Attorney General Zoeller Encroaches on Governor's Power as He Lobbies for More Federal Funding for School Resource Officers

The NPR blog StateImpact reports:

Washington lawmakers are beginning to write the federal budget, and Indiana’s top lawyer wants to make sure they include more money for school resource officers.

Indiana Attorney General Greg Zoeller announced last week he plans to work with the state’s congressional delegation in hopes of increasing the budget of a relatively-small U.S. Justice Department grant program for hiring police officers to work in schools.

Attorney General Greg Zoeller

On the state level, Indiana lawmakers have already authorized $20 million in matching grants to help schools hire resource officers; districts have already claimed more than $9 million of that money.

While some criminal justice advocates question the effectiveness of such a push, it aligns with a goal Obama administration officials spelled out last January: fund the hiring of 1,000 new school resource officers across the country.

...

The U.S. Justice Department currently spends $45 million on a national grant program for hiring school resource officers. Only one Indiana community received a grant from that program last year.

Once again, the Attorney General is encroaching upon the power of the Governor.   Governor Mike Pence is the elected representative for the State of Indiana.  The Attorney General represents the State of Indiana only in and pertaining to litigation.   What right does Attorney General Zoeller have to represent the State of Indiana meeting with Congressman and arguing policy, i.e. for more federal spending for school resource officers?

The irony is that the minute any state official thinks of dipping his or her toe into litigation matters, Attorney General Zoeller is quick to point out that he is the elected attorney for the state and even asserts the baseless position that he also gets to act as the client in such litigation.  Yet Zoeller doesn't hesitate to go out of his area and claim to represent the State in pushing certain policies at the state and national level, directly encroaching upon the power of the Governor.

Maybe pushing for more federal money for school resource officers  is a good idea, but it is Governor Pence's call, not Attorney General Zoeller's.

See also:

Friday, October 18, 2013, State v. State?; Will Indiana's Attorney General Defend the Expungement Statute Against Challenge By Another State Official?

Tuesday, February 12, 2013. Bill Highlights Tension Between Indiana General Assembly and Attorney General

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

Language of New York Times v. Sullivan Shows Attorney Criticism of Judges is Protected Speech

I continue to hear from attorneys all over the country who have had their licenses threatened or have been suspended because of their criticism of judicial officials.  These sanctions are always justified under a claim that limitation on an attorney's free speech is needed to protect the reputation and integrity of the courts and that such limits are okay because attorneys are "officers of the court" and their criticism might be more believed by the public.  It is the same argument - the need to defend the reputation and integrity of public officials - that Federalists used when defending the 1798 Sedition Act which criminalized criticism of the President and members of Congress.

It might be a good time for those state supreme courts sanctioning attorneys for judicial criticism to review the language of New York Times v. Sullivan that clearly rejected this approach:

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U. S. 252. This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U. S. 331, 342, 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U. S. 367; Wood v. Georgia, 370 U. S. 375. If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331 U. S., at 376, surely the same must be true of other government officials, such as elected city commissioners.^[14] Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

New York Times Co. v. Sullivan, 376 US 254, 272-273 (1964)

It is inconceivable that the United States Supreme Court would prohibit state courts from using contempt powers to punish attorneys for judicial criticism but then say the more severe sanction of taking away someone's law license, and destroying their livelihood, would be permitted on that same basis.  State supreme courts interpreting Rule 8.2 to sanction attorney criticism of judges unrelated to a pending court proceeding are clearly violating the Constitution and Supreme Court precedent.  Yet these decisions continue to be handed down despite the fact these decisions would not even come close to surviving U.S. Supreme Court review should cert be granted.  There is no support on the Court, from liberals or conservative justices, for these types of limits on attorney criticism of judges.

As recently as 1991, the United States Supreme Court indicated that the only time an attorney's speech can be more limited more than a private citizen is when that speech "obstruct[s] the fair administration of justice" in a pending case. See Gentile v. State Bar of Nev., 501 US 1030 (1991).  Although the justices in Gentile split on whether the facts met this exception, they all agreed that this was the only time attorney free speech could be limited.

As discussed in a previous post, the commentary to Model Rule 8.2 shows that it was intended to adopt the New York  Times v. Sullivan standard and explicitly rejected the practice of state courts disciplining attorneys for judicial criticism that is "intemperate in tone."  Yet that practice continues.

Indianapolis Experiences 142nd Homicide of the Year, Closes in on Chicago's Killing Rate

With two more killings last night, Indianapolis now has 142 homicides for 2013 according to the Bart Lies! website which tracks Indy killings.  This is compared to 115 in 2012, 110 in 2011, and 119 in 2010.

A few years ago, City leaders conveniently redefined homicide to mean "murder" in order to get the count below 100.  Of course, "murder" is a legal term and something can't technically be classified as "murder" until often a lengthy court process has taken place.  A person may have acted in self-defense and be acquitted of a murder charge, for example.  It still would be a homicide though.  Whether it is a homicide is determined at or near the time of the killing which makes it the figure used in crime reports, unless it is Indianapolis which tries to fudge the number, chiefly to fool media types who simply assume "homicide" and "murder" mean the same thing.

By contrast, Chicago, which has seen a substantial decline in killings, is closing out the year with about 458 homicides. If my math is correct, Indianapolis has one homicide for every 5,945 residents while Chicago has a homicide for every 5,928 residents.  So Indy's homicide rate is still lower than Chicago...barely.

Postal Rates to Increase To 49 Cents in January 2014; Time to Eliminate Saturday Delivery

The Washington Post reports:

The U.S. Postal Service on Wednesday proposed raising its mailing prices beyond a statutory cap on rate hikes in a move that would take effect in late-January if the Postal Regulatory Commission approves the changes.

The increases would affect first-class, standard, periodicals and package mailing. The cost of a stamp would increase from 46 cents to 49 cents, while the rate for letters beyond 1 ounce and postcards would rise 1 cent.   

Under current law, price increases for the Postal Service cannot exceed the rate of inflation, except under extraordinary circumstances and with approval from the regulatory board. USPS officials have said the proposed changes are necessary to help balance their books in the absence of postal-reform legislation.   

Increasing postage prices is a last resort that reflects extreme financial challenges,” USPS Board of Governors Chairman Mickey Barnett said in a letter to customers on Monday.   

The Postal Service recorded a loss of nearly $16 billion during the last year and is on track to lose another $6 billion in the current cycle.

...   

Mary Berner, president and CEO of the Association of Magazine Media, called the plan a “terrible substitute for badly needed legislative reform,” adding that the increased rates “will cause significant declines in mail volume and further job losses across the industry without addressing the USPS’s core issues.”

Some thoughts.  Congress put a stop to it awhile back, but it's time to finally pull the trigger.  Eliminate Saturday delivery.   In an age of email, on-line bill pay and direct deposit, six day a week delivery is no longer needed.  We could even cut back delivery to four days without a problem.

As far as the legal profession in which I am engaged, we need electronic filing and a reform of the rules so that every attorney is required to maintain an email and to accept service by email.  Every time we file a document in court, the rules mandate that we attorneys do a time-consuming and increasingly expensive mailing to the counsel and/or parties involved in the case.   The legal profession is always late to adopt technology.  It's time to join the 21st Century.

Governor Pence Makes Major Political Mistake in Endorsing State Police Program to Collect Cell Phone Data

In the 1980s, the Republican Party was dominated by what I would call "law and order" conservatives. They supported such things as the war on drugs, civil forfeiture, mandatory sentencing, and anything that would give the police and prosecutors more power to go after crime. That was the 1980s.  Today, the Republican Party is increasingly dominated by conservatives distrustful of big government and concerned about civil liberties.

If one looks at it as strictly a political issue, Governor Pence has made a huge mistake in endorsing the state police's program to collect cell phone data:  The Indianapolis Star reports:

Gov. Mike Pence said Wednesday he supports the state police’s limited use of a surveillance device that acquires cell phone data as long as it is subject to judicial review.

The technology, which can be used to potentially collect data from hundreds of people at a time, has drawn the concern of civil liberties advocates as well as a group of Indiana Republican lawmakers drafting laws to require greater privacy protections.

Pence on Wednesday wouldn’t say whether police should obtain search warrants before using the technology, which he said he believes saves lives. But he made it clear that he supports the use of the device only “in a limited number of cases when it is in the public interest and with strict judicial review.”

Speaking with reporters, Pence said he met with police officials last Thursday for a briefing after an Indianapolis Star report revealed the agency had acquired “Stingray” technology for $373,995.

“I believe this technology is in the interest of public safety, and I believe it has enhanced our ability to both protect and save lives,” Pence told reporters. “I was informed that in the limited number of cases where this technology has been used that it has only been used with strict judicial oversight.”

The political problem for Pence is that civil libertarian-minded Republicans, which actually includes many Tea Party people, are outraged when they hear about programs like this.  Unlike the diminished law and order wing of the GOP, these Republicans will vote against Pence on the issue if given the opportunity.

Not only does Pence's support of this program expose him to a possible clever Democratic opponent for Governor (if one, besides John Gregg, exists) who might seek to exploit it by eroding his GOP, base, the issue could work very much against Pence if he has national ambitions.  Supporting a mini-NSA program in Indiana would be an extremely unpopular position in Republican primaries across the country.  I am just not sure Pence understands that.  The Governor seems to have a 1980s political mindset that needs an update to address the issues (like privacy) that has come to dominate today's politics.

National Cancer Institute Publishes Article Saying There is No Link Between Secondhand Smoke and Lung Cancer

As co-counsel with Mark Small this year on the Indianapolis smoking ban case, I had a front row seat to the evidence showing the link between secondhand (sometimes called "passive") smoking and disease.  What I found surprising is, despite the rhetoric of smoking ban supporters, the link between secondhand smoke and disease has always been extremely weak.  Yet a sort of political correctness has taken over the debate when it comes to the science of secondhand smoke.  We're told the debate is over.  But is it really? 

The "science" of epidemiology tries to find an association between two things in an effort to prove, for example, that exposure to secondhand smoke causes cancer   To measure the association, epidemiologists use something called "relative risk" or "risk factor."   A risk factor of 1.0 shows that there is no association between the two.  A risk factor of less than 1.0 means there is a "protective" effect.  In our example, that would mean exposure to secondhand smoke means you're less likely to get cancer. 


Epidemiologists have done a meta-analysis of a number of studies and concluded that the average risk factor associated with secondhand smoke and getting cancer is 1.3.  It's about the same for heart disease.  (To give you a comparison, directly smoking a cigarette has a risk factor of about 9.0.)  That composite 1.3 risk factor is arrived at by epidemiologists purposefully excluding from the meta-analysis studies that show such a weak link that the 1.0 threshold (no association) is within the "confidence interval," epidemiologist speak for a margin of error.  Also, studies showing a protective effect have been excluded.

In short even by cooking the numbers by excluding data they don't like, epidemiologists can still only manage to come up with an extremely low risk factor of 1.3 for secondhand smoke.  How unconvincing is that figure in showing causation?  In order to prove causation in court via the science of epidemiology, the federal evidence manual says there should be at least a 1.95 risk factor.  Many federal courts have excluded studies below 2.0 as insufficient to prove causation.

This week the Journal of the National Cancer Institute published an article titled "No Clear Link Between Passive Smoking and Lung Cancer," detailing an extensive study showing not even an association (more than 1.0) between secondhand smoke and cancer. Because the fully article is behind a pay wall I'll instead publish the information about the from a Reason Magazine article on the subject:

The article describes a large prospective study that "confirmed a strong association between cigarette smoking and lung cancer but found no link between the disease and secondhand smoke." The study tracked more than 76,000 women, 901 of whom eventually developed lung cancer. Although "the incidence of lung cancer was 13 times higher in current smokers and four times higher in former smokers than in never-smokers," says the JNCI article, there was no statistically significant association between reported exposure to secondhand smoke and subsequent development of lung cancer. "We don’t want people to conclude that passive smoking has no effect on lung cancer," says one of the researchers, Stanford oncologist Heather Wakelee. "We think the message is, this analysis doesn't tell us what the risk is, or even if there is a risk."

While hardly the last word on the subject, the study has advantages over most of the research commonly cited as evidence that secondhand smoke causes lung cancer. "To our knowledge," the authors say, "this is the first study to examine both active and passive smoking in relation to lung cancer incidence in a complete prospective cohort of US women." The prospective design avoids a weakness of studies that start with lung cancer cases and "match" them to controls. "Many studies that showed the strongest links between secondhand smoke and lung cancer were case-control studies, which can suffer from recall bias," notes the JNCI article, since "people who develop a disease that might be related to passive smoking are more likely to recall being exposed to passive smoking."

Even more revealing than the study's findings are the comments from experts quoted in the article (emphasis added):

Jyoti Patel, MD, of Northwestern University School of Medicine said the findings were not new....

"Passive smoking has many downstream health effects—asthma, upper respiratory infections, other pulmonary diseases, cardiovascular disease—but only borderline increased risk of lung cancer," said Patel. "The strongest reason to avoid passive cigarette smoke is to change societal behavior: to not live in a society where smoking is a norm."

In other words, although the U.S. Centers for Disease Control and Prevention will tell you that "secondhand smoke causes an estimated 3,400 lung cancer deaths among U.S. nonsmokers each year," scientists have long understood that the actual number might be closer to zero. The basic problem is that the doses of carcinogens absorbed by nonsmokers are much lower than the doses absorbed by smokers, so any lung cancer risk would be correspondingly small and therefore hard to detect using the blunt tools of epidemiology. The associations found in studies of secondhand smoke and lung cancer (which generally involve wives of smokers) are weak, meaning it may be impossible to rule out alternative explanations....

In contrast to Dr. Patel's comments, the number one argument for smoking bans has always been protecting patrons and workers from the health dangers, primarily cancer and heart disease, caused by secondhand smoke.  It turns out that those bans do nothing of the sort.  Now will at least advocates of those bans finally approach the issue honestly and drop the claimed health benefits?  I'm guessing "no."  They don't care about honest information when it comes to pushing the bans.  They only care about winning.

NSA Data Collection Program Held to be Unconstitutional

Blockbuster news.  Prof. Jonathan Turley reported on his blog just minutes ago that the NSA data collection program has been held to be unconstitutional:

U.S. District Court Judge Richard Leon has handed down a blockbuster decision this afternoon finding that the massive National Security Agency surveillance program is unconstitutional – a view shared by many constitutional scholars including myself. The decision is not only a courageous defense of privacy but a reaffirmation of the integrity

District Court Judge Richard Leon

and independence of the courts. While President Obama often insists that his authority for such surveillance is clear, the Justice Department has fought mightily (and until now successfully) to block all major challenges of the program from securing judicial review. The decision is also an embarrassment to the “reform” boards set up by the White House, including one that just released its findings on the NSA program (including the assurance that the NSA program is perfectly legal).

The Review Board conclusions were leaked by officials, which noted that the board found that the NSA is operating within the laws. This was the day before Leon issued his ruling saying that the NSA was flagrantly violating the Constitution. Many of us have questioned the hand picked boards, including a privacy board that has yet to issue its recommendations, in the wake of the Snowden scandal.

Leon made it clear that this was not a close question: “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval.” What in interesting is that he stated that he not only saw the legal basis for such searches but failed to see the value of the program as a whole: “I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism.”

...

Those of us who believe in civil liberties and the Constitution should celebrate with champagne tonight.

Commentary to Model Rule Limiting Attorney Criticism of Judges Shows Rule Being Misinterpreted and Misapplied by State Disciplinary Bodies

Rule 8.2 is the disciplinary rule of choice for sanctioning attorneys who criticize judges.  It is the rule being used to prosecute me for criticizing Hendricks County Superior Court Judge David Coleman in private emails I sent to an attorney and case participants.  In the emails, I said Judge Coleman had failed to follow probate rules and that he should be investigated for how he handled the case.  What has not gotten much publicity is that prior to Judge Coleman complaining to the Disciplinary Commission regarding me, I had Coleman removed from the case by the Indiana Supreme Court due to a "lazy judge" notice I filed.

I would like to think I'm alone in being a victim of the overzealous application of Rule 8.2.  However, since my situation became public I have heard from attorneys all over the country how they too are being disciplined for criticizing judges.   An attorney in Utah was actually jailed for three days and publicly reprimanded for criticizing a judge in a motion to withdraw.  A Tennessee attorney wrote an email to a judge complaining about comments the judge had made to the media after a case they had been involved in was over.  He now faces Rule 8.2 charges.  A South Carolina attorney is charged with violating Rule 8.2 for comments he made about a judge on Twitter.  The list is endless.

Let's take a look at Rule 8.2:

Rule 8.2. Judicial and Legal Officials

(a)    A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.

Almost every state supreme court and disciplinary body has rejected Rule 8.2 as employing the New York Times v. Sullivan actual malice libel standard for public officials, an exception to the Free Speech Clause which requires that the speaker has knowledge of the falsity of his statements about a public official.  Instead state supreme courts have applied Rule 8.2 in such a way as to shift the burden of proving criticism of judges is true to the attorney speaker, even requiring the attorney to often prove that critical opinions are true.  The supposed justification for such an approach limiting,even chilling attorney free speech, is the need to uphold the "public integrity" of the judicial branch.  To students of history, the justification should sound eerily familiar.  It is the exact same argument the Federalists use for justifying the 1798 Alien and Sedition Acts which criminalized false criticism of the executive and legislative officials.

What is interesting is that in none of the published Rule 8.2 cases I have read has a court actually reviewed the commentary and notes to the Model Rule 8.2 was adopted by American Bar Association Commission on Evaluation of Professional Standards to see what was intended. Well, to the credit of my attorney Adam Lenkowsky, he had the foresight to do exactly that.  He went looking for the background on Model Rule 8.2 and found information that completely refutes the approach most states, including Indiana, have been taking as to the application of Rule 8.2.  The rule was intended to apply the NY Times v. Sullivan actual malice standard, was intended to cease attorney prosecutions for "intemperate speech" and for the expression of opinions for the expression of opinions.  Here is the commentary and notes to Rule 8.2 with certain provisions highlighted which contradict how the rule is being applied:

COMMENT: Assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for election or appointment to judicial office and to public legal offices, such as attorney general, prosecuting attorney and public defender.  Expressing honest and candid opinions on such matters contributes to improving the administration of justice. conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice. When a lawyer seeks judicial office, the lawyer should be bound by applicable limitations on political activity.

NOTES:

Code Comparison

               With regard to Rule 8.2(a), DR 8-102(A) provides that "A lawyer shall not knowingly make false statements of fact concerning the qualifications of a candidate for election or appointment to a judicial office,"  DR. 8-103(B) provides that "A lawyer shall not knowingly make false statements against a judge or other adjudicatory officer."

               Rule 8.2(b) is substantially identical to DR 8-102.

Legal Background

             A lawyer's right "as a citizen to [criticize] and attack a candidate for an elective office must be recognized, so long as the right is not abused. That the office is judicial, and that the candidate is there serving as a judge, can make no difference in the basic principle involved….We cannot think that a lawyer's citizen's criticism of such a candidate must [sic] needs to be confined to what is decent and respectful.  His criticism may be as indecent and disrespectful as the facts justify.  The rule governing … such utterances must be that of a qualified privilege…."  Thatcher v. United States, 212 F. 801, 07 (6th Cir. 1914), appeal dismissed, 241 U.S. 644 (1916.)

               Traditional rules governing criticism of courts have been sweeping in scope.  Some courts have justified a broad prohibition on criticism of judicial officers on the need to maintain public confidence in the judicial system.  See, e.g., Justices of Appellate Div. v. Erdman, 40 A.D.2d 521, 333 N.Y.S.2d 862 (1972); In re Raggio, 487 P.2d 499 (1971); Nelles & King, "Contempt by Publication in the United States,"  28 Colum. L. Rev. 401, 525 (1928).  In a number of cases, however, the Supreme Court has rejected attempts to penalize extrajudicial criticism of judicial officers on such grounds.  See, e.g., Craig v. Harney, 331 U.S. 367 (1947); Pennekamp v. Florida, 328 U.S. 311 (1946).  Truthful criticism is protected by the First Amendment, subject to regulation only to the extent it presents a clear and imminent threat to the fair administration of justice or involves conduct disruptive of a judicial proceeding.  See Rules 3.5 & 3.6.

               The Supreme Court has held that false statements about public officials may be punished only if the speaker acts with knowledge that the statement is "false or with reckless disregard of whether it is false or not."  New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964); see Garrison v. Louisiana, 379 U.S. 64 (1964).  Rule 8.2 is consistent with that limitation.  See Note, "In re Erdmann:  What Lawyers Can Say About Judges," 38 Alb. L. Rev. 600, 609-610 (1974) ("Since disciplinary actions against attorneys seem to constitute a serious deterrent to free political discussion, it is arguable that such actions should be subject to the same constitutional limitations as the Supreme Court has imposed in defamation actions.")  Compare Spencer v. Dixon, 290 F. Supp. 531 (W.D. La. 1968); State v. Nelson, 504 P.2d 211 (Kan. 1972); Justices of the Appellate Div. v. Erdmann, 33 N.Y. 559, 560, 301 N.E.2d 426, 427, 347 N.Y.S. 2d 441, 442 (1973)(Burke, J, dissenting).

               Rule 8.2 eliminates the Code's distinctions between "false accusations" and "false statements of fact."  The critical factors in constitutional analysis are the statement's falsity and the individual's knowledge concerning its falsity at the time of the utterance.  See Garrison v. Louisiana, 379 U.S. 64 (1964); Baker v. Monroe County Bar Ass'n, 34 A.D. 2d 229, 311 N.Y.S.2d 70 (1970), aff'd, 28 N.Y.2d 977, 272 N.E.2d 337, 323 N.Y.S.2d, cert. denied, 404 U.S. 915 (1971.)

               Rule 8.2 applies to a statement of fact.  Accord, State Bar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974)(inasmuch as criticism involved opinion, truth or falsity of underlying allegation not in issue); See Justices of Appellate Div. v. Erdmann, 33 N.Y.2d 559, 301 N.E.2d 426, 347 N.Y.S. 2d, 441 (1973).  Compare Rinaldi v. Holt, Rinehart & Winston, Inc. 42 N.Y.2d 369, 366, N.E.2d 1299, 397 N.Y.S. 943 (Fuchsberg J., concurring), cert. denied, 434 U.S. 969 (1977).  Contra, In re Raggio, 487 P.2d 499 (Nev. 1971) (district attorney criticized court's opinion as "shocking and an exercise in "semantical gymnastics."

               Rule 8.2 does not continue the standard of EC 8-6 which stated that a lawyer who criticizes judicial officials "should be certain of the merit of his complaint, use appropriate language, and avoid petty criticism…."  Nor does Rule 8.2 incorporate the statement in EC 8-6 that adjudicatory officials are "entitled to receive the support of the bar against unjust criticism."  Each has been involved to penalize criticism considered to be intemperate in tone.  See e.g., In re Shimek, 288 So.2d 686 (Fla. 1973); In re Frerichs, 238 N.W.2d 764 (Iowa 1976); State v. Nelson, 504 P.2d 211 (Kan. 1972).  But see Polk v. State Bar, 374 F. Supp. 784(N.D. Tex. 1974); Justices of the Appellate Div. v. Erdmann, 39 A.D.2d 223, 333 N.Y.S. 863 (Greenblatt, J., dissenting) (1972), rev'd, 33 N.Y.2d 559, 301 N.E. 2d 426, 347 N.Y.S. 441 (1973).  See also State Bar v. Semaan, 508 S.W.2d 429 (Tex. Civ. App. 1974)(court rejected attempted discipline of lawyer under DR 1-102(A)(5) stating that "the only specific limitation on criticism of a judicial officer is set forth in DR 8-102(B)….").  EC 8-6 has also caused some judicial officers to take the view that lawyers have an affirmative duty to defend judges.  See Rinaldi v. Holt, Rinehart & Winston, Inc. 42 N.Y.2d 369, 366, N.E.2d 1299, 397 N.Y.S. 943 (Fuchsberg, J., concurring), cert. denied, 434 U.S. 969 (1977); Palmer, "The Judge:  Maligned, Attacked and Undefended," 55 Chi B. Rec. 21 (1973).

...

It is clear that the adoption of Rule 8.2 was intended to incorporate the NY Times v. Sullivan standard of actual malice for criticizing public officials and that, under the Rule 8.2 states were supposed to show the attorney had actual knowledge that the statement was false. (For states to go beyond that and impose additional restrictions attorney speech criticizing judges, i.e. public officials beyond the exception allowed by the Supreme Court in NY Times v. Sullivan would violate the First Amendment.)  Further, Rule 8.2 was never intended to apply to statements of opinions which can't be proven true or false.  That the rule was intended to apply only to statements of fact which can readily be proven true or false is consistently ignored by many state disciplinary bodies as they prosecute attorneys for judicial criticism.

Again, credit goes to my attorney Adam Lenkowsky for having the presence of mind to actually go look up the notes and commentary accompanying the adoption of Model Rule 8.2.  Now if state disciplinary bodies will only start reading the background on Rule 8.2 and apply it as intended and in accordance with what the Constitution requires...

The Real Enemy to Ending the War on Drugs

Some of my friends are working to end the failed War on Drugs.  I am sympathetic to their cause.  I believe that we as a society have paid a terrible price for treating drug use as a criminal rather than as a public health matter. This morning Sheila Kennedy writes about how Uruguay has taken a different approach:

Uruguay has legalized pot.

Before the passage of the law, Uruguay’s president made an important point; admitting that legalization was an experiment, he stressed the importance of finding an alternative to the deadly and unsuccessful war on drugs. “We are asking the world to help us withThe effects of drug trafficking are worse than those of the drugs themselves.” 
this experience, which will allow the adoption of a social and political experiment to face a serious problem–drug trafficking,” he said. “

Yes. That is an “inconvenient truth” that everyone from Milton Friedman to the lowliest academic researcher has documented. Drug abuse (which, interestingly, is nowhere defined in the law, which simply prohibits the use of scheduled substances) is a public health problem, and criminalizing it doesn’t help anyone. It does, however, incentivize the drug trade, erode civil liberties, disproportionately affect the black community and make hypocrites of us all.

If pot were legal, regulated and taxed, we could control children’s access (it is harder in most communities for teens to get alcohol than pot) and generate income.

Sheila has a point. Although I certainly don't want to go the route of Uruguay where government is now selling pot, we do spend an extraordinary amount of money trying to stop drug trafficking that seems to only raise the cost of the drugs and increase the profits to those involved in the industry.  That taxpayer money could be better spent elsewhere.

While my friends against the War on Drugs have their hearts in the right place, they are misguided when it comes to politics.  They actually believe their opponents are those who still believe in the war on drugs is good social policy, a way to stop people from ruining their lives by becoming hooked on drugs.  If they could just convince those people the policy hasn't work, they believe they will win the political battle.  That is so naive.

The real enemies of drug decriminalization are the law enforcement agencies who have supplemented their budgets with millions of dollars in civil forfeiture money, typically money that can be spent on without any budgetary oversight.  Prosecutors also receive a share of these forfeiture proceeds as well as diversion fees from minor drug offenders.  These officials are going to fight like a stuck pig if their source of funds is threatened.

Then you have the private correctional industry that profits off of the incarceration of drug offenders.  If you decriminalize or even legalize certain drugs that means less "clients" for those private companies.  Private corrections is a powerful industry that spreads a lot of contributions around and hires former politicians to exert influence.

Law enforcement officials, prosecutors, and private corrections industry people will all line up to testify about the need to continue the War on Drugs.  They'll say how bad drug use would be if we don't continue to prosecute and incarcerate offenders.  They will claim that the War on Drugs can be won....they just need to fight harder.   In the end though it will be all about the money...money they only get if the status quo continues.  They are the real enemy when it comes to the movement to modify the nation's drug laws. 

If you want to know who is fighting to continue the War on Drugs, find out who is making money from the War on Drugs.

Pacers TV Ratings Skyrocket; Will Need for Public Subsidies End?

The IBJ's Anthony Schoette reports:

As the Indiana Pacers bolted to a franchise-best record, television ratings for the team's games on Fox Sports Indiana during the first month of the season have skyrocketed. 

The Pacers rating gains come at a time when TV audiences are increasingly fractionalized by continually growing cable TV and online offerings. In this day and age, any double-digit percentage rating increase is reason to celebrate. That's why Fox Sports officials have as much reason to smile as Pacers officials and fans. 

The TV ratings for Pacers games on Fox were up 113 percent in November over the same period a year ago, according to New York-based Nielsen Media Research. That is the team’s highest opening month since 2005 and the increase is the largest in the NBA this season. 

Overall, the Pacers’ local television ratings ranked fourth in the NBA, up from 13th at the end of last season, according to Nielsen. The Pacers Nov. 27 game at Charlotte (6.45) was the highest-rated regular season game on Fox Sports Indiana since April 20, 2005 (6.52, season finale, vs. Chicago), according to Nielsen.   

No word yet on whether the Pacers success on the court and increased TV ratings will make the team more profitable and less demanding of taxpayer subsidies.  I'm going to guess "no" though.

Survey Shows IU Law Schools Split on Dealing with Reduced Applicant Supply

It looks young Hoosiers are finally getting the message that a law school education is probably not a good career move.  Indiana Public Media reports: 

Law school applications have dropped from around 600,000 to less than 400,000 since a recent peak in 2010.

And a 2013 survey released by Kaplan Test Prep shows 54 percent of law school admissions officers say they’re cutting their incoming class sizes for the 2013-2014 school year.

Frank Motley is the Dean of Admissions at Indiana University Maurer School of Law. He says so far admissions to the Maurer School have remained steady at around 200 students per year. But his office gives itself the leeway to cut enrollment by 10 to 15 percent if not enough quality applicants apply.

“There could be a falloff, but there could be students at the low end of the ability curve,” Motley said. “But the fear is that there’ll be students at the high end of the ability curve or it might be across the board. So adjustments are made based upon the quality of the pool. We’re trying to get the very best students we possibly can to attend our law school.”


IU’s Robert H. McKinney School of Law in Indianapolis has seen a significant decline in admissions. It accepted around 230 part-time and full-time students this year, a decline from their traditional class size of 300 students up until fall of 2012. But Vice Dean Antony Page says the smaller class size has a silver lining for students.
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So while a weak economy and an abundance of lawyers has made it hard for newly graduated students to find work, the job market might soon balance itself out. "Soon balance itself out?"  Are you kidding?  The legal market is so oversaturated here in Indiana and most states it will take two decades of smaller class sizes for the imbalance to be evened out.  (One survey I reported on previously showed there is one legal job for every three attorneys in Indiana.) 

Shamefully the Monroe County Law School (otherwise known as the IU School of Law at Bloomington) has not even bothered to lower admissions when faced with a dwindling supply of applicants. Obviously the school simply lowered its standards to keep at 200 students. Fortunately my alma mater, IU School of Law at Indianapolis did the right thing and reduced class size. Further reductions are needed, however.  We could go five years without graduating another law student and the legal market would still be oversaturated.

NFL Refs Don't Understand Standard to Apply on Instant Replay

Yesterday, we had yet more support for my contention that NFL referees do not know how to apply the replay rule. ESPN reports:

After taking a timeout to make sure they wanted to go for it, Bengals coaches sent out their goal-line unit, headed by defensive tackle Domata Peko, who served as an eligible blocking fullback. When the play began, Peko opened a hole to the right, and halfback BenJarvus Green-Ellis started following it.

As Green-Ellis made it through the hole, though, Colts defensive tackle Josh Chapman broke through the line of scrimmage and appeared to make contact with Green-Ellis' foot with an outstretched hand. Green-Ellis stumbled just after that, and fell forward as far as he could before going down. His momentum took him about six inches short of the goal line.

Originally, side judges ruled Green-Ellis down on the 1, which would have resulted in a turnover for the Bengals. But since the play came within the final two minutes of the half, it was submitted for booth review.

After about five minutes of looking at the play, the booth overturned it. Green-Ellis had scored, Triplette announced.

"There was discussion about whether the runner was touched down at the goal line or not," Triplette said to a pool reporter. "When we reviewed the video at the goal line, there was nobody touching him there, and then he bounced into the end zone."

I do not believe Triplette was forthcoming in his comments after the game.  No one had to hit Green-Ellis when he was on the ground before bouncing into the end zone.  NFL adopted a down by contact rule decades ago.

Most likely Triplette reviewed the film and never saw Chapman touch Green-Ellis.  Indeed the actual touching is not on the video shown repeatedly on television.  You can see where Chapman's hand reaching out and you can see Green-Ellis trip.  But the actual contact you don't see.  Almost certainly Chapman's hand tripped Green-Ellis.  Notably Green-Ellis answered "no comment" when asked if Chapman tripped him.

I have little doubt that Triplette reversed the call because he did not see Chapman trip Green-Ellis on the video.  He took the position that he would have called it differently than the referee at the time.  But that highlights the NFL referees' (and it's not just Triplette) lack of understanding of how to apply the rule on an instant replay.   According to the NFL rules, there must be "incontrovertible visual evidence" to overturn the original call made on the field.  Clearly there was no "incontrovertible visual evidence" that Chapman did not trip Green-Ellis. The call on the field should have been upheld.

NFL referees could use a law class on how standards of review work.  You can tell from the language the refs employ when they announce determinations of instant replay reviews that they are using a de novo analysis.  In law, the de novo review standard, is used by an appellate court usually on questions of law as opposed to questions of fact.  With a de novo review there is no deference given to the decision made at the trial court level.  Rather the appellate court "stands in the shoes" of the trial court.  With respect to the NFL, the "trial court" decision is the referee's original call on the field.

Instead NFL referees ought to be using a "clearly erroneous" standard to reviewing calls under the instant replay rule.  Under that standard a ruling on appeal will not be disturbed unless the reviewing court is left with a "definite and firm conviction that a mistake has been committed" by that court.   Employing that standard, even if the replay review official believes the original call was wrong, if there is any evidence to justify the original call, that call has to be upheld.

NFL referees simply need more training on how to apply the instant review standard.

Attorneys Reject More Influence for Barnes & Thornburg on Judicial Nominating Commission

I have to say, I was surprised by the outcome.  Smaller firm attorney Lee Christie defeated Barnes and Thornburg partner Jan Carroll for a seat on the Judicial Nominating Commission by a vote of 1,435 to 1,159.  35% of the attorneys who live in the second district (the counties of Adams, Blackford, Carroll, Cass, Clinton, Delaware, Grant, Hamilton, Howard, Huntington, Jay, Madison, Marion, Miami, Tippecanoe, Tipton, Wabash, Wells and White Counties) cast ballots.   I don't know the history of such elections, but I would imagine that is an extraordinary high participation rate.

Lee Christie

Gary Welsh of Advance Indiana has a nice article on the subject. He mentions that this is not the first time that attorneys have rejected a big firm attorney and cites the case in which William Winningham defeated Carroll and several other candidates for a 3-year term on the Commission in 2010. However, that was a race that featured two big firm candidates.  Here the big downtown Indy firms had consolidated forces behind Carroll.  A third candidate, who might have drawn votes from Carroll, was apparently talked into dropping out of the race.

Here is why I say the result is so surprising.  Carroll began the race with a solid base of voters from the downtown law firms.  Christie, on the other hand, began the race with no such advantage.  He had to earn every one of his votes, informing smaller firm attorneys about the issues.   It's as if Carroll and Christie ran a 100 yard dash and Carroll was allowed to start on the 50 yard line.  Yet Christie won the race by a good margin.

While Christie proved to be a strong candidate, it is apparent that attorneys were also voting en masse against more large firm (in particular, Barnes & Thornburg) control of the Indiana judicial apparatus.

Personally I think it was a political mistake for Carroll to send a mailer out listing all her supporters, virtually every politically-connected, law partner in Indianapolis.  People outside of those firms do not look at those folks with respect for the position they achieved. Rather they see their positions in the legal profession as gained through a lot of political influence and being in the right place at the right time.

Detroit Bankruptcy Allowed to Proceed

The New York Times reports:

The struggling metropolis of Detroit, overwhelmed by debt and groping for a path forward, on Tuesday became the largest American city ever to qualify for bankruptcy protection. 

Judge Steven W. Rhodes of the United States Bankruptcy Court, found that Detroit was insolvent and that the pension checks of retirees could be cut during a bankruptcy proceeding, a crucial part of his decision.

 Under the ruling, the vastly diminished city, once the nation’s fourth largest and the cradle of the American auto industry, will now be allowed to search for a way to pay off some portion of its debts and restore essential services to tolerable levels under court supervision. The goal, according to an emergency manager appointed by the state of Michigan, is to emerge next year from court protection with a formal plan for starting over. 

“This once proud and prosperous city cannot pay its debts. It is insolvent. It’s eligible for bankruptcy,” Judge Rhodes said Tuesday. “But it also has an opportunity for a fresh start.” 

While attorneys for the public workers unions intend to appeal, I think it is likely that Judge Rhodes decision will be upheld.  State law (protecting public workers' pensions) does not trump federal bankruptcy law.   The Supremacy Clause of the Constitution demands that result.

Indianapolis Downtown Incorporated Encouraged City to Shut Down Kids Selling Cookies for Church Youth Activities

The Indianapolis Star reports:

The little church on Monument Circle has been giving away hot drinks during the Circle of Lights for decades, and selling a few cookies on the side as a youth fundraiser for quite a while.

But on Friday night, as the crowds were growing in anticipation of the Monument Circle tree lighting, city code enforcement officials told the kids from Christ Church Cathedral they had to pack up their cookies and cocoa and call it a night.

They had run up against a city ordinance enacted before the Super Bowl in 2012 that enables big Downtown special events to establish a "clean zone" where vendors are closely regulated, if not out-and-out prohibited. The church — and its outlaw cookie operation — fell into the clean zone for the Circle of Lights.

So, even though Santa made an appearance under the Circle's big tree, the church's sugar cookies — along with the chocolate chip, the peanut butter and the vegan cookies — were verboten. About 45 minutes before the lights were illuminated, the church was forced to close its operation. Church hospitality director Carl Michaelis asked if the kids could give away the hundreds of cookies left over, but that was denied, too.

Typically, the sale brings the kids around $1,000 for youth programs — things like choir trips to the National Cathedral. But the short sale took a bite out of the youth group's take, which was only about $600 for the evening. The cookies were donated by parishioners from the church and sold from the church's own property.

..

Indianapolis Downtown Inc., which hosts the Circle of Lights, asked for a code enforcement "sweep" of Monument Circle on Friday night, said code enforcement spokesman Adam Baker. Code enforcement officials consulted with IDI on whether to exempt the church, Baker said, and were told they should make them cease the cookie sales. IDI officials were unavailable for comment Saturday.

Since this story broke, IDI released a statement which apologized for what happened and offered to make up the difference in the lost sales.  Oddly the statement makes it appear that city officials did this on their own.  I am inclined to believe the news reporter's version that IDI specifically asked for the crackdown on the kids working for the church.  Regardless questions should be asked as to why city officials such are taking orders from a private organization such as IDI.  This is yet another reason why our city council needs to stop giving IDI millions of tax dollars.

Indiana General Assembly Set to Dump Common Core Standards

The Indianapolis Star reports:

The Republican leaders of the General Assembly want Indiana to scrap the Common Core education standards and have the state adopt its own guidelines to prepare students for college and careers, a report today said. 

House Speaker Brian Bosma of Indianapolis and Senate President David Long of Fort Wayne have said they will direct the Republican-controlled Legislature to require the state to create its own set of reading and math standards separate from Common Core, The (Munster) Times reported.

...   

The Common Core standards were established by governors and state school chiefs to create a shared understanding of what students should know and be able to demonstrate at each grade level. Indiana was among the first states in the country to adopt them in 2010 on the recommendation of former schools Superintendent Tony Bennett and former Gov. Mitch Daniels, both Republicans. Forty-five states have adopted them, but several are looking at dropping them.

This is certainly good news.  Prior to Common Core, Indiana had adopted what was regarded as the best educational standards in the country.  The state should not have lowered itself by adopting national standards like Common Core.   Mandates like this run contrary to the innovation essential to improve education.