Wednesday, October 30, 2013

Governor Pence Needs to Push for Updated Indiana Media Shield Law to Apply to Bloggers and Internet Radio Broadcasters

Indiana Governor Mike Pence
The Associated Press reports that at the annual AP Media Editor's Conference, Indiana Governor Mike Pence spoke about his work introducing the federal media shield law while in Congress and that he would continue to push for it to pass:
"I believe the only check on government in real-time is a free and independent press," he said.

Pence spent a dozen years representing Indiana in Congress before winning election last year as governor. Throughout his run in Washington, he pushed the Free Flow of Information Act as a means to encourage sources and potential whistle-blowers to expose more wrongdoing.

Much of his work came amid the trial of former vice presidential adviser I. Lewis "Scooter" Libby and the jailing of New York Times reporter Judith Miller for refusing to reveal the source who disclosed the identity of CIA operative Valerie Plame. However, Pence said the Obama administration's seizure of AP phone records this past spring as evidence of the need for a law protecting the identity of sources.

"The federal media shield isn't about protecting reporters, it's about protecting the public's right to know," he said.

Governor Pence indeed does deserve praise for his work in Congress on the federal media shield law.  However, since Pence began pushing the issue in Congress, the world of journalism changed.  Today, news stories are just as likely to be broken by bloggers, sometimes called citizen journalists, as traditional media.  When it comes to radio, broadcasting over the internet is quickly supplanting traditional radio.  Indiana Talks is a great example of that new media.

However, Indiana Shield Law, which was adopted in 1998, does not protect the new media.  IC 34-4-6-1 defines who is covered:
This chapter applies to the following persons:
        (1) any person connected with, or any person who has been connected with or employed by:
            (A) a newspaper or other periodical issued at regular intervals and having a general circulation; or
            (B) a recognized press association or wire service;
        as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and
        (2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.
As written, Indiana's shield law wouldn't apply to most bloggers, even if they write on a regular basis.  It also would not apply to broadcasts over internet radio where licensing is not required.

Without statutory protection, citizen journalists and internet radio broadcasters have to rely on shield protections provided by the First Amendment.  Some courts have applied these protections to the new media, while others have not.  The 7th Circuit has not definitively ruled on the subject.

Indiana can, of course, eliminate that uncertainty by simply updating its Shield Law.  Governor Pence could score major points with the media by pushing for an update to the Shield Law to protect bloggers and internet radio broadcasters.

Monday, October 28, 2013

Indiana Attorney General Refuses to Defend the Constitutionality of Expungement Law

Tim Evans of the Indianapolis Star has a lengthy piece about the challenge by the Morgan County Prosecutor Steven Sonnega to the constitutionality of Indiana's expungement statute:
Morgan County Prosecutor
Steven Sonnega
Sonnega’s concern, which prompted him to challenge the constitutionality of the law, centers on the legislature’s use of “shall,” rather than “may,” in describing how a judge can rule on an expungement request. In legal lingo, “shall” is a must-do directive, while “may” denotes some degree of judicial discretion.
The Legislature over-stepped its Constitutional authority,” the prosecutor wrote in a court filing this month. “when it used the term ‘shall’ as opposed to ‘may.’”
Something more than an esoteric squabble over the nuances of legal terms is driving Sonnega’s action. His underlying concern is for the victims in cases in which the people who did the crime are seeking an expungement.
The law, which took effect July 1, fails to take into account victims’ rights and interests, Sonnega said. That failure, he said, violates the Indiana Constitution’s requirement that “crime victims be treated with fairness, dignity, and respect throughout the criminal justice system.”
The article proceeds to discuss the constitutionality as well as the merits of the statute.  What I found most interesting though was the discussion of the duties of the Attorney General at the end of the article:
So far, the attorney general, who typically defends state laws, has stayed out of the case. An appeal would set up an interesting scenario because the attorney general also represents prosecutors in cases that go to the Indiana Court of Appeals or state Supreme Court. 
Schumm said that is one of the oddest things about the case — basically pitting one arm of the state against another. 
Bryan Corbin, a spokesman for the attorney general, said the office would step in to defend the law if Hanson rules in favor of the prosecutor. 
It is the duty of the Office of the Attorney General to defend a statute passed by the Legislature if it is found unconstitutional by a trial court,” Attorney General Greg Zoeller said in a statement to The Star. 
While we respect the views of county prosecutors, we believe that changes to statutes should be brought back before legislators to resolve policy questions.”
Zoeller is tossing out a red herring. Sonnega's challenge is not that the law is bad policy, but rather that it is unconstitutional.  In his statement, Corbin appears to suggest that the Attorney General's duty to defend the constitutionality of the law only kicks in at the appellate level.  That is flat-out wrong.  The Attorney General has a duty to defend the constitutionality of laws passed by our General Assembly from the outset.  (Pursuant to this duty, state law obligates litigants including a constitutional challenge in their complaints to notify the Attorney General so the AG can defend enter at the trial level to defend the constitutionality of the law.) It is important that the AG begin the defense of the constitutionality of a law at the trial level as that is where the evidentiary record is set, which record is often critical on appeal.  Perhaps more importantly, legal arguments could be waived on appeal if not made at trial.  Much of the appellate strategy is set by what happens at trial.
Attorney General
Greg Zoeller

The procedural posture of this case is bizarre.  You have Prosecutor Sonnega, as an attorney representing the State of Indiana, arguing against the State of Indiana by asking that the law be declared unconstitutional. On the other side, you have only the criminal defendant standing up for the constitutionality of the state law.  Meanwhile you have the State's Attorney General, who is obligated to defend that state law, sitting on the sidelines. What should have happened in this case is that the court allow a victim to intervene to challenge the law, while the Attorney General comes in to defend the law.  Most certainly a prosecutor, a state official, should not be allowed, in his official role, to challenge the constitutionality of state criminal statutes.

This unfortunately is yet another time that the Attorney General has refused to defend in court a law passed by the Indiana General Assembly.  This also happened with the state's immigration law.  If AG Zoeller is uncomfortable with defending a state law in court, then he should use the "opt out" provision in state law that allows him to appoint outside counsel to defend the challenged state law. While that was an option used by previous Attorney Generals, Zoeller refuses to do so, claiming an absolute right to not defend state laws he does not agree with in court.

It should be noted that Zoeller's position with respect to the expungement law and immigration is inconsistent to a statement he made with respect to his duty to defend Indiana's law against same sex marriage:
...But my duty as Indiana Attorney General is to represent our state and to uphold and defend our state statutes when challenged, not to represent my personal views or what polls might suggest is popular opinion.

The obligation of attorneys general to defend existing statutes has been brought into question in these two Supreme Court cases, in that the U.S. attorney general and the California state attorney general are not defending their own federal and state laws that are being directly challenged.  To make things more confusing to the public, the President, who has stated that his personal views have evolved over the past few years, has decided to have the Justice Department’s U.S. Solicitor General argue against upholding DOMA at the Supreme Court.  He has expressed through his Justice Department’s legal filings his own opinion that DOMA is unconstitutional.

I view my duty differently. As Indiana Attorney General, I don’t get to define marriage or vote on legislation. Instead, as state government’s lawyer I am obligated to defend our state’s laws passed by the people’s elected representatives in the Indiana Legislature. Our state’s legislative branch has the policy-making authority to license marriage within our state’s borders using the traditional marriage definition, and I will continue to defend their legal authority in court as necessary.

Rather than presuming to decide the constitutionality of our laws by leaving them undefended, I will uphold my responsibility to defend them and instead let the judicial branch decide if they are constitutional, as is its role.
Attorney Zoeller will aggressively defend the constitutionality of Indiana law in court...unless it is a law he doesn't like.

See also:

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

Friday, October 25, 2013

Indianapolis-Based Angie's List Continues to Lose Money

The Indianapolis Business Journal reports:
Angie's List Inc. on Wednesday said it suffered a smaller loss in the third quarter, but the online business-rating service's results and outlook fell short of Wall Street expectations.

Shares of the Indianapolis-based company fell 72 cents, or 4.7 percent, to $14.73 each in aftermarket trading after closing at $15.45 Wednesday....

Angie's List lost $13.5 million  or 23 cents a share, in the third quarter, compared with a loss of $18.5 million, or 32 cents per share, in the same quarter last year. Revenue rose 56 percent, to $65.5 million.


The number of paid memberships as of Sept. 30 was 2.4 million, compared with 1.7 million a year ago, a rise of 44 percent.

"We added a record number of new members while making significant investments in the business," said CEO Bill Oesterle in a prepared statement.

But the first-year member-renewal rate fell 1 percent, to 75 percent. And operating costs also rose 31 percent, to $78.5 million, on higher expenses.
Angie's List was co-founded by William "Bill" Oesterle and Angie Hicks in 1995 in Columbus, Ohio.  It shortly thereafter relocated to Indianapolis.  I believe it has only shown a profit in two quarters during the entire time its been in existence. In May of this year, Citron Research published a stinging 16 page critique of the Angie's List business model.  
Angie’s List is the most ridiculous, stupid, misunderstood, negligent, nonsensical, outdated, irresponsible business model in the new web economy. Citron will show the obvious fatal flaws that Wall Street has overlooked,as the analysts cheerlead for a company whose only accomplishment is losing less money than they predicted.  New economies give rise to disruptive businesses that are commonly overvalued by the market due to their potential; rarely do they give us a 15-year-old business model that couldn’t make it past a first year business school presentation.
In Part 1 of this expose,we will discuss the structural premise of Angie’s business model that renders it terminal, and can not be ignored by investors. This business model is so  obviously flawed and inferior to their competition that we believe it is a story in itself. Part 2 will examine in detail the accounting shenanigans played by Angie’s List to create the illusion of “losing less money” than expected.All of the metrics that support a growth story in Angie’s are skewed to deceive;we will prove that in part 2.
Established in 1995, Angie's List has since has accumulated a deficit of $219 million, while insiders have enriched themselves by selling over $135 million worth of stock since its 2011 IPO debut.  All of this is predicated on a business model that does not work, whose revenue is overly dependent on a large phone room,does not and cannot grow virally, and makes zero logical sense. In a bull market, it seems that analysts look at a stock price first, then reverse - engineer a thesis, no matter how preposterous, to explain and justify its valuation
It is the opinion of Citron that the recent runup in stock price in Angie’s List is the worst of Wall Street running amok on its own self-serving hype.
The Citron article then launches into a detailed critique of the Angie's List business model.

Wednesday, October 23, 2013

State Superintendent Ritz's Lawsuit Against State Board of Education and LSA Raises Numerous Legal Questions

Glenda Ritz, Superintendent
of Public Instruction
The Indiana Law Blog, via NPR State Impact Indiana, linked to the lawsuit filed yesterday by Indiana Superintendent of Public Instruction Glenda Ritz against members of the Indiana State Board of Education and the Director of the Legislative Services Agency.   As way of background, the Education Board members have been unhappy for what they believe is an unnecessary delay in the issuance of A-F grades for the 2012-2013 school year.  The Education Board members, via a letter dated October 16, 2013 to Senate President Pro Tem David Long and Speaker Brian Bosma ask that those leaders intervene and appoint the development of the grades (using DOE information) to the LSA. Page 3 of the letter contains the signature of the nine board members, which most notably contains Democrat Gordon Hendry, whose wife is Democrat operative Jennifer Wagner.   Page 2 of the letter (which likely is quite brief) is missing from the materials.
By letter dated October 18, 2013, President Pro Tem Long and Speaker Bosma direct George Angelone, Executive Director of LSA to obtain data from the Department of Education, of course headed by Ritz, in order to begin developing the grades.

The lawsuit by Ritz, in which she alone is the Plaintiff, contains two counts, first, that the Board, sans Ritz, violated the open meetings law and, second, that the duty delegated to LSA is outside of its statutory authority.  Ritz's attorneys on the lawsuit are two attorneys who work for her at DOE.

The lawsuit raises a number of interesting issues.  Those issues along with some general observations are as follows:
  • Attached to the eight page complaint are 19 pages of exhibits.  Complaints do not have to be accompanied by exhibits to "prove" certain things in the complaint. (There is an exception when one sues for breach of contract - the rules require you attach the contract.)  When an attorney is unnecessarily attaching exhibits like that it is generally about making certain information public through the vehicle of litigation.   This is particularly true when there is a concern that a complaint might be summarily dismissed and that information might not otherwise be made public.
  • Is a "meeting" in cyberspace in which board members use modern technology to make a decision about how to proceed a meeting, i.e. a "gathering" for purposes of Indiana's Open Meetings law.
  • Ritz is the only Plaintiff.  She is a state official, heading a state department, suing state officials and a state agency.  They are going to attack her standing to be a plaintiff as well as the DOE's ability to prosecute the lawsuit.  (More on that in a second.) I think it would have been wise to have also named a private (non-government official) as a Plaintiff.
  • There is a statute that says that only the Attorney General's Office, or legal counsel he designates, is authorized to represent state officials in court.   Expect AG Greg Zoeller to swoop into the lawsuit and argue that the DOE attorneys had no authority to file the litigation.
  • On a related note, this lawsuit presents AG Zoeller with the perfect opportunity to invoke the Zoeller doctrine, perhaps even expand its reach. That doctrine holds that the Indiana Attorney General is not only the attorney for the state of Indiana but also the client, i.e the decision-maker regarding how to proceed in a lawsuit  AG Zoeller summed up the Zoeller doctrine in a letter he wrote when he refused to defend Indiana's immigration law:  
    "Sometimes my state clients mistakenly believe they are responsible for making legal decisions about a case, as a private client who hires a private lawyer might be. In fact that responsibility rests not with the client but solely with the attorney general. Part of the AG’s job description is to reconcile conflicting legal views of multiple officials and harmonize our state’s legal position before the courts, so that we don’t have competing viewpoints creating chaos for judges in choosing which voice to listen to. Ultimately, my true client is our system of justice and the people of Indiana, rather than individuals who hold government positions"
    That the Zoeller doctrine is flat out wrong has been discussed by me elsewhere and is too cumbersome to discuss again here. But AG Zoeller will quite possibly go to Court and invoke the doctrine by saying that Ritz has no authority to take position on behalf of the State of Indiana, that only he is authorized to do that.
  •  Moving to problems on the Defendants' side, do legislative leaders, without authority from the full membership have the authority to speak on behalf of the entire 150 member General Assembly in terms of delegating an  executive agency task to the LSA?
  • Is determining A-F grades within the statutory scope of the authority of LSA?
  • As Gary Welsh aptly notes on his blog, there is a substantial separation of powers question raised as to whether the legislature can take a statutory duty away from executive departments/agencies like DOE and State Board of Education and delegate that duty to LSA, a legislative agency.
My bet is on Zoeller intervening early on and asking that the lawsuit be dismissed for standing reasons and for the reason that the DOE has no authority to initiate litigation without his express approval as Attorney General of the State of Indiana.

Tuesday, October 22, 2013

Civil Discourse Now Host Mark Small Clings to Long Discredited "Overpopulation" Myth While Looming Population Decline Represents Greater Threat

I was visiting Mark Small and his wife at his home a few months ago when I first heard Mark casually mention the danger of world overpopulation.  I checked the calendar on my smart phone.  I thought perhaps Mark's bathroom that I had just returned from visiting had acted as a vortex, transporting me back to the 1970s when fears of overpopulation (and global cooling) was cause célèbre.  After all, I thought it was at least 30 years since anyone seriously believed the long-discredited overpopulation myth.   But Mark is not just "anyone."  He is a special kind of person who clings fiercely to his cherished 1970s liberalism, never letting the inconvenient facts of the last four decades persuade him to update his view of the world.  While the realities of life cause most people to become more conservative as they grow older, Mark has fiercely resisted that political maturation process.

My recent story on the overpopulation sign in the Brazil, Indiana high school, prompted Mark to write on his Civil Discourse blog that I missed the point of the sign, which he says is really about the dangers of world overpopulation.  While it is doubtful that visitors from India, Pakistan, Bangladesh and China, those few countries in the world where population increases have been dramatic, were visiting that Hoosier high school, I will take the "world overpopulation" bait and prove, once again, that Mark is wrong.

Mark blogs:
"UN population estimates put the World's total, by 2050, at between 8.3 and 10.9 billion. As one example, our oceans have been over-fished---an article in National Geographic, "Plenty of Fish in the Sea? Not Always," notes the devastation wrought on our oceans by commercial fleets of fish trawlers. People starve to death in Asia and Africa---and the United States, too. But more people means more use of global resources to keep people alive."
An article in Slate magazine, Forget Overcrowding. The World Population Could Start Declining, highlights that a declining world population is within the lifetimes of many of the people alive today:
The world’s seemingly relentless march toward overpopulation achieved a notable milestone in 2012: Somewhere on the planet, according to U.S. Census Bureau estimates, the 7 billionth living person came into existence.


A somewhat more arcane milestone, meanwhile, generated no media coverage at all: It took humankind 13 years to add its 7 billionth. That’s longer than the 12 years it took to add the 6 billionth—the first time in human history that interval had grown. (The 2 billionth, 3 billionth, 4 billionth, and 5 billionth took 123, 33, 14, and 13 years, respectively.) In other words, the rate of global population growth has slowed. And it’s expected to keep slowing. Indeed, according to experts’ best estimates, the total population of Earth will stop growing within the lifespan of people alive today.

And then it will fall.

This is a counterintuitive notion in the United States, where we’ve heard often and loudly that world population growth is a perilous and perhaps unavoidable threat to our future as a species. But population decline is a very familiar concept in the rest of the developed world, where fertility has long since fallen far below the 2.1 live births per woman required to maintain population equilibrium. In Germany, the birthrate has sunk to just 1.36, worse even than its low-fertility neighbors Spain (1.48) and Italy (1.4). The way things are going, Western Europe as a whole will most likely shrink from 460 million to just 350 million by the end of the century. That’s not so bad compared with Russia and China, each of whose populations could fall by half. As you may not be surprised to learn, the Germans have coined a polysyllabic word for this quandary: Schrumpf-Gesellschaft, or “shrinking society.”

American media have largely ignored the issue of population decline for the simple reason that it hasn’t happened here yet. Unlike Europe, the United States has long been the beneficiary of robust immigration. This has helped us not only by directly bolstering the number of people calling the United States home but also by propping up the birthrate, since immigrant women tend to produce far more children than the native-born do.

But both those advantages look to diminish in years to come. A report issued last month by the Pew Research Center found that immigrant births fell from 102 per 1,000 women in 2007 to 87.8 per 1,000 in 2012. That helped bring the overall U.S. birthrate to a mere 64 per 1,000 women—not enough to sustain our current population.

Moreover, the poor, highly fertile countries that once churned out immigrants by the boatload are now experiencing birthrate declines of their own. From 1960 to 2009, Mexico’s fertility rate tumbled from 7.3 live births per woman to 2.4, India’s dropped from six to 2.5, and Brazil’s fell from 6.15 to 1.9. Even in sub-Saharan Africa, where the average birthrate remains a relatively blistering 4.66, fertility is projected to fall below replacement level by the 2070s. This change in developing countries will affect not only the U.S. population, of course, but eventually the world’s.

Why is this happening? Scientists who study population dynamics point to a phenomenon called “demographic transition.”

“For hundreds of thousands of years,” explains Warren Sanderson, a professor of economics at Stony Brook University, “in order for humanity to survive things like epidemics and wars and famine, birthrates had to be very high.” Eventually, thanks to technology, death rates started to fall in Europe and in North America, and the population size soared. In time, though, birthrates fell as well, and the population leveled out. The same pattern has repeated in countries around the world. Demographic transition, Sanderson says, “is a shift between two very different long-run states: from high death rates and high birthrates to low death rates and low birthrates.” Not only is the pattern well-documented, it’s well under way: Already, more than half the world’s population is reproducing at below the replacement rate.


And in the long term—on the order of centuries—we could be looking at the literal extinction of humanity.

That might sound like an outrageous claim, but it comes down to simple math. According to a 2008 IIASA report, if the world stabilizes at a total fertility rate of 1.5—where Europe is today—then by 2200 the global population will fall to half of what it is today. By 2300, it’ll barely scratch 1 billion. (The authors of the report tell me that in the years since the initial publication, some details have changed—Europe’s population is falling faster than was previously anticipated, while Africa’s birthrate is declining more slowly—but the overall outlook is the same.) Extend the trend line, and within a few dozen generations you’re talking about a global population small enough to fit in a nursing home.
To see the rest of the lengthy article, click here.

Taxpayers and Ratepayers Pay Dearly for Foreign-Owned Solar Farm at Airport

USA Today reports on the solar farm built at the Indianapolis Airport:
A 44,000-panel solar farm at Indianapolis International Airport has started soaking up sun rays and delivering usable electricity.

Airport and business officials Friday commissioned the $35 million to $40 million installation, which ranks as the largest airport-based solar farm in the country.

The airport expects to collect land rent of about $315,000 a year from the privately developed solar farm, which sits on 75 acres at the main airport exit off I-70. It will generate 12.5 megawatts of DCpower, enough to supply the electrical needs of about 1,800 average-sized houses.

The solar farm took more than a year to build. Developers have outlined plans to double its size.

Indianapolis Power & Light will buy the solar farm's power. The sun-generated power will cost three to four times more than IPL can sell it for, so the utility will subsidize the difference by raising rates to its customers, a utility official said. The increase in electric bills to subsidize the solar farm amounts to several cents a month on the average customer bill, the utility has said.

Solar farms also benefit from federal tax credits.

The solar farm takes 12 employees to operate and is owned and run by a Taiwanese company, General Energy Solutions, which has U.S. offices in California. Developers were Telamon Corp. and Johnson Melloh Solutions of Indianapolis.
According to a report by WRTV's Norman Cox:
Ballard said arriving travelers flying over the farm will see immediately that Indianapolis is an innovative, energetic city. He said the 75-acre project will benefit the airport and taxpayers by making land that couldn't be used for anything else and making it productive.
It is unclear how this benefits taxpayers or ratepayers. The electricity produced costs 3-4 times higher than electricity produced by other sources.  It is also heavily subsidized with federal tax dollars.  I also believe because of the lease arrangement with the Airport, the solar company can avoid paying property taxes.  Finally, the venture is being run by a foreign company with offices in California.  While it is good for the Airport, it is unclear how Ballard can possibly claim this project is good for taxpayers.

In a letter to the editor, retired Indianapolis Airport meteorologist John Curran puts a little sunlight on this bad deal:
Indianapolis Power & Light customers can be thankful that the 44,000 panel solar farm at Indianapolis International Airport generates only enough electricity to run 1,800 homes. If the electricity went directly to those 1,800 homes, the residents’ electricity bill would be three to four times higher than everyone else’s because solar energy is so expensive to produce. IPL is passing on the expensive solar electricity to all of its customers in the form of higher rates for everyone. This is progress?

Why does it take 12 employees of a foreign company to keep the solar panels working? Wouldn’t we rather have the employees working in Indiana coal mines, which are owned by Americans? IPL’s costs for electricity would be lower, electric bills would be lower, and not so many people threatened with power shutoffs would have to have their bill payments subsidized by taxpayers.
In this win-lose venture, the Indy airport, a winner, collects $315,000 rent annually and the foreign company sells its solar power at outlandish rates. The homeowners, the losers, pay higher rates and fork over more tax dollars to subsidize the foreign company’s solar tax credits. And they have plans to double the size of the solar farm. Perish the thought!

John T. Curran

Sunday, October 20, 2013

Sign in Indiana School Promotes Two Children Policy Despite US Already Having a Birth Rate Below Replacement Level

Father John Hollowell's story on his blog about a sign in Northview High School, located in Brazil, Indiana, has caught national attention appearing in Town Hall and on the FoxNews website:
At first when I walked past the sign I thought to myself - "Oh, cool, they're starting to catch on that our population levels are at a critical phase and that we're heading for a demographic winter because no one is having kids anymore; they're trying to get the word out that our population growth is trending towards a crisis...."

Then I literally had a sick feeling in my stomach when I realized I had the sign completely wrong.

The math "project" hanging in the hallway reads - "Zero Population Growth...It's Up To You - No More Than Two"


You can't probably read the sign but it has one smiley face representing 10 million people...and I mean look at the sign...if people keep having kids the smiley faces won't fit in the box anymore!  Look how scientific it is (sarcasm).

Father Hollowell is correct.  The sign maker's lack of knowledge about the birth rate in the United States is disappointing.  In fact, many western countries currently have birth rates below replacement levels.  Recently a news story lamented that, due to a declining birth rate, there were not enough younger people in Japan to support the people who were entering their retirement age.

In the United States our birth rate is 1.9%, also below replacement level.  The only reason our population has risen at all is due to immigration, both legal and illegal.  We are indeed facing a possible population crisis in this country...a crisis caused by a below than replacement level birthrate.  The Economist reported in August of last year:
For years, America was unusual among rich countries in having a relatively high [total fertility rate] of around 2.1, the so-called “replacement rate”, at which a population stabilizes over the long term. European countries were typically below that rate, sometimes far below it.

So it comes as something of a shock to discover that in 2011 America’s fertility rate was below replacement level and below that of some large European countries. The American rate is now 1.9 and falling. France’s is 2.0 and stable. The rate in England is 2.0 and rising slightly.

American fertility reached its recent peak in 2007; its fall has coincided with the economic crisis that began at the end of that year. Recession seems to have reduced fertility through at least two channels. First, migrants often cannot find work and go back home. Since they tend to have slightly larger families than native-born citizens, this reduces fertility. It has happened in Spain in the past two years, and may be happening in America as Mexicans leave.

Second, loss of income, compounded by the housing crisis, is causing young people to postpone marriage, the setting up of new homes, and having children. In 2011 the Pew Research Centre asked 18-to-34-year-old Americans about their reaction to recession: 22% said they had postponed having a baby and 20% said they had postponed marriage as a result. This reaction is evident in Europe, too, but the response seems to have been sharper in America.
Earlier this year the USA Today reported about the consequences of a birth rate below replacement levels:
The drop in U.S. births to their lowest level since 1920 is sounding alarms about the nation's ability to support its fast-growing elderly population.

As public concern mounts, a growing number of books, reports and columns are laying out challenges the United States will face because of this demographic upheaval: Fewer babies are being born while the wave of 78 million older Baby Boomers have only begun to retire (the oldest turn 67 this year).


The recent decline, fueled largely by a deep recession and slower immigration, has pushed the U.S. fertility rate below the 2.1 "replacement level'' — the number of children women are expected to have in their lifetime if current rates continue and the number needed to keep the population stable.
The slowdown is worrisome to many because of the growing gap between working-age populations that fund social programs and the elderly who rely on them.

The imbalance between children and retirees is growing. The economic burden on a child born in 2015 will be nearly twice that of a child born in 1985, according to the USC study.

"These are two trends going in the opposite direction," says demographer Dowell Myers, director of the Population Dynamics Research Group at the University of Southern California. "We will be increasingly dependent economically and socially on a smaller number of children."
See also:   U.S. Birth Rate Not High Enough To Keep Population Stable, Huffington Post, August 18, 2012

Saturday, October 19, 2013

Debunking the Myth that Student Loan Debt is Nondischargeable in Bankruptcy

There is a belief out there, which widespread even in the legal community, that student loan debt is not dischargeable in bankruptcy.   After watching a Frontline documentary on for profit schools, which also discussed the not unrelated ballooning student debt load people are carrying, I decided to do some research.

My belief (and the belief of other attorneys I know) was that that in order to get a discharge of student loan debt, it had to be shown in bankruptcy that the education one obtained as a result of the student loans was completely worthless.  It turns out that is not the standard.

11 U.S.C. § 523(a)(8)(B) permits the discharge of such loans when failure to do so would "impose undue hardship on the debtor and the debtor's dependents."

In the case, Matter of Robinson, 999 F.2d 1132, 1134-1135 (7th Cir. 1993), the Seventh Circuit looked at that statutory language and adopted the following test for determining "undue hardship," which test was first set forth by the Second Circuit in Brunner v. New York State Higher Education Services Corp., 831 F.2d 395, 396 (2d Cir.1987) (per curiam):
"[U]ndue hardship" requir[es] a three-part showing (1) that the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for [himself] and [his] dependents if forced to repay the loans; (2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and (3) that the debtor has made good faith efforts to repay the loans."
This year the 9th Circuit reversed and ordered a reinstatement of the bankruptcy court's discharge of a law student's student loan debt, actually a partial discharge - $50,000 forgiven of $80,000 owed.  The case, Hedlund v. Education Resources Institute, Inc., received some press which suggested a new era was dawning in the discharge of student loans.  My examination of the case though revealed the 9th Circuit had simply concluded that intermediate appellate bodies were improperly reweighing evidence and not giving proper deference to the bankruptcy court which found discharge was proper. 

Nonetheless, articles on that case led me to others discussing discharge of student loans in bankruptcy.  This one below takes the form of a reader letter and response written by Steve Rhode, the "Get Out of Debt" guy who blogs for the Huffington Post:
Dear Steve,

I"m going through bankruptcy but my attorney said no to trying to discharge student loans.

I currently have almost 300,000 in student loan debt with Sallie Mae, most of which is 'private loan' vs 'government backed'...

I started these loans, with my father as a co-signer, in 2001 until 2008. As of 2011, I started re-paying them in a 'reduced interest' program to lower my payment. Without the program my payment would be $2500+ a month. Now I pay $1090....even that is too much. I 'll be paying it off till the day I die and its still so high that I have filed for bankruptcy. I cannot afford a car ....much else...its depressing. I have my 341 hearing on Aug 7th. my attorney flat out told me my loan wont be discharged.



Dear Michael,

I am not a bankruptcy attorney. I am a writer and researcher. So what I can tell you definitively is not if your bankruptcy attorney is right or wrong but what the cases I've reviewed and written about show.

In These Private Student Loans Can Be Easily Discharged in Bankruptcy I go into detail about the accreditation, provide a link to check and give examples of what is not a qualified higher education expense.  (Note: there is an issue of a possible lack of accreditation with respect to Michael's higher institution, which lack of accreditation would make it much easier to get a discharge.)

I also provide actual case examples that show loans matching these criteria being discharged without a fuss.

... recent research showed quite a number of federal student loans discharged in 2012. And even if the loans are not full discharged, there still appears to be a benefit to pursuing an adversary proceeding to work out a better deal.

The 2012 data on federal student loans in bankruptcy showed 47% were discharged in full, 21% resulted in a better payment, and 12% settled for less than was due.

It also seems critically important to understand if there still is a cosigner on your loans or the cosigner was released.


Here are a couple of more research articles to review, here and here.

Please post a comment with updates so I can stay tuned on what happens.

Get Out of Debt Guy


Rhode has written on this subject for the Huffington Post on other occasions.

I am struck by Mr. Rhode's analysis that, with regard to federal student loans in bankruptcy, 68% of the time there is an improved situation for the borrower, and 47% of the time there is a complete discharge.  One would think private student loans would have an even higher discharge rate.

Nonetheless, it appears that student loan debt discharge requires not only the filing of the bankruptcy, but the initiation of an adversarial proceeding within the bankruptcy court, a process many attorneys outside of those doing bankrutpcy on a regular basis probably would not know.

To conclude, federal law allows the discharge of certain student loan debt when there is an "undue hardship" and the Seventh Circuit as well as others have identified as requiring that three things be proven:
(1) that the debtor cannot maintain, based on current income and expenses, a "minimal" standard of living for [himself] and [his] dependents if forced to repay the loans;

(2) that additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the student loans; and

(3) that the debtor has made good faith efforts to repay the loans.
In this era of drastically increasing student loan debt, debt that often leads not to a profitable degree but rather a lifetime of impoverishment, bankruptcy might prove to be the only ticket out.

Note: The Huffington Post has been all over the looming student loan debt crisis and related stories.  Here is a sampling:

Student Loan Defaults Surge To Highest Level In Nearly 2 Decades, September 30, 2013

Student Loan Forgiveness Program Available To Millions Who Aren't Utilizing It, CFPB Says, August 28, 2013

Average Student Loan Debt Could Cost A Household $208,000 Over A Lifetime: Study, August 4, 2013

12 Student Loan Debt Numbers That Will Blow Your Mind, April 11, 2013

Engineer Highlights Broad Ripple's Growing Traffic Problem

During Wednesday's remonstration against the Browning/Whole Foods project heard before the Metropolitan Development Commission, Brad Yarger, President of Yarger Engineering, gave a presentation on the traffic problems in Broad Ripple Village.  It is worth watching.

  Get Microsoft Silverlight

Interestingly Mr. Yarger notes that the Browning/Whole Foods project will cause the traffic to be 19% worse at various spots in the Broad Ripple Village. 

What Mr. Yarger fails to note though is that due to the traffic congestion on Broad Ripple Avenue, many drivers are diverting to residential streets south of Broad Ripple Avenue and using those streets to get from one point in the village to another.  (That will decrease those folks peaceful neighborhood and also eventually lead to a decrease in home values.)  Of course it didn't help that the brainiacs in the City decided to take away two traffic lanes on part of Broad Ripple Avenue to create two rarely used bike lanes when there was a sidewalk which could have instead been diverted into a walking/biking path that would have been very popular.

I have also read some anonymous commentators (which I suspect are Browning and/or Whole Foods PR people) on websites insisting that Broad Ripple doesn't have a traffic problem.  Anyone who has driven through Broad Ripple knows otherwise.  Then you have people, i.e. idiots, who believe in the "traffic calming" theory that holds that traffic congestion is a good thing.  Anyone who seen those drivers on Broad Ripple Avenue gnashing their teeth, honking their horn and flipping the bird because they have sat through several light cycles while moving only a few feet, know they're anything but "calm."

Friday, October 18, 2013

State v. State?; Will Indiana's Attorney General Defend the Expungement Statute Against Challenge By Another State Official?

The Indiana Economic Digest reports:
Morgan County Prosecutor Steve Sonnega will be asking Morgan County Circuit Court Judge Matthew Hanson to declare a law that allows the expungement of criminal records
Morgan County Prosecutor
Steven Sonnega
to be unconstitutional.... Combs is asking that his 2006 criminal conviction for reckless driving, unreasonable speed, be expunged.

In August of 2005, Combs, then 32, was charged with operating a vehicle while intoxicated as a class A misdemeanor, operating a vehicle with a blood alcohol content of .08 percent as a class C misdemeanor, public intoxication and reckless driving, both class B misdemeanors.

In 2006, Combs, who was represented by John Boren, accepted a plea deal to plead guilty to the reckless driving charge and be sentenced to 180 days in jail, which was suspended except for six days to serve and nine months probation. The other three charges were dismissed.

Sonnega contends the plea agreement is a contract between the accused and the state. In cases where there is a victim, that contract could involve the victim.
Sonnega said the Indiana Constitution bars the legislature from interfering with legal contracts between parties. 
The prosecutor said the law, which went into effect July 1, allows all misdemeanors to be expunged regardless of circumstances. It allows some C and D felonies to be expunged.
Sonnega said he thinks the law is a violation of the separation of powers because it takes away the court’s ability to decide on a case-by-case basis to determine if a person should have their criminal history expunged.
Here is the problem.  Prosecutor Sonnega represents the State of Indiana.   The State of Indiana, through its legislature, passed the expungement bill.  The Governor signed the bill into law.  Who then defends the law?  That task falls to Indiana Attorney General Greg Zoeller.

If it were a victim challenging the law that would be one thing.  However, here you have an elected representative of the State of Indiana challenging a statute passed by the State of Indiana, which presumable will be defended by the Attorney General, the attorney for the State.  Indeed when there is a constitutional challenge, the attorney commencing that challenge has the duty to serve the Attorney General in order to allow him to represent the State in the litigation.
Indiana Attorney General
Greg Zoeller

Throughout his career, Attorney General Greg Zoeller has been very close to the state's prosecutors.  I would imagine that Sonnega and Zoeller, both Republicans, communicated against this constitutional challenge. Zoeller may very well support Sonnega's legal challenge.  The question then becomes whether the Attorney General of Indiana will defend a law passed by the Indiana General Assembly and signed into law by the Governor.

As I've noted on these pages before, Indiana law provides an opt out provision for the Attorney General when he feels uncomfortable defending a law in court. That law allows the appointment of an attorney to represent the State of Indiana in place of the Attorney General when the Attorney General declines representation as my old boss AG Linley Pearson did from time to time.  Yet in the past, on matters such as Indiana's immigration law, Zoeller has refused to defend duly enacted laws in Court and refused to allow the appointment of an attorney who would do so.

It is not clear yet, but perhaps Sonnega's challenge suggests a continuation of Zoeller's troubling belief that he is not only the attorney for the State of Indiana, but that he is the State of Indiana, i.e. that he is both attorney and client.   That position says is that it does not matter if the Governor or the Indiana General Assembly takes a position contrary to his on a proposed or enacted law, the Attorney General and only the Attorney General gets to decide the issue on behalf of the State.  I have dissected previously Zoeller's stated reasons for holding this theory, why it is flat-out wrong, and why it represents a dangerous encroachment on the power of the Governor and the Indiana General Assembly.

Hopefully the Attorney General's Office will offer a vigorous defense to the constitutional challenge to the expungement statute.

Indiana Supreme Court Needs to Investigate Disciplinary Commission's Failure to Protect the Public From William Conour

Yesterday prominent Indiana personal injury attorney William Conour was given a ten year sentence by Federal District Judge Richard Young for bilking clients out of $6.7 million.  The Indianapolis Star reports:
William Conour
He was once considered a top lawyer, a man whom many knew as one of the best, if not the best, in his field.

Coupled with his millions of dollars in assets — including a 25-room Carmel mansion, a horse farm in Hamilton County, an apartment in Scotland, and expensive collections of wine and artwork — William Conour had it all.

But a different man walked into a federal courtroom in Indianapolis on Thursday. Conour, once one of Indiana’s top construction and accident injury lawyers, will spend the next 10 years in federal prison and will have to pay nearly $7 million in restitution to 36 former clients, a task that could prove to be impossible.


Prosecutors alleged that Conour, 66, bilked his clients out of $6.7 million in settlement money by not depositing the appropriate funds into client trust accounts.

He ran a Ponzi scheme for more than a decade, prosecutors said, spending money he won for clients’ legal settlements, then attempting to replace the missing funds with proceeds from subsequent settlements.
The fact is this did not need to happen.  Victims could have been spared.  Losses could have been mitigated.   According to the federal criminal court complaint (the precursor to the federal indictment) filed by FBI agent Douglas Kaspar, Conour's scheme to defraud clients stretched back to "at least"
Catherine A. Nestrick, Chair
Disciplinary Commission

December of 2000.  For years, victims of Conour's fraud filed grievances with the Disciplinary Commission asking that the Commission intervene.  The Commission could have conducted an investigation, could have done an interim suspension of Conour's license, could have at least filed charges.  Instead the Commission chose to do nothing to protect the public.

Details of the FBI's investigation into Conour's trust account are spelled out in Kaspar's affidavit accompanying the criminal complaint.  It was filed on April 27, 2013.  The DC knew long before the filing of the criminal complaint what the FBI had uncovered in its investigation.  Yet it was not until May 24, 2013 when Conour was ready to resign from the bar that the DC finally filed charges against Conour.

When questioned by the Indiana Lawyer about the failure to pursue Conour, Disciplinary Commission Executive Secretary Michael Witte pleaded a lack of resources:
...Witte said building a case against Conour took time, as evidenced by the federal court information alleging that Conour’s actions date to 1999. It took years for the FBI to make the case, he said, and the commission has far fewer resources.


“The most difficult part about this is that the rules of confidentiality sometimes hamstring us from being able to use outside resources and exchange information,” he said. “I can’t just pick up the phone and call the FBI and say, ‘We’ve got a case against a lawyer.’

Michael Witte
“The only thing we can do is utilize our own investigation resources to pursue our own independent investigation,” Witte said. That includes one full-time investigator and 12 staff attorneys who handle about 1,200 complaints per year.
Perhaps the Commission would have a lot more resources if Witte did not exercise such extremely poor judgment on which cases he has the Commission pursue.  During my 11 1/2 hour disciplinary hearing a couple months ago, I saw the Commission using at least six staff members, who had gathered boxes of evidence from a six year long estate case in which I was involved, all in an effort to prosecute me for the dastardly offense of unfairly criticizing a judge in private emails.

Which is the bigger offense, an attorney stealing millions from clients or an attorney criticizing a judge in an email?   Given where he devotes the Commission's limited resources, it is clear that Witte, who had been a judge for 25 years before being appointed Executive Secretary, believes that protecting his former colleagues from criticism should be the top priority of the Commission.

Trent McCain,
Commission Member
Unfortunately my case is only one example of Mr. Witte's misplaced priorities.  Recently attorney Thomas Martin Dixon (of Osceola, Indiana) was acquitted by the Indiana Supreme Court also for unfairly criticizing a judge in a recusal motion.  Having reviewed the Dixon file, it is apparent that the Commission devoted enormous resources into prosecuting him.  Another attorney David Wemhoff was charged with the same thing.  Just recently, a long-time Martinsville attorney, Joseph Barker, was suspended for referring to the mother of his client's child as an "illegal immigrant" in a letter to opposing counsel, which letter he also filed with the court. 

While the Indiana Supreme Court unanimously confirmed the recommendation of a 30 day suspension by the Barker's hearing officer, questions should still be raised whether the Commission should have devoted such resources in pursuing the case in the first place.  One would think that a priority should be placed on serious rule violations, violations where the attorney's conduct reflects a lack of ethics, especially when that unethical behavior threatens the public.  Yet those are not the priorities of the Commission under Witte.  Even being convicted of a felony involving dishonesty won't mean a disciplinary charge by the Commission.  Criticize a judge though and you very well may find yourself charged by the Commission with a disciplinary violation.

Witte, who is an appointee of former Chief Justice Randall Shepard, needs to be fired or at least ushered off to much needed retirement.  But the individual members of the Disciplinary Commission should also be held  responsible for the misplaced priorities of the Commission. They collectively have shown exceedingly poor judgment in their role on the Commission.   Attorneys and the general public needs to know who the members of the Disciplinary Commission members are and to demand they make the priorities of the Commission the pursuit of unethical attorneys who threaten the public:

Catherine A. Nestrick, Chair
Berry Plastics Corporation

William Anthony Walker, Vice Chair
Attorney at Law

Nancy L. Cross, Secretary
Cross, Pennamped, Woolsey & Glazier, P.C.
Andrielle M. Metzel, Treasurer
Benesch, Friedlander, Coplan & Aronoff LLP
Maureen Grinsfelder
Fort Wayne

Trent A. McCain
McCain & White, PC

R. Anthony Prather
Barnes &Thornburg LLP

Leanna K. Weissmann
Attorney at Law

Kirk White

Thursday, October 17, 2013

Broad Ripple Takes Another Step Toward Shedding "Village" From Its Name; Politically-Connected Developer Ponders How Much of the Public's Tax Dollars He Will Ask For

The Indianapolis Star reports:
A proposed multi-story apartment-grocery store development in Broad Ripple has won the second of three city zoning approvals needed to build the $25 million project.

The Metropolitan Development Commission voted 5-2 Wednesday to grant the rezoning and variance requests from Browning Investments and a partner to build the controversial five-story project along the Indianapolis Water Co. canal at Broad Ripple and College avenues.


Carmel-based Browning and a partner want to build a 71-foot-tall building that would contain a 33,000-square-foot Whole Foods supermarket on the first floor and 103 apartments above. The building would be connected to a newly built 355-space parking garage. The project needs rezoning and a variance because of its height, the planned outdoor seating, and other uses.
Meanwhile the IBJ reports that Browning, principal of the developer, is expected to ask for city assistance to help finance the project, a process that, according to Browning, could take between three to four months

Shouldn't the public have had the right to know exactly how much Browning was requesting from taxpayers Day 1 of this project?

Wednesday, October 16, 2013

Radio Host Mark Small Suggests Democrats Help Out "Moderate" Republicans Against Tea Party Challengers

My friend, the perpetually misguided Mark Small who hosts the show Civil Discourse Now, blogs that Democrats in Indiana should cross over to assist Republican moderates such as Susan Brooks in primaries where they face a tea party challenger:
Mark Small
Math, when applied to Congress, can be a strange thing. "Majority" used to mean, in the United States Senate, 60 votes. In the United States House of Representatives, it used to mean 218 votes. Now the nation is perched on the edge of that hackneyed fiscal cliff. The reason, in large part, is the threat tea baggers, who hold fewer than 50 seats in the House. That is around 12 percent of the House Membership.

In an abstract to an article, "Getting Primaried: The Growth and Consequences of Ideological Primaries," prepared for the "State of the Parties" Conference at the University of Akron in October, 2009, Professor Robert Boatright's thesis was summarized, in part: "...the rhetoric behind 'primarying' may be an effective tool for ideological groups to threaten moderate incumbents, but this rhetoric bears little resemblance to the reality of congressional primary competition. This rhetoric by itself, however, may be effective, particularly within the Republican Party, in heightening partisan divisions."


The 2010 decennial redistricting called for by Article I, Section 2 of the Constitution, was used by the Republican Party---as used by the Democratic Party in previous decades---to draw district lines that created hyper-Republican Congressional districts.

John Nichols, writing in an October 1, 2013, article, "America Gets Primaried," in "The Nation," notes: "Indeed, there are dozens of Republicans who would be prepared to end the madness of the moment. But they cannot do so---for fear of being 'primaried.' In overwhelmingly Republican districts, the threat of a general election defeat---at the hands of swing voters infuriated with extremist stances and general dysfunction---is slim.  But the threat of a primary challenge, and defeat, is real. With national networks of right-wing donors at the ready to fund against so-called 'Republican-in-Name-Only' incumbents, the threat is amplified."

 U.S. Representative Susan Brooks represents the Congressional District in which we live. When President Obama pushed for military intervention in Syria, I wrote to her and expressed my opposition to that move. Her response was well-reasoned. She easily could have used extreme language to attack the position advanced by the President. Instead, she explained why she felt there was little evidence to support U.S. intervention. I disagree with her on other positions she has taken....
Mark goes on to offer a proposal to save "moderates" like Rep. Susan Brooks:
Our Congressional District, according to one local observer of voter statistics, has a baseline Republican vote of at least sixty percent (60%), perhaps as high as sixty-five percent (65%). A crucial primary race between candidates in the Democratic Party hardly seems likely. Whoever decides to throw her or his hat into the ring for the Ds has an uphill fight in the general, not the primary, election. However, if a tea bagger threatens to run against Representative Brooks because she is too moderate, we should be ready to cross over and vote in the Republican primary against such a candidate.

Indiana has "open" primaries. We can votes in either party's primary. It is inconceivable at this time that a candidate for the Democratic Party would be farther to the right than anyone who would present her or his name as a candidate for the GOP. Gerrymandering has bastardized an already bizarre system such that we have---this, a system in which a minority of the members of the House can shut down the government. And let's be clear: this is not an example of the checks and balances set up by the Framers of the Constitution. Hamilton wrote against super-majorities. Washington warned the nation against "factions" and their potential for pernicious influence.


If you live in a Congressional district held by a moderate Republican, let your incumbent know you have her or his back. Let that person know you will cross over to block any effort to make her, or him, effectively the Richard Lugar in the 2014 election. If the two major political parties have created a system that borders on the farcical. the least we can do is try and salvage some control from those who would try to take it over that hackneyed fiscal cliff.
Over the course of my some 27 years of being involved in Marion County GOP politics, I've heard this party cross-over strategy discussed and tried several times.  It has never worked.  Only the really hardcore partisans will sacrifice their ballot to make a political point about a particular race.  Unless the margin in a race is razor thin close, those votes won't matter. Further, there are penalties for crossing over as some Republicans wannabe candidates found out when they attempted to run for their parties nomination in 2010 after crossing over to vote in the Democratic presidential primary in 2008, an ill-fated attempt to skew the outcome in that race.   The crossover vote triggered a little known Indiana law that required them, because during the last primary they had taken a Democratic ballot, to get the approval of their county chairman before running in the Republican primary.

The irony is that when Mark Small called me the night before he wrote the article suggesting the crossover vote strategy to help candidates like Susan Brooks, I was in an Indianapolis Tea Party meeting. The speaker was a candidate named David Stockdale, who is running in the Republican Primary in Congressional District 6 against Representative Susan Brooks.

I guarantee that if Mark Small were in a room and heard Rep. Susan Brooks and David Stockdale speak, he'd strongly side with the challenger.  Stockdale's speech emphasized the importance of civil liberties and libertarian values in general.  He sharply criticizing CISPA and the NSA spying program.   Stockdale also spoke of being against corporate welfare and corporate bailouts.  The challenger opposes an interventionist foreign policy which results in placing men and women of the military in harm's way on matters only tangentially related to our national interest.   On each of these issues, Brooks has supported the position opposite to that held by tea party candidate Stockdale and opposite to that held by liberal Mark Small.

Those on the far left love to hate on the tea party, believing that they are conservative to the extreme.  But the fact is the tea party has many of the same populist values that those on the left hold.  In many ways it is the "moderate Republicans" who are more extreme in their utter disdain for civil liberties, their promotion of an interventionist foreign policy, and their insisting on taxpayer dollars going to corporations that enrich their campaign coffers.

Mark Small is wrong...again.

Indianapolis Crime Beat: Three Shootings Yesterday Evening While Walgreens Robbed of $11,900 in Pills

The Indianapolis Star reports:
Three people were shot across Indianapolis this evening — all within a half hour of each other.     
The first shooting was reported around 8:35 p.m. on the Far Eastside in the 9400 block of East 38th Street. That person, found lying in the street, was shot multiple times and transported to Wishard Memorial Hospital in critical condition.

The second shooting was reported around 8:40 p.m. on the Near Northside near East 25th Street and Hillside Avenue. ... He was reported in serious condition.

The third shooting was reported around 8:50 p.m. on the Westside in the 1800 block of North Dexter Street, near Kuntz Stadium. A man was found lying in the street with multiple gunshot wounds. He was taken to Wishard in critical condition.
Meanwhile a newly-opened Walgreens near 56th Street and Georgetown Road was robbed.  The Star again reports:
A man late Tuesday leaped over the pharmacy counter at a Northwestside Walgreens, showed a handgun and forced a store worker to fill a bag with drugs, police said.

Specifically, the man stole Oxycodone and Oxycontin pain pills, police said, along with Vyvanse, a medication used to treat attention deficit hyperactivity disorder (ADHD). He also demanded cough syrup, according to an Indianapolis Metropolitan Police Department report.


The total number of pills taken numbered 2,357, according to the report, and represent a value of $11,900.

Tuesday, October 15, 2013

Repeating the Lie of 97% Consensus on Dangerous Man-Made Global Warming

Over at my friend Sheila Kennedy's blog this morning she makes a point about American journalism, suggesting the "he said, she said" approach undermines the "truth-telling" function of the media.  I don't disagree with her assessment.   But then she proceeds to step in a big pile of manure by citing as her example that "99% of climate scientists agree that the earth is warming," such an overwhelming consensus that the media need not hear from the "crank" on the other side who believes otherwise.

Sheila has inadvertently just exposed another problem with the media - reporters simply repeating numbers fed to them without examining the source of those numbers to see if they have credibility.

First, she makes a couple mistakes from the beginning. She uses the figure 99%. The figure that is claimed is actually 97%.  And the issue is not just that the Earth has warmed.   It is indisputable that the Earth has warmed since the Little Ice Age ended around 1850 and thank God for that. Rather the issue is whether man has caused significant, indeed dangerous, global warming.

The alarmists insist that 97% of climate scientists agree that man has caused dangerous global warming.  But surprisingly few people who cite that number actually know where that 97% figure comes from.  It came from the results of an on-line survey published in 2009 by Peter Doran and Maggie Kendall Zimmerman of the University of Illinois.  The survey was sent to 10,257 scientists with 3,146 responding.  The 97% figure is based on the responses of 79 of those scientists.  More on that later.

The first survey question was:  "When compared to pre-1800 levels, do you think mean global temperatures have generally risen, fallen, or remained relatively constant."

That is an, I would say, intentionally, loaded question. Of course temperatures have risen since the 1700s, the depths of the Little Ice Age. 100% of the scientists should have said "yes," but only 90% did.

The second survey question was: "Do you think human activity is a significant contributing factor in changing mean global temperatures?"

The question fails in a couple respects. First, it doesn't identify what "human activity" is being talked about.  Urban sprawl contributes to higher temperatures, just like a paved lot is going to produce warmer surface temperatures than the grass field it replaced.  The question does not mention anything about the burning of fossil fuels.  Second, the question does not identify what is meant by "significant."  One scientist might think a 5% impact by mankind is significant, while another might think 25% is significant.

Of the 3,146 responses, 82% said "yes" to this question. This combined with the 90%, produces an 86% figure.  How do they get to 97% then?  The 97% figure from the survey comes from a whittling down of the accepted number of responses from 3,146 to 79. The 79 scientists are those who said they have recently published 50% of their papers in the area of climate change. Of these, 76 of 79 answered “risen” to questions one (96.2%).   As to question two 75 of 77 answered “yes” (97.4%).

Notably meteorologists, who study weather patterns for a living are simply excluded from the 79 scientists used to arrive at the 97% figure.  Polls of meteorologists show they consistently are some of the biggest skeptics of dangerous anthropogenic global warming.  A lot of meteorologists are apparently "cranks."

Over 31,847 American scientists have signed the Global Warming Petition Project which says that "[t]here is no convincing scientific evidence that human release of carbon dioxide, methane, or other greenhouse gases is causing or will, in the foreseeable future, cause catastrophic heating of the Earth's atmosphere, and disruption of the Earth's climate. Moreover, there is substantial scientific evidence that increases in atmospheric carbon dioxide produce many beneficial effects upon the natural plant an animal environments of the Earth."

The saying is that there are lies, damn lies, and statistics.  The 97%  of climate scientists agree continues to be a whopper that is told over and over again, regardless of how many times its phony origins has been exposed.

Note:  Much of the statistical information about the source of the 97% figure comes from an article written by Art Horn which can be found here.  It is information though that can be easily obtained from other sources.   Rather than do that research, unfortunately media outlets simply prefer to repeat the 97% figure as if it were fact.

Monday, October 14, 2013

Scientific Panel Releases Report Skeptical of Carbon Dioxide As Driving Force Behind Global Warming

I get a kick out of my friends who criticize global warming skeptics for daring to question the orthodoxy..  The very foundation of science is skepticism. Yet they insist that those who don't simply accept the theory simply do not understand the science behind global warming, generally have little more than a tenuous grasp of the subject themselves.  Ask an alarmist what percent of the Earth's atmosphere is made up of carbon dioxide.  Ask them what percent of the CO2 emissions are from nature as opposed to man.  The numbers are, respectively, .04% and 97%.

An international panel of more than fifty scientists and scholars has issued a report debunking the man is causing dangerous global warming theory put forth in this year's report by the Intergovernmental Panel on Climate Change (IPCC).  This panel of IPCC skeptics, dubbed the Nongovernmental International Panel on Climate Change (NIPCC), describes its mission as:
NIPCC seeks to objectively analyze and interpret data and facts without conforming to any specific agenda. This organizational structure and purpose stand in contrast to those of the United Nations’ Intergovernmental Panel on Climate Change (IPCC), which is government-sponsored, politically motivated, and predisposed to believing that climate change is a problem in need of a U.N. solution.
In its Summary for Policymakers, the NIPCC quite correctly criticizes the IPCC's methodology, a point of emphasis for me because of the danger that IPCC has allowed its political objectives to color the presentation of the science of global warming:
The IPCC relies on three lines of reasoning: computer models that it asserts show CO2 to be responsible for most of the global warming in the twentieth century, a series of postulates that make a plausible case for its hypothesis, and circumstantial evidence that would be consistent with its hypothesis were it true....
The Scientific Method
Although the IPCC’s reports are voluminous and their arguments impressively persistent, it is legitimate to ask whether that makes them good science. In order to conduct an investigation, scientists must first formulate a falsifiable hypothesis to test. The hypothesis implicit in all IPCC writings, though rarely explicitly stated, is that dangerous global warming is resulting, or will result, from human-related greenhouse gas emissions. In considering any such hypothesis, an alternative and null hypothesis must be entertained, which is the simplest hypothesis consistent with the known facts. Regarding global warming, the null hypothesis is that currently observed changes in global climate indices and the physical environment, as well as current changes in animal and plant characteristics, are the result of natural variability. To invalidate this null hypothesis requires, at a minimum, direct evidence of human causation of specified changes that lie outside usual, natural variability. Unless and until such evidence is adduced, the null hypothesis is assumed to be correct.

In contradiction of the scientific method, the IPCC assumes its implicit hypothesis is correct and that its only duty is to collect evidence and make plausible arguments in the hypothesis’s favor. One probable reason for this behavior is that the United Nations protocol under which the IPCC operates defines climate change as “a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over comparable time periods” (United Nations, 1994, Article 1.2). Not surprisingly, directing attention to only the effects of human greenhouse gas emissions has resulted in the IPCC failing to provide a thorough analysis of climate change in the round.

All three of the IPCC’s lines of reasoning, summarized in Figure 2, depart from proper scientific methodology. Global climate models produce meaningful results only if we assume we already know perfectly how the global climate works, and most climate scientists say we do not (Bray and von Storch, 2010). Moreover, it is widely recognized that climate models are not designed to produce predictions of future climate but rather what-if projections of many alternative possible futures (Trenberth, 2009). Postulates, commonly defined as “something suggested or assumed as true as the basis for reasoning, discussion, or belief,” can stimulate relevant observations or experiments but more often are merely assertions that are difficult or impossible to test (Kahneman, 2011).   Observations in science are useful primarily to falsify hypotheses and cannot prove one is correct (Popper, 1965, p. vii).
The NPCC then goes on to lay open the IPCC's "precautionary principle," which exposes the politics behind the science:
Facing such criticism of its methodology and a lack of compelling evidence of dangerous warming, the IPCC’s defenders often invoke the precautionary principle. The principle states: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” (United Nations, 1992, Principle 15). This is a sociological precept rather than a scientific one and lacks the intellectual rigor necessary for use in policy formulation (Goklany, 2001).
A true scientific approach would not say to ignore uncertainty if it gets in the way of political activity. The statement is an admission that IPCC's agenda is a political one and that selective use of science is the vehicle by which to reach its political goal.

The NPCC proceeds at length to debunk the IPCC's claims line for line, particularly as those claims relate to the effect of increased CO2 levels in the environment.  A summary of the NPCC's conclusions are as follows:
• Atmospheric carbon dioxide (CO2) is a mild greenhouse gas that exerts a diminishing warming effect as its concentration increases.
• Doubling the concentration of atmospheric CO2 from its pre-industrial level, in the absence of other forcings and feedbacks, would likely cause a warming of ~0.3 to 1.1°C, almost 50% of which must already have occurred.

• A few tenths of a degree of additional warming, should it occur, would not represent a climate crisis.

• Model outputs published in successive IPCC reports since 1990 project a doubling of CO2 could cause warming of up to 6°C by 2100. Instead, global warming ceased around the end of the twentieth century and was followed (since 1997) by 16 years of stable temperature.

• Over recent geological time, Earth’s temperature has fluctuated naturally between about +4°C and -6°C with respect to twentieth century temperature. A warming of 2°C above today, should it occur, falls within the bounds of natural variability.

• Though a future warming of 2°C would cause geographically varied ecological responses, no evidence exists that those changes would be net harmful to the global environment or to human well-being.

• At the current level of ~400 ppm we still live in a CO2-starved world. Atmospheric levels 15 times greater existed during the Cambrian Period (about 550 million years ago) without known adverse effects.

• The overall warming since about 1860 corresponds to a recovery from the Little Ice Age modulated by natural multidecadal cycles driven by ocean-atmosphere oscillations, or by solar variations at the de Vries (~208 year) and Gleissberg (~80 year) and shorter periodicities.

• Earth has not warmed significantly for the past 16 years despite an 8% increase in atmospheric CO2, which represents 34% of all extra CO2 added to the atmosphere since the start of the industrial revolution.

• CO2 is a vital nutrient used by plants in photosynthesis. Increasing CO2 in the atmosphere ggreens” the planet and helps feed the growing human population.

• No close correlation exists between temperature variation over the past 150 years and humanrelated CO2 emissions. The parallelism of temperature and CO2 increase between about 1980 and 2000 AD could be due to chance and does not necessarily indicate causation.

• The causes of historic global warming remain uncertain, but significant correlations exist between climate patterning and multidecadal variation and solar activity over the past few hundred years.

• Forward projections of solar cyclicity imply the next few decades may be marked by global cooling rather than warming, despite continuing CO2 emissions.
The NPCC's summary for policymakers is available here.

The IPCC's summary for policymakers is available here.