bring an enthusiasm that neither party can match.  The problem though is the two party system is so firmly ingrained in voters' minds that Libertarians start every election giving the two major candidates a huge lead.  Libertarians, and their small government, pro-liberty ideas, are left on the sidelines after every election.

My suggestion of being a small case libertarian within the Republican Party, is rejected by most libertarians.  Libertarians believe the leadership as well as the party's policies, is impervious to change and that the route to change is the third party strategy.  Yet the tea party became a major player on the state and national political scene not by being a third party but by working within the GOP to effect change and to nominate candidates.

While Libertarians insist their third party strategy is the best, their favorite Libertarian, Ron Paul, is proving them wrong.  Ron Paul used his libertarian philosophy to get elected as a Republican congressman from Texas.  Although a marginal presidential candidate in 2008, he is today one of the top three candidates in the race for the GOP nomination. 

Peter Beinert who writes for the political blog "The Daily Beast" has penned an article that sums up my thoughts about the impact of Ron Paul on GOP politics:

We haven’t even said goodbye to 2011, but I want to be first in line with my person of the year prediction for 2012: Ron Paul. I don’t think Paul is going to win the presidency, or even win the Republican nomination. But he’s going to come close enough to change the GOP forever. 

...

Even after World War II, Mr. Republican—Robert Taft—opposed the creation of NATO and called the Korean War unconstitutional. Dwight Eisenhower worked feverishly to scale back the Truman-era defense spending that he feared would bankrupt America and rob it of its civil liberties. Even conservative luminaries like William F. Buckley and Barry Goldwater who embraced the global anti-communist struggle made it clear that they were doing so with a heavy heart. Global military commitments, they explained, represented a tragic departure from small government conservatism, a departure justified only by the uniquely satanic nature of the Soviet threat. 

The cold war lasted half a century, but isolationism never left the conservative DNA. And when the Soviet Union collapsed, some of America’s most prominent conservative intellectuals—people like Irving Kristol, Jeane Kirkpatrick and Pat Buchanan—argued that the GOP should become the party of Coolidge and Taft once again. The Republican Congress of the 1990s bitterly opposed Bill Clinton’s wars in the Balkans, and Buchanan, running on an isolationist platform, briefly led the GOP presidential field in 1996. Even the pre-9/11 Bush administration was so hostile to increased military spending that the Weekly Standard called on Defense Secretary Donald Rumsfeld to resign.

Given this history, it’s entirely predictable that in the wake of two disillusioning wars, a diminishing al Qaeda threat and mounting debt, someone like Ron Paul would come along. In Washington, Republican elites are enmeshed in a defense-industrial complex with a commercial interest in America’s global military footprint. But listen to Bill O’Reilly or Rush Limbaugh and see how often you hear them demanding that America keep fighting in Afghanistan, or even attack Iran. According to a November CBS News poll, as many Republicans said the U.S. should decrease its troop presence in Afghanistan as said America should increase it or keep it the same. In the same survey, only 22 percent of Republicans called Iran’s nuclear program “a threat that requires military action now” compared to more than fifty percent who said it “can be contained with diplomacy.” Almost three-quarters of Republicans said the U.S. should not try to change dictatorships to democracies. 

....

Since the Iowa caucuses generally reward organization and passion, I suspect Paul will win them easily. That would likely propel him to a strong showing in libertarian New Hampshire. Somehow, I think Romney and the Republican establishment will find a way to defeat him in the vicious and expensive struggle that follows. But the dominant storyline at the Republican convention will be figuring out how to appease Paul sufficiently to ensure that he doesn’t launch a third party bid. And in so doing, the GOP will legitimize its isolationist wing in a way it hasn’t since 9/11.

In truth, the modern Republican Party has always been a house divided, pulled between its desire to crusade against evil abroad and its fear that that crusade will empower the evil of big government at home. In 2012, I suspect, Ron Paul will expose that division in a way it has not been exposed in a long time. And Republicans will not soon paper it over again.

The Beinert article focuses on foreign policy, saying what I've always said...there are a lot more isolationist-leaning Republicans out there than is reflected by the interventionist GOP presidential contenders who make up the rest of the field.  But Paul will influence more than Republican foreign policy positions.  On a whole host of domestic issues, including things like civil forfeiture, the war on drugs, same sex marriage, you are seeing Republican voters support more libertarian, pro-freedom positions. Ron Paul is tapping into that growing segment within the GOP.

When Ron Paul loses the GOP nomination, which is likely, a lot of Libertarians are going to suggest that is proof that working within the party does not work.  Balderdash.  Ron Paul's success in becoming a top tier GOP presidential candidate makes him an impact player within the GOP.  Ron Paul is a trail blazer for a more libertarian, more isolationist Republican Party.  As a libertarian Republican, Ron Paul will have done more for the libertarian cause than all the candidates who ever ran for office as a Libertarian.

Sheriff Layton Deserves Praise for Closing Privately-Run Women's Jail

A few years ago I had a client, "Gail," a former nurse, who spent some time in Liberty Hall while awaiting trial on a DUI Charge.  Liberty Hall is the women's jail off of Washington Street, run by Community Education Centers. 

Liberty Hall

Gail had severe health problems, including a severe life-threatening ulcer that was dangerously near a bariatric incision in her stomach. (The fact she could kick the smoking habit made that problem worse.)  Gail told me how she arrived from Jail #1 at the start of the weekend and couldn't access her medication until the following Monday because the jail had no medical staff present during the weekend.

Gail said she was often pressed into service dealing with inmates' medical problems because the jail did not have staff available.  This included women who were pregnant and experienced medical problems.  The jail did not have medical care 24/7 even though it housed as many as 250 female inmates.  Guards, lacking any sort of medical training, would distribute prescribed medication, which I understand is not permitted.

The stories Gail told about medical issues at Liberty Hall were shocking.  While in jail, Gail tried writing to Sheriff Frank Anderson about medical problems at Liberty Hall.  Anderson ignored her.  Even when Gail filed a lawsuit about the problems, Sheriff Anderson refused to even so much as order a review on the medical and other problems at Liberty Hall.  That was always the case with Sheriff Anderson.  When it came to the privatized jails in Marion County, he refused to exercise any oversight whatsoever over the private contractors.  While Jail #1, operated directly by the Sheriff, was very well run, the privatized jails in Marion County were rife with problems, problems Sheriff Anderson wasn't interested in addressing as part of his job.

One of the legacies of Sheriff Anderson's hands-off approach to the private jail contractors was the death of Amber Redden who died in February after suffering internal hemorrhaging because of an ectopic pregnancy.   Unlike Anderson, Sheriff Layton quickly swung into action. According to a WRTV report at the time, Sheriff Layton said he lost faith in Liberty Hall:

"I was quite disappointed, and I was upset by the death of this young woman," Layton said.

Staff members talked with an on-call nurse as Redden's health deteriorated before her death, Layton said.

"But those personnel weren't medically trained. They saw one thing and thought it was something else," he said.

...

Layton said he will assign deputies to the Liberty Hall and Marion County Jail II, another privately run facility.

"I need to put my own people in there … to make sure things are getting done the way I would want them done," Layton said.

Sheriff John Layton

The problems at Liberty Hall and at Jail II, which is run by Corrections Corporation of America (CCA) were repeatedly documented and made known to Sheriff Anderson, who refused to even acknowledge the existence of those complaints. Despite the several inmate deaths and injuries at the private jails, as well as other problems like poor security and inmate trafficking, not once during his eight years in office did Sheriff Anderson conduct any investigation or exercise any real oversight with respect to the facilities.  Under Sheriff Anderson, CCA and CEC were all but given a blank check to run the jails as the private companies saw fit, even if the way those jails were operated violated Indiana and federal law.

Back in March, I applauded the action Sheriff Layton took with respect to the private jails.  (See below link.)

Yesterday it was announced that Liberty Hall would be closing, CEC's five year contract to run the facility having come to an end.  Although not renewing the contract was billed as a cost-cutting move, I have no doubt that the problems with private jail contractors were a consideration of Sheriff Layton's.  In addition to the poor management that CCA and CEC offer, I think the Sheriff recognizes that the claimed taxpayer savings offered by private jail contractors don't stand up when all the costs of these facilities are reviewed.

It is refreshing to see Sheriff Layton taking seriously his oversight responsibility when it comes to these private jails.  My hope is that he is able to end CCA's contract to run Jail #2 early or decides not to renew it when the contract runs out.  The Marion County Sheriff's Department does an excellent job running Jail #1.  Putting Jail #2 under the Sheriff's Department would undoubtedly result in a better run facility with savings to taxpayers.

Unfortunately Gail passed away before seeing the action Sheriff Layton has taken with regard to the private jails, and Liberty Hall in particular.  I am sure she would have been thrilled.

See also:
Tuesday, February 22, 2011,  Another Marion County Jail Death; Will New Sheriff John Layton Investigate Medical Care at Private Jail Facilities and Demand Accountability?

Monday, March 7, 2011, Sheriff John Layton Orders Changes at Privately-Run Jails

Decision of Virginia GOP to Adopt New Policy Verifying Signatures on Candidate Petitions Cost Gingrich Position on Primary Ballot

One of the most difficult things in mounting a campaign for President is complying with ballot access laws that vary widely from state to state.  To get on the primary ballot, some state (or state party organizations) require presidential candidates to obtain a certain number of signatures from registered voters state-wide, by congressional district, by county or of some combination thereof.   The heftier the signature requirements are the more difficult it is to get candidates on the ballot.

Former Speaker Newt Gingrich

That brings us to Virginia.  Former Speaker New Gingrich, from nearby Georgia, has led former Massachusetts Governor Mitt Romney in the two December polls done in the state, 41-15 and most recently 30-25.  But Gingrich failed to secure enough valid signatures to qualify for the ballot in Virginia.  Only former Massachusetts Governor Mitt Romney and Texas Congressman Ron Paul obtained enough valid signatures to qualify for the ballot.

Here is a dirty secret about politics.  Signatures on candidate petitions are often not checked.  To check to see whether individuals who signed are registered voters is a very tedious process.  Individuals might sign a candidate's petition several times, but they can only be counted one time.  People may sign with fake names and/or addresses.  Canvassers hired to obtain signatures, are often paid on a per signature basis, and thus have a tempting incentive to fake signatures.  Or an overly enthusiastic supporter may decide to fake names to help the candidate qualify.  Indeed that is exactly that happened here in Indiana with the petitions to get then candidate Barack Obama on the 2008 Democratic Primary ballot.  It turns out that many of the signatures on Obama's petitions were (allegedly) forged, including that of former Indiana Governor Joe Kernan.

Any audit of the validity of signatures on a candidate's petitions is going to knock down the count. The question is how much and whether the prospective candidate has enough of a cushion of signatures to survive the verification process.  That is why if 10,000 signatures are required from a congressional district in a state, you don't submit just 10,500....you submit 13,000.

It turns out that the petition signature verification process which ensnared Gingrich and Texas Governor Rick Perry is new.  The process was initiated following a 2011 lawsuit was filed by an independent congressional candidate who complained that his petition signatures were reviewed for validity while the Republican candidate in the district was not.  While that case is still pending, apparently the Virginia GOP decided it best to have a blanket policy of validating the signatures of all primary candidates.  Richard Winger, of writing the blog, Ballot Access news provides some excellent background:

There are currently many news stories and blog discussions about the Virginia presidential primary ballot access law. Some large blogs, such as Red State, have over 300 comments about the story. Some defend the current Virginia ballot access laws on the grounds that in past presidential elections, a fairly large number of Republican presidential primary candidates managed to qualify.

But what has not been reported is that in the only other presidential primaries in which Virginia required 10,000 signatures (2000, 2004, and 2008) the signatures were not checked. Any candidate who submitted at least 10,000 raw signatures was put on the ballot. In 2000, five Republicans qualified: George Bush, John McCain, Alan Keyes, Gary Bauer, and Steve Forbes. In 2004 there was no Republican primary in Virginia. In 2008, seven Republicans qualified: John McCain, Mike Huckabee, Mitt Romney, Ron Paul, Rudy Giuliani, Fred Thompson, and Alan Keyes.

The only reason the Virginia Republican Party checked the signatures for validity for the current primary is that in October 2011, an independent candidate for the legislature, Michael Osborne, sued the Virginia Republican Party because it did not check petitions for its own members, when they submitted primary petitions. Osborne had no trouble getting the needed 125 valid signatures for his own independent candidacy, but he charged that his Republican opponent’s primary petition had never been checked, and that if it had been, that opponent would not have qualified. The lawsuit, Osborne v Boyles, cl 11-520-00, was filed in Bristol County Circuit Court. It was filed too late to be heard before the election, but is still pending. The effect of the lawsuit was to persuade the Republican Party to start checking petitions. If the Republican Party had not changed that policy, Newt Gingrich and Rick Perry would be on the 2012 ballot.

Civil Discourse Now Discusses Indiana's Voter ID Law, Early Voting and Vote Centers

Part 1 Part 2 Part 3 Part 4

Did Court Miss Statute Dealing With "Nontraditional Residences" In Deciding White Case?

Secretary of State Charlie White

I have to give credit where credit is due.  Doug Masson, an attorney who runs the excellent blog, Masson's Blog, does an excellent summary of Marion County Judge Louis Rosenberg's opinion that concludes that Secretary of State Charlie White was  not eligible to be elected Secretary of State because he was not legally registered at his ex-wife's house.  In the process, Masson does some research and hits on a statute that appears to have been overlooked by the parties, or at least was not discussed in the opinion.  Before looking at that statute, let's first review the residency statute that is at the heart of the Charlie White case:

IC 3-5-2-42.5: “”Residence” means the place (1) where a person has the person’s true, fixed, and permanent home and principal establishment; and (2) to which the person has, whenever absent, the intention of returning.”

Judge Rosenberg concluded that White had moved out of the apartment but had not moved into the condo.  However, he said White's stay at the ex-wife's house could not have been his residence because he was only there temporarily awaiting the move to the condo. As I have argued, by law everyone has a residence and the only residence White could possibly have claimed is his ex-wife's house where the facts are he was living. 

Attorney Masson though raises another issue, the possible applicability of a statute not discussed in Judge Rosenberg's opinion.  That statute is IC 3-5-5-18:

 “Notwithstanding IC 3-5-2-42.5, an individual with a nontraditional residence whose residence is within a precinct, but is not fixed or permanent, resides in that precinct.”

That seems to deal exactly with the facts of White's living situation.  The statute says that even if he is staying temporarily at his ex-wife's house, he is a resident in that precinct.   And that is precisely where White registered to vote.

Court Finds White's Living at Ex-Wife's House Was Temporary and Thus Not His Residence; Flawed Rationale Leaves White Without a Residence

Secretary of State Charlie White

In a decision handed down today, Marion County Circuit Judge Louis Rosenberg ruled that Secretary of State Charlie White was unlawfully registered at his ex-wife's house.  Because of that unlawful registration, Judge Rosenberg ruled that White was ineligible to be elected as Secretary of State and that the second highest votegetter in the race, Democrat Vop Osili, should be awarded the office.  The Election Commission, whose decision Judge Rosenberg overturned, has already indicated it intends to appeal.

Before delving into the decision, it is first necessary to look at the three residences at which White lived and the dates of those registrations

Broad Leaf (previous marital  home):  Before 2006
Pintail Apartment:  January 2007
Broad Leaf (ex-wife's home); February 22, 2010
Overview Condo:  September 22, 2010

The law Judge Rosenberg was applying is IC 3-8-1-1 which says:

(b) A person is not qualified to run for:

(1) a state office...

Unless the person is registered to vote in the election district the person seeks to represent not later than the deadline for filing the declaration or petition of candidacy or certificate of nomination. 

That deadline to file the declaration of candidacy for Secretary of State was July 15, 2010.

In the decision, Judge Rosenberg looked at the evidence heard before the Commission.  While counsel for the Democrats had argued that White had moved to Overview Condo and should have been registered there, that is not what Judge Rosenberg focused on.  Rather the judge decided that the evidence established that White was living at that Broad Leaf house where he was registered when he voted in the May primary and even as late as July 15th, but that the stay in the Broad Leaf house was "temporary" and thus did not meet the definition of "residence."   IC 3-5-2-42.5 states:

"Residence" means the place:

(1) where a person has the person's true, fixed and permanent home and principle establishment; and

(2) to which the person has, whenever absent, the intent of returning.

Judge Rosenberg concluded that because White did not have a lease at the Broad Leaf home, did not have an ownership interest in the home (he had quitclaimed it to his now ex-wife as part of the divorce), and could at any time be asked to leave, that White was a "guest" and since it was not his "permanent" home he should not have registered there.  The decision states:

The finding of the Commission that White intended to reside at the Broad Leaf address until he was married appears to render that house a temporary residence in the same sense as a stay in a school dormitory until studies are completed is a temporary or a stay in a hotel while searching for or starting a job might be temporary.

Marion County Circuit Court
Judge Louis Rosenberg

In the opinion, Judge Rosenberg suggests he need not make a determination of White's residence, i.e. where White should have been registered.  I disagree.  When a judge determines that the place where one is staying is "temporary" and thus not the person's "residence," that means there is another location that the person is living which is his or her permanent living quarters, i.e. the person's residence. With regard to White, what is that location?

Reading between the lines it appears even Judge Rosenberg agrees it would not have been appropriate for White to register at the Overview Condo since the evidence was that he had not yet moved in. It is also unlikely that White should have continued using the Pintail Apartment to vote and run for office from when his lease had long expired and he had moved out. Certainly the Democrats would have been screaming about voter fraud (and quite rightly) if White had tried that.

If registering at White's ex-wife's house was improper because it was a "temporary" stay for White and he could not have registered at the Overview Condo because he had not yet moved in there and he had long ago move out of the Pintail apartment, then where should White have been registered on July 15, 2011?   Applying Judge Rosenberg's rationale, renders  White without a residence on July 15, 2010, a decision which not only disenfranchises him but makes him ineligible to run for Secretary of State.

I don't agree with that conclusion.   With all due respect to Judge Rosenberg, who I truly believe is one of our best judges in Marion County (I'm not just saying that), I believe his interpretation of "temporary" is far too narrow and was never to be interpreted in such a way as to disenfranchise people by leaving them without a residence.  Certainly this decision will be appealed to the Court of Appeals and the Indiana  Supreme Court.  I would guess that the decision, which overturns the result of an election, which courts historically oppose doing, will almost certainly be overturned.  It might be the appellate courts decide on narrower grounds, such as that the Democrats waited too long to raise the issue - that it should have been raised before the election.

Note:  In writing this I struggled to avoid using the contradictory phrase "temporary residence" as the court did in its opinion.  By definition a "residence" is a "permanent home." (See above.) Therefore, if it is a "temporary" abode it cannot be a "residence."

Was Brizzi's Decision to Drop Investigation of DCS Following Infant's Death Connected to His Becoming DCS's Landlord Months Later?

The legendary news  commentator Paul Harvey used to conclude his daily show in a segment called "The Rest of the Story."  In the segment, Harvey would provide interesting, unknown background to an event that happened.   This is my version of the rest of the story on the purchase/lease of the Elkhart Building to the Department of Child Services (DCS) which has led to the indictment of a politically-connected real estate broker and two attorneys.

Former Marion County Prosecutor Carl Brizzi

Let's turn the clock back to late November 2007, to review a portion of an Indianapolis Star article talking about the tragic events involving the Tijuana Bailey:

Marion County Prosecutor Carl Brizzi wants to know why the state Department of Child Services did not notify police after a caseworker determined TaJanay Bailey was physically abused in 2006.

A hospital emergency room visit documented bruises on the toddler’s body after a May 2006 visit with her mother, Charity Bailey, and Bailey’s boyfriend, Lawrence Green.

Bailey and Green now face charges of murder and neglect in the death of the 3-year-old Tuesday.

Brizzi said the abuse was among the worst he’d seen in a criminal case, and he planned to try the case himself. He said prosecutors could use the victim’s age and the use of torture as statutory aggravators when they press for a life sentence.

About 5:30 a.m. Tuesday, Bailey woke TaJanay and saw she “had boo-booed and peed herself,” Bailey told police. She said she took the girl to the bathroom to clean her off, the affidavit says, and Green then began “whipping TaJanay with his black leather belt.”

In his statement, Green told police he did hit the girl, but Bailey was already screaming at her and striking her, too. Bailey hit the girl in the head with her knee, knocking TaJanay’s head against the wall, Green told police. Police called to investigate TaJanay’s death were appalled at the condition of the apartment, in the 4100 block of Edgemere Court.

Police say Bailey and Green abused TaJanay over the past two weeks, including hanging her on a coat hook by her T-shirt, beating her with a belt and knocking her in the chest for wetting her pants. While hanging from the hook, the girl’s shirt left marks under her arms and on the back of her neck, said a probable cause affidavit that Brizzi filed Wednesday.

James W. Payne, director of the state Department of Child Services, said Wednesday that he is prohibited by law from talking about specifics of the case, including whether police were notified. But he pledged an aggressive review of the way TaJanay’s case was handled to determine whether the agency or its workers did anything wrong, and what could be done to prevent similar tragedies.

At this point, he said, nothing indicates a system breakdown or individual misconduct contributing to the death. He said the review will take about two weeks. “These tragic events will, unfortunately, occur,” he said. “We know we can’t protect and prevent everything.”

Brizzi said his office had not been able to find a police report resulting from the 2006 hospital visit. The injuries should have prompted a police investigation because even the doctor noted physical abuse, he said.

“Someone from the government . . . went in and said it was OK for her to return to the home,” he said. “I’m not sure where the blame lies, but we have a dead 3-year-old little girl.”

DCS Director James Payne

In December of 2007, Prosecutor Brizzi announced he intended to do a thorough investigation of DCS and how state officials dropped the ball on protecting Tijuana Bailey.  This is how Gary Welsh of Advance Indiana described that followup article now no longer available for free on-line:

According to a story in the Indianapolis Star, Marion Co. Prosecutor Carl Brizzi expressed deep concern about DCS's handling of the case and promised a complete and full investigation. Specifically, Brizzi wanted to know why DCS officials had failed to notify police after they learned Tajanay had been physically abused in the home in 2006 and why she had been returned to that same home. At the time Brizzi made those comments, Tajanay's tragic killing was all over the news. As time passed, we never heard from Brizzi again about DCS.

According to my sources, Prosecutor Brizzi's decision to investigate DCS was met with fierce resistance by officials in state government, including Governor Daniels himself who reportedly was furious with Brizzi's public announcement that the intended to investigate DCS and its head, former Marion County Judge Jim Payne.  The planned investigation went nowhere.

Three months later, in February of 2008, Brizzi became a 50% silent owner of a building in Elkhart, an ownership acquired without putting any money up for purchase.  Five months later, Brizzi and Attorney Paul Page became landlord of DCS as the agency rented the Elkhart space for an office.  Issues behind that deal has led Page, another attorney, and real estate developer John Bales to be indicted last week by a federal jury.

Was there a connection between the decision by Brizzi to drop the investigation of DCS and his later becoming the landlord for tenant DCS in a deal in which he did not have to put up any ownership of the building?   If so, the people involved could well be charged with obstruction of justice.

It is possible that Brizzi decided to not press forward with the investigation because of a lack of evidence DCS did anything wrong, at least criminally.  However, a later investigation by the Indianapolis Star, reported in May of 2010, suggests DCS almost certainly failed in its responsibility to protect Bailey:

The Indianapolis Star has obtained documents that reveal the Department of Child Services placed 11-week-old Destiny Linden with a foster family even after an advocate warned the agency about the care and safety of other foster children in the home. 

A week later, Destiny was dead.

She was placed with the family in April, five months after DCS was accused of ignoring warnings prior to the death of TaJanay Bailey -- a 3-year-old fatally beaten in November after DCS returned the toddler to her mother and the woman's boyfriend.

In both cases, it was an advocate who watches out for the best interests of children in state care who raised the red flags.

According to a report written by the advocate, Destiny's foster parents, Everett and Kimberly Coleman, did little to supervise children in their care, including leaving them to prepare their own meals and failing to treat a child burned while ironing clothes. The advocate specifically recommended that all children be removed from the home. But DCS continued placing children, including Destiny, in the foster home and even increased the number of children the couple were licensed to care for in early April.

The advocate who raised concerns about the Colemans -- just like the advocate in TaJanay's case -- was so unsatisfied with DCS' response that she turned to the courts in hopes of persuading a judge to order the removal of the children.

In both cases, the child died before the courts could act -- and in each instance, DCS workers insisted after the children's deaths that they were not made aware of the full extent of the advocates' concerns.

One other fact the cases share: There has been no independent investigation of the agency's actions.

Was that "independent investigation" of DCS that Brizzi promised diverted by the Elkhart lease deal with DCS?

Civil Discourse Now Discusses Whether US Should Have Interventionist Foreign Policy

Part 1 Part 2 Part 3 Part 4

Ron Paul Leads In Last Three Iowa Polls Released



Ron Paul

From a strategic standpoint, Ron Paul probably doesn't want to raise expectations in the Iowa caucuses.  After all the media always judges one's performance versus expectations.   It appears though that  those expectations may get raised.  Paul leads in the three Iowa polls released thus far this week.
ISU/Gazette/KCRG
Paul 28
Gingrich 25
Romney 18
Perry 11

PPP
Paul 23
Romney 20
Gingrich 14
Perry 10
Bachmann 10
Santorum 10

Insider Advantage
Paul 24
Romney 18
Perry 16
Gingrich 13
Bachmann 10

In addition to designating one candidate the winner, look for a second tier candidate - Perry, Bachmann, or Santorum, to also get a "winner" designation from the media.  They are all three in the fortunate position of having very low expectations that they might be able to exceed at the caucus.  The two of those three  who fail to clear the bar in Iowa will probably drop out of the race.

Russell Foundation Failed To File Income Tax Forms For At Least Three Years

Guidestar, the website that posts tax returns of non-profits, had previously posted this notice about the Russell Foundation,  whose activities led to the indictment of several individuals including Indianpolis City-County Councilor Paul Bateman:

This organization's exempt status was automatically revoked by the IRS for failure to file a Form 990, 990-EZ, 990-N, or 990-PF for 3 consecutive years. Further investigation and due diligence are warranted.

The link probably won't work if you don't have a (free) membership and are not logged in.

Blogger Year and Half Ago Exposed Politically Connected Lobbyists Bales Sought to Derail Government Officials Asking Questions About His Real Estate Deals

Advance Indiana covered this issue back in May of 2010, but in light of indictment of John Bales of Venture Real Estate and this week's IBJ article by Cory Schouten exposing how John Bales tried to use powerful political influence to allow his company to skirt his contract and Indiana law, it is time to look back at those who exerted pressure on administration officials who tried to hold Bales accountable:

Vaughn Once Registered As Venture Real Estate's Lobbyist

City-County Council President Ryan Vaughn makes a living as a full-time lobbyist for Barnes & Thornburg when he is not attending to his council duties. Advance Indiana has learned from a search of the Department of Administration's website for lobbying registration that Vaughn was registered in 2008 to lobby on behalf of John Bales' Venture Real Estate Services. This is the same firm that got a no-bid contract from the State of Indiana and the City of Indianapolis to broker real estate deals for the respective governmental entities. A quick check of the state's lobbyist registration database for executive branch agencies today shows that Vaughn's registration information for Venture Real Estate in 2008 has been scrubbed. When you attempt to access the registration information, the database returns a "No Results Found" reply. This comes in the wake of the FBI asking for documents related to the lease Venture Real Estate Services negotiated on behalf of the state for an office building owned by a company in Elkhart, Indiana for the Department of Children Services in which Marion Co. Prosecutor Carl Brizzi is a partner and co-owner with Paul Page. The Elkhart lease occurred during the same year Vaughn was once shown as a registered lobbyist for Venture Real Estate Services. Vaughn formerly worked for Marion County Prosecutor Carl Brizzi. The state's lobbying database still lists current registrations for Barnes & Thornburg's Brian Burdick. In the past, both Joe Loftus and Robert Grand have been registered to lobby state government agencies on behalf of Bales' firm. Vaughn has insisted in the past that his lobbying activities in no way intersect with his City-County Council duties despite the fact that both Grand and Loftus, as well as other lawyers at the firm, do extensive legal work for the City and various county agencies. Is the missing lobbying registration information for Vaughn just a coincidence?

John Bales

The IBJ article showed that Betsy Burdick, Governor Mitch Daniels Deputy Chief of Staff, and brother of Venture lobbyist and B&T partner Brian Burdick, attempted to intervene on behalf of Venture when Department of Administration officials began raising questions about Bales apparent skirting of the contract and the law to make his deal with the state more profitable.  IBJ details some of Betsy Burdick's involvement:

The deputy chief of staff for Gov. Mitch Daniels intervened on Bales’ behalf in late 2009 after officials with the Indiana Department of Administration encouraged the state’s quasi-governmental agencies to hire the real estate brokerage Resource Commercial over Venture. 

Venture had offered a lower per-square-foot commission rate, but IDOA officials saw the company's attempts to carve out side deals representing quasi-governmental agencies as a conflict with the state deal. It’s not clear whether Betsy Burdick was aware of IDOA's rationale in recommending Resource.

“I hope what I am hearing is wrong with respect to the way IDOA is doing business here,” Burdick wrote on Aug. 28, 2009. “If this is true it is unacceptable and further discussion needs to take place. If what I am hearing is correct—this is not how we do business.”

Schouten also notes that Bales wasn't above exerting influence to try to try to get more money:

Bales’ firm wasn’t bashful about throwing its weight around, either. At one point, a deputy to Bales threatened to call in the chair of the Indiana Republican Party and two partners at the powerful law firm Barnes & Thornburg if the state wouldn’t reimburse Venture for disputed expenses. 

Venture ultimately earned about $2.9 million in commissions on lease deals for state agencies and another $270,000 on the sale of surplus state properties.

I do not believe those figures include the additional sums that Bales tried to get from the deals, including the back door ownership of the Elkhart building.  How much of that money ended up in lobbyist pockets, people who were trying to get the Daniels' administration to overlook Bales' alleged contractual and legal violations?
Finally, I would congratulate Gary Welsh for being 1 1/2 years ahead of the indictment in his story on Bales' political influence within the administration.

Indianapolis Council Republicans Fail to Demonstrate Fiscal Responsibility in Georgia Street Giveaway to Indianapolis Downtown, Inc.

I had a chance last night to listen to part of the Indianapolis City-County council debate on the plan to lease (for free) the newly remodeled Georgia Street to Indianapolis Downtown, Inc. (IDI) an organization that lives on city government handouts, spends lavishly on itself and does little work on promoting Indianapolis that is not or cannot be handled by other organizations.

Once again, it appears that we have a city asset taxpayers have spent millions on, only only to find our city leaders want to give it away to a private entity for free.  IDI will manage the place, but apparently will also keep all the profits associated with the venue.

What amazed me was that my fellow Republicans, with the notable exception of Christine Scales, was all for simply handing over the property to IDI, without even bothering following normal statutory procedure, i.e. doing an appraisal and taking bids on running the venue.

Meanwhile Democrats like Brian Mahern, Dane Mahern, Angela Mansfield and even Monroe Gray played the role of fiscally responsible legislative officials asking whether the council should be following proper procedure and making sure the deal was in the best interests of the taxpayers.

When did my Republican Party representatives abandon the role of being responsible stewards of the taxpayer money?   Viewers who didn't know the individuals involved would have thought the Democratic councilors were the Republicans and the Republicans were the Democrats.   The GOP majority shows why they deserve to be in the minority come January 1st.

Libertarian Councilor Ed Coleman also voted for taxpayers and against the giveaway.

IBJ Details Shocking Depth of Bales' Scandal; Will Bales' Attorney Larry Mackey Step Down Because of Conflict of Interest? (IBJ Link Now Available)

In an article appearing in the most recent edition of the IBJ, Cory Schouten writes a shocking account of what he found while reviewing scores of John Bales-related emails within state government.  The article portrays influence peddling at the highest levels of state government and that people in state government who tried to do the right thing were silenced or threatened with retaliation for speaking out about Bales and violations of the law.


John bales

While I like Governor Daniels on so many levels, I have always been frustrated that he appears to run a very loose ship and has a tin ear when it comes to wrongdoing in his administration.  Having been a whistleblower myself, someone who repeatedly asked the Governor's Office to look at my complaints about legal violations and other problems at the Department of Insurance, I know first hand the frustration these officials felt when they tried to report problems, only to instead receive threats of retaliation for speaking out.  Daniel's time in office has seen numerous situations where whistleblowers were ignored, even retaliated against.  Almost always the situation persisted until it ended up being exposed  by the news media.

Gary Welsh of Advance Indiana did a review of the Schouten article.  Here is some of what Welsh reports:

Folks, fasten your seat belts and get prepared for a wild ride. The IBJ's Cory Schouten uncovered years' worth of e-mails totalling in the thousands that shed light on what is increasingly becoming a major public corruption scandal that could permanently tarnish the reputation of Gov. Mitch Daniels and result in more criminal charges against more very high profile individuals on the Indiana political scene. The U.S. Attorney's Office in the Northern District of Indiana's indictment of top Daniels political supporter, John Bales, for defrauding the state on a lease agreement for state office space in Elkhart, Indiana might just well be the tip of the iceberg to rock the Daniels ship.

What emerges from the e-mails Schouten uncovered is a picture of conscientious state employees raising legitimate concerns about Bales' business practices, only to feel threatened with retaliation if they didn't play ball as Bales demanded. A top official in Gov. Daniels own office, Betsy Burdick, whose brother is a partner at the law firm which represents Bales, Barnes & Thornburg, joined in sending less than thinly-veiled threats to state officials who messed with Bales' business dealing with the state. Check out this example of Burdick intervening on Bales' behalf:

The deputy chief of staff for Gov. Mitch Daniels intervened on Bales’ behalf in late 2009 after officials with the Indiana Department of Administration encouraged the state’s quasi-governmental agencies to hire the real estate brokerage Resource Commercial over Venture.

Venture had offered a lower per-square-foot commission rate, but IDOA officials saw the company's attempts to carve out side deals representing quasi-governmental agencies as a conflict with the state deal. It’s not clear whether Betsy Burdick was aware of IDOA's rationale in recommending Resource. 

“I hope what I am hearing is wrong with respect to the way IDOA is doing business here,” Burdick wrote on Aug. 28, 2009. “If this is true it is unacceptable and further discussion needs to take place. If what I am hearing is correct—this is not how we do business.”

According to Schouten, Bales was less than bashful at throwing out big names that he would involve to assist him if state officials didn't do as he demanded of them. "At one point, a deputy to Bales threatened to call in the chair of the Indiana Republican Party and two partners at the powerful law firm Barnes & Thornburg if the state wouldn’t reimburse Venture for disputed expenses," Schouten writes.

Kevin Ober, the Department of Administration’s deputy commissioner at the time, pushed back when Venture sought reimbursement for more than $200,000 in expenses not pre-approved by the state, as required by its contract.

That did not sit well with Venture.

The firm’s chief financial officer, Greg Rankin, responded with an email threatening to seek intervention by Barnes & Thornburg partners Brian Burdick and Joe Loftus or even J. Murray Clark, then the chairman of the Indiana Republican Party. All three have close working ties to Gov. Mitch Daniels, whose deputy chief of staff is Burdick’s sister.

Ober bristled at the name dropping by Bales’ top deputy in an email he sent to his boss, IDOA Commissioner Carrie Henderson, and the chief of staff to Gov. Mitch Daniels, Earl Goode.

Schouten found that Bales was near the center of other embarrassing recent episodes for the Daniels administration for which his role had not been previously disclosed, including the leasing of lavish new office space for the Hoosier Lottery and the growing IURC scandal involving Duke Energy.  

There's this revelation on the Hoosier Lottery:

In 2010, Venture brokered the deal to move the Lottery into a 35,000-square-foot headquarters at Meridian and 13th streets. Bales earned more than $250,000 in commission on the deal, which ultimately cost Hoosier Lottery Director Kathryn Densborn her job. 

... 

Bales' commission was based on the project's total value, including the cost of building out the space.

...

At the heart of this week's indictments against John Bales, his business associate Bill Spencer, and attorney Paul Page, is the federal prosecutors' contention that Bales held a financial stake in the Elkhart office building Paul Page acquired with former Marion Co. Prosecutor Carl Brizzi when he was suppose to be working exclusively for the state of Indiana as its real estate broker in the deal. Schouten found e-mails where Mike Huber, now a deputy mayor under Greg Ballard, had raised concerns about Bales' side deals while he was still working at the Indiana Department of Administration.

The records show former Deputy IDOA Commissioner Michael Huber—who joined Bales for happy hour on several occasions and mostly offered support for Venture in emails—at times had reservations about the company’s methods. Huber oversaw the Venture contract from January 2007 to January 2008.

Indianapolis Deputy Mayor
Mike Huber

Huber was not pleased, for example, when he heard Venture was pitching the Hoosier Lottery on a tenant-representation agreement outside the purview of its contract with the Department of Administration. The arrangement ran counter to Huber’s mission of consolidating and simplifying the state’s leasing functions.

...

Whatever reservations Huber may have had about Bales while working in the Daniels administration, it didn't stop him from hiring Bales' firm for a similar sweetheart real estate deal with the City of Indianapolis after Huber left the Daniels administration to join Ballard's new administration as a top official. Huber was tapped by Barnes & Thornburg's Joe Loftus to join the Ballard administration, who likely ordered Huber to ink the deal with Bales, one of his clients. Loftus, Bob Grand and others at Barnes & Thornburg have dictated to Ballard who is hired for key jobs with the city. 

Grand and Loftus, who exercise considerable influence in the Daniels administration, are also paid advisers to Ballard. The law firm firm has been awarded millions of dollars worth of legal work with the city since Ballard took office four years ago. Barnes & Thornburg's clients have also been the beneficiaries of sweetheart deals with the city, including the 50-year parking meter lease with ACS, a firm Barnes & Thornburg has long represented in business transactions with the state and local governments in Indiana. The firm helped lobby the Daniels administration on behalf of ACS to land the controversial welfare privatization deal with FSSA. When the lead partner's contract in that deal, IBM, was nixed by the state, ACS was allowed a continuing contractual relationship with FSSA. Incredibly, Gov. Daniels hired the law firm to represent the state in a lawsuit with ACS's former partner, IBM, despite the firm's obvious conflict of interest.

Larry Mackey

The City of Indianapolis later cancelled its contract with Bales for failing to perform according to Huber. It is more likely the deal was nixed after the Ballard administration learned from Barnes & Thornburg's attorneys that Bales' activities were being investigated by the FBI. Bales is represented by another Barnes & Thornburg partner, former Justice Department prosecutor Larry Mackey, in the criminal case the federal government has brought against him. Naturally, Mackey insists his client is innocent. Given the law firm's ties to the corrupt deal that led to the indictment, federal prosecutors should ask that the firm be disqualified from representing Bales in this criminal case against Bales. At least that's what the rules of professional conduct dictate, but as we've seen with the firm's representation of the state in the FSSA litigation, the rules don't seem to apply where Barnes & Thornburg is concerned. One particularly troubling aspect of Schouten's story is a claim by another Barnes & Thornburg attorney representing Bales, Jason Barclay, that the state gave its blessings to Bales having an ownership interest in the Elkhart office building he brokered for the Department of Child Services after he first disclosed it to them. That contradicts the express terms of Bales' exclusive real estate brokerage agreement with the state.

...

The complete Advance Indiana article deserves reading as does the IBJ article by Cory Schouten.  I do want to note that I couldn't agree more with Welsh's point about Larry Mackey's conflict of interest.   The fingerprints of Barnes & Thornburg's influence peddling are all over Bales' interaction with administration officials.  It is in Bales' best interest to rat out those Barnes & Thornburg attorneys.  Mackey though is a B&T partner.  He has a clear conflict of interest and should step down from the case.  Either the court or the Disciplinary Commission should address the matter.

Of course, Barnes & Thornburg has always seemed above the conflicts of interest laws that all we other attorneys have to follow.  To recap B&T's FSSA representation, the state signed a multi-million dollar legal services contract with B&T for the firm to represent FSSA in the lawsuit against IBM over the failed Medicaid privatization effort.  B&T had also represented ACS, the major subcontractor on the Medicaid privatization project.   In the legal service contract, which I read, B&T admits it may have to sue ACS, a current client, as part of its representation of FSSA in the lawsuit. 

In the FSSA contract, B&T says ACS has consented to the conflict and that if it does sue ACS it will create a wall at the law firm to prevent the attorneys who represent FSSA in the Medicaid privatization lawsuit from interacting with the B&T attorneys who represented ACS on the Medicaid privatization.

Of course, ACS was probably thrilled to consent to the conflict.  ACS knows that having its law firm representing the State in the IBM lawsuit means the company is never going to be sued as part of that litigation. After all, B&T would not want to lose a profitable client by suing that client.  That is precisely why under the Rules of Professional Conduct it is a nonwaivable conflict of interest for attorneys to represent a party suing a current client of the attorney's law firm.  B&T is obligated to act in the best interests of both current clients FSSA and ACS and they have conflicting interests.

When it came to that obvious violation of the ethics rules associated with Barnes & Thornburg representing FSSA when it still represents ACS, the law firm has been given a pass.  We will see if Mackey gets the same pass when it comes to the conflict he and Barnes & Thornburg have in representing Bales when several partners at the firm are knee deep in the Bales' scandal.

Romney Moves Ahead of Gingrich In Latest Iowa Poll

Mitt Romney

Interestingly Former Massachusetts Governor Mitt Romney has moved to the top of the heap in the latest Iowa Poll, this one conducted by Rasmussen Reports.  In the December 13 poll, Romney had 23%, while former Speaker Newt Gingrich placed second at 20%.  Texas Congressman Ron Paul was a close third at 18%.

In a November 15, 2011 poll, Gingrich had 32%, Romney 19%, Herman Cain 13% and Paul 10%.

This is the fifth straight Rasmussen poll of Iowa voters that showed a different leader.   These include Michele Bachmann, Texas Governor Rick Perry, Herman Cain, Gingrich and, now, Romney.

Westfield Mayor and Council Vote to Increase Their Salaries After the Election

Westfield Mayor Andy Cook

Kara Kenney of WRTV reports on the decision of the City of Westfield to give Mayor Andy Cook a 10% raise and council members 15% pay increases.  Mayor Cook is now one of three mayors in Indiana with a six figure salary:

The city of Westfield’s decision to give its mayor a raise raised eyebrows among the town’s 30,000 taxpayers.

Mayor Andy Cook's salary will increase from $98,200 in 2011 to $108,200 in 2012, which is a 10 percent raise.

According to a salary survey by the Indiana Association of Cities and Towns, only two Indiana mayors, Carmel’s and Fort Wayne’s, earn annual salaries in the six figures range.

Indianapolis Mayor Greg Ballard has a base salary of $95,000, RTV6's Kara Kenney reported.

On Monday, the Westfield City Council voted to increase members’ salaries from $13,000 to $15,000, which is a 15 percent increase.

Clerk Treasurer Cindy Gossard’s salary was also increased 9 percent from $67,500, to $73,300. Westfield city employees received about a 4 percent raise.

...

Jennifer Simmons, deputy director of the Indiana Association of Cities and Towns, said community leaders have the right to increase or decrease pay, and that voters can voice their opinions on Election Day.

"If one community chooses to give no raises and the other chooses to give 4 percent, that is their prerogative as leaders in their community,” Simmons wrote in an email to RTV6. "If the voters in that community do not believe they have made their case for why those raises were necessary or affordable, that is something for the voters to consider at the ballot box."

...

To see the rest of the article or watch the video, click here.

Of course, the election was last month and there won't be one for another four years.  How convenient.

I have previously reported on Mayor Cook's outrageous spending of taxpayer money and financial irregularities in Westfield.    Cook's mismanagement was so bad that Republicans almost threw him out of office in the May primary.

Friday, April 24, 2009, Westfield Mayor Loses His Mind

Wednesday, May 20, 2009, State Board of Accounts Skewers Westfield for Financial Irregularities

It is interesting that when you have communities totally dominated by the Republican Party - such as Carmel and Westfield - many of the Republicans in power start acting like big spending Democrats.

City Sweetens Sweetheart Parking Garage Deal for Keystone Construction

As one of the few people who has actually read the the Broad Ripple Parking Garage contract (I did so twice), I wanted to comment on the latest developments referred to quite accurately as "bait and switch."

Artists rendering of Broad Ripple parking
garage as it was originally proposed.

Some background first.  The City pays the first $6.8 million of the cost to build the garage.  The Star and other media outlets continue to report that it will be a $15 million garage.  But there is nothing in the contract that suggests it will cost that much.   In fact, as reported by the Star other similar garages have been built, not ironically in the $6 million to $7 million range. It appears that the only reason for the claimed $15 million is to leave the false impression that Keystone Construction will be contributing some $8 million to the project.

But the contract actually does not require Keystone to put a dime into the project, and by changing an input into the contractual formula, Keystone can avoid making even a minimal contribution to the project.

While much of the discussion has been on the change in plans and the fact that a variance was needed (and obtained yesterday) because of setback and other requirements, what caught my eye was the change in the commercial space in the building from 14,000 square feet to 25,000 square feet.  Instead of being 20% of the building, commercial space will now occupy 36% of the building.  Indeed most of the people parking in the garage will probably be visiting those establishments, not visiting the other business establishments in Broad Ripple.

To recap, the City is required to pay $6.8 million to build the garage and commercial space for Keystone.  Keystone is not required to contribute a dime to the project.  Yet this is what Keystone receives in return:

Revenue from commercial rents:  Keystone 100% (commercial now makes up 36% of garage) 

Revenue from parking:  Keystone 100%

Ownership of garage and commercial space:  Keystone 100%

Meanwhile the City gets absolutely nothing from the deal. 

This is an outrage.  Hopefully the newly-elected councilors will address these constant giveaways of the public's money to politically-connected companies like Keystone.  The City needs to make public the new revised contract so we know what other changes have been made to sweeten the deal for Keystone.

See my analysis below of the details of the contract, or at least the contract before it was changed:

Tuesday, October 25, 2011, The Tale of the Broad Ripple Parking Garage: Taxpayers Pay to Build the Facility While the Developer Gets 100% of the Ownership and Revenue

City of Indianapolis Racks Up Utility Late Fees

WRTV Reporter Kara Kenney

Why is the City of Indianapolis paying utility late fees?    I don't care what Controller Jeff Spalding says, there is no excuse.  Clearly someone is falling down on the job.  WRTV reports:

The Indianapolis-Marion County government has racked up more than $138,915 in late fees on its electric, water and other utility bills since 2008, records show. 

According to documents obtained by the Call 6 Investigators through a public records request, the city-county government accumulated $93,630 in late fees in 2011 involving utilities that include Indianapolis Power and Light, Indianapolis Water Company, Comcast, Ameritech and Citizens Energy Group.

The payments range from a few cents to a $58,520 late fee payment to IPL in April 2011, Call 6 Investigator Kara Kenney reported.

The State Board of Accounts, which audits most government units in Indiana, but not Indianapolis-Marion County government, told RTV6 that auditors regularly raise concerns about late fees.

"Units of government should not pay late fees for anything," State Examiner Bruce Hartman wrote in an email to RTV6. "Units of government have all the resources they need to get bills paid on time, so we see this as an inappropriate expenditure and will ask the official to pay it back. As with all audits, this is fact-sensitive, so we would have to know the exact facts, but in general, this is our policy." 

...

City Controller Jeff Spalding, who serves as CFO and oversees the city's finances, said individual departments are responsible for paying their own utility bills.

"Certainly, late payments aren't desirable," he said "We pay about $15 million to $20 million in utility bills on an annual basis."

Spalding said the Department of Public Works racked up the majority of the late fees.

"Ninety-nine percent of these late fees were associated with electric utility bills at wastewater treatment facilities," he said. "That wastewater treatment was a big consumer of utility costs, particularly electrical costs."

Spalding also explained that DPW's utility bills aren't like the ones a typical resident receives at home.

"They have a variety of facilities across the city and they have this very complicated bill, yet the timeline for paying it is not adjusted," Spalding said. "I do feel there's a real challenge when you've got a complex billing process."

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