Thursday, January 30, 2014

Amendment Deletes Bill Language That Would Have Removed Circuit Court Judge Louis Rosenberg From Supervising Marion County Small Claims Courts

Among attorneys and litigants who find themselves in Marion County (township) small claims courts, there have been a clamor for reform.  Issues with courts were the subject of a Wall Street Journal article as well as several exposes by local media.  Virtually everyone agrees that there has to be some reform, though the nature of that reform is in question.
Marion County Circuit Court Judge
Louis Rosenberg

In a very commendable fashion Marion County Circuit Judge Louis Rosenberg has tackled the issues with the small claims court.  A Commission was impaneled by the Indiana Supreme Court that heard from attorney, parties and judges on changes. The biggest problem reported was venue rules that allow the filing of collection cases in any small claims court in the county, therefore allowing creditor attorneys to forum shop for the most favorable venues for their cases.  That combined with the fact that small claims courts make a considerable amount of money off of collection cases, created an incentive for small claims courts to favor creditors over debtors.  While most small claims court judges handle cases fairly, it was apparent from the testimony before the Commission that at lot of debtors and their attorneys felt that there was a bias in some of the courts.

The Commission eventually issued a report proposing reform.  People then sat back hoping the legislature would adopt at least some of the proposed reforms. At first, the news for reform was bleak.  Senate Bill 366 was introduced, which in addition to making a number of changes regarding garnishment, also would have removed the circuit court judge, i.e. Judge Rosenberg, from his role of establishing small claims court rules.  Instead a small claims court judge would be elected by his or her fellow peers to act as administrator for the courts.  That judge, in consultation with the other small claims court judges, would enact rules for the small claims court.

Fortunately, that provision in the bill was stripped out by a 5-4 vote in the Senate Judiciary Committee yesterday.  The offending language removing Judge Rosenberg was instead replaced with the following language:
"SECTION 7. [EFFECTIVE JULY 1, 2014] (a) As used in this SECTION, "commission" refers to the commission on courts established by IC 33-23-10-1.
 (b) The general assembly urges the legislative council to assign to the commission or another appropriate study committee the task of studying:
(1) small claims court administration;
(2) the jurisdictional amount in small claims actions; and
(3) venue and the distribution of judicial resources in small claims actions.
(c) If the commission or another appropriate committee is assigned the topic described in subsection (b), the commission or committee shall issue to the legislative council a final report containing the commission's or committee's findings and recommendations, including any recommended legislation concerning the topic, in an electronic format under IC 5-14-6 not 19 later than November 1, 2014.
This amendment not only strips out the offending language removing much needed oversight of the small claims courts, it opens the door to actual reform of the small claims courts.

Wednesday, January 29, 2014

Indianapolis Star Suffers Another Blow With Loss of Veteran Writer Jon Murray

The Indianapolis Star continues to suffer major losses.  Today, the Indianapolis Business Journal, not the Star, reported that veteran city hall writer Jon Murray is leaving the newspaper:
An exodus of high-profile journalists continues at The Indianapolis Star, with city hall reporter Jon Murray planning to take a similar beat next month at The Denver Post.

The Colorado native announced his plans Monday on his Facebook page. Murray worked at the local Gannett Co. Inc.-owned newspaper for about 10 years.

Star Editor Jeff Taylor did not respond Thursday morning to a request for comment. 
The IBJ article also mentions the loss of statehouse reporter Mary Beth Schneider, who resigned to take care of her parents, Jolene Ketzenberger was dismissed for operating a personal website about the local food scene.  The Star also mentioned reporter Dan McFeeley left to take a job with the city of Carmel though McFeeley was not so much a public relations writer for the City of Carmel.  McFeeley's cheerleading led to a high-paying consulting gig with, you guessed it, Carmel.  I wrote about that recently.
Jon Murray

Murray, however, is a major loss.  He was an old school reporter, someone who would actually investigate an issue, talk to sources, and churn out well-written, thoughtful prose.  I have nothing to base this on, but I got the sense though that Murray's reporting the last few years was hamstrung by bosses who strictly limited what he could report on (certainly nothing too critical about local power brokers) and demanded he turn out more content with less depth.

I said previously that  I thought the Star within the next few years would go to an on-line newspaper only with a hard copy printedonly on Sunday.  I based that on the fact that the Monday through Saturday newspapers had become increasingly devoid of content, but the Sunday paper still contained signficant original material.  I was wrong.  I picked up last Sunday's paper and I was shocked the lack of content.  Featured prominently, on the front page were old columns by Matt Tully and Erika Smith that had been on the internet for at least one day if not more.  The formerly interesting Behind Closed Doors column was tucked away inside, reduced to half its former size. The only original article I saw was a good story on the how the legislators planned to vote on the marriage amendment, HJR-3.  The reporter had obviously done a lot of work to write the article, but one good article does not a Sunday paper make.

What is interesting is that from the moment that Publisher Karen Crotchfelt and Editor Jeff Taylor took the paper, the weakest part of the Star has been the two major columnists, Matt Tully and Erika Smith.  Tully has been phoning in his column for years while Smith seems to be pulling a McFeely, constantly writing cheerleading columns about the need to expand mass transit in an effort with an eye to landing a consulting or PR gig with the transit folks.  Surprisingly Tully and Smith continue to be employed by the Star while quality writers have abandoned the Star as if it were a sinking ship.  Indeed it is sinking.

State Excise Police aka Scrooge Busts Speedway Stores for Selling Beer on Christmas Day

The Indianapolis Star reports:
Indiana Excise police say a single officer cited 109 Speedway convenience stores across the state for selling beer on Christmas Day.


The officer received a tip that a South Bend Speedway served beer on Dec. 25 and she began her investigation the next day, according a news release from the Excise Police.

While visiting that store, another Speedway clerk told her that she, too, had sold beer on Christmas.

That led to to the discovery that 109 stores in all had done so. Indiana law prohibits the sale of alcoholic beverages from 7 a.m. on Dec. 25 until 3 a.m. Dec. 26.
An argument, albeit a very weak one, can be made that the ban on Sunday alcohol sales serves a secular purpose.  But when it comes to Christmas, the only reason to select out that particular day for a prohibition on alcohol sales is to promote a religious belief that alcohol is an evil that should not be purchased on the day that is celebrated as Jesus' birthday.

This law is a leftover of the legendary legislative battles Republican legislators,who were predominantly Protestant and supported prohibition, had with Democratic legislators, who were predominately Catholic and opposed prohibition.  Most of the prohibition-type laws have been repealed in Indiana, but this one stubbornly remains.

It's time for a thoughtful legislator to tack on an amendment to a bill to wipe out the ban on Christmas alcohol sales.  It should also be made retroactive too to wipe out this Scrooge enforcement action against the Speedway stores.

If the legislature refuses to act, a legal challenge may be around the corner. When it comes to Indiana's alcohol restrictions, the legality of the ban on Christmas sales is by far the lowest hanging fruit.

Indianapolis Closes in On Top 10 Coldest January Since Official Temperatures Began Being Kept

Today, with just three days left days left in the month, the average temperature for Indianapolis during the month of January stands at 19.8 degrees.  If that number holds, then we'd be tied for the 10th coldest January since official record-keeping began in 1871.

Four of the coldest Januaries took place between 1963 and 1979, with 1977 being by far the coldest at 10.3 degrees.  (These stats can be found at this website.)  Of course, 1963 to 1979 is the era before the invention of automobiles and coal-fired plants that caused global-warming.  Okay not

During his speech, President Obama stated "global warming is a fact."  You bet it is.  The climate has been changing since the planet was formed.  That's not the issue though. The issue is whether there is dangerous anthropogenic global warming taking place.  The alarmists have worked hard to redefine the debate as "climate change" instead of "global warming" because some of the data wasn't working out and they were being discredited.  By changing the debate to "climate change" they knew they could never be proven wrong.  After all, after 4.6 billion years it's unlikely the planet's climate will suddenly stop changing.

Of course, my pointing out that Indianapolis is on its way to one of the coldest Januaries ever will be met with howls of protests that this is "weather" (short term) instead of "climate" (long term).  And you know what?  On that point, the alarmists are 100% correct.  But the problem is the alarmists are also hypocrites.  They won't hesitate to use weather when it works in their favor. The hot summer we had a couple years ago was pushed by alarmists as proof our planet had dramatically warned. Last night the President talked about the droughts out west as proof.   How is that not weather?  Oh, wait, I forgot. It's never "weather" when the alarmists are using it as evidence of global warming climate change.

We human beings have a misplaced sense of time. We think what we experience on planet Earth during our, if we're lucky, 80 year life spans represents conclusive proof of the long-term direction of the planet.  Instead that 80 year life span is merely a tiny grain on a sandy beach which represents the billions of years the planet has existed.  Even the 140 years or so that man has been keeping official records, which is consistently used by alarmists as the barometer to measure long-term global warming, is a tiny speck of time in the lifetime of our planet.

The reason you can't use snippets in time to measure the long-term direction of the planet is that the planet's climate is always changing.  The the long-term warming and cooling periods can last hundreds of thousands of years if not millions.  In between those periods you have briefer periods - tens of thousands of years - in which the temperature zigs up and zags back down  The alarmists want to latch onto a zig and extrapolate it out showing Earth's temperatures increasing endlessly.  Scary stuff indeed.  But good science? Absolutely not.

But what of the CO2 levels that have increased so much?  Even the alarmists when pressed admit that 97% of the CO2 comes from natural sources, not from man-made activity.  The notion that the increase in CO2 levels is entirely due to man, or even mostly, is pure speculation. In fact, CO2 levels have been higher than today, before man, and CO2 appears to be a lagging indicator of higher temperatures not a cause.

To paraphrase that great environmentalist and inventor of the Internet, Al Gore, these facts are an inconvenient truth.

Monday, January 27, 2014

Proposed Indiana Constitutional Amendment Banning Same Sex Marriage Suffers Nearly Fatal Blow

Just an hour or so ago, the Indiana House voted 52-43 to remove the second sentence of HJR-3, the amendment that would write into the constitution the statutory definition of marriage as being between a man and a woman. The stricken second sentence went beyond that outlawing the extension of the benefits of marriage to people who were not married.  Thus, what I referred to as marriage lite, things such as civil unions, would also be prohibited.

The effect of writing the language into the Constitution would prevent state court judges from finding that Indiana's definition of marriage violates the state constitution.  (It, however, wouldn't prevent judges from finding that it violates the federal constitution.)  Probably more importantly, it would make it considerably harder to change the definition of marriage should the political winds change as they are changing.  Without the constitutional amendment, a simple bill could change the definition and Indiana would legalize same sex marriage.   Without the amendment that process could take years.

Since the Indiana Constitution requires that proposed constitutional amendments pass two separately-elected General Assemblies in identical forms, a change in that amendment would mean the process would have to start over and it could not be before the voters for ratification until 2016 at the earliest.

The second sentence can still be amended back into HJR-3 in the Senate or in conference committee.  That would still make it eligible for a final vote in 2014.  But the problem is the 42 votes for the amendment, as is, suggests a significant political weakness in support for the amendment. While much of the blame for that weakening is being placed on the offensive second sentence, I don't think many House Republicans like the first sentence either.   Those Republicans saw an issue that was politically explosive and they didn't want it driving Democratic turnout in the 2014 general elections.  More on that later.

At the end of the day, proponents of HJR-3 had a very difficult intellectual argument to make.  It was always fuzzy how allowing same sex couples to marry endangered traditional marriage or those marriages in which the marital covenant is blessed by the church.  The argument that marriage is about procreation ignores the numerous people who can't have children because of physical issues or age yet enter into marriage.  The importance of marriage as an institution that encourages life-long partnerships, monogamy and personal and legal commitments, are arguments that actually support extending the institution to same sex couples.

My greatest fear from this debate is that my christian conservative friends will someday, perhaps not too far in the future, be looked upon as those people in the 1950s and 1960s who fought to preserve miscegenation laws that prohibited blacks and whites from marrying.  They are on the wrong side of history on this one.  There are better battles to be fought. For example, religious freedom is under full scale assault from the Obama administration and liberal Democrats who believe government has the right to mandate that people put aside their deeply-held, religious beliefs to carry out government mandates.  Never mind that there is a First Amendment which says government must accomodate religous beliefs in the laws it enacts.

In the end, if HJR-3 dies, the same sex marriage activists whose incredibly organized activism will have ironically done Republican 2014 candidates a huge favor.  They will have removed an issue from the ballot which would have driven Democratic-leaning turnout and caused many GOP candidates to lose.  While Governor Pence will not be a candidate in 2014, he can still breathe a sigh of relief in being able to keep his christian conservative friends happy without having to deal with the consequences of the same sex marriage political dynamite sinking his political future.

The irony of politics is that so often when you think you've won a great battle, you find out later that that success actually sewed the seeds of your defeat in the next election.  The folks who organized so well to defeat HJR-3 are about to learn that painful political lesson.

Friday, January 24, 2014

Volunteers for Wendy Davis Texas Gubernatorial Campaign Caught Mocking Opponent's Disability

Texas State Senator
Wendy Davis
The Wendy Davis for Texas Governor campaign has made yet another misstep.  Earlier this week the left leaning Dallas Morning News published a story in which it was revealed that Davis had embellished her life story.  While claiming to have been a young, single mother who worked hard to put herself through college and Harvard Law School, it turns out that it was her ex-husband who paid for her to finish college and go to law school by taking out by cashing in his 401-K and taking out a loan..  Reportedly the day the last payment on the law school loan was made, Davis left her husband.

When confronted with the discrepancy in her life story, Davis let a few days pass then issued a statement that included criticism of her opponent Texas Governor Greg Abbott which ended with the suggestion that he shouldn't criticized her because he "hasn't walked a day in [her] shoes."  On Twitter, she lambasted Abbott for not understanding struggles Texans face.

The problem for Davis, is that Abbott has been in a wheel chair since becoming paralyzed in an accident at 26 years old.

I am willing to overlook the Twitter comment given its general nature and the Twitter often captures comments made with little reflection.  But drafting a statement that takes a shot at her wheel bound opponent for not having "walked a day in my shoes," well that's plain stupid.  Any halfway intelligent politico would know that's a bad idea.  You have to wonder who is handing out poor advice to Davis or whether Davis is ignoring good advice.

Same to with the slogan of the campaign, "Stand With Wendy."  I know the slogan predated the campaign and arose out of her filibustering for the "right" to middle and late term abortions.  But when she found out her opponent would be the Abbott, one would have thought Davis and her campaign stafff would understand the need to transition to a slogan that didn't focus on "standing."

If the week wasn't bad enough for the Davis campaign, within the last 24 hours hidden video has been released showing Davis' volunteers mocking Abbott, including his disability.

WND describes the video: 
The new video shows a volunteer for Davis... criticizing her opponent, Attorney General Greg Abbott.

“First of all, he’s not good looking,” said one volunteer. “He doesn’t speak very well. He doesn’t have a good personality. And he’s in a wheelchair.”
Another volunteer immediately started laughing.
The video also shows Lisa Wortham, a deputy voter registrar, saying: “I’m really wondering how this is going to work out, since he’s in a wheelchair, and the slogans are ‘stand with Wendy.’”
Wortham is shown being asked about forging signatures on absentee ballots. She covered her ears and then went on to admit, “People do that all the time.”
Battleground Texas volunteer Celeste Grahm then added, “I don’t think it’s legal, but I didn’t hear you say that.”
Thursday afternoon, O’Keefe tweeted, “Breaking: Wendy Davis responds to video: ‘The language used in this video about Greg Abbott is abhorrent.”

The new video shows a volunteer for Davis, whose claim to fame is a filibuster in the state legislature against abortion limits that later were passed anyway, criticizing her opponent, Attorney General Greg Abbott.
“First of all, he’s not good looking,” said one volunteer. “He doesn’t speak very well. He doesn’t have a good personality. And he’s in a wheelchair.”
Another volunteer immediately started laughing.
The video also shows Lisa Wortham, a deputy voter registrar, saying: “I’m really wondering how this is going to work out, since he’s in a wheelchair, and the slogans are ‘stand with Wendy.’”
Wortham is shown being asked about forging signatures on absentee ballots. She covered her ears and then went on to admit, “People do that all the time.”
Battleground Texas volunteer Celeste Grahm then added, “I don’t think it’s legal, but I didn’t hear you say that.”
Thursday afternoon, O’Keefe tweeted, “Breaking: Wendy Davis responds to video: ‘The language used in this video about Greg Abbott is abhorrent.”

 “First of all, he’s not good looking,” said one volunteer. “He doesn’t speak very well. He doesn’t have a good personality. And he’s in a wheelchair.”
Another volunteer immediately started laughing.
The video also shows Lisa Wortham, a deputy voter registrar, saying: “I’m really wondering how this is going to work out, since he’s in a wheelchair, and the slogans are ‘stand with Wendy.’”

Wortham is shown being asked about forging signatures on absentee ballots. She covered her ears and then went on to admit, “People do that all the time.”

Battleground Texas volunteer Celeste Grahm then added, “I don’t think it’s legal, but I didn’t hear you say that.”
her volunteer immediately started laughing.
The video also shows Lisa Wortham, a deputy voter registrar, saying: “I’m really wondering how this is going to work out, since he’s in a wheelchair, and the slogans are ‘stand with Wendy.’”
Wortham is shown being asked about forging signatures on absentee ballots. She covered her ears and then went on to admit, “People do that all the time.”
Battleground Texas volunteer Celeste Grahm then added, “I don’t think it’s legal, but I didn’t hear you say that.”

This time instead of attacking the perceived messenger, Davis criticized the conduct of her volunteers:  "The language used in this video about Greg Abbott is abhorrent.”

Monday, January 20, 2014

Alabama Attorney-Blogger Remains in Jail Indefinitely Due to Judge's Order Imposing Prior Restraint on Speech

Earlier this month, the New York Times reported on  remarkable story about a blogger-attorney who has been in jail for three months based on a judge's contempt order:
Attorney-Blogger Roger Shuler
For over six years, Roger Shuler has hounded figures of the state legal and political establishment on his blog, Legal Schnauzer, a hothouse of furious but often fuzzily sourced allegations of deep corruption and wide-ranging conspiracy. Some of these allegations he has tested in court, having sued his neighbor, his neighbor’s lawyer, his former employer, the Police Department, the Sheriff’s Department, the Alabama State Bar and two county circuit judges, among others. Mostly, he has lost.


A former sports reporter and a former employee in a university’s publications department, Mr. Shuler, 57, was arrested in late October on a contempt charge in connection with a defamation lawsuit filed by the son of a former governor. The circumstances surrounding that arrest, including a judge’s order that many legal experts described as unconstitutional and behavior by Mr. Shuler that some of the same experts described as self-defeating posturing, have made for an exceptionally messy test of constitutional law.


His allegations are frequently salacious, including a recent assertion that a federal judge had appeared in a gay pornographic magazine and a theory that several suicides were actually a string of politically motivated murders. Starting in January 2013, Mr. Shuler, citing unidentified sources, began writing that Robert Riley Jr., the son of the former governor, had impregnated a lobbyist named Liberty Duke and secretly paid for an abortion. Both denied it, and Ms. Duke swore in an affidavit that they had never even been alone in the same room.

In July, Mr. Riley and Ms. Duke sought an injunction in state court against such posts, citing Mr. Shuler and his wife, Carol, in defamation suits. A judge issued a temporary restraining order in September barring the Shulers from publishing “any defamatory statement” about Mr. Riley and Ms. Duke and demanding that the offending posts be immediately removed.
When the Shulers missed a hearing, the judge replaced the restraining order with a similarly worded preliminary injunction.   Shuler continued to blog and eventually he was arrested for contempt and resisting arrest.  He was taken to the county lockup.  

The Times reports what happened next:
On Nov. 14, the judge held a hearing, and Mr. Shuler, who was representing himself, took the stand, insisting that the court had no jurisdiction over him and calling the court a joke. The judge decided that the hearing had “served as a trial on the merits” and made his final ruling: Mr. Shuler was forbidden to publish anything about Mr. Riley or Ms. Duke involving an affair, an abortion or payoffs; was to pay them nearly $34,000 for legal fees; and was to remove the offending posts or remain in jail.
Today, Shuler sits in jail indefinitely.  He is on the Committee to Protect Journalists list of imprisoned journalists. As the Times article notes:  "[t]here, in the company of jailed reporters in China, Iran and Egypt, is Mr. Shuler, the only person on the list in the Western Hemisphere."

It is easy to write this and downplay the judicial culpability in what has happened to Mr. Shuler. Even a first year law student knows the Constitution does not allow prior restraint on speech.   Yet that is exactly what the judge ordered on several occasions.  Undoubtedly he knew his ruling violated the Constitution but he also undoubtedly knew that Shuler's remedy for such an unlawful order was probably years down the road long after the issues in the case would be mooted by the passage of time.  That is unacceptable conduct by the judge.

Analysis Show Republicans Have Little Hope of Winning a Majority on the Indianapolis Council

Jon Murray of the Indianapolis Star pens a nice article about the pending redistricting dispute involving the Indianapolis City-County council.  Murray does a good job of discussing the advantages and disadvantages both parties face in gaining a majority.

Unfortunately, when you look at the baseline numbers in the districts drawn by GOP operative David Brooks, you realize that the odds of the Republicans regaining a majority on the council, even if they get court approval of their own map, is very slim and none.

Brooks was given the responsibility of drawing 15 Republican council districts out of 25.  That 15-10 majority would be sufficient to survive the likelihood of the Democrats winning all four at-large seats.  After the Brooks' map was drawn, the General Assembly eliminated the at-large seats.

When I studied the baselines in the GOP-drawn map, I did not see the Republicans winning 15 districts, not even close.  In column two is the 2010 GOP baseline numbers used by Brooks. (Due to reprecincting between 2010 and 2012, I couldn't confirm those 2010 district numbers.)  The third column is the my analysis using 2012 baseline numbers.  The fourth column is my analysis of the district, i.e. strongly, moderately or leaning Democrat or Republican.

Granted the 2012 numbers which feature higher turnout than 2010 would more likely favor the Democrats.  But even taking that into consideration the even lower turnout in a municipal election, it would not appear the numbers would move dramatically enough to give Republicans a majority of the 25 seats.

Using the Brooks' map, only 8 of the 25 districts had a majority Republican baseline in 2012. The Republicans have to win all eight of those districts (and four of those are just barely leaning Republican) and five more majority Democratic districts. But there is only one leaning Democratic district and three moderately Democratic districts.  A strongly Democratic district would also have to flip to the Republicans.  The best candidates for that possibility are districts 16, 19, and 21, districts that appeared to have moved by an amazing 18-20 points in the Democrats' direction between 2010 and 2012. Of course, that assumes the Brooks' 2010 baseline numbers are accurate.
Dist 2010 GOP Pct 2012 GOP Pct Partisan Outlook
1 41.8 35.31 SD
2 51.98 48.85 LD
3 55.12 50.38 LR
4 57.37 51.47 LR
5 55.57 50.71 LR
6 52.38 43.37 MD
7 20.91 19.45 SD
8 23.98 19.53 SD
9 16.45 14.78 SD
10 22.35 17.75 SD
11 15.48 15.36 SD
12 42.42 33.96 SD
13 17.96 13.12 SD
14 23.25 16.29 SD
15 55.85 45.3 MD
16 51.55 41.2 SD
17 18.08 15.39 SD
18 60.82 52.36 LR
19 52.09 43.61 SD
20 65.79 59.12 SR
21 50.43 42.48 SD
22 55.69 44.75 MD
23 65.65 60.13 SR
24 64.18 58.87 SR
25 70.28 66.18 SR

Assuming that the Brooks' map is better for Republican than the map drawn by the Democrats or by the courts, there doesn't appear to be much hope for the GOP to win a majority on the Indianapolis City-County Council in the 2015 municipal elections.

Sunday, January 19, 2014

Ninth Circuit Finds that Bloggers Are Entitled to Same First Amendment Protections as Professional Journalists

Are bloggers, who sometimes are called "citizen journalists," entitled to the same First Amendment protections as professional journalists?  For example, can a blogger, unlike a professional journalist, be required to reveal his or her sources for a story?
Blogger Crystal L. Cox

Indiana has a shield law which protects professional journalists.  Likewise, the First Amendment has been interpreted to include a shield law for journalists.  Governor Mike Pence led the way for a federal statutory shield law when he was in Congress. 

But Indiana's shield law as well as the case law providing shield protection via the First Amendment are terrible dated.  In an era in which anyone with a computer can effectively act as a reporter, blowing the whistle on public and private misconduct, it is unclear whether bloggers are entitled to the same First Amendment shield protection as traditional journalists.

In Obsidian Finance Group v. Cox, the 9th Circuit didn't directly address the shield issue, but rather a similar issue, whether bloggers who are sued for defamation are entitled to the same First Amendment protection as professional journalists.  This protection includes the requirement that there be a showing of "actual malice," a much higher standard than mere negligence, when it comes to proving defamation.

The court first outlined the framework by which these cases had previously been reviewed:
The Supreme Court’s landmark opinion in New York Times Co. v. Sullivan began the construction of a First Amendment framework concerning the level of fault required for defamation liability. 376 U.S. 254. Sullivan held that when a public official seeks damages for defamation, the official must show “actual malice”—that the defendant published the defamatory statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 280. A decade later, Gertz v. Robert Welch, Inc., held that the First Amendment required only a “negligence standard for private defamation actions.” 418 U.S. 323, 350 (1974). This case involves the intersection between Sullivan and Gertz, an area not yet fully explored by this Circuit, in the context of a medium of publication—the Internet—entirely unknown at the time of those decisions.
In holding that the Gertz negligence requirement for private defamation actions is not limited to cases with institutional media defendants the 9th Circuit stated:
The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media . . . the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue—not the identity of the speaker—provide the First Amendment touchstones.
This is certainly good news for bloggers.  In addition to additional protection afforded bloggers from defamation suits, it also undoubtedly portends the likely result of other First Amendment issues such as the aforementioned issue of whether bloggers will have shield protection from being forced to reveal confidential sources.

Special thanks and congratulations to Prof. Eugne Volokh, who writes the legal blog The Volokh Conspiracy, for his work on this case.

Friday, January 17, 2014

Indianapolis Star Reaches New Low With Real Estate Advertisement Published as News

The Indianapolis Star reached a new low today, publishing as a news story an advertisement about a "hot property" for sale in Geist:
Situated on more than 5 acres, this $4.85 million residence is a sprawling home with 720 feet of water frontage on Geist Reservoir and garage space for six vehicles.

The main floor features a large entry with beveled sidelights, a transom ceiling and ornate wainscoting and molding. An elegant inlaid Italian marble floor highlights the area.

Arches lead to a sunken great room that is highlighted by an oversized fireplace and windows providing a waterfront view. A screened porch expands the living space.

The dining room includes built-in cabinets, a buffet area and large windows. The room is located just steps from the wine closet.

An entertainer's kitchen, created by Kitchens by Design, features a curved granite breakfast bar with a prep sink.

Appliances include two built-in dishwashers and ovens with convection features, a six-burner gas range with an ornamental limestone hood, built-in microwave and two Sub Zero refrigerators. Floor-to-ceiling windows in a breakfast nook also give a view of the water.
The description of the property, which constitutes the entire article, continues on for several more paragraphs.  Supposedly it was written by Star writer T. J. Barnes.

The end of the article includes a briefer description, that the sales price is $4,850,000, and the listing agent is real estate agent Biff Ward along with Ward's phone number.  The online version of the story contains several photographs of the property provided by Ward.

Thursday, January 16, 2014

Are Advocates of Indiana's Anti-Same Sex Marriage Amendment Hurting the Pro-Life Cause?

Over the years, I have found myself often aligned with the views of Micah Clark of the American Family Association of Indiana and Curt Smith of the Indiana Family Institute.  They and their organizations have done great work in promoting an agenda that protects religious liberty, the family, and the sanctity of human life.

Both Clark and Smith have been outspoken advocates of HJR-3, an amendment that would write into Indiana's Constitution the statutory ban on same sex marriage.  Contrary to the claims of many opponents of the measure, I have no doubt that Clark and Smith are motivated by a belief that same sex marriage would undermine traditional marriage.
Micah Clark, Executive
Director, American Family
Association of Indiana

I agree with Clark and Smith that traditional marriage is a critical building block of society and needs to be protected.  Marriage encourages monogamous relationships as well as personal, moral and legal commitments that are vitally important for a stable society.   In recognition of the important role marriage plays, our government provides benefits for those who choose to make this ultimate commitment in life.

It is exactly because I believe in traditional marriage that I don't want people to be excluded from being able to participate in the institution.  I don't know if homosexuality is a result of genetics or environment, or quite possibly some unknown combination of the two.  But I certainly don't think that people who gravitate toward same sex relationships are thumbing their nose at the majority of society who desire heterosexual unions.  We are all made in God's image, including homosexuals.

Over the course of the last several months, the criticism of Clark and Smith for their position has become increasingly vitriolic.  I have heard numerous people refer to the organizations they lead as "hate groups."  Given the body of work those organizations have done, it is a very unfair charge.  Yet I am growing increasingly concerned that the charges for many people will stick and it will undermine those organization's larger political agenda, one of which is the pro-life cause
Curt Smith,
Executive Director,
Indiana Family Institute

There are many pro-life people though who actually support same sex marriage.  Many of those people see it as a civil rights issue involving similar moral issues involved in the same sex marriage debate.  But when two of the leading organizations supporting pro-life causes takes on an issue that could forever tarnish those organizations, then that also hurts the pro-life cause.

The long-term polling on same sex marriage is clear.  Support for same sex marriage is soaring and shows no sign of abating.  What's more there is a huge generational divide on the issue.  Younger people support same sex marriage by huge margins.  Older people who oppose it are dying off.  Even if same sex marriage opponents succeed in passing SJR-3, they are going to lose long-term. The only issue is when.

The polling on abortion is completely different. Measuring public opinion on abortion is admittedly tricky as the responses can vary widely depending on how you phrase the question.   But there is a clear majority that doesn't support the legal requirement of abortion on demand through viability, which is the status of the current law under Roe v. Wade and its progeny.  When you look at the polls you will also find support for the pro-life position has remained steady and even slightly increased over the years.  Also, some polls show younger people increasingly supportive of the pro-life position.

While the position against same sex marriage appears to be tethered inextricably to religion, religion is not the motivating force for many people who oppose abortion.  In fact, there are atheist and agnostic organizations that actively oppose abortion.  For those people their position is based on the undeniable medical facts of pre-natal human life, facts which have become much better known to non-medical people as a result of the invention of the sonogram.  Contrary to the claims of pro-choice advocates, the issue is a lot more complicated than what a woman should be able to do with her own body.  Rather the issue is how do you weigh the undeniable fact of pre-natal life with the issues of autonomy for the woman carrying that life?  Foolishly the United States Supreme Court has tried to dictate the answer to the question instead of allowing the political system to reach compromises on the subject.

Again, I don't doubt Clark and Smith's sincerity in their battle on HJR-3.  But at some point, I think they need to ask themselves if their advocacy on the issue is not risking their organizations' larger goals, including the pro-life political agenda.

Wednesday, January 15, 2014

Governor Pence Handled Same Sex Marriage Debate Perfectly in State of the Union

Over at the Indy Democrat blog, my friend Jon Easter takes the Governor to task for wading into the same sex marriage debate currently dominating the newly-started legislative session.  Jon helpfully provides the Governor's remarks:
Now on the subject of marriage, we are in the midst of the debate over whether Indiana should join some 30 other states that have enshrined the definition of marriage in their state constitutions. Each of us has our own perspective on the matter. For my part, I believe in traditional marriage, and I have long held the view that the people, rather than unelected judges, should decide matters of such great consequence to the society. Reasonable people can differ, and there are good people on both sides of this debate. No one, on either side, deserves to be disparaged or maligned because of who they are or what they believe. 
So let’s have a debate worthy of our people with civility and respect. 
Let’s protect the rights of Hoosier employers to hire who they want and provide them with benefits that they earn. 
And let’s resolve this issue this year once and for all.
Jon correctly notes that the Governor does not play any role in constitutional amendments.  But  Jon's position that the Governor should remain silent on the biggest issue of the day is surprising. While I don't doubt Jon's sincerity, I think there are numerous people in his camp who would be sharply critical of the Governor if he didn't say anything about the debate. 

What the Governor said in his State of the State speech was magnanimous and points out that there are reasonable people on both sides of the debate.  Pence merely said that respect and civility should govern the debate.  I couldn't agree more. While I think the same sex marriage advocates have the stronger argument and are clearly winning the political battle, I am troubled by the language some of those advocates toss out at those on the other side.  There are many opponents of same sex marriage who aren't motivated by hatred of homosexuality, but because they strongly believe in the institution of marriage and think it will be damaged if same sex marriages are allowed.  Instead of denigrating those folks with personal insults, wouldn't it be better to work to persuade opponents that advocates too believe in the importance of marriage and simply want more people to be able to participate in the cherished institution?

Jon is right on one point.  The Governor is wrong when he suggests the issue can be resolved this year.  The political battle will rage on for years, if not decades. The amendment would actually prolong that political battle.

Tuesday, January 14, 2014

Belated Political Predictions for 2014

I ordered a new crystal  ball from Amazon, however, UPS was late getting it to me.  Sorry for the delay in these predictions:
  • The debate over same sex marriage will continue on into March. Finally Republican legislative leaders will pull the issue off the table in late March or early April, effectively killing the amendment.  They will talk about the distraction from the Republican agenda caused by the issue and will point to the fact same sex marriage is already outlawed in Indiana, albeit by statute.  In reality, Republicans will be concerned it could be an issue to motivate Democratic-leaning voters in an election year. 
  • Same sex marriage advocates will continue to score legislative victories all over the country.  However, the hoped-for declaration by the U.S. Supreme Court that same sex marriage is a  constitutional right will not happen as advocates experience another 5-4 loss at the Court.
  • Democrats will pick up 3-5 seats in the Indiana House.  They will claim the gain is due to the same sex marriage issue but in reality it is due to Democrats simply regaining seats in Democratic-leaning districts that went Republican in the 2012 GOP title wave.  Meanwhile the Democrats will not make gains in the Indiana Senate.
  • Republicans will pick up 10-15 seats in the U.S. House and just enough seats in the U.S. Senate to gain control.  The fault for the Democrats, loss will be Obamacare.  The Democrats class warfare strategy will have failed in yet another election.
  • In Indianapolis, City-County Council Democrats will continue to cut deals with Mayor Greg Ballard rather than draw sharp political differences which could aid their party's candidate in 2015.
  • The Indiana Supreme Court will draw the maps for the Indianapolis City-County Council... again.
  • 2014 will be the last judicial election in Marion County run both with party slating and noncompetitive general elections.
  • Republicans will lose all county-wide races in 2014 ... by a 20% margin, including Sheriff.  The next day, Republican County Chairman Kyle Walker will claim victory.
  • 2014 will end with New Jersey Governor Chris Christie the leading GOP presidential candidate.  Christie, backed firmly by the Republican establishment, will be trailed closely by Republican Senator Rand Paul.
  • Hillary Clinton will solidify her position as the Democratic nominee for president. Concerns about her health will turn out to the biggest obstacle to her nomination.
  • Mayor Ballard will announce he is running for a third term.  The Democrats will coalesce behind State Rep. Ed Delaney.  U.S. Attorney Joe Hogsett will resign to take an appointed  position in the Obama administration.
And two final ones to make certain I have at least two right:
  • I will not win a million dollars or more in the Powerball drawing.
  • The Chicago Cubs will not win the World Series.

Saturday, January 11, 2014

State Senate Bill Seeks to Check Power of Indiana Attorney General Greg Zoeller

It's something I've complained about often on these pages.  Indiana Attorney Greg Zoeller takes the unique position that, when it comes to litigation, he is in fact the attorney and the client, i.e. he doesn't have to do what the people he represents in court tells him to do.  I highlighted Zoeller's position in a story I wrote last year:
Attorney General Greg Zoelelr
Attorney General Zoeller has consistently taken the position that the Attorney General position is "unique" because of the need to "harmonize the law" among the several agencies and entities.  In doing so, he has claimed he has absolute authority when it comes to deciding how legal issues involving the State of Indiana are handled.  Thus, it doesn't matter if a state agency wants to settle a case, or whether the Governor wants to take a certain legal position or the General Assembly wants a law defended, the Attorney General, and only the Attorney General, gets to decide, on behalf of the State, what position will be taken.   This is a position that essentially makes the Attorney General not only the attorney for the State of Indiana, but also the client.

Zoeller's position regarding the authority of the Attorney General is certainly not shared by everyone.  In addition to the State Senators in this case, most of the attorneys I've talked to do not agree that the Attorney General has an unfettered right to decide the State of Indiana's legal position. Rather they see the Attorney General as the attorney for the State of Indiana with a duty to follow his state client's wishes as long as they are within the ethical boundaries of legal representation.   As far as multiple state agencies creating a mishmash of legal approaches, there is a singular boss of those agencies, the Governor of the State of Indiana.  The AG could always appeal to the Governor to bring a consistent approach to how the agencies approach litigation.
State Senator Mike Delph
Last session, state senators Mike Delph, Brent Steele and Mike Delph introduced a bill requiring the Attorney General to step aside for legislators to employ other counsel when the AG wasn't adequately defending a statute in court. This was a reference to the dispute over Zoeller's refusal to defend Indiana's immigration bill.

While that bill did not pass, a bill has been introduced in the State Senate this session that takes direct aim at addressing Zoeller's claim that unlike every other attorney in the State of Indiana, he is not obligated to actually do what his government clients want.  The new language in Senate Bill 257, which is authored by Republican Delph and Steele and Democrat Timothy Lanane, states:
When the attorney general represents:
(1) the state;
(2) a state agency;
(3) a political subdivision; or
(4) any other party;

in a judicial or administrative proceeding, the attorney general owes the same obligations to that party that any other attorney owes to a client under the rules prescribed by the supreme court.
While Zoeller zealously claims absolute power with regard to litigation and fends off any perceived encroachment on that absolute power, the irony is that he has no problem intruding on the turf of Governor Mike Pence.  Last session a bill was introduced to give the Attorney General an office in Washington, DC where an employee of his office could lobby Congress and federal agencies.  I wrote about it on my blog.
State Senator Tim Lanane
A similar dispute over who speaks for the State of Indiana at the national level appeared to be breaking out earlier this year.  Attorney Marcia Oddi, publisher of the Indiana Law Blog and who has had a long career in Indiana's executive and legislation branches, published an article titled "Ind. Gov't. - Who Speaks for Indiana at the Federal Level" on legislation that was introduced allowing the AG to place a deputy in Washington, D.C. with particular responsibilities.  Her article, which also contains links to stories she wrote in 2009, 2010 and 2012 on the subject of who speaks for the State of Indiana at the federal level, identifies Senate Bill 36 as one of the bills involved in establishing the D.C. based deputy.  That bill included this directive for what the responsibilities that this Deputy Attorney General would have:
1) Review and monitor legislation, regulations, administrative actions, and other activities of the federal government that may affect Indiana. 
(2) Take any action the attorney general finds necessary and appropriate to respond to, address, or influence any proposal, enactment, promulgation, action, order, adjudication, or activity described in subdivision (1).
My reading of the highlighted language of Senate Bill 36 opens up the possibility of having the Governor and Attorney General advocating, on behalf of the State of Indiana, completely different positions as to proposed federal legislation and the promulgation of federal rules.  However, this potential conflict appears to have been averted as the bill was amended in committee to eliminate the lobbying language contained in subparagraph #2 above.   SB 36 is now set for third reading in the Indiana Senate
That bill, which was little more than a power grab by Zoeller, came at a curious time. The bill was introduced, no doubt at the request of Zoeller, when Governor Daniels was cleaning out his office in preparation for his new job at Purdue.  Governor Pence didn't even have his administration up and running yet.  It was the perfect time for another state-wide elected official to increase his power at the expense of the Governor. Fortunately, someone caught the problem and the offending lobbying language was removed.

But Zoeller was not done seeking to encroach on Governor's Pence's power by asserting his right to lobby on behalf of the State of Indiana.  Earlier this year he announced he was going to lobby Indiana members of Congress for more federal money for school security officers.  While that may or may not be a good idea, it is not his call. It's Governor Pence's.

P.S. Thanks to the alert reader of my blog who found this bill and understood the conflict it was addressing.  

See also:

Monday, December 30, 2013, Attorney General Zoeller Encroaches on Governor's Power as He Lobbies for More Federal Funding for School Resource Officers  

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

Friday, January 10, 2014

Indiana State Chamber Supports Discrimination Against Smokers in Favor of Employers

The Indianapolis Star reports:
If you’re looking for a job in Indiana, prospective employers can’t ask you to stop smoking cigarettes in order to be hired.

The Indiana Chamber of Commerce wants the state legislature to change that.

If passed, House Bill 1029 would eliminate the so-called “smokers’ bill of rights” law approved in the early 1990s. Employers would be able to require job-seekers to stop using tobacco products at all times as a condition of employment.


 For employers, it’s a dollars and cents issue, said Kevin Brinegar, president and CEO of the state Chamber. Smokers significantly raise health-care costs.

“We think that repealing this legislation would give employers more of an ability to impact the overall incidence of smoking in Indiana and get a better handle on their own health-care costs.”
There has always been a tension between Indiana's "smokers' bill of rights" (which many other states have) and federal regulations allowing employers to charge more for health insurance polices for employees who smoke.

Nonetheless, the news continues to be bad for smokers.  In addition to this assault on protections the legislature previously provided employees who are smokers, smokers remain under assault with more and more bans being passed.  More importantly, those bans are being expanded even to cover outside areas, undermining the claim that the prohibition is related to health concerns from second-hand smoke.  We are rapidly heading for a society where smoking will only be allowed in the privacy of one's home and even that is under assault in some apartment complexes.

Thursday, January 9, 2014

Will Democrats Take Advantage of Mayor Ballard Dropping the Ball on Snow Removal?

On Tuesday and Wednesday, I left my house near 56th Street and Kessler Blvd to go to the Healthplex near Guion and 38th Street. During those trips I traveled on Kessler, Guion and 56th Street. Those streets were all snow covered but clear and easy to travel on at 20 to 25 mph. But last night when it turned out the Marsh Supermarket at 56th and Georgetown didn't have milk, I decided to drive up Georgetown to the Kroger's at 71st.
Indianapolis Mayor Greg Ballard

The experience was surreal.  Almost immediately I encountered piles of snow, and deep ravines in what were in the roadway.  Numerous cars were off the side of the road stuck in drifts.  My speed was 5-10 mph, but usually closer to 5.  Even at that slow rate the ride was incredibly bumpy.  At one point my car, for which I was using the four wheel drive option, began sliding and I almost hit another car stuck in snow by the mailbox.  When I finally arrived at Krogers I found the parking lot in pristine shape and a snow plow at work.

Not sure what the difference was between the roads south of 56th Street where I live and those north of it.  It may have been a coincidence that the Mayor lives in Saddlebrook South, the subdivision next to my older neighborhood which is off 56th Street between Guion and Kessler.  Leaving to go downtown the Mayor would never have had to experience the roads I drove heading north to pick up milk.

The difference in the roads could be a coincidence.  But what is clear is that the Mayor's snow removal effort has been abysmal and he is being criticized by even his supporters. I am not sure what happened.  I do recall a few years ago, back when I drove a Mitsubishi Eclipse, that the snow removal that year was particularly horrible also under Mayor Ballard's watch.  He had been Mayor about 2-3 years at that point.  But this past week has been the worst I ever experienced since I came to Indianapolis in 1986.  We are at Day 5 since the storm and I have yet to see the first snowplow.

By the way, my guess is that you're going to soon hear about the need for Indianapolis to privatize snow removal.  The idea of a single vendor, a 30-50 year contract sounds like what will be proposed.  It will be another effort to put taxpayer money in the pockets of a politically-connected company, with the City losing all control over a basic city service for decades to come.

Fortunately for Mayor Ballard,  Indiana elections are not held in January.  We have another winter to go before the 2015 municipal election and plenty of time during the summer months to forget the horrible performance on snow removal.  It is unclear that a Democratic mayoral candidate could exploit that issue given the election timetable.  If council Democrats are smart, they'd be using the snow removal issue to pound on Mayor Ballard now, to drive up his negatives in anticipation of the 2015 election season.  Democratic councilors had a chance to do that prior to the 2011 election but instead sat on their hands.  But the 2001 election took place under the watch of Marion County Democratic Chairman Ed Treacy who fumbled the ball so badly in the 2011 elections he almost managed to lose the Mayor's office and a majority on the council in a nearly 60% Democratic county.  Marion County Democrats though have a new leader now, Joel Miller, who shows signs of having a better understanding of basic political strategy more than Treacy who at times seemed to be simply coasting on the Democrats' majority in the county.

My guess is the damage to Ballard's reputation because of this year's poor snow removal effort will be short-lived. 

Saturday, January 4, 2014

Carmel Finds New Way to Waste Money; Hires Former Star Writer As $90K a Year Consultant (w/Update)

Dan McFeely
To say Dan McFeely covered Carmel as an Indianapolis Star writer would be a stretch.  McFeely wrote promotional pieces for Carmel that appeared in the Star.  It didn't matter what Carmel Mayor Jim Brainard wanted to do, Dan McFeely was always 100% behind the Mayor.  While other publications and television stations ran critical, investigative stories about Carmel, McFeely's cranked out Carmel PR pieces.

The Indianapolis Business Journal reports that McFeely's reward for his Carmel puff pieces is a $90,000 consulting gig with Carmel's Department of Economic Development, a no bid contract awarded to McFeely's consulting firm which just opened in November.  Okay, it's me who says that's McFeely's reward, not the IBJ.  I just connected two very large dots.

The IBJ details McFeely's work:
In his first month working for Carmel, McFeely Communications submitted an invoice for $2,750, for a nine-day period in November. Services included using Twitter and Facebook "to spread the message of economic development opportuities in Carmel to a world-wide Web audience."

Other professional services included writing press releases about the sale of bonds and about road projects.  McFeely...met with city officials to strategize "on ways to use various local events and activities as tools for bringing more economic development to the city," among several other activities listed.
Wow, that's really tough work.  (Sarcasm.)  By the way, press releases take about 10 minutes to write, often less.

According to IBJ:
City Councilor Luci Snyder wondered aloud at a recent council meeting what qualified McFeely to be an economic development consultant...

Snyder told IBJ McFeely's hiring is part of a broader concern she has about Carmel's economic development department tapping numerous consultants.  Records show the department has 17 economic development consultants who could earn a total of $806,670 annually.
McFeely is the third highest paid consultant for Carmel. I guess not doing your job as a journalist by reporting critically on public officials has its rewards.

The link to the IBJ story is here.  It is unfortunately behind a pay wall.

UPDATE:  Reader Rick Smith sent me the following YouTube link.  Assuming he's talking about a PR person, apparently Mayor Brainard changed his mind.

Friday, January 3, 2014

WARNING: Attorneys Responding to IndyBar Judicial Survey Can Be Charged with Misconduct

The Indianapolis Bar Association just emailed its annual survey.  What IndyBar is not telling attorneys is that if they answer the questions at the bottom of this page they can easily be charged with violating Rule 8.2 by the Indiana Supreme Court Disciplinary Commission. 

The Commission takes the position that Rule 8.2 applies to any public or PRIVATE criticism of a judge, that it applies to even opinions about those judges and that it will be the the burden of any attorney charged with misconduct to prove that his criticism, again even the expression of an opinion, is true.  The hearing officer in my case also takes the position that Rule 8.2 applies to private criticism.  Attorneys need to know that even though Rule 8.2 might look the NY Times v. Sullivan actual malice standard, it is not interpreted that way.  If you criticize a judge, in a public or private forum, that criticism (again even statements of opinions) is assumed false unless the attorney who makes the comment can prove it to be true. 

I would strongly advise attorneys not to answer the survey, but if they do, not to offer any critical comments with respect to judges or judicial candidates.  The Disciplinary Commission would have no problem getting its hands on those surveys and can obtain emailed responses from attorneys as well.  I know very well that the Commission has no problem charging attorneys for criticism in private emails.

Below is the survey:

The Indianapolis Bar Association ("IndyBar") has played a vital role in educating our community about the judicial system since 1878. Today this continues through our effort to evaluate the qualifications of candidates for judicial office in 2014.

Please accept this invitation to review our survey and, if appropriate, complete it. The candidates identified in the survey have indicated their intent to seek judicial office in Marion County in the 2014 election. Your answers should be based upon your knowledge of the candidates' qualities, taking into consideration your direct professional contact with them within the past three years. Please know your responses will be confidential and optional comments, if any, will remain anonymous.

The survey is self-explanatory, and it will remain available to you for completion until 5:30 p.m. Monday, January 20, 2014. Only one response per recipient of this survey will be accepted and only responses from email addresses receiving this survey directly from IndyBar will be counted. This is to protect the integrity of the survey group.

We appreciate your candor and trust your responses will accurately reflect your own opinions. The response of each survey recipient is critical to the success of this survey.

We thank you for your insight, assistance, and recommendations.


The Indianapolis Bar Association Judicial Excellence Committee
Chair: Andrew Mallon
Members:  Tamara McMillian, Ryan Vaughn, Alex Will, Ahmed Young Counsel to the Committee:  Tom John Indianapolis Bar Association President:  Jeffrey Abrams

Not to distract from the point of this article, but I can't help but roll my eyes at some of the members of the committee, including the current IBA President.  It's always been easy to rig these surveys to trash certain candidates and given the committee makeup I have no doubt that would happen this year.

Back to the subject, I have also obtained copies of the questions on the surveys.  Again, a warning. Answering these questions can subject an attorney to discipline, including suspension or disbarrment.


Have you had direct professional contact with any of the following judicial candidates in the past three years?

Cynthia J. Ayers Kimberly J. Brown Rom Byron Karen Celestino-Horseman David J. Certo Annie Christ-Garcia Barbara Cook Crawford Angela Dow Davis Patrick "PJ" Dietrick David J. Dreyer Kurt M. Eisgruber Shatrese M. Flowers Therese A. Hannah Mark A. Jones Christina R. Klineman Jonathan C. Little Sheryl L. Lynch Gary L. Miller Marilyn A. Moores Timothy W. Oakes James B. Osborn Marcel A. Pratt, Jr. Marc T. Rothenberg Todd A. Woodmansee

Yes  no

Because you have had direct professional contact with one or more judicial candidates, please begin the survey. Your candor and insight are appreciated.

How would you rate XXXXX on the following:

1 (Strongly Disagree)




5 (Strongly Agree)

No Opinion

 This person is hard-working.

*How would you rate XXXXX on the following: This person is hard-working. 1 (Strongly Disagree)

This person is hard-working. 2

This person is hard-working. 3

This person is hard-working. 4

This person is hard-working. 5 (Strongly Agree)

This person is hard-working. No Opinion

This person is well-prepared.

This person is well-prepared. 1 (Strongly Disagree)

This person is well-prepared. 2

This person is well-prepared. 3

This person is well-prepared. 4

This person is well-prepared. 5 (Strongly Agree)

This person is well-prepared. No Opinion

This person is efficient at case management.

This person is efficient at case management. 1 (Strongly Disagree)

This person is efficient at case management. 2

This person is efficient at case management. 3

This person is efficient at case management. 4

This person is efficient at case management. 5 (Strongly Agree)

This person is efficient at case management. No Opinion

This person is ethical.

This person is ethical. 1 (Strongly Disagree)

This person is ethical. 2

This person is ethical. 3

This person is ethical. 4

This person is ethical. 5 (Strongly Agree)

This person is ethical. No Opinion

This person is impartial.

This person is impartial. 1 (Strongly Disagree)

This person is impartial. 2

This person is impartial. 3

This person is impartial. 4

This person is impartial. 5 (Strongly Agree)

This person is impartial. No Opinion

This person correctly applies the law.

This person correctly applies the law. 1 (Strongly Disagree)

This person correctly applies the law. 2

This person correctly applies the law. 3

This person correctly applies the law. 4

This person correctly applies the law. 5 (Strongly Agree)

This person correctly applies the law. No Opinion

This person demonstrates the proper temperament and demeanor expected of a judge.

This person demonstrates the proper temperament and demeanor expected of a judge. 1 (Strongly Disagree)

This person demonstrates the proper temperament and demeanor expected of a judge. 2

This person demonstrates the proper temperament and demeanor expected of a judge. 3

This person demonstrates the proper temperament and demeanor expected of a judge. 4

This person demonstrates the proper temperament and demeanor expected of a judge. 5 (Strongly Agree)

This person demonstrates the proper temperament and demeanor expected of a judge. No Opinion

I recommend XXXX for judicial office.   Yes    No

I recommend XXXX for judicial office.   Yes     No

General comments regarding the candidate (optional):