Wednesday, November 27, 2013

More Attorney Free Speech Outrage: Florida Supreme Court Suspends Attorney for Two Years for Criticizing Another Attorney

The ABA Journal reports:
The Florida Supreme court has suspended a lawyer for two years for rude conduct and recommended that the case be studied “as a glaring example of unprofessional behavior.”

The court rejected a referee’s recommended sanction for Jeffrey Alan Norkin as too lenient, saying a two-year suspension is appropriate given Norkin’s “appalling and unprofessional behavior.” The ABA/BNA Lawyers’ Manual reported on the Oct. 31 decision (PDF).

Jeffrey Alan Norkin
According to the court, Norkin accused a judge of being at the “beck and call” of his client's opponent in a civil case, yelled in court, and “incessantly” disparaged and humiliated opposing counsel in the litigation.

The opposing counsel, Gary Brooks, was 71 years old at the time and was suffering from Parkinson’s disease and kidney cancer. He was a Harvard law grad with a “lengthy and unblemished career,” the court said. Brooks died last year.

Norkin was accused of acting improperly toward Brooks when he:

• Sent emails to Brooks that said Brooks was lying and disingenuous, his motions were “laughable and scurrilous,” and he will come to regret his “incompetent, unethical and improper litigation practices.” Other emails threatened to seek sanctions against Brooks and advised him to notify his malpractice insurance carrier.

• Approached Brooks in the courthouse hallway and said he had confirmed in conversations with other lawyers that Brooks was “underhanded and a scumbag.” Other lawyers were within earshot at the time.

The court concluded its opinion with this advice for Florida lawyers: “Competent, zealous representation is required when working on a case for a client. There are proper types of behavior and methods to utilize when aggressively representing a client. Screaming at judges and opposing counsel, and personally attacking opposing counsel by disparaging him and attempting to humiliate him, are not among the types of acceptable conduct but are entirely unacceptable. One can be professional and aggressive without being obnoxious. Attorneys should focus on the substance of their cases, treating judges and opposing counsel with civility, rather than trying to prevail by being insolent toward judges and purposefully offensive toward opposing counsel. ...

“Norkin has conducted himself in a manner that is the antithesis of what this court expects from attorneys. By his unprofessional behavior, he has denigrated lawyers in the eyes of the public.”
The Florida State Supreme Court thinks Norkin needs a lesson on civility.  Perhaps.  But clearly the Florida State Supreme Court though needs a lesson on the First Amendment.  The sanction for the email is particularly egregious in that it lacks any publication whatsoever so it is not even arguable libelous.

There is a case out of Tennessee in which an attorney, Caldwell Hancock, is accused of violating Rule 8.2 for criticizing a judge in an email he had written to the judge and no one else.  The case was over and Hancock was unhappy with some of the public comments the judge that he felt were inaccurate and unfair.  I am going to try to get more information on that case and report about.

I have recently reviewed the history behind the 1798 Alien and Sedition Acts which sought to squelch public criticism of Congress and the President.  Both those Acts and Rule 8.2 were aimed at limiting criticism of public officials to truthful criticism, with truth being an affirmative defense that has to be proved at trial.  It is astonishing that the exact same argument the Federalists used for the Alien and Sedition Acts - the need to protecting the integrity of the legislative and executive branches from unfair and inaccurate criticism - is what is used by state disciplinary bodies in using Rule 8.2 to punish attorneys for criticism of judges. Norkin's case merely extends that concept to officers of the court, i.e. attorneys.

Natatorium is Next Bailout Project for Ballard Administration

The Indianapolis Star reports:
Indianapolis city leaders will seek approval to chip in $9.5 million toward nearly $20 million in renovations needed to renovate IUPUI’s Natatorium, a mayoral aide confirmed to The Indianapolis Star.

Indiana University still is working out plans to pick up the rest of the tab. As part of the developing arrangement, IU would shift management of the 31-year-old swimming facility to a partnership of local sports organizations, said Ryan Vaughn, chief of staff to Indianapolis Mayor Greg Ballard. And a portion of city hospitality taxes would be set aside for future maintenance.

Vaughn has been consulting with City-County Council leaders, including President Maggie Lewis, about the Ballard-backed proposal to finance the city’s $9.5 million contribution. Those talks are still under way, he said.

As Vaughn outlined it, the city would issue bonds and repay them by tapping Downtown Indianapolis economic development funds that draw from a tax-increment financing district. That would need council approval, which Vaughn hopes to secure in January.


The Natatorium is the largest permanent aquatics venue in the United States with a seating capacity of 4,700, attracting national events regularly. On Tuesday, the facility was announced as host of the 2016 U.S. Olympic Trials in diving.

But the facility has had ventilation problems in recent years, and IU officials say other systems and parts of the building are simply wearing out.

The city has a stake in keeping the aging facility top-notch, Vaughn said, because of the events and visitors it draws from out of state.


Vaughn says the city should get involved. He said the Natatorium was as important to the sport of swimming as the Indianapolis Motor Speedway was to auto racing.

“It’s part of our core sports economy here in Indianapolis,” Vaughn said. “That is a huge driver for us. (The building) needs a refresh. And it very much is a community asset.”

What's next?  Should we taxpayerspay to upgrade Hinkle Fieldhouse?  What about the University of Indianapolis' football field?

Undoubtedly we will be given "studies" that show the Natatorium brings in millions dollars to the local economy and this will be worth our "investment."  Yeah, right.  It's funny how the Ballard administration can always find money for questionable "economic development" projects but when it comes to basic city services, like law enforcement, his answer is always raising taxes.

Tuesday, November 26, 2013

Wayne Township School District Votes to Ban Smoking on School Property

The Indianapolis Star reports:
After hearing from 20 students, parents and teachers in a packed meeting room, the Wayne Township School Board voted unanimously Monday to ban tobacco products on all school property.

The voice vote, however, came after two board members voiced some personal misgivings about a total ban but said they concluded the time had come to approve it.


Until now, Wayne Township was the only school district in Marion County without a total tobacco ban. Smoking has been prohibited in all buildings, and students — even those 18 or older — also have not been allowed to smoke.

But smoking was permitted in certain areas.


The board had been expected by some to approve not a tobacco ban, but instead to sign off on language recommended by its attorney to bring the district's policy in line with state law. That would have moved smokers away from entrances but still allowed tobacco use on school grounds.

However, a groundswell of opposition to any tobacco use on school grounds gained momentum, expanding to include other property, such as district vehicles, as well as school events.


I'm a bit surprised that the article didn't include claims that non-smokers were exposed to "dangerous" secondhand smoke as they walked by smokers congregated outside. The claim is nonsense. Epidemiology studies show the risk factor for secondhand smoke to be only around 1.3, far below the 2.0 level considered sufficient to prove causation and far below the 9.0 risk factor involved in smoking cigarettes.  The carbon monoxide that fills the air as cars idle at pickups and dropoffs at the schools pose a much greater danger than secondhand cigarette smoke.

In related news, the 7th Circuit yesterday upheld Indianapolis smoking ban which was extended in 2012 to include bars. Mark Small was lead counsel for the bar plaintiffs and I acted as second chair on the case.. That may prove to be a short-lived victory, however.  Several weeks ago, the Indiana Supreme Court heard oral argument on the Evansville smoking ban.  It appeared from the oral argument that the Court is leaning strongly toward striking down the ban because of the inclusion of exceptions in that law, which exceptions Indianapolis' ban also includes.  During the oral argument, the focus was on the Privileges and Immunities Clause in Indiana's constitution, a provision that acts in a way similar to the federal equal protection clause but has been interpreted to provide more protection against unequal treatment.  Because states have absolute power to interpret their own constitution, an Indiana Supreme Court ruling that the state constitution prohibits smoking bans with exceptions in the Evansville case would likely doom the Indianapolis smoking ban as well.

Sunday, November 24, 2013

Indianapolis Star: It is About the (Lack of) Content, Not the Design of the Website

This past week, the Indianapolis Star unveiled a new looking website.  Print stories were downgraded in favor of presenting fewer stories on the website's front page, but more pictures and even videos.  Shortly thereafter Star Editor Jeff Taylor wrote an article explaining the changes: 
We hope you'll agree [the new website] is a rich, visually compelling and easy-to-use format for exploring news updates, photo galleries, videos, searchable databases,
Indianapolis Star Editor Jeff Taylor
interactive features and other exclusive content for Star subscribers.

A cleaner design of the website displays photos or video with almost every story. The photos are larger, too, and videos are more prominent.

You'll find an improved search bar at the top of the home page to help you find information faster, as well as right-side and left-side arrows to help you click quickly to other sections or articles.
Share tools are easy to find. Our social media buttons "stick" with you as you scroll through an article and make it easier to share favorite stories.

And now you won't have to leave an article to post or read comments. You'll be able to click the comment icon next to the social media icons and immediately share your thoughts via Facebook.
Other new features include a "right-now" rail on each section front. The rail displays the latest content in that section — from stories and blogs to photos, videos and more.

We've redesigned and improved the weather page, too, with extended forecasts, severe weather alerts and interactive maps. And we've added quick links to help you dive into your favorite content.
In addition to these changes, we've launched a new IndyStar iPad app. And we're pleased to say that we are about to update our iPhone app. We've been aware of the frustration customers have had with the current version and apologize for that. We're eager to make the new version available and expect it to be ready for download later this month. Those apps go along with our new Android and mobile experiences.

The "improvement" to the website suggests that Taylor and Publisher, Karen Crotchfelt, believe the Star's decline in readership is due to the Star's failing to keep up with technology.  However, if Taylor and Crotchfelt walked outside their door and asked potential and former readers of the Star why they do not subscribe, the answer 90% of the time would be poor or a lack of content, especially when it comes to local issues.  Indeed, when Crotchfelt took over the paper she announced that it was the Star's role to be a cheerleader for local government.  She's has lived up to that promise  Star reporters rarely pen anything critical of local government.  Occasionally the Star does an excellent lengthy expose of wrongdoing in government, but the focus of such pieces is always on state government.  The Star has left reporting on wrongdoing by local politicians has been left to enterprising TV reporters to cover.

It is clear that Taylor and Crotchfelt do not understand people's frustration with the Star's lack of content.  While a bone was recently thrown to readers with the promise of an expanded newspaper, in fact the local news section has been eliminated entirely by being folded (some would say "buried") in the front section which historically has dealt with more national issues.  The Star has added some USA Today content in the form of expanded national news, but I'm not aware of anyone ever complaining that the Star needed more national news.

The Star's problems are almost due completely to a lack of content, particularly coverage of local news.  Taylor and Crotchfelt clearly do not understand that. If anything, the Star's newly redesigned website makes it harder to find the content that people want and, thus, will make people even less likely to visit the website.

Wednesday, November 20, 2013

More Panhandling Silliness from the Indianapolis City-County Council

Today, on the way to a hearing at the City-County Building, I observed panhandlers at the northeast and northwest corners of Market and Delaware Streets.  It is an intersection that city-county councilors, city and county elected and appointed officials, police officers, attorneys and judges traverse on a daily basis.  Virtually every one of those days, at least two panhandlers will be at that intersection.

In 2009, the council passed an amendment to its panhandling ordinance prohibiting solicitations within 50 feet of intersections.  What these panhandlers are doing at this prominent intersection is clearly against the law.  Yet, despite prominent people being aware of the violation, no steps have been taken to enforce the law.

Panhandling continues.  So what is the council's solution?  Well if the current law isn't being enforced, let's just make the law even more stringent.  Jon Murray of the Indianapolis Star reports:
The proposal, advanced on a 5-2 vote, would ban panhandling or passive solicitation, including cup shaking, sign holding and street performances for money, within 50 feet of specified areas. Those areas include places where money is transacted, including ATMs, bank entrances and exits, and parking meters or kiosks that accept money, and near bus stops, sidewalk cafes, marked crosswalks, trails and underpasses.

Indianapolis Downtown Inc. estimates that the 50-foot restriction — increased from the current ordinance’s 20-foot ban near some areas — would outlaw solicitation in about 60 percent of Downtown’s Mile Square. It wouldn’t apply to most of Monument Circle, though, or portions of other blocks.
First, I find it ironic that IDI, which regularly begs for and receives taxpayer money to the tune of more than a million dollars a year would be pushing a ban on public solicitations of money.   I guess IDI doesn't like the competition.  At least with giving money to panhandlers, the public has a chance that the money will go for a good cause instead of being wasted by a worthless outfit like IDI.

Second, I find it extremely dubious the claim that the 50 foot radius proposal would still leave 40% of the downtown area available for solicitations.   There is already a 50 foot ban on solicitations near an intersection.  You add to that a 50 foot ban on solicitations near parking meters (that take money) and parking kiosks, as well as bank machines, virtually every square foot of land downtown would seem to be covered.

Third, maybe the council should look at whether the current law is being enforced before enacting a tougher ordinance. Maybe the council should also consider if IMPD has the resources to enforce a tougher ordinance.  Don't we have a problem with violent crime in this city?  Shouldn't that be a priority?

Finally, the council should consider the cost of defending this new ordinance in court.  Adding in the new 50 foot radius restrictions to the older one including intersections, the ban on solicitations is very comprehensive.  It will undoubtedly be challenged in court and quite likely it will be stricken down as unconstitutional.  You can expect too that the City will farm out the defense of the panhandling ordinance to a private law firm like Barnes & Thornburg resulting in taxpayers being hit for millions in legal fees, even if the law is upheld.

The new panhandling ordinance?  A thoroughly bad idea.

Monday, November 18, 2013

Tennessee College Students Get a Lesson on the Meaning of Free Speech

A street preacher was preaching to university students at the University of Tennessee at Chattanooga, i.e. on public property.  The police had cordoned off an area so the person so the person could speak without interference.  A student rides his bike into the area to confront and interrupt the speaker.  The police handled the matter appropriately and ended up arresting the bicyclist.

When I was in college at Ball State, there was a street preacher who would often stand near a busy sidewalk and preach fire and brimstone, condemning to hell BSU students for our sinful ways.  We did not interrupt him or heckle him.  While many students undoubtedly disagreed with the message being spoken, we understood that part of living in a free society is that we would sometimes be subjected to speech we did not agree with or which made us uncomfortable.   Frankly, we didn't take the speaker that seriously...most were thankful for the entertainment between classes.

Today, many in the younger generation feel they have some right to not to hear messages they find offensive or hateful.  Some even believe the authorities have a duty to protect their tender ears from disagreeable thoughts.  If the authorities don't act, they believe they have the right to shout down the speaker.  They are wrong on all counts.

Under the First Amendment, government doesn't get to pick and choose which speech it will allow based on the content of that speech. Government cannot silence speakers because a majority of people might find the message offensive or the speech filled with hate.  The First Amendment also does not give people the right to interrupt someone else's speech.  The First Amendment rather gives people the right to speak out, to counter the message they disagree with, with a message of their own.

It is a shame that there is such ignorance about our constitutional right to free speech, especially among college students.

Friday, November 15, 2013

Polls Shows Republicans Surging Past Democrats on Generic Congressional Ballot

For the first time since the government shutdown, a national poll shows that more Americans favor an unnamed Republican congressional candidate over a Democratic challenger.  This "generic ballot" poll, jointly conducted by Anderson Robbins Research, a Democratic polling firm, and Shaw & Company Research, a Republican polling firm, on behalf of Fox News show the Republicans with a 3 point lead (43-40).  This is an 11 point swing from an October 23rd Fox News Poll, conducted by the same polling firms, which showed Democrats with an 8 point lead (45-37).

The Fox News polls showing 11 point movement toward Republicans is consistent with polling by Quinnipiac University which released a poll earlier this week showing Republicans and Democrats tied on the generic ballot (39-39), a 9 point swing from a poll the university released on October 1st showing Democrats with a 43-34 edge.

Thursday, November 14, 2013

Political Prediction: Leadership of Indiana General Assembly Will Kill Anti-Same Sex Marriage Amendment in 2014

Early 2014, the Indiana General Assembly will take up House Joint Resolution 6, a measure to write into the Indiana Constitution the statutory ban on same sex marriage.  But the measure goes further than that with a second sentence that seeks to outlaw, via the state constitution, alternatives to same sex marriage. The exact wording of the proposed amendment is as follows: 
“Only marriage between one (1) man and one (1) woman will be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.” 

Left: House Speaker Brian Bosma;
Right:  Senate President Pro Tem David Long
Indiana has an unusual constitutional amendment process whereby proposed constitutional amendments can be passed by a simply majority, but they have to pass two separately elected and consecutive General Assemblies.   Then, as in virtually every state, the amendment is sent to voters for ratification. HJR-6 passed in 2011, the Senate 40-10 and the House 70-26.  On both votes, several Democrats crossed over to vote with the Republican majority.

HJR-6 was next eligible for consideration in 2013 following the 2012 elections.  Even though Republican super-majorities were elected in both chambers (from districts redrawn in 2011), the political winds on same sex marriage had begun to shift. In 2013 legislative session, HJR-6 was pulled off the table by legislative leaders who were worried about the distraction of dealing with that issue while trying to advance an aggressive legislative agenda.

The last hope for HJR-6 to clear the legislative process is 2014.  Let me be the first to predict that HJR-6 won't make it, that legislative leaders are going to kill it like they did in 2013.  Here is why: 
  1. RELUCTANCE TO MOBILIZE POLITICAL FORCE BEFORE AN ELECTION:  The pro-same sex marriage folks are extremely well-organized.  If the legislature passes HJR-6 then the amendment moves to the referendum phase and with it a mobilized and energized political force that not only advocates against the amendment but targets Republicans.  GOP leadership will not want that force to influence the 2014 elections.
  2. STATUTORY BAN ALREADY EXISTS:  There is already a statutory ban on same sex marriage.   Killing HJR-6 does nothing to change the status of same sex marriage. So there is a ready "out" for leadership to kill the amendment.
  3. THE SECOND SENTENCE DILEMMA: The second sentence to the amendment carves out new policy territory which isn't part of existing state law.  It is unclear how that phrase would be interpreted.  It is contradictory to pass an amendment because of concern over activist judges and then hand those allegedly activist judges a vague prohibition like sentence two.  Plus, the language also bars future General Assemblies from passing laws on the subject.  The second sentence of the amendment has turned out to be the Achilles' heel of the amendment.
  4. POLITICAL WINDS ARE SHIFTING...DRAMATICALLY:  Poll results always depend on how questions are asked, but most polls show Hoosier public opinion moving sharply against the amendment.  More troubling for Republicans legislators, an increasing number of younger conservatives are supporting same sex marriage.
  5. MANY REPUBLICAN LEGISLATORS ARE SYMPATHETIC TO THE CIVIL RIGHTS ARGUMENT MADE BY THE OTHER SIDE:  Being a legislator is always a struggle between whether you vote your own conscience (the trustee model) or the way your constituents want (the delegate model).  Inevitably the approach legislators take shift from issue to issue.   When there is public opinion overwhelmingly on the other side, legislators feel they have to abandon their personal views and vote the way their constituents want.  (That happens with legislators in both parties.)  Now that political opinion in their districts is changing, you're seeing many Republican (and Democratic) legislators announce a change of heart when it comes to their previous position on HJR-6. 
  6. INFLUENCE OF BIG BUSINESS:  The leaders of many of the state's largest corporations, who usually support Republicans, have signed on as part of a coalition against HJR-6.  While the business leaders' attempt to spin the issue as critical to economic development lacks in any statistical support, their presence in the debate gives Republicans cover if they choose to abandon their earlier support of the amendment.
Mark my words, HJR-6 will not pass the legislature in 2014, most likely because the legislative leaders will pull it off the table so a vote will never be taken.

Wednesday, November 13, 2013

Star Columnist Pens Thoughtful Column Blaming Misguided City Priorities as Contributing to Lack of Funding for Law Enforcement ... Kidding

Indianapolis Star Matthew Tully recently penned a lengthy column on what appears to be increased violent crime in Indianapolis and ponders a number of questions of how to address the problem, including finding the funds to hire an "appropriate number of police officers on the streets." Tully explains why the 65% increase in the local county option income tax in 2007 did not result in more police officers as promised and why a new tax increase for that purpose would be different.

Kidding. Of course, Tully does no such thing.  As with any inconvenient facts, Tully just ignores them.
Indianapolis Star Columnist Matthew Tully

Tully's column, however, thoroughly outlines the poor spending priorities of the current administration, the $6.35 million gift to Keystone Construction for a parking garage, the $21 million this year given to the Pacers, the $23 million for a private company to build apartments at the location of the old Market Square Arena and $6 million for a cricket field.

Kidding.  Of course, Tully never mentions any of those misguided spending decisions as possibly playing a factor in a smaller pot for law enforcement.

As reported by Had Enough Indy, the City takes in more than $100 million more today than it did when Peterson left office and the State picked up a number of other obligations freeing up yet more money for Indianapolis city leaders to spend on basic services, like law enforcement.  Tully notes this in his column and points out how most of that money has been diverted to private companies via an increasing number of  tax increment financing districts (now making up 20% of the city) that often run in the red and drain the property tax base.

Kidding.  Of course, Tully never mentions that.   Tully instead wants you to take out your wallet and pay more.  If city leaders decide to give that money to politically-connected companies, don't expect Tully to complain.  He'll just write another column ask his readers to pay yet more taxes.

With columnists like Matt Tully who won't address local issues with even a modicum of intellectual honesty, is it a wonder the Star continues to lose readership?

Tuesday, November 12, 2013

Associated Press Investigation Shows Ethanol to Be Ecological Disaster

With corn being Indiana's largest crop, Hoosier farmers have done well with the federal government's indirect subsidization of ethanol production.  But for consumers it has readily become apparent that putting corn in gas tanks wasn't such a good as the resultant shortage of corn has driven up food prices.   But while the poor economics of ethanol increasingly has gotten publicity, the fact that ethanol is bad for the environment has been under reported.  A lengthy Associated Press story rectifies that deficiency with a lengthy report:
[T]he ethanol era has proven far more damaging to the environment than politicians promised and much worse than the government admits today.

As farmers rushed to find new places to plant corn, they wiped out millions of acres of conservation land, destroyed habitat and polluted water supplies, an Associated Press
investigation found.
Five million acres of land set aside for conservation — more than Yellowstone, Everglades and Yosemite National Parks combined — have vanished on Obama’s watch.

Landowners filled in wetlands. They plowed into pristine prairies, releasing carbon dioxide that had been locked in the soil.

Sprayers pumped out billions of pounds of fertilizer, some of which seeped into drinking water, contaminated rivers and worsened the huge dead zone in the Gulf of Mexico where marine life can’t survive.

The consequences are so severe that environmentalists and many scientists have now rejected corn-based ethanol as bad environmental policy. But the Obama administration stands by it, highlighting its benefits to the farming industry rather than any negative impact.

Farmers planted 15 million more acres of corn last year than before the ethanol boom, and the effects are visible in places like south central Iowa.

The hilly, once-grassy landscape is made up of fragile soil that, unlike the earth in the rest of the state, is poorly suited for corn. Nevertheless, it has yielded to America’s demand for it.

“They’re raping the land,” said Bill Alley, a member of the board of supervisors in Wayne County, which now bears little resemblance to the rolling cow pastures shown in postcards sold at a Corydon pharmacy.

All energy comes at a cost. The environmental consequences of drilling for oil and natural gas are well documented and severe. But in the president’s push to reduce greenhouse gases and curtail global warming, his administration has allowed so-called green energy to do not-so-green things.


The government’s predictions of the benefits have proven so inaccurate that independent scientists question whether it will ever achieve its central environmental goal: reducing greenhouse gases. That makes the hidden costs even more significant.

“This is an ecological disaster,” said Craig Cox with the Environmental Working Group, a natural ally of the president that, like others, now finds itself at odds with the White House.
To see the rest of the lengthy article, click here.

Thanks to the Indiana Law Blog for finding this interesting article.

Barnes and Thornburg Seeks to Gain More Influence as Partner Opposes Small Firm Practictioner for Seat on Judicial Qualifications Commission

A battle between two attorneys for a seat on the Judicial Qualifications Commission to replace Indianapolis attorney William Winningham is sparking interest among attorneys in the Second District which is made up of Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White counties.
Lee Christie

The JQC is the nominating body for appellate judges in Indiana, the organization that screens nominees and proposes a list of three finalists to the Governor for selection.  It also handles discipline of judges.  As a result, the JQC plays a critical role in the Indiana legal system.

Lee Christie, a partner with Cline Farrell Christie & Lee, has put his name into the ring.  According to his bio submitted with the ballot:
"Christie received his bachelor's degree from Indiana University, and earned his law degree from Indiana University School of Law  - Indianapolis.    A frequent lecturer at continuing legal education seminars, Mr. Christie has presented on the topics of punitive damages, tort law, alternative dispute resolution, civil arbitration, expert witness, trucking litigation, and professionalism and civility in the court."
Christie faces off against Jan Carroll, a partner with Barnes & Thornburg.  According to her biographical information:
Jan Carroll
"[Carroll's] practice concentrates on products liability, professional liability, real estate and land use, and commercial disputes.  [She] earned her bacherlor's degree from Southern Methodist University and received her law degree, with honros, from Indiana Universigty - Indianapolis Law School, where she served as a note and deevelopment editor of the Indiana Law Reiew while also working full-time as the Statehouse correspondent for the Associated Press."
Carroll is also married to Judge John Tinder who sits on the 7th Circuit.

A recent mailing by Carroll identifies many of her supporters. It reads like a Who's Who list of partners from big, politically connected law firms.    Here is a partial list:

Brian L. Burdick, Barnes & Thornburg
Debora J. Daniels, Krieg Devault
Robert T Grand, Barnes & Thornburg
John R. Hammond, Ice Miller
David K. Herzog, Faegre Baker Daniels
Lacy M. Johnson, Ice Miller
Larry A. Mackey, Barnes & Thornburg
John R. Maley, Barnes & Thornburg
Leah S. Mannweiler, Krieg Devault
Jimmie McMillian, Barnes & Thornburg
D. William Moreau, Barnes & Thornburg
Timothy J. O'Hara, Bose McKinney & Evans
Linda L. Pence, Pence Hensel
Myra C. Selby, Ice Miller
Steven C. Shockley, Taft Stetinius & Hollister
Geoffrey Slaughter, Taft Stetinius & Hollister
Norman G. Tabler, Jr., Faegre Baker Daniels
David O. Tittle, Bingham Greenbaum Doll
James H. Voyles Jr., Voyles Zahn & Paul
Sally F. Zweig, Katz & Korin

Including this list is a strategic mistake on Carroll's part.  The list isn't going to get her any more votes from the big law firms in Indianapolis.  She is going to get plenty of those.  But the list is going to cause any attorney outside the big firms to think twice before casting a vote for her given the people she displays as her supporters.  If I were Christie, I'd send Carroll's list of supporters out to every medium and small firm attorney and sole practitioner in the Second District and ask for their support against big firm domination of the judicial selection process.

I met Mr. Christie during a personal injury mediation case I had with him a few years ago.  He did a terrific job.  He has an excellent temperament.  I would have no hesitation voting for him.

This election though comes down to whether you believe that the big, politically-connected law firms, particularly the most politically-connected law firm in the State of Indiana, Barnes & Thornburg, need yet more representation on key judicial commissions.  Barnes & Thornburg already has a partner, Anthony Prather, on the Disciplinary Commission. The law firm has been accused of exerting undue influence over the actions of the Commission.  In an expose I wrote in January of 2011, I revealed that over a three year period, 99% of the published disciplinary cases (397 out of 400) involved discipline of small firm attorneys or sole practitioners.  No disciplinary actions were taken during that time against attorneys from Barnes & Thornburg, the largest law firm in the state.  The Disciplinary Commission Chief during that time was Donald Lundberg, who shortly thereafter left to become, you guessed it, a Barnes & Thornburg partner.

I have had experiences with both the Judicial Qualifications Commission and the Disciplinary Commission. There is no comparison.  The JQC appears to enforce the disciplinary rules for judges in a fair and even-handed way, without any regard to political clout. The Disciplinary Commission is exactly the opposite when it comes to enforcement of disciplinary rules for attorneys. The last thing we need is the JQC operating more like the DC.

Attorneys, if you think Barnes & Thornburg needs more influence in the legal profession and the selection and discipline of judges, then by all means vote for Jan Carroll.  The rest of us will vote for Lee Christie.

Note:  The ballots for this race were due on November 19th.  Due to problems with attorneys receiving ballots, the Indiana Lawyer is reporting that the deadline to turn in the ballots will be extended by a Supreme Court order not yet issued.

Friday, November 8, 2013

Emmis Communications' "Partnership" With Freedom Indiana Violates Journalistic Ethics

If you drive around southeast Indiana, you will come across newspapers with political party names in them, newspapers such as the Versailles Republican and Salem Democrat. During the 1800s, newspapers operated as arms of political parties, promoting particular political views.  It was the job of journalists to promote the particular political view of the newspaper in their reporting.

Fortunately, journalism evolved.  During the 1900s newspapers and other media outlets took on a public trust responsibility, a responsibility that mandated that they report the information objectively, warts and all, without political slant.  As part of that new era of objective, reporters were prohibited from immersing themselves in politics so as to not have their objectivity questioned.  While media outlets retained their editorial commentary, that commentary was always clearly separated from the reporting function of the media.  Media outlets, particularly newspapers, would make political endorsements, but that was the extent of political involvement and it was clearly identified as editorial content.  Media organizations certainly refrained from throwing the weight of their organization behind political issues as it would affect people's perceptions of the objectivity of the reporting.

In this new age of objective journalism, the Society of Professional Journalists adopted ethical rules to guide journalists in the exercise of their craft:
— Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.
— Avoid conflicts of interest, real or perceived.
— Remain free of associations and activities that may compromise integrity or damage credibility.
— Refuse gifts, favors, fees, free travel and special treatment, and shun secondary employment, political involvement, public office and service in community organizations if they compromise journalistic integrity.
While the SPJ Code of Ethics is voluntary and just applies to journalists, media outlets have generally followed the provisions so as to no jeopardize the works of the reporters they employ.  However, with the expansion of the TV dial, media mergers, and the new media, the once lauded objectivity of the Fourth Estate has broken down.  More and more you're seeing what was once objective reporting turn into opportunities to promote particular political viewpoints through the guise of reporting.

When hired by Gannett to manage the Indianapolis Star, Publisher Karen Crotchfelt said that the newspaper's mission is to be a "partner" with local political leaders, an approach one would believe conflicts with holding those leaders accountable.  Indeed, that's exactly what happened.   The Star's never writes critical stories of local officials and any editorials with such criticism are tepid at best.  Instead the Star has focused its investigation on state officials.  Apparently the "partnership" the Star has with local government officials does not extend tot he other side of Market Street.

In February of this year, I wrote how another blogger Eugene Fisk had written that Crotchfelt's involvement with the political group, Central Indiana Corporate Partnership (which promotes mass transit among other policies) violated Gannett's ethical rules, particularly:
Gannett Ethics Policy, Part II, Paragraph C: 
Influence: An impartial, arms’ length relationship will be maintained with anyone seeking to influence the news.
There have been zero critical articles of the Indy Connect mass transit plan in the Indianapolis Star, while Star columnist Erika Smith, has written some 25 columns promoting the plan and mass transit in general.  It's not a hard leap to conclude that Crotchfelt's association with CICF influences the Star's coverage of the mass transit issue.

This week comes news that the media conglomerate Emmis Communications, is "partnering" with Freedom Indiana to fight the same sex marriage ban constitutional amendment.  Although this is being celebrated by same sex marriage advocates, the larger view is missing.  When media outlets engage in political advocacy, it undermines the credibility of the work journalists do on a day-to-day basis.  For those of us who believe in the objective journalism of the 1900s, this represents a step back in time, a return to the days of the 1800s when media outlets simply became arms to promote political views.

For those of us who believe in objective, ethical journalism, Emmis Communications' endorsement of the political work of the Freedom Indiana is certainly not something to celebrate.

Wednesday, November 6, 2013

Result of Virginia Governor's Race Reveal Dark Clouds on Horizon for Democrats

Republican Ken Cuccinelli
Election 2013 was not supposed to feature any close race.  One of the featured battles for Governor of Virginia was wrapped up months ago, as Republcian Attorney General Ken Cuccinelli has been successfully marginalized by Democrats as a "fringe" candidate.  Democrat political operative Terry McAuliffe had the race wrapped up according to the polls. The Real Clear Politics average of polls showed him with a 6.7% spread that would have produced a margin of 13 to 14 points..

But on Election Night, McAuliffe, who had spent $14 million more than his opponent, found himself neck-and-neck with Kuccineli, only managing to pull out a 48% to 46% victory.   What happened?

Obamacare happened.

Real Clear Politics describes the last minute change in Kuccineli's strategy that sparked his quickly closing what the polling firm Rasmussen had found was a 17 point lead for McAuliffe only two weeks earlier:
In the final days of the race, Cuccinelli framed it as a referendum on Obamacare, running ads suggesting that a vote for his opponent would be a vote for the controversial health care law. The Republican attorney general hoped the Affordable Care Act’s flawed implementation and the number of newly canceled insurance policies would spark conservative voters and drag down McAuliffe..."
And it did.

The Democrats entire strategy was based on marginalizing Cuccinelli as some far right, tea party conservative well out of the Virginia mainstream.   The Democrats got a lesson on how quickly that strategy will fall apart in light of the failures of Obamacare.

Monday, November 4, 2013

Refresher on Broad Ripple Parking Garage Deal; WRTV Reporter Kara Kenney Offers Viewers an Update Tonight

In light of reporter Kara Kenney's segment on Channel 6 at 11 p.m. on the Broad Ripple Parking Garage, I wanted to provide readers with a refresher on the deal.

A few years ago, there were numerous discussions about the need for more parking in Broad Ripple.  A study determined that there was only a need for additional parking on Friday and Saturday nights when people frequent the bars.  Nevertheless, the study proceeded to consider a handful of locations for a parking garage.  One that was determined as being "unpreferred" was the property located at the southwest corner of the three way intersection of Westfield, Broad Ripple and College Avenues.  The conclusion was that the triangle shaped lot was too small for the proposed large building, the intersection was too busy and that pedestrians could get hit crossing the road, and that the garage would be underused because it sits on the edge of the Broad Ripple business district instead of being centrally located.
Broad Ripple Parking Garage
early on a Thursday evening

The City nevertheless entered into a contract with Keystone Construction and its partners to build a garage at that location.  Keystone is owned by Ersal Ozdemir who is a contributor to the Mayor and other politicians.  Keystone also in December 2009 hired Paul Okeson, then Mayor Greg Ballard's chief of staff, as vice president of business development.

As part of the deal, the City of Indianapolis, using part of the $20 million from the 50 year ACS parking meter agreement, paid $6.35 million toward acquiring the land and building the garage.  The $6.35 million is actually termed in the contract to be 10 years of rent, to be paid upfront, for the location of an IMPD substation in the garage.   At the end of 10 years, the City has to pay rent for the IMPD substation at market rate.  (The City is also required to pay prorated utilities for the substation.  As of only a month or so ago, the substation had still not opened though the rent has already been paid.

The City's $6.35 million payout is pursuant to a denominator/numerator formula that depends on how much Keystone has to borrow to build the facility.  The payout according to the "fraction formula" is extremely complicated but also easily manipulated.  Basically if Keystone did not have to borrow anything to build the project, then the City would have to front the entire $6.35 million before Keystone had to put a single dime into the project.

Throughout the selling of a the project, the garage was sold as a $15 million project.  The media dutifully swallowed this figure reporting it as a fact.  But according to an Indianapolis Star story early on, comparable garages cost in the $5 million to $7 million range, not $15 million.  A cynic would say that the $15 million figure was simply manufactured to make it appear Keystone was paying something for the garage when in fact the company wasn't.

What turns out to be significant is a bait and switch that took place.  Late in the history of the

planning for the project, the commercial space in the Broad Ripple Parking Garage was nearly doubled from 20% to 36%.  Most media outlets missed picking up on this major change in the taxpayer funded deal.  Now, looking back a year after it opened, it appears the Broad Ripple Parking Garage, which it turns out is little used for parking, was actually about taxpayers footing the bill to construct a commercial building for Keystone.

As a result of the deal, Keystone has full ownership of the building and receives all commercial rents and parking revenues.   The City not only gets nothing in return, after ten years, the City has to start paying rent for the IMPD substation.

I'm sure Kara Kenney's investigation will cover more information about this deal that, if it isn't on the FBI's radar, should be.  Click here to watch the preview of the Kenney piece.

Friday, November 1, 2013

Political Pendulum Begins to Swing Back to Republicans Well in Advance of 2014 Mid-Term Elections

In studying political patterns, one thing you see most consistently is summed up in Isaac Newton's third law of motion:
For every action, there is an equal and opposite reaction.
Another way of stating it: in politics, success breeds failure while failure sows the seeds of politiical success.

I remember in 2009, Democrats were crowing about the great success they had with Barack Obama's presidential victory  2008 and how 2010 would be a banner year.  Indeed, they argued that the Republican Party was hopelessly divided, the GOP's message outdated with an appeal to only a small minority of voters.    Democratic activists were trumpeting predictions which showed the Democrats with large gains in the 2010 midterm elections.

That never happened.  The political pendulum shifted back in the Republican favor.  Not a little mind you, but in a huge way.  During the 2010 midterm elections, Republicans gained 63 seats in the U.S. House of Representatives, recapturing the majority.  That was the largest seat change since 1048 and the largest mid-term change since the 1938 midterm elections. The Republicans in 2010 also gained six seats in the U.S. Senate and 680 seats in state legislative races, which broke the previous majority record of 628 set by Democrats in the post-Watergate election of 1974.  After the 2010 election, Republicans controlled 25 state legislatures, while Democrats only controlled 15.  That proved to be a killer going into redistricting.

Whether it was deserved or not, Republicans took it on the chin when it came to the shutdown of the federal government.  But Democrats would be wrong to think that will be the issue in 2014 when the voters go to the polls.  Instead the shutdown will be a distant memory.  The pendulum has already started swinging back with the focus on problems with Obamacare, including many people discovering that they can't keep their health insurance they have with their employer and that their insurance premiums will rise.  People are getting angry and suddenly it is the Democrats on the defensive. It's a mid-term election in the Presidents' second term.  History says it will not be a good election for Democrats.

Of course, in 2014 Republicans will probably end up overplaying their hand, not offering an alternative progam to counter Obamacare's failures, and end up losing the 2016 elections.  But 2014?  No, that will be a very good year for Republicans.  Mark my words.

Noblesville to Indianapolis Light Rail Boondoggle Appears Dead According to WISH-TV Report

If the report on WISH-TV's Jim Shella's blog is accurate, it would appear that the proposal constituting half the cost of the proposed upgraded mass transit plan, a light rail line from Noblesville through Fishers to downtown Indianapolis, is dead.  Perhaps, in light of the Halloween season, a golden stake should be driven through its heart to make sure it stays dead. Shella reports:
The ongoing mass transit debate at the Statehouse will lead to a new proposal that will concentrate on improved bus service.  Visions of light rail service to Hamilton County are evaporating quickly.

A video on the Indy Connect website ( spells out the hopes of transportation planners in Central Indiana.  They would still like to seek a light rail line from downtown Indianapolis to Noblesville.

But there’s a different message being delivered in a study committee formed by the General Assembly and transportation planner Ron Gifford of the Central Indiana Corporate Partnership gets it.  When asked if light rail is out of the question, he responded quickly by saying simply, “Sounds like it.”


But the $1.3 billion price tag for light rail service is hard to sell.  “Part of our job,” said Sen. Luke Kenley (R-Noblesville,) “is to say what can we afford in this arena?”

The alternative is already there on the website.  It’s a concept known as bus rapid transit, buses that resemble trains operating on designated lines.

“We’re going to see that bus rapid transit is the most economical option for that corridor,” says Gifford, “and that will be the recommendation at the local level anyway.”
Now perhaps we can move forward with a realistic plan to upgrade mass transit that isn't about putting money in the pockets of developers but instead about putting provide a cost-effective service to the public.