Saturday, June 30, 2012

Underperforming Star Columnist Matthew Tully Criticizes Indiana Legislature for Being Underperforming

Matthew Tully
Indianapolis Star columnist Matthew Tully pens a column in which he says he is "disappointed" because the Indiana General Assembly is "underperforming." In an even worse slur, he accuses the legislature of being comparable to the Chicago Cubs, a team with a century long futility and currently the worst record in Major League Baseball.  Tully offers just a few random examples to back up his stellar analysis (all sarcasm intended), before focusing on legislation prohibiting local communities from banning the private use of fireworks during the days leading up to and following the July 4th holiday.

Hmmm, how ironic.  I continually am "disappointed" that the Indianapolis Star employs "underperforming" political columnists who can't bring themselves to write about anything controversial that might put local politicians and powerful downtown players in a bad light.  While the Star is relegated to the role of cheerleader for local power brokers, the Indianapolis Business Journal and local TV reporters do yeoman's work in detailing corruption and the pay-to-play politics that dominate Indianapolis.

Ironically, I was talking to a friend today who brought up the name of Dick Cady, the legendary Indianapolis Star investigative reporter and columnist who wasn't afraid to report on local politicians' wrongdoing.  In the early 1970's, Cady helped the Star win a Pulitzer Prize with his work exposing corruption in the Indianapolis Police Department.

Matthew Tully is to Dick Cady as the 2012 Cubs are to the 1927 New York Yankees.  I'm sorry ...  that's not really fair to the Cubs. They are not that bad.

Thursday, June 28, 2012

Mixed Decision on Obamacare: Supreme Court Upholds Individual Mandate While Striking Down State Mandate for Medicaid Expansion

After reading (okay, I skimmed some parts) the majority, concurring and dissenting opinions in Unted States Supreme Court's decision in National Federation of Independent Business v. Sebelius, i.e. the decision on the Patient Protection and Affordable Care Act, i.e. "Obamacare," I have concluded that every clerk writing for appellate judges should have a mentor like I had in Indiana Court of Appeals Judge Paul H. Buchanan, Jr.   He insisted that we clerks write with clarity and brevity, using subheadings so that people could easily read and comprehend the decisions we wrote. Unfortunately that is the exception to the rule when it comes to appellate opinions, including the Obamacare case.  The good news is I think I can easily summarize what happened.
United States Supreme Court

ISSUES:  There were two of them addressed. First is the indivdual mandate, in particular the requirement that a person who is not covered by insurance policy through employer, or purchased individually, pay a "shared responsibility payment" when they pay their taxes, which amount initially will be the $695.   The second issue addressed was the PPACA's dramatic expansion of the state Medicaid programs which the federal government was going to mandate by threatening to cut off all Medicaid funding to states if they didn't expand the program.

DECISION ON INDIVIDUAL MANDATE:  Writing for the majority, Chief Justice Roberts found: 1) that Congress could not use the Interstate Commerce Clause within Article I, Section 8 as the authority to impose the mandate: 2) that Congress could not use the Necessary and Proper Clause (that clause at the end of the enumerated powers in Article I, Section 8 that grants Congress any additional power to carry out a power specifically listed) as justification even though it directly was not commerce.  3) that the individual mandate was a "tax" and that Congress has the power to impose the mandate through it power to Tax and Spend for the general welfare.

Ironically, when the individual mandate was before Congress, the Obama administration took pains to argue that the individual mandate was not a tax.   It was not called a tax in the legislation.  The fact Congress did not call it a "tax" was the basis by which Chief Justice Roberts said an anti-injunction law that prohibits the challenge of a "tax" did not apply.  However, when it came to the constitutionality of the tax, Chief Justice Roberts said the label did not matter.  The conclusion that the individual mandate is a tax is the sole factor saved Obamacare from being completely struck down.

The vote on #1, #2 and #3 above, as far as I can tell were 5-4.  Only on #3 did Justice Roberts break with the conservatives and vote with liberal justices, Ginsburg, Kagan, Sotomayer and Breyer.

DECISION ON STATE MANDATE FOR MEDICAID EXPANSION:  Chief Justice Roberts found that the Medicaid expansion part of the PPACA, which sought to punish states which didn't adopt the expansion by denying them all Medicaid funds, violated federalist principles.  Chief Justice Roberts said that while "relative mild encouragement" to encourage states to adopt certain programs favored by Congress is allowed under the Constitution, the state mandate in the PPACA amounted to a "gun to the head" of states. 

What is shocking to me is that the vote striking down of the Medicaid state mandate was 7-2.  Liberal Justices Breyer and Kagan crossed over to vote with Roberts and the conservatives on a vote in support of states rights.  Justices Ginsburg and Sotomayor dissented on the issue.

NOAA Embraces Junk Science in Support of Its Claim Global Warming is Caused by Human Activity

Assuming the planet is warming, how do we know it is man driving the change and not nature. After all, the climate has been changing for the 4.5 billion years history of the planet, long before man arrived. And the planet has been warmer and had higher CO2 levels before man.
But causality is the key.  Just because two things happen at the same time doesn't mean one causes the other.  Most men who are bald have been married. That doesn't mean the stress of marriage causes baldness.  Okay, maybe gray hair, but not baldness. 

Let me give a better example.  In a divorce a few years ago I represented the father.  The mother only wanted my client to have supervised visitation because he was allegedly a theat to abduct his children and flee the country.  She hired an "expert" who testified that most people who abduct a child do not first threaten to abduct the child.  Therefore, she concluded, since my client had never threatened to abduct the children, he was more likely to abduct the children.

I found the below paragraph on the National Oceanic and Atmospheric Administration's website. The "proof" of causality between human activity and global warming is, well, just about as laughable as the expert's testimony on child abduction:
How do we know humans are the primary cause of the warming?
A large body of evidence supports the conclusion that human activity is the primary driver of recent warming. This evidence has accumulated over several decades, and from hundreds of studies. The first line of evidence is our basic physical understanding of how greenhouse gases trap heat, how the climate system responds to increases in greenhouse gases, and how other human and natural factors influence climate. The second line of evidence is from indirect estimates of climate changes over the last 1,000 to 2,000 years. These estimates are often obtained from living things and their remains (like tree rings and corals) which provide a natural archive of climate variations. These indicators show that the recent temperature rise is clearly unusual in at least the last 1,000 years. The third line of evidence is based on comparisons of actual climate with computer models of how we expect climate to behave under certain human influences. For example, when climate models are run with historical increases in greenhouse gases, they show gradual warming of the Earth and ocean surface, increases in ocean heat content, a rise in global sea level, and general retreat of sea ice and snow cover. These and other aspects of modeled climate change are in agreement with observations.
To summarize, here is what the NOAA cites as proof human activity is the primary factor causing global warming.

1) Our physical understanding of how greenhouse gases trap heat, how the climate system responds to increases in greenhouse gases, and how other human and natural factors influence climate.
--the statement simply begs the question of whether humans are influence the climate and how.  It doesn't prove causality.

2)  Indirect estimates of climate changes over the last 1,000 to 2,000 years, which show the recent temperature rise is clearly unusual in the last 1,000 years.
---how does that prove human activity is causing global warming in the past 1,000 years?  Again, the assumption is that because two things correspond in time, one is causing the other.

3) Comparison of actual climate with computer models of how we expect climate to behave under certain human influences. 
--again this doesn't prove human activity is causing global warming.  All it proves is a suspicion that human activity might be causing global warming.  That is the very thing that your supposed to be testing to confirm.

The NOAA's statement does not of course prove man is causing global warming.  However, it does prove that even scientists are willing to use junk science if it advances a political cause.

Monday, June 25, 2012

Thinking Law School? Think Again

The Wall Street Journal has an excellent on-line article about the legal job market.  It should be required reading for anyone thinking of going to law school:
Members of the law-school class of 2011 had little better than a 50-50 shot of landing a job as a lawyer within nine months of receiving a degree, according to a Wall Street Journal analysis of new data that provides the most detailed picture yet of the grim market for law jobs.
Under pressure from disillusioned graduates and some professors, the American Bar Association for the first time released a tally of the previous year's graduates who have secured full-time, permanent jobs as lawyers. Until recently, the ABA required law schools to report only general data about how their graduates fared, such as how many were employed full-time or part-time in any kind of job, whether or not it required a law degree.
The numbers suggest the job market for law grads is worse than previously thought. Nationwide, only 55% of the class of 2011 had full-time, long-term jobs that required a law degree nine months after graduation. The ABA defines "long-term" jobs as those that don't have a term of less than one year.
The numbers capture only 2011 graduates and measure their employment status within nine months of graduation. That time frame tends to favor top schools whose students often—in good times and bad—land jobs before graduation, according to several law-school deans.
To see the rest of the lengthy article, click here.

Proposed Building to House New Indiana Tech Law School
The ABA bases its ratings of law schools partly on surveys about the employment situation of new grads at nine months, which is part of the information discussed above.  Now here is what is not in the WSJ article.  That data received from law school...there is no audit procedure to confirm the validity of that information.  Law schools know they can lie - and have been - without fear of being caught.  A few years ago when I asked for the surveys upon which the IU School of Law at Indianapolis had based its outrageous salary figure and employment numbers, they denied my request for the documents (even in redcated form) but let it slip that they "estimate" salaries for graduates who don't return their surveys.

In the comments section, one of the posters criticized the comments confirming the article is right about bad legal job market.  He said he had just taken the law school admissions test and he knows that the "offers" he receives from law firms will be based on the grades he receives at what he admits will be a lower tier law school.  He is certain though that if he gets good grades and is a good lawyer that he'll do very well in the legal profession.

Offers?   OFFERS??  He thinks law firms are going to be lined up to make offers to him upon graduation? How naive.  He'll be lucky to get one offer and that will only come if he doggedly pursues any possible job openings.  Law firms don't even interview students at law schools like they used to where those offers were generally extended  Big law firms aren't offering partnership tracks for new associates.  Many law firms have gone to commission only, dropping paying associates salaries or an hourly for their work.  The poster has no idea what he is getting into. He is liable to graduate with six figure, non-dischargable debt and find that he can't get a job in the legal profession at all.  You think he'd listen to people who have actual experience in the legal job market as opposed to law schools who have an incentive to lie to prospective students.  But once again, people believe what they want to believe.

Sunday, June 24, 2012

Indianapolis Star Pats Itself on Back for Litebox Investigaton Initiated by Others (Corrected)

The Indianapolis Star reports:
When an Indianapolis Star investigation raised questions about the shaky financial background of Litebox founder Bob Yanagihara, city and state economic development officials insisted their support of the project posed no risk to Hoosiers.
That "no-harm, no-foul" claim may have been true in regard to about $10 million in proposed state and local incentives offered to the startup that promised 1,100 new jobs in Indianapolis 
Now, as Yanagihara's once-heralded project appears to be fading to black, two Indiana companies say they are out more than $50,000 in connection with their dealings with Litebox. 
Indianapolis economic development officials, meanwhile, say incentives initially offered to Litebox have been pulled off the table. Litebox is no longer eligible for tax breaks or other incentives, said Jessica Higdon, marketing director for Develop Indy.
Higdon could not say specifically what had changed about the project but added that city officials have seen little evidence of progress since the October announcement. 
"We're not aware of any movement at the (plant) site," she said. "I believe they have made some improvements at the East Washington Street site, but I am not aware of the scope."
To see the rest of the Star article, click here.

Don't get me wrong.  The Star has done excellent investigation work on Litebox.  However, as I recall, it was blogger Gary Welsh of Advance Indiana who initially raised questions about Litebox and reported on the questionable background of Yanagihara.  (Actually it was pointed out to me that the IBJ might have been the first one to report the story...either way, it wasn't the Star.)  The Star initially fell into a cheerleader role on the project, praising the deal, as did the rest of the local media.  It wasn't until the blogosphere, led by Welsh, began digging into publicly available records that questions were raised.

Friday, June 22, 2012

Councilor Scales Calls Mayor Ballard Out on Failure to Live Up to Committment Regarding Keeping Ladder Truck 21 at Northside Station

Councilor Christine Scales
Indianapolis City-County Councilor Christine Scales worked tirelessly last year to keep Ladder Truck 21 at the fire station at 71st and Keystone against attempts by Public Safety Director Frank Straub to remove it.  Now it appears that the Ballard administration, which agreed to leave the truck there through the end of 2012, has decided to renege on that commitment.  In the Facebook post below, Councilor Scales calls for residents to take action to encourage the administration's decision to endanger the life of northside residents by removing this vital piece of equipment:
"Bad news-after receiving a commitment from Mayor Ballard both verbally and in writing, that Ladder Truck 21, at 71st and Keystone would stay at its station throughout 2012, the announcement was made that it is being yanked on July 1st. This is a vital piece of fire fighting apparatus for the entire northside. We have more high rise buildings than anywhere in Marion County other than Downtown. Most of them don't have interior automatic sprinkler systems. That poses the potential for a very serious fire. The urban density up here and the constant traffic congestion impedes response times. Without LT 21, if you're trapped in a burning room on a top floor, say your prayers. Before that -call 327-4MAC and your councillor."
I have so much respect for Councilor Scales who has always put her job and her committment to her constituents ahead of blind party loyalty.   That respect continues to grow.

Thursday, June 21, 2012

Purdue University Makes Right Move by Making Governor Daniels the Next President

When I came out of law school in 1987, before even sitting for the bar, I sent my resume in to IUPUI to teach political science.  My undergraduate degree from Ball State is political science and I had interned in the Indiana State Senate as well as been involved in local politics.  Fortunately, my resume hit IUPUI at the right time, i.e. when they needed someone to fill a vacancy for an adjunct instructor.  I got the job and over the next several years, I every semester taught one of the two introductory level courses, American National Government or Introduction to Political Science.  I also had the chance to teach a couple advanced class I designed, Media and Politics and Campaign Organizations, i.e. how to run a campaign, including basic strategy.
Governor Mitch Daniels
Later I went on to the University of Indianapolis teaching State and Local Government and American National Government.  This summer I'm teaching the latter.  With the exceptions of a handful of semesters, I have taught consistently at the college level since 1987.

During that quarter century the price of tuition and expenses such as for books has soared, far above the rate of inflation. Meanwhile college campuses have modernized considerably, building often opulent facilities for their students. 

When people talk about the enormous cost of higher education, the focus is always on how to  make more money available to students, either through grants or loans.  No one ever challenges the spending by colleges and universities, demanding that they hold the line on costs or educate students for less.

I have at times complained about Governor Mitch Daniels' failure to exercise strong oversight over state agency officials and the decision to ignore whistleblowers who have pointed out problems at the agencies.   It is frustrating  to me that Governor Daniels otherwise excellent tenure is marred by scandals and mismanagement that were entirely avoidable.  But where Governor Daniels has excelled is on budgetary matters, characterized chiefly by a steadfast demand that state government hold the line on costs.  He was even willing to touch the third rail of Indiana politics - K-12 education - which for years have had their budgets increased far above the inflation rate.

I don't buy for a second that Governor Daniels hailing from a non-academic environment is a bad thing. There is a reason the term "ivory tower" is part of our lexicon and most often applies to colleges and universities.  Too often administrators and faculty at those institutions are oblivious to the practicalities of living in the real world inhabited by their students.  It is about time we had a university president who demanded that the school hold the line on spending and offer a more affordable education product for its students.    Governor Daniels' insistence on controlling costs at Purdue, as he has as Governor, has the opportunity to revolutionize higher education in Indiana.

Can You Get an OVI on a Bicycle in Indiana?

I posed this legal riddle on Facebook last night.  But I thought I would expand upon it here.

Let's say Jerry is at an Indiana bar on a Friday night drinking his meager paycheck away.  Jerry is intoxicated.  He has to get home, but can't afford cab fare.  Jerry's drinking buddies at the bar though offer him some alternatives to hopping in his car and risking an operating a vehicle while intoxicated charge.

George says:  "I have my horse, "Old Paint," tied up outside.  You're welcome to ride him home."

Larry says:   "My bicycle is chained outside.  You can take that home if you want."

Robert says:  "You're welcome to use my electric wheelchair to get home.  I'll come by and get it in the morning."

So the options are horse, bicycle and electric wheelchair.  One of those can net you an OVI charge...the other two are not covered by the OVI law.  (I'm not saying you can't get something like a public intoxication charge.)

Let's examine the OVI law first.  The two basic OVI statutes are found in IC 9-30-5 et seq.:
IC 9-30-5-1
Class C misdemeanor; defense 
Sec. 1. (a) A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per:  
(1) one hundred (100) milliliters of the person's blood; or 
(2) two hundred ten (210) liters of the person's breath; 
commits a Class C misdemeanor. 
(b) A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per:  
(1) one hundred (100) milliliters of the person's blood; or 
(2) two hundred ten (210) liters of the person's breath;
commits a Class A misdemeanor. 
(c) A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's body commits a Class C misdemeanor. 
(d) It is a defense to subsection (c) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner's professional practice.
IC 9-30-5-2 
Class A misdemeanor 
Sec. 2. (a) Except as provided in subsection (b), a person who
operates a vehicle while intoxicated commits a Class C misdemeanor.

(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.
So what is the definition of a "vehicle"? IC 9-13-2-196 provides for several definitions of that term as used in the Title 9.  However the definition specifically applying to the OVI offense is:
(f) For purposes of IC 9-30-5, IC 9-30-6, IC 9-30-8, and IC 9-30-9, the term means a device for transportation by land or air. The term does not include an electric personal assistive mobility device.
The legislature specifically exempted "electric personal assistive mobility device" from the definition.   So the electric wheelchair is definitely an option. (Ironically if the wheelchair is not motorized, it would appear to be covered by the OVI laws as a vehicle.)   I suppose a prosecutor could argue that the electric wheelchair is not Jerry's so that exception shouldn't apply to him, but criminal statutes are construed strictly so I think Jerry should win that argument.

But Jerry doesn't want to deprive Robert of the use of his electric wheelchair.  So now Jerry's options are the horse or the bicycle.  Which to choose?  Well "device" is not defined in Title 9. So let's look at a common dictionary definition of the term.

According to Merriam-Webster, "device" is defined as "a piece of equipment or a mechanism designed to serve a special purpose or perform a special function."

A horse is not a "piece of equipment or a mechanism," but a bicycle certainly is. 

So, yes, you can get an OVI on a bicycle in Indiana.

Tuesday, June 19, 2012

How Congress Saved Baseball

Yesterday a jury acquitted former Major League Baseball pitcher Roger Clemens for, allegedly, lying during his testimony to Congress.  Clemens' testimony had come during a March 2005 congressional investigation into steroid use by MLB players.

Upon the news of Clemens' acquittal, people began jumping on Congress for involving itself in the baseball steroid scandal.  The common refrain is that Congress should have just stayed out and let the sport take care of the steroid problem.
Roger Clemens

We can debate the source of Congress' authority to investigate the national pastime all day long.  But there should be little doubt that Congress did the sport of baseball a huge favor by pushing baseball executives to confront the issue of steroids which was destroying the integrity of the game.

Statistics play an important role in the popularity of baseball.  Fans of the sport compare players from one era to another and debate whether, for example, Willie Mays is a better player than Mickey Mantle.  It is that history of the baseball, with players of different eras measured by statistics, that ties together fans across generations. 

It is critical to the integrity of the baseball statistics that the game be played essentially the same from one time period to another.  About the only slight hitch in that during last 100 years was the expansion of the season from 154 games to 162 games.  Then came the steroid era.

In the nine seasons before steroid testing, 18 players hit more than 50 home runs while six hit more than 60.  In the nine seasons after testing, there have been only six 50 home run seasons.  No one has hit 60 home runs.

Steroids had the effect of turning modest hitting players into sluggers, maybe not always capable of hitting 50 home runs, but finding 40 within reach.  So let's look at the 40 home run club, post 1961 the start of the 162 game season.

1961-1969  (nine seasons)
31 players hit 40 or more home runs

1970-1979  (ten seasons)
20 players hit 40 or more home runs
---'74, '75, and '76 seasons featured no one with 40 plus home runs

1980-1989  (ten seasons)
13 players hit 40 or more home runs
---'81 and '82 seasons had no one with 40 plus home runs

1990-1993  (four seasons)
11 players hit 40 or more home runs

1994 (about 115 games)
2 players hit 40 or more home runs

1995 (about 144 games)
4 players hit 40 or more home runs.

1996-2005 (10 seasons)
120 players hit 40 or more home runs
--this includes double figure 40 plus home run seasons of 1996 (17), 1997 (12), 1998 (14), 1999 (12), 2000 (16), 2001 (12), and 2003 (10).

2006-2011  (six seasons)
27 players hit 40 or more home runs
--only two players hit 40 plus home runs in 2010 and 2011.

NOTE:  There have been 8 seasons featuring ten or more players with 40 plus home runs since 1961.  Seven of those seasons fell within steroid era.  The other was 2006, the year serious steroid testing began, when there was 11 home runs.  Although I have placed that year outside the steroid era, players that year could well may have still been under the influence of steroids and other performance enhancing drugs that had been in use for a decade or longer.  Following 2006, there was a substantial drop off in membership in the 40 home run club:  2007 (5), 2008 (2), 2009 (5), 2010 (2), 2011 (2).

Now let's examine Congress' role in ending the steroid era in baseball.  Although MLB had started mandatory steroid testing in 2004, the program, which only called for "treatment" of a first time offender, didn't result in a single suspension.  In the Spring of 2005 faced with the spectre of a congressional investigation, Major League Baseball did finally adopt a policy that provided for a penalty for a first time offender, but even that penalty was mild - a mere 10 day suspension.   Following the 2005 season, facing the spectre of Congress taking action following the hearings, MLB finally got serious about steroid use adopting a new policy in November of 1995 that the first positive test would result in a 50-game suspension, a second positive test would result in a 100-game suspension, and a third positive test would result in a lifetime suspension from MLB.

Congress gets criticized for supposedly stepping outside of its authority to investigate steroid use in baseball.  But Congress did baseball fans a favor.  Congress saved baseball.  There I said it, let the ridicule begin.

Now that we've done something about juiced players, if only we could do something about that decade of juiced statistics that remain on the books.

Monday, June 18, 2012

City's Latest Hairbrained Privatization Idea: City Proposes 30 Year Contract to Run City-County Building

Indianapolis City-County Building
Just when I thought the ACS parking meter deal, where we give away 70% of the revenue for the next 50 years because we didn't want the "risk" of spending $8 million to upgrade the meters ourselves, was the worst deal in the City's history, along comes another hairbrained idea - privatizing  the Indianapolis City-County Building with a 30 year maintenance contract or even selling the City-County Building and leasing it back.  The idea is to mortgage the building to create up front cash that which can be spent by the Ballard administration.  Gary Welsh of Advance Indiana provides some interesting details:

It's now apparent that there is no city asset that is so sacred as to not be within the grasp of Mayor Greg Ballard's political cronies to turn into a profit center. The IBJ's Kathleen McLaughlin has a story in today's edition discussing the Ballard administration's plan to privatize the City-County Building, which is currently owned by a municipal corporation, the Indianapolis-Marion County Building Authority, and leased to city-county government for $4.85 million annually, or about $7.29 per square foot, which includes unlimited utilities. The Authority floated bonds to construct the original 28-story building in 1959 for $32 million.
According to a Request for Information put out by the City, the administration thinks it would be better for it to exercise its option to assume ownership of the building at the end of its current 10-year lease with the Authority and then privatize it rather than continuing to make low lease payments to the Authority. The administration is hoping to shift cost of future repairs to the building to a third party without increasing the city's overall costs. Anyone with common sense knows that it's impossible to turn control of the building over to a private entity, expect that private entity to make necessary repairs to a 50-year old building and lease it back to the city for no more than the paltry $7.29 per square foot the City is now paying the Authority to use the space. The City is even anticipating an upfront payment from a private real estate manager as part of the deal to spend on infrastructure improvements. Apparently the City wants us to believe it is possible to have your cake and eat it too.
Anyone with common sense knows that it's impossible to turn control of the building over to a private entity, expect that private entity to make necessary repairs to a 50-year old building and lease it back to the city for no more than the paltry $7.29 per square foot the City is now paying the Authority to use the space. The City is even anticipating an upfront payment from a private real estate manager as part of the deal to spend on infrastructure improvements. Apparently the City wants us to believe it is possible to have your cake and eat it too.  
McLaughlin's story quotes the current chairwoman of the Authority, Abbe Hohman, as saying the Authority believes it has "offered to the city over a very long period economically attractive lease rate at the same time maintaining the building to the highest standards." The Authority also manages 19 other public facilities, including the Marion Co. Jail. Illustrative of what a great deal the city gets from its lease with the Authority is the fact that its annual lease expenses for CCB are less than half what the City is paying to lease downtown commercial space for the Marion Co. prosecutor's office and the public defender. Of course, those were sweetheart deals brokered by and for the benefit of John Bales, who has since been indicted by the federal government for corruption involving the leasing of office space for the Department of Child Services in Elkhart. 
Welsh's entire aricle is worth a read.

I am most offended by the 30 year contract idea.  The problem is that many municipal officials are all too willing to mortgage the future in order to get a pile of cash they can play with.   Privatization has to be about the private sector competing to provide the public better services.  When you sell off a city asset or enter into a long term contract involving that city asset, that's not privatization, it's monopolization.  And it is bad for consumers.

One final note.  Will the proposal including naming rights for the building? I can see it now...the Barnes & Thornburg City-County Building.

Friday, June 15, 2012

Mayor Ballard Vetoes Redistricting Appropriation; Legal Challenge to 2011 Maps is a Near Certainty

The Indianapolis Star reports:
Mayor Greg Ballard today vetoed the City-County Council's attempt to start a new redistricting effort.
"The City-County Council legally and fairly redistricted earlier this year," Ballard said in a prepared statement. "As the city works to erase an estimated $47 million budget shortfall for 2013, this proposal was an unnecessary expenditure of taxpayer money."
The new redistricting plan would cost $180,000 to draw new maps for 25 council districts. 
Here's the heart of the matter: Republicans led a redistricting effort when they controlled the council last year. Now, Democrats want their chance.
To see the rest of the article click here:
In the story I didn't quote the reporter suggested there might be a problem with whether Mayor Ballard signed the redistricting measure in time.  Wasn't aware of that. Regardless, that's not the legal problem.  The fact is the law REQUIRES the Council to redistrict in 2012.
IC 36-3-4-3  
(a) The city-county legislative body shall, by ordinance, divide the whole county into twenty-five (25) districts that:  
(1) are compact, subject only to natural boundary lines (such as railroads, major highways, rivers, creeks, parks, and major industrial complexes);  
(2) contain, as nearly as is possible, equal population; and 
(3) do not cross precinct boundary lines.
This division shall be made during the second year after a year in which a federal decennial census is conducted and may also be made at any other time, subject to IC 3-11-1.5-32.
The end of IC 36-3-4-3 refers to any other time except for a year long blackout period on redistricting that runs until the day after the municipal election.  There is a five week period between the municipal election and when the new council members take office at the start of the year.  During that lame duck period, it appear the council can legally redistrict. The problem is the statute also says the Council MUST redistrict in the second year after the census.

Now why would the Indiana General Assembly specifically say the Indianapolis City-County Council has to redistrict in the second year after a census? Think about when Indianapolis municipal elections take place - in odd numbered years, four years apart.  That means every other census will be followed by a municipal election where there ends up being a lame duck legislature.  By requiring the council to redistrict in the second year following the census that would appear to render useless any lame duck redistricting by the Council. The legislature though apparently did not anticipate the situation such as which happened here where the Council Republicans lost their majority but a Republican Mayor won, thus providing an opportunity in which the lame duck Republican majority could redistrict and then the Republican Mayor could simply veto redistricting plan offered the following year.

The problem for Mayor Ballard's position is that the law says the Council must redistrict in 2012.  I don't think courts are going to find that statute met by the Council passing a redistricting plan in 2011 and the Mayor signing it on January 1st the following year.  Given the stalemate, it is almost certain that once again a court will be drawing the council maps.

The Democrats though dropped the ball on the politics of the redistricting issue.  By insisting it would take another $180,000 to draw the maps, a figure similar to what former Council President Ryan Vaughn paid political operative David Brooks, the Democrats lost the chance to be frugal stewards of the taxpayers money.  It doesn't take $180,000 to draw 25 council districts. 

Common Cause of Indiana is offering a website where people can draw council districts for free.   Common Cause will be conducting two public training sessions and mapping technical assistance is also available via telephone and email.

The training sessions will be:
  • Saturday, June 23 from 10:30 until 12:30 at the Nora branch of the Indianapolis Marion County Public Library
  • Tuesday, July 10 from 5:30 until 7:30 at the Southport branch

Wednesday, June 13, 2012

Media Advisory: Press Conference Regarding Smoking Ban Lawsuit Against City of Indianapolis




Date:               June 13, 2012

Time:               3:00 pm

Location:         Federal Courthouse (steps on southeast side of building)
                         Indianapolis, Indiana

 Contact Person:        Paul K. Ogden
                                    317-297-9270 office
                                    317-728-6084 cell

Participant:    Mark Small, Attorney for Plaintiffs in Smoking Ban Litigation

             Today, Attorney Mark Small, on behalf of 43 plaintiffs, including Indianapolis bar owners and bar patrons, filed an amended complaint in Federal District Court.  Mr. Small will be holding a press conference on the steps of the Federal Courthouse (southeast side) at approximately 3 pm to answer any questions members of the media may have about the lawsuit.

             The amended complaint names Mayor Greg Ballard, the City of Indianapolis, County of Marion, and the Indianapolis City-County Council as defendants.  The amendment is a step toward consolidating the numerous lawsuits filed in the wake of Mayor Ballard signing the smoking ban ordinance as well as adding additional legal theories.

             The amended complaint alleges the smoking ban infringes on the Plaintiffs' due process rights, violates the equal protection clause by unfairly targeting their businesses while allowing other businesses to permit smoking, amounts to a taking without compensation under the United States and Indiana constitutions, violates the Plaintiffs' free association rights, and infringes on the liberty rights of the Plaintiffs as guaranteed by the Constitution.

             In filing the lawsuit, Attorney Small noted: "The right of an owner of a private business on private property to allow patrons or customers to engage in otherwise legal conduct is among those rights not specifically enumerated in the Constitution or Bill of Rights, but would have been a right the Framers would have believed unnecessary to specifically protect as they convened over mugs of ale and pipes of tobacco during that summer of 1787 in Philadelphia."

             The lawsuit requests that the Federal District Court declare the smoking ban to be unconstitutional and the City be enjoined from enforcing the ordinance.

             Mr. Small has a hearing early this afternoon and will not be available to answer questions before the press conference.  Following the press conference, Mr. Small can be reached at his office at 252-4800.

 **                    **                    **                    **                    **                    **

Tuesday, June 12, 2012

ACLU Ignores Religious Liberty Protected by First Amendment; Organization Continues Tradition of Ignoring and Twisting Constitution to Advance Political Agenda

I'm probably one of the few Republicans who has nice things to say about the American Civil Liberties Union.  The ACLU fights tirelessly for Free Speech, including for those among us - the Nazis, the Klan, etc., who are the least popular.  Although to a lay person those battles seem misplaced, they are important to protecting the bedrock principles of the Free Speech Clause from erosion.

The ACLU also does thankless work when it comes to protecting the constitutional rights of those among us who are incarcerated  Again, standing up for inmates is not a popular cause, but it is important work to protecting our liberties.  We could all find ourselves incarcerated some day and in need of those constitutional protections defended by the ACLU.

When it comes to the Constitution though, I always make the comparison between the Libertarian Party and the ACLU. Both purport to defend the Constitution. But my Libertarian friends, although they sometimes are sometimes wrong about meaning behind various constitutional provisions, or the history behind those provisions, are adamant about fighting for all of the Constitution. The ACLU though is is selective on which constitutional rights it will stand up and defend often choosing to sit on the sidelines in some of the most significant legal battles of this past century.  Further, the ACLU, under the guise of interpreting the Constitution, supports interpretations that twist or even obliterate the actual words of the grand document.  Make no mistake about it, the ACLU has a liberal political agenda, and their venue for pushing that agenda is an activist judiciary which is willing to ignore history and even the actual words of the Constitution if necessary to advance that agenda. 

A recent National Review article entitled "Wherefore Art Thou ACLU" notes the absence of the organization from key cases where the Supreme Court has been called on to interpret the Constitution:
Like the Supreme Court, the ACLU is as easily judged by its sins of omission as by the  active positions it takes. Certain cases that one would assume to be within its sphere of interest are met with a deafening silence. The national ACLU ignored the internment of Japanese American citizens during the Second World War, was notably quiet during the McCarthy era, and made no mention whatsoever of D.C. v. Heller, the most important Second Amendment case that the Supreme Court took since the New Deal. And until Wednesday of last week, to its long Catalogue of Things Overlooked we could have added the HHS contraception mandate. But then the ACLU spoke up — for the government.
Yep, the ACLU had a chance to stand up for religious freedom enshrined in the Constitution against government intrusion, and instead chose to make a political argument for the federal government in its desire to mandate religious institutions provide contraception coverage even though doing so is against the tenets of those religions.  The National Review article continues:
Responding to the controversy, the ACLU’s Alicia Gay criticized the “powerful lobbying arm of the Catholic Church” for creating much ado about nothing, and then, for good measure, chastised the Church’s bishops for their perceived failure to talk about “women’s health.” Gay flatly denied that the measure violated the First Amendment, contending that “the fundamental promise of religious liberty in this country doesn’t create a right to impose those views on others, including ignoring civil rights laws or denying critical health care.”
Well, let’s break this down, starting with the charge that the Church wishes to “impose . . . views on others.” Given how often the organization has dealt with the First Amendment, one might expect the text to be seared into the collective eyes of the ACLU’s rank and file, but in the absence of such fluency, a refresher: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
In the case of the HHS mandate — which way does the coercion run? Are Catholic institutions forcing the government or their employees to do something — anything — or is the government impressing them into its service, and violating their “religion” and “free exercise thereof” by that act? The answer is clear: As with so much of Obamacare it is free American citizens, churches, and companies that are being bullied into a particular course of action when they were previously free to choose, and it is the federal government that is doing the imposing. For an organization with the words “Civil Liberties” at the heart of its title, this should be of great concern. Alas it does not seem to be so.
The Washington Examiner correctly characterized the ACLU’s position on the contraception mandate as being that “individuals who choose not to pay for employees’ contraceptives . . . are forcing their beliefs on their employees.” But it is downright impossible to “force” a “belief” on another adult by doing nothing. By such logic, all employers who do not offer pensions or travel expenses as part of their reimbursement packages are stealing from their employees. ...
Put simply, the federal government was never afforded the right to interfere in this sphere in the first place, and no amount of insisting that two and two make five will change that fact. Arguing for religious toleration in his Notes on the State of Virginia, Thomas Jefferson wrote that “our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.” (Much as this might vex those on the left, “God” and “State” are not interchangeable terms.) Jefferson’s words formed the intellectual basis for Virginia’s Statute for Religious Freedom and, in turn, for the first amendment of the very Constitution that the ACLU claims to protect.
I do no have a problem with an organization having a political agenda.  I do though have a problem when an organization like the ACLU claims a committment to defending the Constitution, but yet has no problem ignoring that document when it gets in the way of a political agenda.

To see all of the National Review article, click here.

Monday, June 11, 2012

Indiana Election Officials Sued Over Bloated Voter Registration Rolls; Twelve Indiana Counties Are At More Than 100% Voter Registration

Earlier this month, I wrote that 90% of Hoosier adults are registered to vote.  I suggested that figure is absurd and shows Indiana's voter registration rolls are horribly inflated with the names of people who have died or who have moved and are registered at multiple addresses.  (The more "dead" names on voter registration rolls, the easier voter fraud becomes.  It also highlights the importance of a photo ID requirement to vote rather than simply signing one's name.)  I figured at the time there had to be several counties with more than 100% registration.

My suspicious were proved correct.  The Associated Press reports on a lawsuit filed against state election officials for failure to clean up the voter registration rolls:
A national public interest group has filed a lawsuit against Indiana election officials accusing the state of failing to maintain clean voter registration lists as required by the National Voter Registration Act.
Washington, D.C.-based Judicial Watch says an analysis of data for the November 2010 general election shows 12 counties (Scott, Spencer, Crawford, Warrick, Tipton, Franklin, Warren, Union, Orange, Brown, Hancock and Newton counties) had more people listed on rolls than were eligible to vote....
Indiana in 2006 reached an agreement with the Justice Department to purge voter rolls of those who had died or were listed more than once after an investigation found hundreds of thousands of ineligible voters on its lists.

The irony is that the 1993 National Voter Registration Act ("Motor Voter" Law) made it very difficult to purge voters for not voting.  While making it much more difficult and expensive to clean up voter registration rolls, the federal government also penalizes states if they fail to keep the voter registration rolls clean.

Press Release: Country Music Legend Glen Campbell Performs at Murat in Support of Alzheimer's Association

For Immediate Release
Contact: Joanna Rosenthal
Communications DirectorAlzheimer's Association Greater Indiana Chapter 

Indianapolis, June 10, 2012---- On Sunday night, volunteers and staff from the Alzheimer's Association Greater Indiana Chapter attended Glen Campbell's concert at the Murat Theatre at Old National Centre.  Despite his diagnosis of Alzheimer's disease, Campbell decided to hit the road for the "Goodbye Tour."  Campbell's band includes his sons, Cal and Shannon, and daughters, Ashley and Debby Campbell-Cloyd.  Ashley Campbell, 25, asked the crowd to support the Alzheimer's Association before her father took the stage. 

Campbell joked during his upbeat performance, generating laughter, clapping and cheers from his supportive fans.

Before and after the concert, Association volunteers and staffers distributed information and collected donations.

Director of Public Policy and Advocacy Michael Sullivan said Glen Campbell's decision to go public with his diagnosis is raising critical awareness about Alzheimer's disease.

"It takes a lot of courage to continue your career while knowing you have Alzheimer's disease.  Coach Pat Summitt and singer Glen Campbell are two more recent famous Americans to have been diagnosed with Alzheimer's," Sullivan said.  "Both demonstrate the desire to not let Alzheimer's negatively impact their lives."

After the concert, Campbell met with Association staff and volunteers, signing autographs and posing for pictures. When asked how he felt about the concert, Campbell said, "It was fun!"

An estimated 120,000 Hoosiers and over 5.4 million people in the United States are living with Alzheimer's disease.  Someone develops Alzheimer's every 68 seconds.

For help, please contact the Alzheimer's Association Greater Indiana Chapter at 800-272-3900.

The Day Journalism (in San Diego) Died: Reporter Fired for Writing Critical Stories About Stadium Deal, New Owner Says Newspaper Should Be "Cheerleader"

Former Union Tribune Columnist Tim Sullivan
Last week the blog "Fields of Schemes" reported that San Diego Union Tribune CEO John Lynch had dismissed writer Tim Sullivan.  Sullivan had penned a number of stories about how bad sports stadium deals are for local government and criticized the new stadium planned for San Diego.  Before one story he wrote, Sullivan had contacted me about Indianapolis' sweetheart deals for the Colts and Pacers.

Lynch had been hired by new owner, Doug Manchester.  During an interview with a San Diego radio station, Manchester openly admitted the news should be slanted to favor such projects:
"Local newspapers need to be a cheerleader for what's right and good for the country, such as promoting the new stadium or whatever," Manchester told KUSI anchors. "I felt that there's been a lack of that here in San Diego. And so that's one of the motivations."
In a local alternative newspaper, the Voice of San Diego, Lynch expanded on the new U-T agenda:
New Union Tribune CEO John Lynch
...Lynch said he wants the paper to be pro-business. The sports page to be pro-Chargers stadium. And reporters to become stars.
"It's news information, but it's also show biz," Lynch said. "You get people to tune in and read your site or the paper when there's an 'Oh wow' in the paper."
He wants that sports page to be an advocate for a new football stadium "and call out those who don't as obstructionists." 
"To my way of thinking," Lynch said, "that's a shovel-ready job for thousands."
We'd like to be a cheerleader for all that's good about San Diego," Lynch said. "Our motivation, both of us, was to do something good for San Diego."

Sunday, June 10, 2012

Republican State Party Nearly Triples Delegate Fee Over Last Ten Years; Was Increase Aimed at Protecting Power of Establishment Republicans Against Influence of Tea Party and Ron Paulites?

When I heard the delegate fee for the Republican State Convention this year was $80 I was aghast.  Although I had withdrawn my name as a a candidate for delegate this year, and had not been one for a few years, I did not recall the fee being nearly that steep.  I looked back over my old records and found where I paid the delegate fee in 2002.  It was $30.  We are talking about a near tripling of the convention fee in 10 years.

The party can justify charging a delegate fee to cover the costs of the convention. But at $80 a delegate, the fee becomes about raising money, not just covering costs.  But the increased delegate fee serves another purpose...controlling who becomes a delegate.  The Republican Party is experienced a populist wave led by the Tea Party.  Ron Paul's people also expressed an interest being a player in this year's convention.

Many of the Tea Party and Ron Paul people are just everyday working people whose budgets are already strained by the economy.  Paying $30 to attend a convention is doable; paying $80 to be a delegate, however, is going to cause many of those people to opt out of serving as a delegate.

For the Establishment Republicans, that's a good thing.  They don't want those folks to come in and mess up the convention by supporting candidates other than those blessed by the Establishment.  They don't want those folks at the convention forcing the GOP platform in a direction the Establishment does not want.

The $80 delegate fee, adopted to raise money and keep the influence of the Tea Party and Ron Paulites at bay, is short sighted.  Those middle class, hard-working men and women are the lifeblood of the GOP.  The Republicans do not do themselves a favor by excluding those individuals from this important biennial party event at which several state-wide officials are nominated.

I think it very possible that the State GOP Convention is going to start resembling today's Marion County GOP slating conventions.   Those slating conventions used to feature several candidates contests and the candidates worked hard to meet with party workers before the event.  The party workers packed convention halls to decide these contests.  Slating provided energy and enthusiasm to the grass roots of the Republican county party.  Those folks had power and were decision makers.

Marion County party bosses, however, did not like elected party workers picking the candidates so they rigged the rules so much that now the party chairman get to pick over 80% of the people who vote at the county convention.  As a result, the handpicked choice of the county chairman always win slating and candidates not handpicked by the county chairman do not even try.  Of 17 positions up for slating this year, only one was contested.  The Marion County slating convention has devolved into a much smaller group of people showing up at the convention to applaud the choices of the party bosses.

When you strip power from grass roots workers, you undermine the long-term health of the party.  That appears to be the road the State GOP is taking.

Gary Welsh of Advance Indiana wrote two good stories about the GOP convention which can be found below:

Is This Any Way To Run A State Convention?

More On "Is This Any Way To Run A State Convention"

Saturday, June 9, 2012

U.S. Supreme Court Rules Against Northern Estate Residents; Will Indianapolis City-County Council Step in and Right the City's Wrong?

I finally had a chance to read Armour v. City of Indianapolis handed down by the United States Supreme Court on Monday.   It is a local case borne out of horrific municipal unfairness.  Now that the matter is no longer being litigated, I believe the Indianapolis City-County Council should consider righting the wrong left untouched by the courts..

Let me summarize the facts.  Several years ago, the City was set to install sewers in Northern Estates, a upper middle class, quiet neighborhood on the northwest side.  To fund the sewers, the City used Indiana's Barrett Law, a statute that permits Hoosier cities to apportion a public improvement project's costs equally among all homeowners benefiting from the improvement.  The City made an assessment and gave homeowners the choice of paying the bill in a lump sum upfront, or paying it in installments .  Of the 180 residents, 38 chose to pay the entire $9,278 assessment up front.  The rest chose to pay the $9,278 bill in installments over 5, 10 or 15 years.
United States Supreme Court

Shortly after the sewers were hooked up and residents started paying the installments, the City abandoned Barrett Law financing and instead adopted the Septic Tank Elimination Program (STEP),which charged each homeowner $2,500 with the rest of the project financed through bonds paid by all homeowners in the City. In implementing STEP, the City’s Board of Public Works enacted a resolution forgiving all assessment amounts still owed for residents paying in installments.  The 38 Northern Estate residents who paid the entire amount upfront, however, were refused refunds.

Thirty-one of the 38 homeowners brought suit in Indiana state court.  The Northern Estate residents made state law claims and a federal equal protection claim. Probably better state law claims were dismissed for failure to serve a Notice of Tort Claim within 180 days. The federal equal protection claim, with which the residents were left, is a tough row to hoe. Because the case does not involve a fundamental right or a suspect classification, the City of Indianapolis need only show it had a rational basis for the disparate treatment of the residents.

The Marion County Superior Court granted summary judgment to the homeowners, and the Indiana Court of Appeals affirmed. The Indiana Supreme Court, however, reversed, holding that the City’s distinction between those who had already paid and those who had not was rationally related to its legitimate interests in reducing administrative costs, providing financial hardship relief to homeowners, transitioning from the Barrett Law system to STEP, and preserving its limited resources.

As a side note, I am surprised the Supremes took the case. The United States Supreme Court only hears about 1 1/2 percent of the cases appealed to it via a writ of certiori.  Generally the Court looks for cases that are of major public importance or where there is a split among the districts or states in how an issue should be decided. This case doesn't appear to fit any of that criteria. Further, the Supreme Court upheld the Indiana Supreme Court by a 6-3 decision. I can only suppose that one of the justices in the majority originally voted to hear the case, then changed his or her mind. (Four of the nine justices must vote to hear a case before cert will be granted.)

In an opinion written by Justice Breyer, which was joined by Justices Kennedy, Thomas, Ginsburg, Sotomayor, and Kagan, found that the City's "administrative concerns" in providing refunds provide the rational basis needed to treat the residents unequally and survive the Equal Protection Challenge.
The dissenting opinion, written by Chief Justice Roberts and joined in by Justices Scalia and Alito, I believe makes a much better argument and provides . 

The dissent begins by pointing out that Indiana Barrett law statute (IC 36-9-39-15(b)(3) which requires that the cost of the improvement "be primarily apportioned equally among all abutting lands or lots."   The dissent then proceeds to dismiss the City's claim it was just too much bother to offer a refund and offers a workable suggest, a gradual repayment of the homeowners' lump sum payment:
The City refused, however, to refund any portion of the payments made by their identically situated neighbors who had already paid the full amount due. The result was that while petitioners each paid the City $9,278 for their hook-ups, more than half their neighbors paid less than $500 for the same improvement—some as little as $309.27. Another quarter paid less than $1,000.  Petitioners thus paid between 10 and 30 times as much for their sewer hook-ups as their neighbors.
In seeking to justify this gross disparity, the City explained that it was presented with three choices: First, it could have continued to collect the installment plan payments of those who had not yet settled their debts under the old system. Second, it could have forgiven all those debts and given equivalent refunds to those who had made lump sum payments up front. Or third, it could have forgiven the future payments and not refunded payments that had already been made. The first two choices had the benefit of complying with state law, treating all of Indianapolis’s citizens equally, and comporting with the Constitution. The City chose the third option.
And what did the City believe was sufficient to justify a system that would effectively charge petitioners 30 times more than their neighbors for the same service—when state law promised equal treatment? Two things: the desire to avoid administrative hassle and the "fiscal[] challeng[e]" of giving back money it wanted to keep. Brief for Respondents 35–36. I cannot agree that those reasons pass constitutional muster, even under rational basis review.
Even if the Court were inclined to decide that administrative burdens alone may sometimes justify grossly disparate treatment of members of the same class, this would hardly be the case to do that. The City claims it cannot issue refunds because the process would be too difficult, requiring that it pore over records of old projects to determine which homeowners had overpaid and by how much.... But holding that the City must refund petitioners’ overpayments would not mean that it has to refund overpayments in every Barrett Law project. The Equal Protection Clause is concerned with "gross" disparity in taxing. Because the Brisbane/Manning project was initiated shortly before the Barrett Law transition, the disparity between what petitioners paid in comparison to their installment plan neighbors was dramatic.Not so with respect to, for example, a project initiated 10 years earlier, because for those projects even installment plan payers will have largely satisfied their debts, resulting in far less significant disparities.

To the extent a ruling for petitioners would require issuing refunds to others who overpaid under the Barrett Law, I think the city workers are up to the task. The City has in fact already produced records showing exactly how much each lump-sum payer overpaid in every active Barrett Law Project—to the penny. ... What the city employees would need to do, therefore, is cut the checks and mail them out.  Certainly the job need

not involve the complicated procedure the Court describes in an attempt to bolster its administrative convenience argument. Under the Court’s view the City would apparently continue to accept monthly payments from installment plan homeowners in order to gradually repay the money it owes to those who paid in a lump sum. ... But this approach was never dreamt of by the City itself. See Brief for Respondents (setting out City’s "three basic [transition] options," none of which involved the Court’s gradual refund scheme).
Council President Maggie Lewis
I think the dissent is correct in its Equal Protection analysis and for noting the interplay of the Barrett statute which requires equal treatment of homeowners when it comes to billing for the improvement.  The Dissent mocks the City's claim of the "administrative burden" involved in offering refunds and offers a solution that would have a negligible impact on the City's finances - a gradual return refund of the homeowners lump sum payment.

To me, what is appalling is how the political branches - the executive and the legislative - have failed these homeowners.  Although the refusal to refund Northern Estates homeowners' money was initiated under Democratic Mayor Bart Peterson's administration, Republican Mayor Greg Ballard could have at any time reversed the Peterson position and offered refunds.  Instead Ballard fought the homeowners all the way to the United States Supreme Court, undoubtedly costing them over a hundred thousand dollars in legal fees simply because they wanted to be treated fairly.

But fortunately we have another branch of government.  The Indianapolis City-County Council can still take up this matter and right the wrong done to these homeowners.  All it takes is an ordinance passed by the Council to provide a gradual refund to these residents.  I can't imagine that Mayor Ballard would be so foolish as to veto it.

I further would point out also that that Northern Estates is now represented the President of the Council, Maggie Lewis.   It would be a very popular cause for her to take on along with her Democratic caucus.  I would hope though that my Republican councilors wouldn't fall on the knife for Ballard's legal position.  After all, the dissenters who supported the position of the Northern Estate residents are all appointees of Republican Presidents and are three of the most conservative justices on the United States Supreme Court. 

Friday, June 8, 2012

Indianapolis Star Reports on Election Board's Violation of Federal Injunction to Seize Unslated Candidate's Literature

Zach Mulholland
Jon Murray of the Indianapolis Star reports on the Zach Mulholland lawsuit filed against the Marion County Election Board which ordered his election day literature seized in direct violation of a federal court order:
A legal fight is brewing anew over a state law that critics view as empowering local political bosses to censor some campaign appeals printed by unfavored primary challengers.
In fact, Marion County and state election officials acknowledged that the same law was unconstitutional a decade ago in a settlement resolving a similar federal lawsuit.
But that 2003 federal consent decree hardly has put the issue to rest. It hasn't kept the Marion County Election Board, which operates with heavy influence from the political parties, from continuing to seize materials under the legally questionable law.
A new lawsuit filed by the American Civil Liberties Union of Indiana on behalf of a former Democratic state legislative candidate -- the latest target of the law during the May 8 primary -- asks Marion Circuit Court to step in and settle the issue.
Marion County Democratic
Chairman Ed Treacy
I have to disagree with that characterization.  The issue was "settled" with Judge Tinder's order and the consent decree in Ogden v. Marendt.  The Election Board agreed in that case that the anti-slate law is unconstitutional and the Board agreed to be enjoined from enforcing the law.  Then the Board went out at the prompting of County Chairman Ed Treacy and enforced the law anyway in direct violation of Judge Tinder's order.  One thing that was not mentioned in the article is that the Election Board held the hearing without notice to Mulholland.

Murray's article continues:
However, [the Election Board's attorney Andrew ]Mallon told The Indianapolis Star in an email last month that he viewed the 2003 consent decree's relevance as murky because the legal landscape had evolved since then. Various court decisions -- including two upholding Indiana's voter ID law -- expanded the state's ability to regulate elections and voting, Mallon said. 
ACLU legal director Ken Falk disagreed with Mallon's view of the old case. 
"I don't know how you can ignore a decision from a court that strikes the law down," Falk said. "If it's facially unconstitutional, that means it's unconstitutional for the next guy, too."
Election Board Counsel
Andrew Mallon
Mallon is a smart guy and he certainly knows better than that.  The cases on the voter ID law could hardly be different in terms of the facts involved and the legal theories.   I don't really blame Mallon though....he's an attorney doing his job.  He just has a client who is dead wrong and he knows it.  I'm more troubled by the conduct and statement of Democratic attorney Kip Tew as characterized by the article:
And the official who ultimately seized the offending hand cards from Mulholland outside an Eastside church was Kip Tew, a former Indiana Democratic Party chairman.
Mulholland said Tew attempted to rip them out of his hands. Tew, who said he was deputized by the Election Board to carry out the order, declined to characterize the encounter.
"The statute's pretty clear," Tew said. "Whether it's constitutional or not, that's for the courts to decide. I was just enforcing the statute."
Democratic activist Kip Tew
Tew knows damn well that a court did, in fact, decide whether it was constitutional or not...and the answer is yes it is.  Tew undoubtedly knew there is an injunction prohibiting the Election Board from enforcing the statute.  Yet Tew went out and violated that injunction anyway.  He can't claim he was only acting on orders of the Election Board. We attorneys are officers of the court and as such such we have not only legal obligations to follow court orders, but ethical obligations as well.  Tew's conduct, if the report is accurate, deserves review by the courts, for contemptability, and the Disciplinary Commission, for whether there was a violation of the Rules of Professional Conduct.

Clerk Beth White's comments are noteworthy too.  As reported by the Murray:
...White said she voted in favor of the Election Board order because Mulholland's campaign pieces risked confusing voters, even if they didn't claim that Obama and the other party standard-bearers had endorsed him. 
"It could be seen as a slate or an (implied) endorsement of those particular candidates," she said. "The statute exists to help voters be informed, and what he handed out was misleading."
White's explanation is nonsensical.  The argument she is making was made in 2003 and it lost.  The Election Board agreed in 2003 to the consent decree that the law is unconstitutional and agreed to not enforce the law. Yet White voted to enforce the law anyway.  White, like all the other members of the Election Board, is an attorney.  They know better and they should be held accountable for their defiance of the federal court.

Finally, if anyone thinks this is just a Democratic thing, I learned yesterday that the Election Board has seized non-slated Republican candidates' literature post-2003.  Apparently one of those involved Republican county chairman Kyle Walker seizing the literature of a Lawrence Republican candidate who dared to run against the slate.

The Court should take a very harsh view of the thuggish behavior Zach Mulholland experienced and the willingness of so many attorneys to knowingly violate the law in order to protect the good old boy slating system that protects the power of party bosses.

To see the rest of the article, click here.