Monday, September 30, 2013

College Prohibits Student From Distributing Constitutions on Constitution Day

The Huffington Post reports:
Robert Van Tuinen, a student at Modesto Junior College in California, had a theory. He believed that the policies at his college limiting protests and expression were so restrictive that the college would try to shut him down even if he tried to hand out copies of the United States Constitution on September 17--Constitution Day.
Sadly, he was correct.   
Not 10 minutes after Van Tuinen began handing out copies of the Constitution, a campus police officer arrived to stop him. Van Tuinen was informed that anytime someone wants to pass out anything on campus, it must first be registered and approved by the Student Development office.

A press release issued by the Foundation for Individual Rights in Education describes what happened next:
Upon arriving at that office, Van Tuinen talks with administrator Christine Serrano, who tells him that because of "a time, place, and manner," he can only pass out literature inside the "free speech area," which she informs him is "in front of the student center, in that little cement area." She asks him to fill out an application and asks to photocopy his student ID. Hauling out a binder, Serrano says that she has "two people on campus right now, so you'd have to wait until either the 20th, 27th, or you can go into October." ...
Ultimately, Serrano, after a phone call to an unnamed person in which she says that Van Tuinen "just wants to question the authority of why can't he hand out constitutional-type of papers," tells him he will have to make an appointment with Vice President of Student Services Brenda Thames, so that she can further explain to him "what the time, place, and manner is."
One wonders if Modesto Junior College employs an attorney, or even a law school dropout who has taken a beginning constitutional law class. It is clear that Modesto officials have no concept of how  "time, place, and manner" restrictions on free speech work.  While time, place, and manner restrictions can be imposed on speech, those restrictions have to be very narrowly tailored to serve a compelling interest of the university.  A university, for example, could possibly prohibit political rallies in the common areas of dorms where students might be sleeping or studying.   But a college cannot use time, place and  manner restrictions to limit free speech to a tiny section of the campus or to require that speakers wanted to exercise their free speech rights get approved in advance.

Hopefully Modesto learns its lesson and revises its unconstitutional free speech policies.  If not, the university is likely to get sued, and deservedly so.

Note: Click on the "that little cement area" link to see how tiny Modesto's free speech area is in comparison to the size of the campus.

Stand for Children Pulls PR Stunt in an Attempt to Claim Hoosier Support for Common Core

Hitting the media outlets today is a "poll" by education reform group Stand for Children which supposedly shows bipartisan support for Common Core.  If you look at the details of the poll, it reveals the questioning was grossly slanted to produce a positive poll for Common Core.

In the report on the poll, the pollster, Public Opinion Strategies, notes that only 18% of the respondents in the poll had seen, read or heard "a lot" about Common Core.  Instead of proceeding an unbiased description of the Common Core to get an accurate picture of polling on the subject, the pollster provided the following question:

"The Common Core State Standards have been adopted by forty-five states, including Indiana, which participated in their development with state governors, state school chiefs, and teachers involved in writing and reviewing them. The goal of the standards is to help all students have the knowledge and skills they need in English and math and that students would be held to consistent standards so that they will be prepared for their next steps after high school, whether they choose a college or career path."

What I find remarkable is that, despite one of the most slanted lead-in questions to a poll that one might construct, still only 68% of the respondents expressed support for Common Core.  Meanwhile 24% expressed opposition to Common Core.

Of course, the poll was not about Stand for Children getting an honest picture of Hoosiers' views on Common Core.  It was a PR stunt.  The organization is depending on the media being too stupid to be able to tell the difference between a legitimate scientific poll and one done to artificially manipulate the numbers.  No political scientist in America would call that poll legitimate.  The Stand for Children poll makes a mockery of the science of polling.  Stand for Children and the pollster should be ashamed of their participation in such a disingenuous stunt.

Indiana Supreme Court Needs to Review Expenditure of Attorney Annual Dues by Judicial Agencies

Attorneys should be advised that today is the last day to pay the $145 annual dues lest they be faced with a late fee.  Yearly licensing fees pay for the Supreme Court Disciplinary Commission and Judges and Lawyers Assistance Program.

Executive Secretary
Michael Witte

I would like to see the Indiana Supreme Court take a good hard look at how these two judicial agencies spend our annual dues, particularly the Disciplinary Commission.   During my disciplinary trial on June 30th, the Commission had at least six staff members present during my 11 1/2 hour trial.   At the hearing, the Commission had accumulated boxes of "evidence" regarding my supposed transgressions, i.e. emails criticizing a judge and a letter to Marion County judges outlining the procedure to be followed on divvying up civil forfeiture assets between government entities.   Last week, the Disciplinary Commission filed four documents, a total of 54 pages on my case. 

While the Commission's Executive Secretary Michael Witte claims the Commission lacked the resources to properly investigate attorney William Conour who was convicted of stealing from his clients, that claim is belied by the fact the Commission has spent enormous resources, including hundreds of hours of staff time, on pursuing my prosecution.  Meanwhile the Disciplinary Commission allows convicted felons to practice law without so much as being charged with a single count of misconduct.

It is clear that the priorities of Witte and the members of the Disciplinary Commission are seriously out of whack.  The Indiana Supreme Court needs to terminate Witte from his position and appoint an Executive Secretary who will make protecting the public from unethical attorneys the No. 1 responsibility of the Commission.

Saturday, September 28, 2013

Opponents of Obamacare Engage in Wishful Thinking on Political Impact of Failure of Program

This morning I had the opportunity to listen to Civil Discourse now.   Mark Small, the show's host, led Republican Andrew Kirch and Libertarian Miah Akston into a discussion of the Affordable Care Act, i.e. Obamacare.  Of course, Mark believed that Obamacare would result in peace, harmony and free health care of the highest quality.  Kirch and Akston agreed the program wouldn't work.  Kirch saw it as ushering in an era in which Republicans will win election after election as long as the unpopular Obamacare stays in place.  Akston, who tends to lean in the anarchist direction, believed that full implementation would bring down the government. 

I certainly don't think Obamacare will work.  The program is a mess.   But Kirch and Akston are dead wrong on the political consequences.  When I taught college I included in my lesson something called the "Iron Triangle of Bureaucracy."  Wikipedia actually has a good description of the concept:
In United States politics, the iron triangle is a term used by political scientists to describe the policy-making relationship among the congressional committees, the
bureaucracy (executive) (sometimes called "government agencies"), and interest groups.

For example, within the federal government the three sides often consist of: various congressional committees, which are responsible for funding government programs and operations and then providing oversight of them; the federal agencies (often Independent agencies), which are responsible for the regulation of those affected industries; and last, the industries themselves, as well as their trade associations and lobbying groups, which benefit, or seek benefit, from these operations and programs.


At one corner of the triangle are interest groups (constituencies). These are the powerful interests groups that influence Congressional votes in their favor and can sufficiently influence the re-election of a member of Congress in return for supporting their programs. At another corner sit members of Congress who also seek to align themselves with a constituency for political and electoral support. These congressional members support legislation that advances the interest group's agenda. Occupying the third corner of the triangle are bureaucrats, who are often pressured by the same powerful interest groups their agency is designated to regulate. The result is a three-way, stable alliance that is sometimes called a sub government because of its durability, impregnability, and power to determine policy.

Consumers are often left out in the cold by this arrangement. An iron triangle can result in the passing of very narrow, pork-barrel policies that benefit a small segment of the population. The interests of the agency's constituency (the interest groups) are met, while the needs of consumers (which may be the general public) are passed over. That public administration may result in benefiting a small segment of the public in this way may be viewed as problematic for the popular concept of democracy if the general welfare of all citizens is sacrificed for very specific interests. This is especially so if the legislation passed neglects or reverses the original purpose for which the agency was established. Some maintain that such arrangements are consonant with (and are natural outgrowths of) the democratic process, since they frequently involve a majority block of voters implementing their will through their representatives in government.
The idea of the iron triangle is that concentrated political power in the triangle almost always defeats diffused political power outside the triangle.  Any government program that is created, even a bad program, develops a constituency of individuals and businesses who benefit from it.  That constituency represented by the tree vertices of the triangle has concentrated political power.  The program is critical to them and they will do whatever it takes to keep it going.  They will vote on the issue, they will donate money based on the issue, they will lobby based on the issue.

The folks outside the constituency, members of the public, have diffused political power when it comes to the issue. While it might be important to them, it is not nearly as important as to those in the triangle. Further, their opposition is very disorganized.  Even though much greater in number, those outside the triangle do not have the political clout necessary to scale the mountain to dislodge the government program.

As an example, there was a Board of Tea Appeals, consisting of seven people, each of whom was to be an expert on teas. Those experts were to prepare and submit to the Secretary of Health and Human Services standard samples of tea.   Wikipedia describes the Board's activities:
In accordance with the board of experts' recommendations, the Secretary was instructed to "fix and establish uniform standards of purity, quality, and fitness for consumption of all kinds of teas imported unto the United States" and to deposit samples of these standards in the customhouses of various ports of entry. Tea importers were required to submit samples of their product for comparison with the standard samples kept at the customhouses. The imported samples were then tested "by a duly qualified examiner," who would test "the purity, quality, and fitness for consumption of the... [imported tea samples] according to the usages and customs of the tea trade, including the testing of an infusion of the same in boiling water and, if necessary, chemical analysis."

The statute declared it unlawful to import into the United States "any merchandise as tea which is inferior in purity, quality, and fitness for consumption to the standards [kept at customhouses..." For nearly a century, Congress provided that no imported tea could enter the United States unless federal tea-tasters decided that it measured up to preselected standard samples....
The Board remained in existence despite the fact that the FDA already regulated the quality of tea imported to the United States under the Federal Food, Drug and Cosmetic Act of 1938.

The 1897 legislation that had created the Board of Tea Appeals was finally repealed in 1996.  The Board remained in existence for 99 years, 58 years of which its work ws duplicated by another agency.  Prior to 1996, there were numerous attempts to eliminate the board, which had received a great deal of publicity as an example of government waste.  Yet year after year the constituency for the Board prevailed in keeping the program in place.

That is an example of how the Iron Triangle of Bureaucracy works to perpetuate even a tiny, unnecessary government agency.  Imagine the power of the iron triangle that will be created by Obamacare.  If Republicans think that implementation of Obamacare will propel them to political success they are sorely mistaken.  Even if Obamacare fails to solve our health care problems, which it surely will fail, it will still succeed politically  The Iron Triangle will make sure of that.

Indiana University Officials Seek to Destroy the Journalism School, Erase Connection With Legendary Reporter Ernie Pyle

The Indianapolis Star reports:
It may come as a surprise to Hoosiers that Indiana University trustees and administrators are considering emptying and renaming Ernie Pyle Hall on the Bloomington campus as they merge the IU School of Journalism into a larger college. This change would diminish the journalism program and leave the World War II journalist from Dana, Ind., without major memorial or tribute on the IUB campus. It’s almost unfathomable, but it’s about to
happen, and the kickoff may be on Oct. 17 and 18 at the IU trustees’ meeting.
Changes at IU and this odd apathy regarding Pyle’s legacy come because of fearful campus chatter about the new age of journalism. Poorly informed musings from IU administrators about the future of journalism have convinced officials that change for the sake of change must be made.
The general plan is to merge the IU School of Journalism, one of the best journalism schools in the nation, with other IUB communication schools and programs (including, believe it or not, a screenwriting program), to be tucked within the College of Arts and Sciences. This new media school could be moved into the larger Franklin Hall in mid-2014.

The result will be a blow to the independent School of Journalism, and one likely to drive the best young minds to IU’s competitors — top journalism schools at Northwestern University and the University of Missouri, for example.

It will also leave Pyle without a home on the Bloomington campus. Ernie Pyle and even the School of Journalism are seen by some IU officials as dusty relics from a time when journalists used typewriters.

Consider what IU President Michael A. McRobbie told the Bloomington Herald-Times in July 2012: “There’s no point in saving a school that trains people to manage fleets of horses if the motorcar has taken over horse-drawn transportation.”

McRobbie is wrong.  Journalism is not dead.  Journalism is evolving, changing to adapt to new technology, albeit in a painful process that is difficult to watch.  The fact that there is new technology doesn't change the job of a reporter from Ernie Pyle's days to today.

It is bad enough that IU officials seem more than willing to reduce to second tier status one of the best journalism schools in the country.  It is even worse that IU officials are so uninterested in preserving the legacy of a true journalism hero in IU's Ernie Pyle, who was editor of the student paper while attending the school.  My guess is IU officials would rather the building be named after someone who gives the university a big pile of cash.  It's very sad that that is too often the values of today's academic leaders.

Friday, September 27, 2013

Indianapolis City-County Council Committee Votes to Withhold $8 Million from RebuildIndy Funds; Money Destined for More Police Officers?

The Indianapolis Star reports:
The City-County Council’s Public Works Committee tonight held back $8 million in RebuildIndy money from next year’s budget to reserve as potential funding for more police recruits.

The panel amended and approved the Department of Public Works budget 5-2, with Republicans dissenting. Public Works Director Lori Miser said holding back that sum next year would reduce roadwork and other project spending from $50 million to $42 million.
Democrats left their intentions vague during the meeting. Afterward, Chairman Vernon Brown, a Democrat, told The Indianapolis Star that he soon may file a proposal to authorize spending from the RebuildIndy fund on police officers.
I am not a fan of diverting RebuildIndy money to public safety.  Those funds should go to infrastructure improvement, long-term infrastructure improvements (not paving roads) as the money is being paid off by the public via a 30 year loan.  But Republican councilors lose their right to claim the Democrats are being irresponsible with RebuildIndy money when they tacitly support spending $6 million of RebuildIndy money on cricket fields and advocate mortgaging the future utterly asinine idea of borrowing $150 million over 30 years, at the cost of hundreds of millions of dollars, to spend in the next three years on infrastructure improvements, many of which improvements will only last a few years.

Thursday, September 26, 2013

Do Attorneys Have a Free Speech Right to Criticize the Disciplinary Commission?; Commission Replies "No" As Assaults on Attorney Free Speech Continue

I posted a lengthy comment on the Indiana Lawyer story on my case. Below is an edited version of that comment:

Executive Secretary
Michael Witte
Throughout my legal career I have argued for improvement to the legal profession. I have advocated for changes in the small claims courts in Marion County.   I have urged a stop to judicial slating in Marion County where judge candidates have to pay around $25,000 to party bosses to get their endorsement.   I have also argued for changes with respect to divorce law, and how legal schools educate attorneys-to-be.

There is hardly an area in which I had not advocated for reforms. But there was one area, an area that was the source of constant complaints by attorneys, that I had never addressed - the attorney disciplinary system. In January of 2011, I did a study of three years of discipline and found that 397 out of 400 cases involved attorneys from small firms or sole practitioners. I wrote a critical piece about the Disciplinary Commission on my blog Ogden on Politics in which I reported my findings and called for an investigation.

Catherine Nestrict, DC Board Chair
That day I received a call from a politically active attorney who said I could expect that my criticism would make me a target of the DC. He was right. Within a few months, I had my first grievance filed by DC Executive Secretary Witte. Then I had a second one a few months later, again by Witte. I had never been disciplined in my (then) 24 year legal career. The DC attorney prosecuting my case insisted that the disciplinary action had nothing to do with my criticism of the DC, that the timing was just a huge coincidence. Well, Monday the DC proved that my suspicion was right all along. In arguing for a one year suspension without right of readmission, the DC focused a great deal on the fact that I had written critical things about the DC, published on my blog.

Anthony Prather, DC Board
Member and Former Chair

In order to argue for reform of the legal profession, we attorneys need to have the freedom to speak out, including about the disciplinary process. Attorneys though are terrified of the DC, fearful that if they dare to speak critically, to push for reform as I have done, the DC will make them their next target and may even try to end their legal career. I promise my fellow attorneys that, regardless of what happens to me, I will NEVER stop pushing for reform of the disciplinary process, including criticizing the DC when appropriate.  I will not be intimidated. When we have attorneys with felony convictions who have never so much as been charged by the Commission at that same time that the Commission is spending enormous resources targeting attorneys for free speech violations (the DC had at least six staff members at my 11 1/2 hour trial for criticizing a judge in an email), we have a broken disciplinary system.

At the end of the day, the Indiana Supreme Court is the body that can take notice of what is going on and enact meaningful reforms. We need more transparency, we need the disciplinary rules enforced equally, and we need to end the politicization of the disciplinary process. We also need a DC that has a better sense of priorities, i.e. the number one duty of the DC should be protecting the public from being harmed by dishonest attorneys.  We need statutes of limitations enacted on grievances and we need rules requiring that members of the DC recuse themselves from sitting on cases deciding the discipline of an attorney who had previously accused the DC member of an ethical violation.   But more important than any other reform, these assaults by the Disciplinary Commission on attorney free speech need to cease immediately. The DC should not be in the business of using the disciplinary process to protect judges and the DC from criticism.  That is not what the First Amendment is about and that is certainly not what the disciplinary process should be about.

Wednesday, September 25, 2013

University of Kansas Professor Suspended After Controversial "Tweet"

Jacob Gershaman of the Wall Street Journal writes:
The University of Kansas is coming under fire from a free-speech watchdog group for suspending a journalism professor over his controversial tweets about the National Rifle Association.
David Guth, an associate professor of journalism, was put on indefinite administrative
Prof. David Guth
leave on Friday for implying on Twitter that he wished violent harm upon the families of the NRA.

Hours after last week’s Washington Navy Yard rampage, the professor reportedly tweeted: “#NavyYardShooting The blood is on the hands of the #NRA. Next time, let it be YOUR sons and daughters. Shame on you. May God damn you.”

A spokesman for the NRA called Mr. Guth’s remarks “disgusting” hate speech and called for his firing. By the week’s end, the chancellor of the public university had ordered his suspension “in order to prevent disruptions to the learning environment for students.”

The Foundation for Individual Rights in Education, a Philadelphia-based group that advocates for free speech on college campuses, came to Mr. Guth’s defense in a letter emailed to the chancellor on Sunday.

“While KU is free to speak out against Guth’s comments, it may not, consistent with its moral and legal obligations under the First Amendment, punish him for expressing his views,” FIRE’s letter said.

The letter goes on to say that the university “risks dramatically chilling the free expression of all members of the KU community by allowing any impression to persist that his speech did not merit the First Amendment’s protection.”

...[Mr. Guth] blamed the NRA for waging “an unrelenting campaign of harassment” against him.


As Law Blog mentioned earlier, the Supreme Court has said that the government may not punish public employees who speak out “as citizens about matters of public concern,” with some exceptions.
“So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively,” the high court ruled in 2006.

“I don’t think a university could claim that their interest in efficient operations justifies punishing a professor for speech protected by the First Amendment,” Will Creeley, FIRE’s director of legal and public advocacy, told Law Blog.

Public university professors may have additional protections in their labor contracts.
As much as I think the Guth's comment is offensive, even idiotic, it is clearly protected speech under the First Amendment given its political nature.   A government entity, which the University of Kansas is, cannot suspend or fire an employee for speech protected by the First Amendment. That would constitute the "chilling" of free speech which is legally the same thing as preventing the speech altogether.

The NRA is being terribly short-sighted by pushing for Guth's termination. What happens next time when it is a pro-gun rights professor fired for tweeting something offensive that the anti-gun nuts find offensive?  What is the NRA going to say then? 

We are seeing an increasingly number of attacks on free speech.  Our right to free speech does not depend on the speech being something most people agree with.  We ought to zealously defend that principle because it is a principle that protects us all.

Tuesday, September 24, 2013

Disciplinary Commission Recommends One Year Suspension, No Right to Automatic Readmission for Sending Private Email Criticizing a Judge

Yesterday was the deadline for submitting proposed findings of fact and conclusions of law on my disciplinary case.  Unbelievably the recommendation from the Disciplinary Commission is that for my offense of criticizing a judge in an email, I receive a one year suspension without right to be readmitted to the Indiana Bar.

Meanwhile other Rule 8.2 cases (which covers disparagement of judges) litigated by the Commission have resulted in discipline consisting public reprimands to 60 days suspension.  Apparently I am a special case.   Again, they want me suspended for a year, without right of readmission.

Executive Secretary Michael Witte
During one notable exchange I had between DC prosecutor Seth Pruden, he insisted the Commission's actions in this case were purely about enforcing the rules, it was nothing personal to me. Of course that is not true, as evidenced by the suggestion I be suspended for a year..  Indeed in one of the documents outlining the need for a one year suspension he goes out of his way to specifically state "[t]he respondent has also published articles critical of the Commission."  He also faults me for complaining about the fact that an attorney (a partner at one of the most politically powerful law firm in the state, a firm that I have been very critical of for not having to follow the disciplinary rules other attorneys have to follow) apparently failed to recuse himself and instead sat in judgment of me when deciding to file a grievance against me and then formal charges.

The Commission chides me for the fact I am "without evidence" to show a "grudge" the attorney and  Executive Secretary Michael Witte might have to pursue this prosecution against me.  That is an extremely disingenuous.  The Commission's records and proceedings are kept secret.  There is no way of obtaining smoking gun evidence. My one attempt to do so, a subpoena sent to the aforementioned politically powerful law firm for communications between the Commission and the law firm, was met with fierce resistance from the Commission.  If there was nothing to hide, nothing that would show an improper influence by that law firm (and that attorney I had filed a grievance against) on the prosecution of my disciplinary case, one would think the Commission have welcomed an opportunity to show that via disclosure of the emails.  Instead the Commission hides behind secrecy at every opportunity then faults me for not having "evidence."

If my criticism of the commission had no bearing on pursuing the charges, then why would the Commission go out of its way to mention in Monday's filing asking for severe sanctions because I had written articles critical of the Commission and made "attacks on the integrity of the Commission and the discipline process?"  That's completely irrelevant to the charges.  But indeed that's what this is all about.  You criticize the Disciplinary Commission, then the Commission will make you a target.   The grievances that began this process were filed by none other than Executive Secretary Michael Witte just months after I wrote an article critical of the Disciplinary Commission going almost exclusively after small firm and sole practitioners, in particular 397 times out of 400 cases I looked at over a three year period.  I would note that grievances are rarely initiated by the Executive Secretary, i.e. only 5% of the time.

I would also note that the Commission is arguing for a harsher penalty against me because I "lack insight" into my wrongdoing.  I have the temerity, after all, to actually believe that the First Amendment protects my right to criticize a judge in a private email and refuse to back off of that stance.  Also, I am specifically cited for filing "dilatory motions" in my attempt to defend myself against this prosecution  By definition, a "dilatory motion" is a baseless motion filed for the purpose of achieving a delay in a proceeding.  There has been absolutely no delay sought by me in any of my filings or in the case at all.  The DC attorney undoubtedly knows the definition of a "dilatory motion" yet he proceeds to make that false representation anyway.  Apparently if you're not willing to roll over for the DC and admit wrongdoing when charged with misconduct, that then becomes grounds for the DC to seek additional punishment.

My 26 years in the practice of law has seen almost exclusively two leaders of the Disciplinary Commission, Donald Lundberg and Michael Witte.  Both were appointees of former Chief Justice Randall Shepard.  While the Commission was respected by attorneys under previous leader, Sheldon Breskow, under Lundberg and Witte's leadership the Commission has been the subject of enormous  criticism by attorneys.  The attorneys consistently say the same thing - that the disciplinary rules under Lundberg and Witte are not enforced equally, that the Commission prosecutes small firm and sole practitioners almost exclusively, and the disciplinary prosecutions have become very politicized.

While Indiana attorneys do not respect the Disciplinary Commission because of the way it has operated the past 25 years or so, there is a tremendous amount of fear.  Attorneys believe that if they
Former Executive Secretary Donald Lundberg
dare publicly criticize the Commission, if they dare argue for reform, they will themselves become a target of the Commission.  I can say from personal experience that is an absolutely accurate.  The DC, in fact, admits that I should be punished because I criticized the Commission. While the Commission argues I believe I am above the rules, it is clear that the Commission believes the First Amendment does not apply to criticism of the agency. 

What I have found surprising though is the way in which the Commission prosecutes cases.  Personally, when I litigate cases, I think it is unethical to fail to inform the court of critical facts or knowingly make false claims.  Yet the Commission's attorney has done exactly that in my case apparently without so much as batting an eye.  As example, in the second charge that I improperly tried to influence judges by engaging in "ex parte communication" by sending a letter to the Marion County judges trying to educate them about the process for, at the conclusion of the civil forfeiture cases, divvying up the civil forfeiture proceeds among the government entities.

Although the DC mentioned in its complaint that I had no cases before any of the judges to whom I sent the letter, the DC completely and I believe intentionally failed to include the critical information that I had actually copied the letters to the Marion County Prosecutor, the Indiana Attorney General, and the Marion County Public Safety Director, the very government officials involved (at trial and on appeal) with the division of those proceeds.  No one I have talked to in the legal profession thinks this charge has any merit whatsoever.  After all, judges are often educated about the law by outside sources and there is absolutely no prohibition on doing so.  Yet the Commission continues to push this completely baseless charge, disingenuously omitting key facts when necessary to try to make the charge look like it actually has some merit.  Meanwhile, the rules prohibit me from simply seeking a summary dismissal of this meritless charge.

Perhaps I shouldn't be surprised by how the rules seem to enforcement of the rules seem to be selective.  During a conversation I had following a deposition, the DC's counsel took the position that Rule 8.2 absolutely applies to private communications.  He said that two attorneys having lunch criticizing a judge had better be able to prove their criticism of the judge is true or they are subject to discipline. Later the Commission's attorney later changed that position saying that the Commission was not talking a position on whether Rule 8.2 applies to private communications.  In yesterday's filings apparently the DC again changed its position arguing that because private communications can be disseminated to a wider audience, they are also subject to Rule 8.2.

Undoubtedly the enforcement of Rule 8.2 by the Commission depends on the speaker.  If it is someone out of disfavor, the rule gets applied.  If it is someone is liked by the Commission, there is no rule violation.  Hence the constant complaint from attorneys that the Commission's imposition of the rules is often political.  Rule 8.2 apparently does not apply to DC attorneys.  During my conversation with DC Attorney Pruden about Marion County judges not following the law regarding dividing up civil forfeiture assets, he said the problem is not that they do not follow the law, but rather the problem is Marion County judges are "lazy."  I do believe that is a disparaging comment that Mr. Pruden cannot prove is true and, thus, is a violation of Rule 8.2.   My guess is the Commission will never charge Pruden.

Again, while I am not hopeful I am going to be allowed to continue practice law.  My fight is about paving a better future for attorneys in this state.  I hope my case is a catalyst for the Indiana Supreme Court to finally take a hard look at reform of the disciplinary process.  The Supreme Court needs to order an independent investigation of the operations of the Disciplinary Commission (including an interview with attorneys, who have their confidentiality protected lest they face reprisals by the Commission, and an audit of those grievance files maintained for years against attorneys) and make some much needed changes to the disciplinary process, including establishing statutes of limitations, requiring more transparency in Commission operations, providing a system by which attorneys can get meritless charges dismissed summarily, and requiring that only attorneys with significant judicial experience sit as hearing officers.  While personnel changes should also be made, starting with terminating Mr. Witte employment, the primary focus needs to be on changing a disciplinary process that is clearly broken.

Monday, September 23, 2013

Study Finds Indiana Local Government Increasing Taxes and Debt for Corporate Welfare

The Mercatus Center at George Mason University released a report on "freedom" in the 50 states.  Indiana received a #16 ranking.  While the state officials were discussed positively, the report contained a warming about local governments increasing taxes and borrowing, the latter almost entirely for corporate welfare:
Fiscal policy has deteriorated in Indiana, and the state is now ranked well below average. While between 2006 and 2008 local governments were responsible for most of the rise in debt, between 2008 and 2010 the state government was the main culprit. Virtually all the increase in state government debt came in the form of “long-term public debt for private purposes,” which increased from $9.8 billion to $13.2 billion in FY 2010. On the other hand, the slight rise in tax burden is entirely attributable to local governments. The total state tax take fell from $15.1 billion (FY 2008) to $13.9 billion (FY 2010), while the local take rose over the same years from $8.5 billion to $9.5 billion, even as personal income fell.
 Thanks to alert reader Clarke Kahlo for sending the link to this story.

Friday, September 20, 2013

Less Than 18 Hours After Shooting of IMPD Officer, Star Columnist Uses Death to Argue for Higher Property Taxes to Hire More Police Officers

Erika Smith
Just when you think the last two disingenuous columns by Matt Tully couldn't sink the Indianapolis Star any lower, metro columnist Erika Smith proves otherwise. Less than 18 hours after the tragic hooting of IMPD police officer of Rod Bradway, Erika Smith is using Bradway's death  to argue for property tax increases to hire more police officers.  Never mind that we increased the county option tax by 65% in 2007 to pay for more police officers and ended up with less...Erika Smith is not about to let facts get in the way of her arguing that people need to pay higher taxes. And Erika Smith also is not going to allow things like good taste and human decency get in the way of her exploiting a personal tragedy to support her political agenda.

Yet the Star continues to send me notices wanting me to renew my subscription.  Tell you what, Indianapolis Star, fire Tully and Smith and hire some decent political columnists who will honestly and fairly write about issues involving the City and we can talk.

Thursday, September 19, 2013

Star Columnist Disingenously Avoids the Facts While Praising the "Sensible Borrowing Plan" to Fund the Extension of Rebuildindy Program

Matt Tully
A couple days ago, I wrote an article about Indianapolis Star columnist Matt Tully conveniently leaving out critical facts when writing in favor of the Browning-Whole Foods Development in Broad Ripple Village.

Two days later, Matt Tully pens yet another disingenuous column, this time praising Mayor Ballard while calling the Democrats a "the party with no ideas, no alternatives and no leadership."  As a Republican, I would love nothing more than to bash the Democrats.  But unlike Tully, I believe the opportunity to pen a column also comes with a certain responsibility to tell the truth.

I'm sure as I write this Gary Welsh of Advance Indiana is hard at work ripping apart ever last absurd sentence of  Tully's column.  What I will do instead is focus on one of the more absurd sections of Tully's column:
Meanwhile, Democrats recently rejected Ballard’s proposal to spend millions of dollars on infrastructure repairs through a sensible borrowing plan. We are talking basic, neighborhood-building street and sidewalk improvements. It’s not very smart to stand in the way of investments in the most basic of city services. Investments, by the way, that would benefit many of the districts Democrats represent.
"Sensible borrowing plan?"   Are you kidding me?  During a three year period in which the Department of Public Works would already be spending $200 million o on infrastructure improvements, Mayor Ballard has proposed adding another $150 million. That $150 million, to be spent over three years, would be derived from floating 30 year bonds. Many of the proposed infrastructure improvements, things like paving roads, are unlikely to last anywhere close to 30 years.  That $150 million will cost taxpayers more than  $142,553,741 in interest and fees, The annual debt service would be approximately $9,651,792.  The Ballard administration touted a new revenue source to pay for the debt service, increased annual gas tax revenue the state has decided to kick back to the counties.  But that revenue source is by no means certain to continue into the future.  Also, the actual revenue source is far below what is necessary to pay the debt service.  Although billed at $7.8 million, it turns out that the revenue source is actually about $3.5 million.   That is, if it continues into the future.

Matt Tully could have presented these facts to the readers and then argued that it was a "sensible borrowing plan."  But he knew darn well people would disagree with him if readers knew those facts. After all, the Ballard administration is simply proposing that we mortgage the future for some cash to spend today.  Why can't Tully simply be honest with his readers for once?

See also:

Wednesday, September 18, 2013, Had Enough Indy Blog, Gas Tax "Windfall" - Not What the Mayor Makes it Out to Be 

Tuesday, September 03, 2013, Advance Indiana, Mayor Ballard: Everyone Knows It's In The Best Interest To Borrow Against Money We May Not Receive

Monday, September 2, 2013, Ogden on Politics Blog, Ballard Administration's Attempt to Mortgage Indianapolis' Future is Rebuffed by Council Democrats  

Friday, August 30, 2013, Had Enough Indy, There's Exaggerating - Then There's Outright Lying

Prof. Alan Dershowitz on Indiana Attorney Free Speech

At the bottom of this article is a piece penned by Professor Alan Dershowitz on attorney free speech, with a focus on Indiana. The article was written in 2003 after the Indiana Supreme Court had decided the Wilkins case in which an attorney was disciplined for including a footnote in his petition to transfer brief which essentially asserted that the Court of Appeals decision on the case was result oriented.  The decision was on its way to the United States Supreme Court and Prof. Dershowitz was afraid it would be upheld by the United States Supreme Court, thus allowing the 50 states to follow Indiana's lead in using the disciplinary rules to enforce speech codes for lawyers.
Professor Alan Dershowitz

In retrospect, Dershowitz's concern about the United States Supreme Court seems misplaced. In the decade that followed Dershowitz's article, the one area where there seems to be near unanimity among conservative and liberal justices is that limits on free speech will not be tolerated. Given the increased proclivity of justices on the Court to criticize each other publicly, it is extremely unlikely that the Court would uphold state disciplinary decisions that discipline attorneys for criticizing judges, especially since those judges must sit for election or retention by the voters.  All previous U.S. Supreme Court cases have advanced attorney free speech against attempted state restrictions, the most recent one being the Gentile v. State Board of Nevada case in 1991.

The key though is to get the United States Supreme Court to hear the case.  In a situation in which a petition for the Supremes to hear the case is successful in only about 150 of the 10,000 appeals that are filed (about 1.5%), getting Supreme Court to review an attorney disciplinary case is challenging  Given the lack of U.S. Supreme Court review for the past 22 years, states have begun to increasingly push the envelope on sanctioning attorneys for speech, often criticism of judges, which would be protected if uttered by a non-attorney.  As the Court said in Gentile, attorneys are just like regular people and have free speech like everyone else.  The only time that speech can be limited is when attorneys are speaking out publicly about a pending case to try to influence a finder of fact.  It is a mandate ignored by state disciplinary bodies all over the country.

Indiana, unfortunately, appears to lead the country in sanctioning attorney free speech.  In 2003, there was the aforementioned Wilkins case.  Before that, in 1994, an attorney was public reprimanded for making the off-hand comment, apparently overheard by court staff, that a Marion County Small Claims court was a "Mickey Mouse court" because the court allowed a landlord's attorney whose cases dominated the court's docket to essentially run the court.

In another 1994 disciplinary case, an attorney who had been arrested for contempt for failing to attend a criminal court hearing, and paraded before his client in a jail uniform while the judge demanded an apology, was found to violate the disciplinary rules when he later criticized the judge's actions to a court reporter.   While the attorney' criticism of the judge was understandably very harsh, contrary to some state court decisions, free speech does include the right of attorneys to criticize the decisions of judges, even to question the possible motivation for those decisions.  Again, the United States Supreme Court has said attorneys are just like ordinary people when it comes to free speech. Since the attorney was not interfering with the administration of a pending case, he is entitled to criticize the judge.

Moving forward to this year, an attorney in Indiana was recently suspended for 30 days for writing a letter (which was placed in the court file) that a mother who was not allegedly providing his client court-ordered visitation was in the country illegally.  Although the attorney had never been suspended in 46 years, the Court felt the failure to apologize to the mother was a reason for the suspension.  (Apologies, or lack thereof, for some reason seem reason seem to play a very large role in the decision to discipline an attorney.)  Recently I wrote about the case of two attorneys who are being prosecuted by the Disciplinary Commission because they asked a judge to recuse herself because her rulings represented possible bias. One of those cases is pending before the Indiana Supreme Court.

Executive Secretary Michael Witte
Then we have the case involving yours truly in which the Disciplinary Commission is seeking to establish a new beachhead in attorney discipline - sanctioning an attorney for private criticism of a judge, criticism that was never intended to be made public and, in fact, was only made public by the Commission's actions in filing the charges.  Thanks to a recent email I am now aware of what appears to be the only one other attempt by a disciplinary body to try to sanction an attorney for private criticism of a judge under Rule 8.2, a pending case in Tennessee in which the attorney wrote a judge criticizing him for published (and the attorney believes inaccurate) comments about a case he had been involved in.  If those facts turn out to be true, then I have actually found an even more outrageous Rule 8.2 disciplinary prosecution than my own.

(As a side note I would add that, in reviewing the incredible number of exhibits and 11 1/2 hour transcript on my case in writing a brief, I am struck by the outrageous amount of resources the Disciplinary Commission has been willing to put into my prosecution for writing an email criticizing a judge.  That effort discredits Executive Director Witte when he claims a lack of resources for the Disciplinary Commission being unable to do its job in protecting the public from attorneys like Willliam Conour who pled guilty to pilfering millions from his trust account.  The Disciplinary Commission, despite having complaints from clients about Conour for years, failed to take action.  It was only after the FBI had wrapped up the case and Conour had agreed to plead guilty, that the Commission finally took action.  By then Conour's clients had been harmed by the loss of millions of dollars, a direct result of the failure of the Commission to take action.  Likewise attorneys in Indiana who have been convicted of felonies to this day remain uncharged by the Commission.  If Executive Director Witte and the attorneys and lay people who sit on the Disciplinary Commission are unwilling to do their jobs and are going to waste the limited resources of the Commission going after attorneys for free speech, they need to vacate their positions so that those of who care about cleaning up the ethics of the legal profession can have those positions.)

Advancing technology is providing additional opportunities for attorneys to offer their opinions.  In light of that, and state disciplinary bodies increasing their attempts to impose speech codes for attorneys, Prof. Dershowitz's 2003 article on the subject of attorney free speech is worth re-reading in its entirety:

A Speech Code for Lawyers?
The Supreme Court may have to decide.

At a time when the law school community is deeply divided about the desirability of speech codes—Harvard Law School has one under consideration now—a little-noticed decision by the Indiana Supreme Court has imposed a draconian speech code on the lawyers of that state.

Pending the result of a lower-court rehearing, the Indiana case could be headed to the United States Supreme Court, where it—if it is affirmed—could dramatically affect the right of every lawyer in the country to criticize the judiciary. Thus, the attention of all lawyers should be focused on this potentially dangerous precedent.

In the Indiana case, a lawyer was suspended from practice for criticizing the opinion of the lower appellate court for being result-oriented. The criticism took the form of the following footnote in the appellate brief: "Indeed, the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for appellee . . . and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision)."

The decision of the Supreme Court to suspend the lawyer was based on a 3–2 vote, with the deciding vote having been cast by one of the justices who was himself criticized in the footnote. That justice had been promoted from the Court of Appeals to the Indiana Supreme Court and did not recuse himself from the disciplinary case even though he was one of the victims of the "offending" footnote.(The justice has since recused himself from the rehearing petition, but that does not withdraw his vote from the disciplinary action.)
Two justices of the Indiana Supreme Court dissented from the disciplinary decision, arguing that the footnote in question contained "rhetorical hyperbole" that was protected by the First Amendment. One of the dissenting justices pointed out that judges commonly attack their colleagues on the bench with similar hyperbole, citing particularly opinions by Justice Antonin Scalia, who is well known for his personal attacks on the integrity and rationality of his fellow justices. The majority decided to impose the relatively harsh sanction of suspension because the lawyer in question "chose to contest this matter," presumably instead of simply rolling over and admitting he was wrong.

Firsthand experience

It is not surprising to me that this Stalinist decision—punishing a lawyer for expressing a critical opinion and then justifying the punishment because he didn't seem duly remorseful—was rendered by the Supreme Court of Indiana. I have argued cases all over the world, and I have never encountered a legal system as result-oriented as that of Indiana or a chief justice as self-protective as Chief Justice Randall Shepard (who joined the majority in disciplining the lawyer). When I agreed to argue the rape-conviction appeal in Indiana for former heavyweight champion Mike Tyson several years ago, I was warned by several members of the bar about the Indiana court system. Then I experienced it firsthand.

While attending a multiclass Yale Law School reunion, a woman approached me and told me that New York lawyers' arguments don't go over well in Indiana. I asked her who she was, and she told me she was the wife of the chief justice, who had graduated from Yale several years after I had. I immediately ended the conversation and walked away telling her that any further discussion would be inappropriate. (This encounter was attested to by an affidavit from a witness.) Shortly thereafter, Justice Shepard recused himself (he gave no reason at the time), and the eventual decision in the case was a 2–2 tie, which resulted in Tyson's conviction being affirmed. In an opinion offered roughly a year later regarding his recusal, Justice Shepard stated that he opted to recuse himself before the Court of Appeals ruled on Tyson's appeal in order to demonstrate that his "recusal was not outcome-driven."

Our research disclosed that Justice Shepard had written several opinions that, if followed, would probably have led him to rule in our favor. But in the opinion of several Indiana lawyers familiar with Judge Shepard's rulings who were consulted at the time, he might not have wanted to cast the deciding vote in favor of an accused rapist because of controversial accusations made about him by a fellow judge who was running against him several years earlier. According to the National Law Journal, "Fellow Justice Alfred J. Pivarnik . . . accused [Shepard] of having abused alcohol, smoked marijuana, and made sexual advances toward men."

Justice Shepard denied the accusations, and although he won the election and no formal charges were brought against him, it was the opinion of the Indiana lawyers our team consulted that Shepard may have been concerned about these issues resurfacing if his vote was decisive in the Tyson appeal. There is no evidence that Justice Shepard deliberately sent his wife over to me to provoke a recusal. I do not know. But I do know that Shepard's recusal protected him from a potentially damaging public controversy.

Flaws of the system
It is always systems most deserving of criticism that impose limitations on the freedom to criticize. There is an old joke about a dissident who called Stalin corrupt. He was accused not of slander but of revealing a state secret. That is essentially what the Indiana lawyer has been convicted of—namely
Were I a member of the Indiana bar, I could not offer my opinion about Justice Shepard without fear of judicial reprisal. Fortunately, I am a member of the bar of Massachusetts, where the First Amendment still means something. Because I am not subject to the censorship of the Indiana courts, I feel a special obligation to speak about what I experienced when I argued a case in that jurisdiction—despite what some may characterize as sour grapes. But the question remains: Will freedom of speech for lawyers, inside and outside Indiana, remain vibrant after the current Supreme Court majority—which was shell-shocked by the vituperativeness of the criticism directed at it following Bush v. Gore—has its crack at this important issue?

Wednesday, September 18, 2013

Should Pregnant Women Be Forced to Be Tested for Drugs?; Attorney General Zoeller's Statements Prompt On-Line Debate

On Facebook this morning, a "friend" of mine linked to a story that indicated Indiana Attorney General Greg Zoeller was pushing for mandatory drug testing of pregnant women.  The source, reported:
Indiana attorney general Greg Zoeller has called upon his state's legislature to enact mandatory drug testing for pregnant women citing rising health care costs. Zoeller claims drug testing will allow for early treatment of babies exposed to drugs ingested by their mothers while they are in the womb. The exposure can lead to an existing addiction to drugs known as Neonatal Abstinence Syndrome (NAS), which can cause withdrawal symptoms shortly after birth. According to Zoeller (pictured below), the symptoms associated with NAS cost Indiana hospitals around $30 million in 2011.

Senator Pat Miller (R-Indianapolis) says the state legislature is exploring other options that do not include mandatory testing.
Zoeller's proposal has met strong opposition online.
The original Facebook post said that this shouldn't be unexpected given that Zoeller is the "same guy who prosecuted a woman for murder because she attempted suicide while pregnant."

Attorney General Greg Zoeller
That information is wrong.  The prosecution of the woman, Bei Bei Shuai, was done by Marion County Prosecutor Terry Curry, a Democrat.  I criticized that prosecution on this blog.  As the state's Attorney General, Zoeller does not even have the authority to conduct a prosecution.  In Indiana, that authority belongs solely to county prosecutors.

However, whether Attorney General Zoeller is, or rather was, calling for mandatory testing is a much closer question.  Zoeller's official spokesman adamantly denies Zoeller was pushing for mandatory testing.  However, when presented with a question about his alleged support of "mandatory testing" during an earlier interview, Zoeller does not correct the interviewer and seems to suggest as long as the information obtained wasn't used to prosecute the woman the mandatory testing would be legal.  The "progressive feminist blog" Shakesville does an excellent job of comparing the response from the Attorney General's Office to what Zoeller earlier during the interview to note the possible discrepancy in Zoeller's position on mandatory drug testing.

The left has jumped on the Zoeller's (assumed) support of mandatory drug testing of pregnant women as more "War on Women" tripe. Supposedly this is proof that the "far right" is out to criminalize being a woman, or at least being a pregnant woman.  What utter nonsense.

It is true that in the last few days the left, utilizing the Internet, has led the opposition to mandatory drug testing of pregnant women.   But the notion that people on the right would support mandatory drug testing of pregnant women is to miss the strongly libertarian values of tea party folks and others who occupy the right wing of the political spectrum.  Those folks who proudly fly the "Don't Tread on Me" flags are not about to embrace government forcing women (many of whom are their wives, daughters and sisters) to pee into cups simply because they are pregnant.  That is never going to happen.

If mandatory drug testing of pregnant women is proposed, those on the left better move over because they are going to have a ot of support from people on the right in opposing this wrong-headed idea.

Tuesday, September 17, 2013

Tully's Pro-Whole Foods Column Again Showcases His Lack of Journalistic Integrity

Indianapolis Star columnist Matthew Tulley on Tuesday penned an article in support of the proposed Whole Foods development to replace the abandoned Shell Gas Station just north of Westfield Boulevard off of College Avenue.
Matthew Tully

Tully, as the Star's political columnist, is entitled to voice his opinion. Indeed that is his job.  Rather the problem is what he deliberately leaves out of his column, critical facts that he knew darn well would have undermined his argument.  Instead of addressing those facts honestly, he just ignored them.  That speaks of Tully's lack of intellectual honesty.

In the lengthy column, Tully never once mentions that $6 million in TIF money (our property tax dollars) will be going to Browning Development, one of the most politically-connected developers in Indiana.  At the same time Tully is pleading for taxpayers to contribute more in taxes and fees, he can never bring himself to criticize taxpayers being asked to subside, and assume the risk, of the projects of private developers.

But that's not all.   Tully never even once mentions that the Whole Foods is simply part of a much larger development, a four story apartment building that will tower over Broad Ripple.  To build such a large structure, the developer will have to get a zoning variance.  Should Browning Investments get a variance to build a structure when others have to follow the zoning rules that limit the size of their buildings.  What impact will this behemoth of a project have on the character of Broad Ripple?

And what about the additional traffic?  Just south of the project off of College Avenue is one of the most congested intersections in the city.  Traveling on Broad Ripple through the heart of the village, you are often faced with stalled bumper-to-bumper traffic.  Traffic and congestion have become a way of life in Broad Ripple and this project will make that worse.  Yet does Tully say a word about traffic and congestion?  Nope.

If Tully were honestly doing his job, he would acknowledge the arguments of the other side and explain why those arguments are invalid.   Tully though is obviously not interested in sparking an honest discussion of the issue.

I get it that a columnist like Tully is supposed to express his opinion. That doesn't mean the columnist should disingenuously omit facts that he knows are critical to the public's decision as to whether the columnist is correct in the opinion he expresses.  Yet that is exactly what Matt Tully does...once again.

Monday, September 16, 2013

FCC Rule to Put a Stop to Private Companies Fleecing Jail Inmates Making Phone Calls

During his tenure, I heard a lot of complaints with how Marion County Sheriff Frank Anderson provided oversight (or failed to do so) over Jail #2, the facility on Washington Street run by Corrections Corporation of America.  One of those complaints involved his signing a contract with a private company to provide high-priced phone service for inmates detained at that facility.  In
Former Marion County Sheriff Frank Anderson
exchange for a huge payment into the commissary fund, money that Sheriff Anderson then used for any purpose he wanted often in direct violation of an Indiana statute limiting a sheriff's use of commissary money (see four stories below), a private company received a lucrative contract worth millions to charge inmates for overpriced local phone calls. Of course, that money didn't appear out of thin air.  It represents money that jail inmates, who often couldn't even afford bail pending trial, had to pay to keep in touch with loved ones or to contact legal counsel.

Indypolitics reports that the Federal Communications Commission has passed a rule to stop the practice..  While the Indpolitics' spin is that it is a change costing jails "thousands" actually it is the private companies that provide the phone service that is getting hit hard.  Yep, the days of their being able to fleece inmates to make millions of dollars off people who are incarcerated appears to be over:
According to the FCC’s website the new rules require that all interstate inmate calling rates, including ancillary charges, be based on the cost of providing the inmate calling service.
The rules also adopt an interim rate cap of $0.21 per minute for debit and pre-paid calls and $0.25 per minute for collect calls, dramatically decreasing rates of over $17 for a 15-minute call to no more than $3.75 or $3.15 a call. 
The FCC also presumes that rates of $0.12 per minute for debit and prepaid calls ($1.80 for a 15-minute call) and $0.14 cents per minute for collect calls ($2.10 for a 15-minute call) are just, reasonable and cost-based (safe-harbor rates).
In Marion County a collect call from the jail can... run anywhere from $2-$3 per minute for inmates....
The FCC press release is below:
The Federal Communications Commission today took long-overdue steps to ensure that the rates for interstate long-distance calls made by prison inmates are just, reasonable and fair.

Studies make clear that inmates who maintain contact with family and community while in prison have reduced rate of recidivism and are more likely to become productive citizens upon their release.

Lower rates of recidivism also benefit society by reducing crime, the need for additional prisons, and other costs.

In addition, an estimated 2.7 million children would benefit from increased communication with an incarcerated parent. Many of these children face challenges that are manifested in higher rates of truancy, homelessness, depression and other ills

But the exorbitant price of interstate long-distance calls from correctional facilities today actuallydiscourages such communication because it is too expensive (over $17 for one 15-minute call), particularly for families facing economic hardship. The Order takes immediate action to change this and provide an affordable means to encourage such communication.

The Commission's reforms adopt a simple and balanced approach that protects security and public safety needs, ensures providers receive fair compensation while providing reasonable rates to consumers as follows:

Requires that all interstate inmate calling rates, including ancillary charges, be based on the cost of providing the inmate calling service

Provides immediate relief to exorbitant rates:

Adopts an interim rate cap of $0.21 per minute for debit and pre-paid calls and $0.25 per minute for collect calls, dramatically decreasing rates of over $17 for a 15-minute call to no more than $3.75 or $3.15 a call

Presumes that rates of $0.12 per minute for debit and prepaid calls ($1.80 for a 15-minute call) and $0.14 cents per minute for collect calls ($2.10 for a 15-minute call) are just, reasonable and cost-based (safe-harbor rates)

These rates include the costs of modern security features such as advanced mechanisms that block calls to victims, witnesses, prosecutors and other prohibited parties; biometric caller verification; real-time recording systems; and monitoring to prevent evasion of restrictions on call-forwarding or three-way calling

Concludes that "site commissions" payments from providers to correctional facilities may not be included in any interstate rate or charge

Clarifies that inmates or their loved ones who use Telecommunications Relay Services because of hearing and speech disabilities may not be charged higher rates

Requires a mandatory data collection, annual certification requirement, and enforcement provisions to ensure compliance with this Order

Seeks comment on reforming rates and practices affecting calls within a state

Seeks comment on fostering competition to reduce rates

Building on state reforms, the Commission's action addresses a petition filed nearly a decade ago by Martha Wright, a Washington, D.C. grandmother who sought relief from exorbitant inmate calling rates.

Since then, tens of thousands have urged the FCC to make it possible for them to stay in touch with loved ones in jail.
Unfortunately the rule lumps inmates at jails and prisons together, when in fact they are quite different.  In jail, most of the people haven't been convicted yet and they're just being held for trial.  In prisons the people have been convicted.  I find it most offensive that a private company was allowed to fleece inmates at Jail #2, many of which were there simply because they couldn't afford the bail.

Also at Jail #2, no in person visitation is allowed.  Only visitation through a video screen.   You actually get more opportunities to visit a loved one in a state prison than you do at Jail #2, which again is run by CCA, a private corrections company.

Note:  Stories detailing the abuse of the commissary fund by former Sheriff Frank Anderson are detailed below:

Friday, September 14, 2012, Commissary Payments to Former Sheriffs and Sheriff's Law Firm Violate Indiana Law

Thursday, October 22, 2009,The Jail Commissary Fund, Part I: Marion County Sheriff Frank Anderson Violates Indiana Law to Pay Private Law Firm

Monday, October 26, 2009, The Jail Commissary Fund, Part II: Marion County Sheriff Frank Anderson Violates Indiana Law to Pay Accounting and PR Firm Out of Jail Commissary Fund

Wednesday, October 28, 2009, The Jail Commissary Fund, Part III: Need Money to Buy Plaques or Attend a Fundraiser? Just Dip Into the Jail Commissary Fund

Saturday, September 14, 2013

Indianapolis City Leaders Blew Deadline to Object to "As Is" Condition of Regional Operations Center

The Indianapolis Star today published an article on the ill-fated Regional Operations Center.  
On Monday, Straub’s replacement, Troy Riggs, ordered 150 police officers and Indianapolis Homeland Security officials to evacuate the building, citing safety concerns.

Now, the building’s owner says he is owed hundreds of thousands of dollars, and some City-County Council members say the lease agreement was a bad deal.

The lease holds the city responsible for all maintenance and construction costs to meet safety and fire codes. The rent is $57,000 a month for the first 10 years and $63,000 a month for the final 15 years.
Building owner Alex Carroll plans to sue the city because he says he has paid nearly $700,000 out of his own pocket for maintenance and construction with the understanding that the city would reimburse him.

“The lease spells out that the city is responsible for ensuring the property complies with all statutes and ordinances and for paying those costs,” Carroll said. “Now that it’s time for the city to step up to its financial responsibilities for maintenance, they are claiming the building is unsafe.”
Here is what is not in the story.  City officials blew the deadline to object to the condition of the building and as a result now have to accept the contract as is.

Although the contract was executed in May of 2011 and wasn't occupied until the following year in time for the Super Bowl, contractual terms were pegged to begin on January 1, 2013.  That is the date that payment of rent was to commence and also it was the deadline for the City to object to the condition of the property.  As of January 1, 2013, the City agreed to accept the property as is and any problems with the property thereafter were the responsibility of the City.

The contract provides as follows:
Section 1:   Lease of Premises; Title and Condition.  (a) in consideration of the rents and covenants herein stipulated to be paid and performed by Tenant and upon the terms and conditions herein specified, Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the premises (the "Premises") consisting of (1) the land described in Schedule A hereto (the "Land") and all buildings and improvements (collectively, the "Improvements") and surrounding parking areas on the Land, and (ii) the respective easements, rights and appurtenances relating to the Land and the Improvements.  The Premises are leased to Tenant in their present condition without representation or warranty by Landlord and subject to the rights of parties in possession, to the existing state of title and to all applicable legal requirements now or hereafter in effect.  Tenant has examined the Premises and title thereto, and has found all of the same satisfactory for all purposes.
The next critical subparagraph is in caps in the contract, a provision the drafter (obviously working for the Landlord) wanted to emphasize:
The key phrase is the "Rent Commencement Date"  That date, the date on which the City was stuck with the "as is" condition of the property is January 1, 2013 according to Section 3:
Section 3.  Terms.  The Premises are leased for an initial term of twenty-five years beginning on January 1, 2013 and expiring on December 31, 2037 ("the Initial Term")...  Anything set forth in this Lease to the contrary notwithstanding, the obligation of Tenant to pay Rent shall commence on January 1, 2013 (the "Rent Commencement Date") and Lessee shall be obligated to commence and continue to pay Rent regardless of (i) Landlord's failure to commence or complete the construction obligations or punchlist items or to satisfy any of its other obligations under this Lease (ii) whether or not Tenant has accepted possession of the Improvements or any space therein, (iii) the availability of funds sufficient to complete the construction, punchlist items, and other obligation of Landlord under tis [sic] Lease or Developer under the Development Agreement (as such terms are defined below) and Tenant shall have no right to abet or reduce rents or to termit or cancel this Lease or declare a constructive eviction as a result of the vents described in this Section 3 but the Tenant shall have such other rights and remedies as are available to it under applicable law and equity and shall have whatever rights are available to it under the Development Agreement, or (iv) the failure of Landlord's affiliate or any other party to commence or complete construction of the Tenant Improvements (as defined in that certain Development Agreement among Landlord, Lifeline Construction Services, LLC, an affiliate of the Landlord ("Developer"), and the Tenant (the "Development Agreement."
To clarify, it appears that there was supposed to be "Development Agreement" which worked in conjunction with this contract in terms of outlining changes the City wanted made to the property.  However, once January 1, 2013 hit, any obligation the Landlord had to make changes to the property pursuant to the Development Agreement were off the table and the City had to accept the property "as is" and make the monthly payments.  According to the explicit terms of the lease, that is true even if the failure to complete the construction items or punchlist items outlined in the Development Agreement was the fault of the Landlord or the construction company.

On January 15, 2013, WTHR reported:
The City of Indianapolis is withholding its rent money from the owner of the former Eastgate Mall.
13 Investigates first exposed the lease deal and the thousands of dollars being spent daily for a fire watch because of troubling safety violations.

Now, for the first time, the city is allowing our cameras to inspect the construction flaws up close as it takes stop gap actions to cover the building and the lease.

13 Investigates ventured inside the ROC with the Homeland Security Chief, where a punchlist of nearly 100 fixes are required, starting in the hallway connecting IMPD East District and the Regional Operations Center.

There we found cracked walls and uneven surfaces, some of them trip hazards beneath our feet.

"We know a portion of this building used to be a roadway that separated the mall into two halves. They constructed over that road and we're concerned that maybe they didn't do the proper sanding and make it smooth," said Assistant Public Safety Director Valerie Washington.

It's one of several major flaws the city wants the Eastgate Mall owners to repair.

So far the city says it's gotten a chilly reception similar to what we found in the hallway where the heating and air conditioning systems are not working properly. There's poor ventilation building-wide.
"Making sure that there's clean quality air coming in here for the police officers and staff that are here; this is really a big building so making sure the HVAC components are working properly are probably my number one concern," added Washington.
I cannot find online the "Development Agreement" which should have included repair items the City wanted Landlord to make to the property.   It's not clear the City ever entered into a Development Agreement to make the Landlord fix the property.  However, even if one existed, it became irrelevant as of January 1, 2013.    Complaints by the City in the January 15, 2013 WTHR report are two weeks too late.