Friday, February 28, 2014

Analysis Shows Indy Eleven Owner's Revenue Claims from New Publicly-Funded Downtown Soccer Stadium to Be Grossly Exaggerated

The Indianapolis Business Journal reports:
The Indy Eleven soccer team would generate just $2 million to $4 million a year in ticket sales, a fraction of the $51 million that owner Ersal Ozdemir has estimated a new downtown stadium would generate including non-soccer events, according to an independent analysis by the Legislative Services Agency.


Ozdemir has said the stadium would generate $5.1 million in ticket taxes. At a tax rate of
10 percent, that’s $51 million in revenue. Ozdemir’s estimate includes other events, while the LSA’s analysis considered only soccer.

Nevertheless, one critic of publicly financed stadiums describes Ozdemir’s figure as “completely insane.”
“There’s no way on earth you could get $5 million a year in ticket taxes from a minor-league soccer franchise even with concerts and other events,” said Neil deMause, the Brooklyn-based author behind the Field of Schemes book and blog.

DeMause noted the average Major League Soccer franchise—a step above the Indy Eleven—does about $8 million per year in ticket sales.

“It baffles me where they came up with that number," he said.


To reach $5.1 million in ticket-tax revenue, the venue would have to sell in tickets alone more than four times the total revenue of the Indianapolis Indians. The well-established Indians reported a record $11.8 million in revenue in 2013, including tickets and concessions.
So Ozdemir overestimated revenue by 20 times the likely figure in order to put taxpayers on the hook for his new downtown soccer stadium?  As incredibly bad as that deal would be, it would still be better than the Broad Ripple Parking Garage/Commercial Center, built for with taxpayer dollars and simply given away to Ozdemir's company Keystone Construction.

Matthew Tully
Of course our resident political columnist Matt Tully, who has proved to be a shill for every corporate welfare proposal ever pushed by the Ballard administration, supported the Broad Ripple Parking Garage development and recently pronounced the Indy Eleven stadium idea as good for taxpayers:
Not all corporate tax breaks are created equal, and it is important to note that the one being proposed to help finance a stadium for the city’s new professional soccer team, Indy Eleven, is not some sort of wild boondoggle. In fact, it’s a sensible, fair proposal that would greatly help the city while not in any way stealing money from schools, roads or other essential city services.

I make that last point because I’ve heard charges of the opposite from some readers and social media critics who are portraying the stadium as another example of misplaced priorities, or a corporate giveaway that could hurt other city services. That’s simply not the case.
Well, at least we know Tully did not major in Math in college.

Thursday, February 27, 2014

Purdue Commits Likely Constitutional Violation by Rejecting Donor's Message That Mentioned "God"

Fox News reports:
Dr. Michael McCracken and his wife made a $12,500 pledge to [Purdue University's] school of mechanical engineering. In return, Purdue, a large public university in Indiana, offered the McCrackens the opportunity to name a small conference room in a lab building. They were also invited to supply language for a plaque that would be installed in the room.

McCracken chose to name the room after his father, Dr. William McCracken, who graduated from Purdue with a Ph.D. in mechanical engineering, and his mother Glenda, who died recently.

The plaque was inscribed with the following message:
“To those who seek to better the world through the understanding of God’s physical laws and innovation of practical solutions. In honor of Dr. William ‘Ed’ and Glenda McCracken.” 
McCracken says the university had rejected the message because it amounted to an “impermissible government endorsement of religion.” He was stunned.


“Purdue is not a God-free zone,” said Jeremiah Dys, a Liberty Institute attorney representing the McCrackens. “Purdue’s ban on any reference to God by a private speaker violates the First Amendment of the Constitution.”
Dys is probably right, though this is one of those close questions that is perfect for a bar examination question. The First Amendment contains two religion clauses.  The Establishment Clause was reinterpreted in the 1947 Everson case and progeny to apply to states and to prohibit government activity that endorses or promotes religion, or religion over non-religion.  The other First Amendment Clause, the one that liberals like to pretend does not exist, has been interpreted to mean that government has an affirmative duty to accommodate religion, even on public property. Sometimes those two conflicts appear to have come in conflict.

This case is very similar to those commencement prayer speech cases.  If a teacher gets up at the high school commencement and gives a prayer that would be a violation of the Establishment Clause.  If a valedictorian gives a prayer as part of her speech, that not only wouldn't be an Establishment Clause violation , it would be a Free Exercise Clause violation if school officials tried to stop her.

Assuming the facts are as presented, Purdue gave the McCrackens the right to draft the message.  Not only is the plaque not an Establishment Clause violation, the refusal to post the donor's message because it mentioned "God" probably interfered with the McCracken's rights under the Free Exercise of Religion Clause.

Tuesday, February 25, 2014

Indianapolis Bar Association Prepares to Trash Unslated Candidates; Critical Comments on Judicial Surveys Subject Attorneys to Discipline

The Indianapolis Bar Association ("Indybar") should be ashamed of itself.  Three candidates for judge have filed to challenge the Democratic slate.  Even though these candidates apparently have not agreed to be part of the Indybar survey, and may not even have provided biographical information, the "Judicial Excellence Committee" has decided to reopen up the surveys to rate the unslated candidates.

Make no mistake about it.  These surveys are not scientific.  Because the biggest law firms in the state are located in Indianapolis, it is easy for those firms, which are part of the party establishment which supports party bosses picking the judges through slating, to dominate the survey process.  Given the low number of responses and the large size off the big downtown law firms, its inevitable that an unslated candidate running against the status quo will be trashed.

Why do this?  These surveys are not designed to be scientific and get honest opinions. They are done solely for the purpose to get a negative rating on unslated candidates that can then be used in party mails to slam the candidates who dare to take on the slate  Both party establishments are in cahoots to protect the slating process because judges are a large source of revenue for the parties.  On the Republican side, each judge candidates has to pay about $25,000 to the county chairman to be endorsed.  Democratic candidates have to pay a similar figure to their party bosses.  (This continues to be done despite the fact that the Judicial Qualifications Commission has opined that judges paying a fee to be endorsed as a candidate is a violation of the Judicial Code of Conduct.)  For judicial candidates David Hennessy, Greg Bowes, and Kim Brown to be nominated without paying the party bosses is to endanger the whole system.  Even though Republicans don't have challenges to the slate this year, they want to defend the system.

If anyone thinks that the survey is not designed to protect slated candidates and trash non-slated candidates, one only needs to look at who sits on the "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
Andrew Mallon is a Democratic attorney who represents the Election Board.  Although Mallon seems like a decent fellow who unfortunately often finds himself defending the very political work of his client, I don't think Mallon would do anything that would help out unslated candidates.  In fact, he was counsel for the Election Board when they voted 3-0 to order unslated House candidate Zach Mulholland's literature seized in violation of the Slating Statute, even though the Election Board (all of which are attorneys) knew full well there was a federal court order prohibiting the Election Board from enforcing it.

As far as the rest of the members of the committee, Tamara McMillian is of counsel with Bingham Greenbaum, one of the big, politically-connected downtown law firms.  Ryan Vaughn is a former attorney with Barnes & Thornburg, which pretty much runs the Indianapolis Mayor's Office where Vaughn is now entrenched as Chief of Staff.  Tom John is former Marion County Republican Chairman who is now a partner with Ice Miller, another big downtown large firms which has profited greatly from city contracts.  Ahmed Young is a deputy prosecuting attorney in Marion County Prosecutor Terry Curry's office.  Since his boss greatly benefited from slating used by the establishment, he's not in a position to take it on.  The only one who on the surface does not appear to have ties to the establishment that strongly supports judicial slating is new IBA president Jeffrey Abrams, a partner at Benesch, Friedlander, Coplan & Aronoff.

Finally, I should repeat the warning I issued earlier this year that any attorney answering the Indybar JEC survey and writing critically of a judicial candidate, even if he or she is not currently a judge, exposes that attorney to a disciplinary violation under Rule 8.2: 
... if you denigrate a judge or judicial candidate's qualifications on a [JEC] survey, you are exposing yourself to a Rule 8.2 disciplinary violation.  Rule 8.2(a) says:
(a)    A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
The Disciplinary Commission takes the position that under Rule 8.2, the burden rests on the attorney to prove that any disparaging statement about a judge's qualifications is true.  The DC also takes the position that that rule also applies to opinions about judges.  So if you answer on a survey that a judge running for re-election lacks good judicial temperament or does not rule in a timely fashion, you can be charged with a Rule 8.2 violation and then it becomes your burden to prove the judge lacks good judicial temperament and does not rule in a timely fashion.  If it turns out you can't, then it becomes your burden to show the false statement was not made "recklessly."  Good luck on that one.  [Research I did later shows the attorney loses this evidentiary contest 98% of the time] The fact you made the statement without sufficient "evidence" will be deemed by the Commission as confirmation of recklessness. 
Don't think for a second that these surveys are private, just between the attorney and the Indianapolis Bar Association, and therefore Rule 8.2 doesn't apply.  While the Disciplinary Commission's reasoning changes from day-to-day, it is clear the DC does not believe any private communications are outside the tentacles of Rule 8.2.  Nonetheless, as the [JEC] surveys are being conducted expressly for the purpose of publishing the results, an attorney would be hard-pressed to argue his or her survey responses about judges and judicial candidates were intended only for private consumption.
Down the road, the Disciplinary Commission could well demand that the [JEC] surveys and other judicial surveys be turned over to them as part of an investigation of attorneys for violating Rule 8.2.  That is no more a far-fetched scenario than the Commission filing a Rule 8.2 charge because an attorney sent a private email criticizing a judge.

Saturday, February 22, 2014

Republicans Block Indianapolis Council's Investigation of Regional Operations Center (w/Update)

By a 5-5- vote, Republicans on the Regional Operations Center (ROC) Investigating Committee Thursday night voted to block the committee from issuing a subpoena to Corporation Counsel and building landlord Alex Carroll to obtain documents necessary for the committee's investigation. The documents requested in the subpoena prepared by council attorney Fred Biesecker are:
1.  Building permits issued by DCE for the ROC project, including those identified as STR11-02900, HTG11-07439, PLM 11-01904, and ELE11-03589, and all amendments and supplements thereto.

2.  All amendments and supplements to the set of plans submitted to the DCE on July 29, 2011.

3.  The set of plans dated October 27, 2011, which was provided to DLZ and discussed in the DLZ report.

4. Violations issued by the IFD on October 12, 2012.

5.  The list of seven requirements for continued occupation of the leased premises, provided by DCE to Alex Carroll in October 2102.

6.  Testing, inspection and maintenance records of the sprinkler and fire alarm systems (per NAPA 25 and 72).

7.  The following documents, which are identified as "Operative Agreements" in the Mortgage, Security Agreement, Assignment of Leases and Rents and Fixture filing Statement, dated as of June 23, 2011, and recorded as instrument number A201100056539:
  • The Note Purchase Agreement, dated as of June 23, 2011, and the amortization schedule attached thereto
  • The Indemnity and Guaranty Agreement
  • The Escrow and Servicing Agreement
  • The Construction Escrow Agreement
  •  The Assignment of Contracts
  • The Construction Completion Guaranty
  • The Hazardous Material Indemnity Agreement
  • The 5.01% Senior Secured Note, due December 15, 2037; and
  • The SNDA Agreement
8.  Fire an life safety or code summary sheet, per 675 IAC 12-6-7(g)(4).

9.  IFD inspection reports and checklists.

10.  Inspection reports by Bruce Baun, Robert Zickler, or any other project manager/contract manager/consultant retained by DPS.

11. The contract or contracts with Hoffman Engineers, P.C.

12.  Any certificates of completion and/or code compliance submitted to any federal or state agency.

13.  All other credit tenant leases entered into by DPS since January 2010.

14. Communications between DPS and Channel 16 relating to the direct given by DPS in 2010 not to record [the] Board of Public Safety meetings or video, and the reinstatement of video in 2012.

15. Detailed project budgets for the project as presented to the Council committee on April 26, 2011, with total estimated costs of $8,643,000 and any subsequent amendments or supplements thereto.

16.  The DPS proposal prepared before Frank Straub's arrival to house the emergency operations center at the old Indianapolis airport.

17.  Documents related to the "preferential square footage rate" for moving the IMPD East District to School #78, as discussed at the May 16, 2011 Council meeting.

18. The memorandum circulated by Ryan Vaughn at the May 16, 2011 Council meeting.

19.  The contract between 401-Public Safety, LLC and DPS, for the amount of $25,064,380.80 as listed on the agenda f the April 21, 2011 Board of Public Safety meeting.

20. The contract with the NFL that required the city to have an emergency operations center in tie for the 2012 Super Bowl.

21. The maintenance agreement referred to in paragraph 20 of the December 2013 settlement agreement.

22.  Exhibits A, C, D, E and F to the Development Agreement.

23.  Drafts of the Development Agreement, and related correspondence.

24. Drafts of the Lease, and related correspondence.

25.  Documents sufficient to show how much money was actually spent on the ROC build-out.

26.  Complete DCE files for all Notices of Violation and Stop Work Orders.

27.  Links to two SharePoint sites established by or for Valerie Washington (these links were provided by DPS to OCC but neither has produced them).

28.  Communications between Gary Coons and the NFL relating to the emergency operations center (these documents were provided by DPS to OCC but neither has produced them).

29.  Eastgate project status report issued by Robert Zickler (this was provided by DPS to OCC but neither has produced it.)

30.  Copy of punch list provided by Alex Carroll (this was provided by DPS to OCC, but neither had produced it.

31.  E-ails to or from Frank Straub, or on which Straub was copied, relating to the ROC, for the period from April 12, 2011 through April 26, 2011.

32.  E-mails to or from Jonathan Mayes or on which Mayes was copied, relating to the ROC, for the period from April 12, 2011 through April 26, 2011.

33.  E-mails to or from Tom Michalak, or on which Michalak was copied, relating to the ROC, for the period from April 12, 2011 through April 26, 2011.

34.  Documents explaining or showing the detailed components of the $3,627,400 in construction "hard costs" and $3,300,000 in "land costs" identified in the materials provided to the Council committee on April 26, 2011.

35. Documents sufficient to show the disbursement and use of the $9,616,000proceeds of the June 23, 2011 loan to 401-Public Safety, LLC.

36.  Communications between the City and Carroll and/or Carroll's affiliated entities, for the period March18, 2011 through June 23, 2011.

37. Documents evidencing or relating to how DPS proposed to pay for the lease.

38.  Documents sufficient to show how much money the City has actually spent so far in connection with the ROC, including but not limited to lease payments, utility and maintenance payments, costs of improvements and repairs, machinery and equipment, furniture and fixtures, contracts (consultants, project managers, outside counsel, financial advisers, etc.) moving costs, fire watch costs, and other goods and services.

39.  Any independent appraisals of the leased premises.

40.  Documents comparing the cost of the leased premises with the costs of other alternative locations considered by the DPS for the emergency operations center or the location of the IMPD East District.

41. Audit reports, internal or external, relating to the City's expenditures on the ROC.

42.  Notices published by the Board of Public Safety in connection with the ROC lease, as required by IC 36-1-10-13.
Almost all of these appear to be public documents that anyone should be entitled to obtain.   The fact that most of them have been requested since mid-November didn't stop Councilor Gooden from suggesting that Attorney Biesecker just didn't spend enough time working with Corporation Counsel and Alex Carroll's attorney, David Brooks, to try to work out the dispute over producing the documents. (Not sure what that dispute is supposed to be. Given the incredible specificity of the list, it's not like they didn't know what documents Biesecker wanted.)  Councilor Sandlin's complaint that Brooks who was in the audience wasn't permitted to speak before the council.

That Republicans are blocking the investigating committee and the public from seeing public documents strongly suggests that there is something to hide.  Haven't we Republicans learned anything from Watergate?  Acting to cover up wrongdoing is often far worse than the wrongdoing that is being covered up. 

UPDATE:  A agenda item for Monday's Council session includes adding an 11th member to the ROC Investigation Committee.  The Republicans' efforts to block an investigation of the ROC is about to end.

Friday, February 21, 2014

IU Professor Tells Chilling Story of Government Reading Her Emails, Illegal Detention at Airport

The Indianapolis Star reports:
Christine Von Der Haar has heard President Barack Obama and national security officials insist the U.S. government isn't spying on ordinary citizens.


Von Der Haar says in a federal lawsuit that she was illegally detained by U.S. Customs and Border Protection agents in 2012 at Indianapolis International Airport. The lawsuit says the detention occurred after government agents intercepted and read emails she had exchanged with a friend from Greece before he came to visit her in Indiana.


Von Der Haar, a lecturer in IU's sociology department, was detained at the airport after she accompanied her friend, Dimitris Papatheodoropoulos, to pick up computer equipment he had shipped to Indianapolis.

Her friend is a Greek national who has worked as a transportation manager for two Olympic Games and the 2011 Arab Games in Qatar.

The customs agents, the lawsuit says, asked the couple if they were planning to marry, then questioned each separately about email communications and the nature of their relationship.
During that questioning, Von Der Haar was confined in a guarded room for more than 20 minutes with no explanation of why the agents wanted to talk with her.

The only way the federal officials could have known about some of the information they questioned Von Der Haar about, according to the lawsuit, was to have "surreptitiously monitored the communications" between the IU lecturer and her friend.

One of the customs agents, the lawsuit alleges, "admitted that employees of the United States had read email communications" between the two longtime friends.

Excellent reporting by Tim Evans, the type of reporting Indianapolis residents want to see from their daily newspaper.

Wednesday, February 19, 2014

Study Shows Nearly One Quarter of Attorneys Licensed in 2000 Are No Longer Practicing Law

Jennifer Nelson of the Indiana Lawyer has an interesting article on a study on the status of the legal profession.  Researchers from After the JD, a project of the American Bar Association, has been tracking a national sample of attorneys who were licensed in 2000.  By 2003, 14.7% were not practicing law. By 2012, that figure had risen to 24.1%.

The After the JD survey linked in the Nelson story included this tidbit:
On a 1-to-5 scale, the 2012 respondents on average rated their satisfaction with their decision to become a lawyer at 3.92. When asked whether they considered law school a good career investment, on a 1-to-7 scale, the average response was 5.55. Finally, when asked whether they would go to law school if they had it to do over again, on a 1-to-7 scale, the average response was 4.91.
My guess is that many of those 2000 licensed attorneys believe that their legal education will be useful in other areas. What most will eventually find out is that their legal background will more often than not limit career choices by over-qualifying the attorney for many non-lawyer positions.

A final point is that while this is a national survey, Indiana is even worse than average.  In a 2011 study, Indiana ranked as the seventh worst job market for attorneys with 3.03 law school grads for every one legal job.  And that is before Indiana Tech came on line as the state's fifth law school to add to the glut of unemployed attorneys.

Law Enforcement Agencies Across State Engage in Shakedown of Mexican Restaurants for Cold-Hard Cash

The Indianapolis Star reports:
Officials are looking to hang on to the more than $3.4 million confiscated last fall during raids at dozens of Mexican restaurants in Indianapolis and other locations across the state.

In a civil forfeiture lawsuit filed Friday, the Tippecanoe County prosecutor's office accuses El Rodeo's owners and other parties in the businesses of obtaining the money illegally. Therefore, the suit claims, the defendants should forfeit the money and return it to the criminal justice system.


Police across the state served search warrants Nov. 18 during raids at restaurants and homes. El ­Rodeo establishments in Indianapolis, Avon, Lafayette, West Lafayette, Richmond, Fortville and Mooresville were searched.

Other Mexican-themed restaurants also were raided, including El Jaripeo eateries in Indianapolis, Lebanon, Frankfort and Zionsville; Los Toros restaurants in Indianapolis; and three La Carreta Restaurant & Bars, in Schererville, Vincennes and Merrillville.

The Tippecanoe County lawsuit ­alleges that perjury and forgery ­occurred through falsified tax documents, business formation documents, employment records and tax returns.

The Tippecanoe County allegations seem more than a bit dubious.  Alleged perjury and forgery on those types of tax and business documents would not generally be something targeted by prosecutors.  However, local prosecutors and law enforcement agencies could well have been incentivized to conduct the raid in order to get their hands on cash for their departments.   Under Indiana law, they don't have to pursue criminal charges against these restaurant owners.   Instead in a civil case, those owners will have to hire their own attorneys and face a lower standard of proof, all the while facing the possibility of being criminally prosecuted if they don't give in and let the prosecutor and law enforcement agencies keep the money.  People for whom English is a second language are even more intimidated by this type of lawsuit..  Many of those who are hit with civil forfeiture just end up walking away from their cash and property rather than try to fight.

Nonetheless, under Indiana law, law enforcement is only entitled to keep civil forfeiture proceeds to cover the cost of the action.  The balance is to go to the Common School Fund.  My research updated a couple years ago, showed that officials in Tippecanoe, Marion, Hendricks, Madison and Morgan counties, all places where these raids took place, are simply pocketing 100% of the money in contravention of the law.  The article does, however, note a raid took place in Richmond, Indiana.  In that county, the Wayne County Prosecutor was one of the few prosecutors in the state who made it a point to determine law enforcement costs in civil forfeiture actions in accordance with the law and to cut a check to the Common School Fund for the balance.

Tuesday, February 18, 2014

Mother Shot at Day Care Had Filed to Remove Her Case From "Lazy Judge"; Claimed Judge Retaliated Against Her

The weekend before last, I was contacted by a potential client, Shirley (Talia) Justice,  who wanted to do a Rule 53.1 lazy judge praecipe (often erroneously called a "motion") to remove Marion County Judge Patrick McCarty from her case.  She had had a modification of custody hearing in November,  Nearly three months had passed and there was no ruling.  I told her because of Judge McCarty's role in trying to get me disciplined for sending out a letter attempting to educate Marion County judges on what procedure they were supposed to follow at the close of a civil forfeiture case (a determination of law enforcement costs with the balance going to the Common School Fund), I could not represent her.

The first thing on Monday, February 10, 2014, Ms. Justice filed, pro se, a Rule 53.1 lazy judge praecipe to remove Judge McCarty.  The role of the Clerk's employee, who is embedded in the judge's office, is ministerial only - verify that there had been no ruling since the motion was filed or hearing held and that over 30 days had passed.  If those facts are present on the docket, the clerk certifies it to the state court administrator to order the judge removed and a special judge appointed.

Instead of following that procedure, someone in the office tipped off the judge who put together an order that was entered on the docket ahead of the lazy judge praecipe.  In March of 2009, Ms. Justice had been awarded primary physical custody of her child with legal custody being shared.  This newly entered order though drastically changed the custody situation.  Father was awarded sole legal and physical custody of the minor child and the mother was denied any additional parenting time.  The entry from the docket is below:
Order Modifying Custody, Parenting Time and Child Support: Father shall have sole legal and physical custody of [minor child.]. Specific parenting time set out in the Order; Mother shall not have the opportunity for additional parenting time. Mother shall have no overnight parenting time. Mother shall not allow any male to be present during her parenting time, except at public places. Kathy Thornton (paternal grandmother) shall serve as temporary custodian in the event of incapacity or death of Father. Mother to pay $127 per week in support effective Nov 8, 2013. Father to provide health insurance; Father to pay 1st $568 of uninsured expenses and any remaining expenses split 50-50. Father may claim child for tax purposes. Mother to pay $1,454 in attorney fees or it may be reduced to judgment. Copies of order mailed. 
Ms. Justice contacted me and complained about her lazy judge praecipe being "denied" and Judge McCarty's order that she felt was retaliatory.  She again asked me to represent her but I told her I couldn't.  I instead told her to notify the State Court Administrator and let them know what happened.  To the credit of the people in that office, the case was removed from Judge McCarty:
Order Received from the Indiana Supreme Court
Accordingly, submission of this case is withdrawn from JUDGE Patrick L. McCarty effective as of the 8.20 a,m. February 10, 2014. This matter will be submitted to the Indiana Supreme Court for appointment of a special Judge or such other action deemed appropriate by the the Court. In accordance with Ind. Trial Rule 53.1(E) you must enter this determination in the Chronological Case Summary of the case and notify, in writing. the judge and all parties of record in the proceeding.    
Order Signed:  02/13/2014
The last contact from Ms. Justice came last Friday when she asked me the effect of the Supreme Court's action.  I told her it wasn't clear, but it should be that the order entered by Judge McCarty is vacated.  The Supreme Court order, however, didn't address that issue.

Unfortunately, the story doesn't have a happy ending.  USA Today reports:
A woman was in critical condition Tuesday after she was shot multiple times in the parking lot of a day care center, according to police.   
None of the 17 children at the Eagle View KinderCare Learning Center were injured.   
The victim, Shirley Justice, 31, was able to tell police that her ex-husband, Christopher Justice, 33, was the person who shot her.   
Police are looking for Christopher Justice, described as a black male about 6' 1" and weighing 180 pounds. He is believed to be driving a black Ford Fusion with an "In God We Trust" license plate.   
Initial reports indicated Shirley Justice sustained multiple gunshot wounds in her chest area, but was talking to medics while in en route to the hospital at 7:45 a.m.   
The shooting occurred about 7:20 a.m. at the center located in a business and commercial area. The victim was found on the ground in the parking lot by a center manager, police said.

Marion County Criminal Court Judges Should Issue Mandate to Block Move of Courts To Old Airport Property

In recent weeks, there have been a number of reports about Indianapolis Mayor Greg Ballard's desire to construct a Justice Center that would include all the Marion County criminal courts, the prosecutor's office, the public defenders officer, sheriff and the jails.

In a report recently published, fourteen locations with one at the on the old airport property near the county line being the preferred location. Instead of borrowing the money to build the facility, the plan is to involve a private company to build and own the facility and then the city would rent out space from the private company.  Indianapolis has already started entertaining proposals from various companies to build the Justice Center.  Although the city is mum on which company has submitted proposals, Corrections Corporation of America, which is a big contributor Mayor Ballard and, even more importantly, is represented by the law firm Barnes & Thornburg which has enormous influence within the Ballard administration, is heavily favored to win what will be an extremely lucrative contract.  Located near the airport, CCA would be positioned to also land federal corrections contracts.

While the idea of building a Justice Center initially enjoyed support including an editorial by the Indianapolis Business Journal and a supporting letter from former Supreme Court Justice Ted Boehm (which is behind a paywall), the idea quickly fell out of favor when the city favored the airport site.   At present, it would appear that the idea of moving the criminal courts and other offices to the far edge of the county is opposed by virtually everyone who works in the Marion County legal system. The nature of a criminal cases is that you often have a series of very brief hearings, maybe as brief as five minutes, that have to be attended by both the attorney and the defendant.  Attorneys, most of whom who are located downtown will have to take a 50 minute round trip to the Justice Center for those five minute hearings.  Many downtown attorneys will simply opt not take criminal cases or will have to raise their rates significantly.    As a result, many defendants who don't qualify for a public defender might struggle to find a private attorney to take their case.
The  location of the court will be a major inconvenience to everyone involved.  Defendants will have to travel considerably farther to go to court.  Some may not be able to make the trip. Then you have the fact that witnesses and jury pool members are also greatly inconvenienced by the airport location.  You also have an entire economy built around the legal system downtown.  Things like restaurants and the City Market will be hit hard by the loss of lunch business.

In 2013, Marion County Center Township Small Claims Court judge Michelle Smith Scott issued a mandate that blocked the township's attempt to make her move from the City-County Building to the Julia Carson Center on Fall Creek Parkway.  She cited the loss of a centrally-located facility in the township as creating a burden on people who would visit the court. The Indiana Supreme Court agreed with some language that is relevant to the attempt to move criminal courts from a central location to the far edge of the county:
As we previously observed, an overriding issue presented in this case is the fundamental question of access to justice. Indeed, providing such access is a constitutionally-mandated function of Indiana courts. See Ind. Const. art. 1, § 12 ("All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay."). It is undisputed that the Small Claims Court is presently centrally located in Center Township and is in close proximity to all (and within easy walking distance to most) public bus routes in the township and Marion County. Further, there is no dispute that the court is located in the same building as multiple other Marion County Courts and public services frequently used by litigants.
Unlike in the Center Township Small Claims Court where both the township and the judge had a say in the location of the court, it is not clear how the Mayor of Indianapolis has the authority to the criminal courts judges, the prosecutor, and the Sheriff, all separately elected officials, to relocate to the county line.  Mayor Ballard is not their boss. 

The Center Township Judge successfully made the case that people having to go to the Carson Center instead of the more centrally located City-County Building would be a hardship.  An even stronger case can be made about moving the criminal courts out to the Hendricks County line.  The criminal court judges should follow Judge Michelle Smith Scott's lead and issue a mandate to block any move of their courts to the old airport property.

Monday, February 17, 2014

"Field of Schemes" Author Says Publicly-Funded Indianapolis Soccer Stadium Would Generate Little Tax Revenue, Leave Taxpayers Holding the Bag

Neil deMause, the author of the excellent book, Field of Schemes, and blog of the same name takes a look at Indy Eleven's owner Ersal Ozdemir's presentation to the House Ways and Means Committee and finds it contained outrageous demands and phony numbers:
Speaking of outrageous demands, expansion minor-league soccer team owner Ersal Ozdemir went before an Indiana state house committee on Thursday to ask for $87 million to build a major-league-ready stadium for his Indy Eleven, and this happened:
Several members of the House Ways and Means Committee thanked Ozdemir for investing in the North American Soccer League franchise Indy Eleven, which begins its inaugural season in April. While members had questions about the proposed financing of the 18,500-seat venue, they did not question its impact on other taxpayer-supported venues downtown.
(That reference to “impact on other taxpayer-supported venues” is a reference to the fact that the stadium is proposed to be a concert venue, which could end up drawing acts away from the Pacers‘ Bankers Life Fieldhouse.) 
The funding plan for the proposed stadium would require the state to provide $5 million a year to pay off the stadium bonds, drawn from ticket taxes (estimated at $5.1 million a year) plus sales and income taxes paid by the team (estimated at $4.1 million a year). The latter would largely be a taxpayer subsidy, thanks to the substitution effect, but if the entire nut can really be provided by ticket tax money, that wouldn’t be so bad, since ticket taxes largely come from team owners’ pockets (by lowering the face value that teams can get away with charging).
That’s assuming that the $5.1 million a year projection for ticket taxes is legit, of course. If Indy Eleven tickets are taxed at the current 10% rate that other teams are charged, that would require $51 million a year in ticket sales. The average MLS team sells about 300,000 tickets a year, at an average of $26 a ticket, which comes to … just shy of $8 million. That would generate just $800,000 in ticket taxes, leaving $4.2 million a year to be paid off by sales- and income-tax kickbacks.
The members of the House Ways and Means Committee deserve criticism for not spending the "two minutes" that deMause said spent (according to his Twitter comment) to figure out that Ozdemir's numbers don't add up.

Saturday, February 15, 2014

Muncie City Judge Apparently Found Man Guilty of Contempt and Sentenced Him Without His Even Being Present

Curtis Westbrook
As a follow-up to my story about Muncie City Judge Dianna Bennington who gave a man, Curtis Westbrook, a 10 day sentence for passing a letter criticizing that the judge claimed disrupted her courtroom, the Muncie Star this morning suggests that Westbrook might have been found guilty and sentenced to 10 days in jail without his even being present:
..the 55-year-old [Curtis] Westbrook -- who on Tuesday was arrested and began serving a 10-day jail term imposed by Bennington after she found him in contempt of court -- maintained City Court was not in session when he entered the auditorium on either Monday or Tuesday.

Westbrook also insisted he had never encountered the judge on either day.

A City Court document created on Tuesday reflects Bennington a day earlier had found Westbrook "guilty of direct contempt of court by creating confusion that disturbed the business and proceedings of the court by distributing a letter to undermine the authority of the court and to provide legal advice to defendants in the courtroom."


When he returned to the court on Tuesday -- this time to attend a hearing in his son's case, not to pass out letters -- Westbrook said baliff [sic] Hahn passed on a warning from the judge.

According to Westbrook, he was told if he entered the auditorium and sat down, "and she comes in, and the court opens up, you're going to be arrested for contempt of court. Because you're disrupting the court. You're giving advice."

Westbrook said he entered the courtroom to chat briefly with his son -- again, before the judge took the bench and began the day's proceedings -- but purposely did not sit down.

According to Westbrook's account, he then left the auditorium and briefly visited another office in City Hall. When he then returned to the building's main lobby, near the entrance to the auditorium, he was taken into custody by several city police officers and Hahn, and informed he had been found in contempt of court.

Westbrook said he was not told how long he was to remain in jail, learning of his 10-day sentence only when he read an article in Thursday's edition of The Star Press.
As I have noted in my previous article on the subject, Judge Bennington clearly doesn't understand the difference between civil and criminal contempt. Civil contempt is remedial in measure and could have been used to stop Mr. Westbrook from passing out the letter in the auditorium/courtroom and to even confine him if necessary to keep him from disrupting court proceedings.  But that's it.  By proceeding to "sentence" him for his conduct, Judge Bennington crossed the line into criminal contempt.  If Judge Bennington wanted Westbrook prosecuted, and sentenced to jail, she should have sworn out a complaint to the Delaware County Prosecutor. The Prosecutor has absolute discretion as to whether to file criminal contempt charges.  If the charges are filed, Westbrook would have been brought before a judge (most certainly not Judge Bennington who could well be a witness in the case) and advised of his rights, including the right to a public defender if he can't afford an attorney, the right to present evidence and cross-examine witnesses, etc.

I received a copy of the chronological case summary relating to Mr. Westbrook's contempt. The action is styled Muncie City Court v. Curtis Westbrook and given a miscellaneous civil cause number.  The entry doe not indicate that Mr. Westbrook was ever brought before the court or provided any due process whatsoever before Judge Bennington imposed a 10 day sentence.  That would be a problem.  Last time I checked, both the United States and Indiana Constitutions require due process of law before someone is deprived of his or her liberty.

While Judge Bennington has immunity from being sued for Mr. Westbrook's almost certainly illegal incarceration, the City of Muncie and the Delaware County Sheriff don't enjoy that same level of immunity.  She also has handed her political opponents an issue to make the claim she lacks the temperament and judgment to be a judge.

Friday, February 14, 2014

Sen. Mike Delph's Tweets Elicit Ill-Advised Piling on By HJR-3 Opponents

The Facebook/Twitter universe currently features attacks on Senator Mike Delph for tweets he sent out following the failure to amend HJR-3, the amendment that would write into the state's constitution that marriage is between a man and a woman, and thus not include same sex couples.  Senator Delph's Twitter comments was even deemed newsworthy by the Indianapolis Star.
State Senator Mike Delph

I reviewed Senator's Delph's tweets before writing this column.  I think their offensive nature is grossly exaggerated. Some of the things Delph said are 100% correct, such as the fact that religious discrimination is becoming increasingly prevalent.  But as to other Tweets, the Senator shouldn't have said or phrased in a less offensive manner certain things he did say.  In the old days when it took time for people to write out their thoughts, an editing process would take place that tempered those thoughts.  Not anymore with the new media. We see instantly what people are thinking.

As for my opinion on same sex marriage, I believe encouraging people to enter into monogamous, committed relationships is good for society, even if those relationships are same sex.  If it is a sin, then that's something for a higher power to sort out.  We don't ban something simply because it is a sin.  There has to be some secular purpose served.  The case was never convincingly made that allowing same sex couples to marry undermines the institution of marriage.

Although we disagree on HJR-3, I find the attacks on Mike Delph's tweets by the HJR-3 supporters to be extremely foolish and short-sighted.  Sen. Delph is one of the most decent, honest, hard-working legislators in the General Assembly.  He, unlike almost everyone else down there, is in public service to serve the public, not enrich himself or his friends. He does not put his vote up for sale and stands up for what he believes in. This includes often taking on his own Republican Party when he thinks they're doing things that hurt the public.

Sen. Delph has been behind many of the "good government" measures that have been introduced in the legislature during the last few years.  This includes this session his authoring measures to end straight ticket voting in Indiana and to establish a Commission to redraw district lines instead of the political parties.  (He also authored a bill to stop the downloading of cell phone information by police.)  The straight ticket and redistricting measures are opposed by the GOP establishment.   Delph had nothing to gain by taking on his own party by authoring those proposals.  He did so because he thought they were the right thing to do.

Last night I read a tweet by a Republican who called Indianapolis Mayor Greg Ballard "America's Mayor" and a "Rock Star."  As a conservative Republican, I found the labels offensive. I couldn't help but tweet back to the group of tweeters which, in addition to the Mayor, included GOP Marion County Chairman Kyle Walker and Ballard's very strangely overpaid political consultant Jennifer Hallowell.  Mayor Ballard has no core political beliefs whatsoever and has governed as the most liberal Indianapolis mayor in my lifetime  He has expanded corporate welfare beyond all previous administrations, increasing taxes on hard working men and women while shortchanging city services.  Those tax dollars end up in the pockets of contractors and law firms which, not coincidentally, kick some of that money back in the form of large contributions to the Mayor's campaign, i.e. Indianapolis' infamous pay-to-play system.  There is not a tax or fee that Ballard has not proposed raising in his six years in office.  Now he has a new angle for corporate giveaways - borrowing from future generations to fund current giveaways.  Ballard has done long term damage to this city and the fortunes of the Marion County Republican Party.   It will take decades to recover.  Sen. Delph, who cares about the public and future generations, would never put his office up for sale as Mayor Ballard has.

But what about Mayor Ballard being on the right side of HJR-3?  In the political fox-hole that is politics, I would much rather have a Sen. Delph by my side than a Mayor Ballard.  We may not always agree on some issues, but at the end of the day I know Sen. Delph is a man of integrity, someone I can trust is doing what he is doing not because of selfish motives, but because he thinks it is right.  That is something to be valued in today's politics and why the HJR-3 supporters need to cut Sen. Delph some slack.

Thursday, February 13, 2014

Muncie City Judge Has Man Jailed for Passing Out Letter Criticizing Her

It is a story that might get national attention as an example of an abuse of judicial authority.  The Muncie Star-Press reports:
A critic of Muncie City Court Judge Dianna Bennington is in the Delaware County jail after being found guilty of contempt of court.

Curtis L. Westbrook, 55, was arrested Tuesday, a day after the contempt finding.

Curtis Westbrook
According to a document provided to The Star Press by a court employee, Westbrook was sentenced to 10 days in jail Monday after the judge ruled he was "creating confusion that disturbed the business and proceedings of the court by distributing a letter to undermine the authority of the court and to provide legal advice to defendants in the courtroom."


Westbrook in recent weeks has distributed a letter calling the judge -- who was elected to the bench in 2011 -- "One-Term Bennington" and referring to her "fiasco judgeship."

A member of Westbrook's family was charged in Muncie City Court with domestic battery in January 2013.

Curtis Westbrook has maintained his family member, and others, have not been informed in advance that City Court trials are bench trials, with Judge Bennington, rather than a jury, deciding a defendant's guilt or innocence. Cases of City Court defendants seeking jury trials are transferred into the Delaware Circuit Court system.

The letter distributed by Curtis Westbrook -- and dropped off recently at The Star Press -- calls the process by which City Court cases are transferred a "well-kept secret." He also maintains Bennington and others have a financial motivation to "keep the City Court litigants in the dark concerning their right to a jury trial," and suggests defendants could file misconduct complaints against the judge and attorneys involved in their prosecution.

"Finally, remember this come election time!" the Muncie man concludes.

According to Delaware County jail records, Westbrook is scheduled to be released at 8 a.m. Feb. 21.
Judge Bennington clearly doesn't understand the difference between criminal and civil contempt. The Court of Appeals in Mitchell v. Stevenson, 677 NE 2d 551, 560 (Ind. App. 1997) explains the difference: 
A civil contempt s a violation of a court order resulting in a proceeding for the benefit of the aggrieved party. As such, any type of penalty in a civil contempt proceeding must be coercive or remedial in nature. In contrast, a criminal contempt is an act directed against the authority of the court which obstructs the administration of justice and which tends to bring the court into disrepute.  Thus, any type of penalty is punitive in nature because its purpose is to vindicate the authority of the court and it benefits the State rather than the aggrieved party. 
Certainly Judge Bennington has the right to, if necessary, take Westbrook into custody to protect her courtroom from being disrupted.  That's a remedial measure for civil contempt.   But the fact is Westbrook had already left the courtroom. He was taken into custody when he came back.  Judge Bennington wanted Westbrook punished for his previous conduct in interfering with her courtroom.  That is clearly criminal, not civil, contempt.

Because the allegation constituted criminal contempt it was the prosecutor's call whether to bring contempt charges and any such charges have to be brought in the name of the State of Indiana.  In the proceeding, Westbrook should have been afforded due process, including the right to the appointment of a public defender if Westbrook could not afford an attorney.  But Judge Bennington's city court does not handle criminal matters and it is unlikely that Westbrook was advised of his rights.  Further, the impropriety of Judge Bennington sitting in judgment of a harsh critic of hers is frankly off the charts. 

The bottom line is that Judge Bennington appeared to very offended by Westbrook's public criticism and exercised extremely poor judgment in trying to silence her critic. The irony is that while Mr. Westbrook's letter criticizing Judge Bennington would have had little effect on her political prospects for re-election, Judge Bennington's abuse of her authority has created a much bigger issue that is more likely to cause her to lose re-election.

Judge Bennington would be well advised to seek legal counsel who I'm sure will advise her: 1) to admit she made a mistake; and 2) to release Mr. Westbrook from jail...immediately.   An apology to Mr. Westbrook would also be in order.

Seventh Circuit Hears Mulholland Slating Case; Oral Argument Suggests Reversal of Trial Court's Dismissal is Likely

Today a three judge panel of the Seventh Circuit (Judges Richard Posner, David Hamilton and Joel Flaum) heard the case of Zach Mulholland v. the Marion County Election Board.  The Indiana Law Blog has made the audio available on-line.  It lasts about 20 minutes.

Some background to that lawsuit.  When I ran in the Republican  primary for Clerk in 2002 , I had a handout at the poll that featured my name and Joe McAtee's.  McAtee was running for Marion County Sheriff, a position he had held earlier for two terms.  McAtee like me had not been slated by the party.   My handouts, as well as the Indiana Right to Life's list of endorsed candidates, were seized as being in violation of Indiana's Slating Statute which prohibits candidates from handing out literature with multiple names on the handouts unless the literature is first filed with the Election Board along with written approval from the candidates who are featured on the literature.
Zach Mulholland

After the primary, Jim Bopp's law firm out of Terre Haute contacted me about being a plaintiff in a free speech case challenging the Slating Statute.  I agreed to participate.  A lawsuit was filed with me as the plaintiff along with Indiana Right to Life which had its list of endorsed candidates seized at the same primary.  Our complaint asked that the Slating Statute be declared unconstitutional and the Board enjoined from enforcing it.  The Marion County Election Board, which was represented by the Attorney General's Office, entered into an agreed judgment, a consent decree stating that the law was unconstitutional on its face and the Board would be enjoined from enforcing it.  The case's citation is Ogden v. Marendt, 264 F. Supp. 2d 785 (S.D. Ind. 2003)

Nine years later Zach Mulholland was running for state legislature against Dan Forestal in the Democratic primary in House District 100.  It was shaping up to be a hotly contested race.  Forestal was the slated candidate, but on primary election day Mulholland had every polling place covered with volunteers handing out his literature. 

Mulholland's literature included one handout that suggested voting for President Obama, Joe Donnelly, Andre Carson, John Gregg, and Zach Mulholland..  (Mulholland, an attorney, knew that the Slating Statute had been held to be unconstitutional in my case.)  On the day of the primary, the Election Board met and voted 3-0 to seize Mulholland's literature for violating the Slating Statute, despite the fact that the Board had agreed that law was unconstitutional and the Board would not try to enforce it.  Democratic Party officials went out to the various voting locations and seized Mulholland handouts from the candidate's volunteers.  Mulholland lost by 730 votes to Forestal.

Following the primary, Mulholland retained the ACLU to file a lawsuit. But, in a development that proved perplexing to the Seventh Circuit judges, the ACLU filed the lawsuit, asking for an injunction against the Board enforcement of a statute already declared unconstitutional and for damages, was filed in state court rather than the federal Southern District of Indiana which had entered the injunction in 2012.  Meanwhile the Election Board attempted to conduct an investigation and ordered Mulholland to appear.    Later, Mulholland filed a federal lawsuit again asking that it, again, be declared unconstitutional and that the Election Board, again, be enjoined from enforcing it.

In September of 2013, District Court Judge Sarah Evans Barker dismissed Mulholland's federal lawsuit citing the abstention doctrine set forth by the United States Supreme Court in Younger v. Harris, 401 U.S. 37 (1971).   Basically that case holds that when there is a state court proceeding any subsequent federal litigation on the same topic cannot proceed.  There is, however, an exception to the Younger doctrine namely extraordinary circumstances like "bias or harassment."

In what I found most surprising though was that Judge Barker bought the Election Board's far-fetched argument that the decision in my case that the Slating Statute was facially unconstitutional and the Board would be enjoined from enforcing it, only applied to me and Indiana Right to Life.  For everyone else, according to the decision the statute was still in effect and enforceable.

A quick break for an explanation of some terminology.  There are basically two types of constitutional challenges.  You can have an "as-applied" challenge to the constitutionality of a law. That means the law is unconstitutional when applied to a certain set of facts.  In such a circumstance the statute survives but its application is limited.   A "facial challenge," on the other hand, refers to a challenge that the statute is always unconstitutional, that the facts of the particular case do not matter.  In the latter situation, the statute is not limited but rather voided

At the outset of the Seventh Circuit argument, the judges indicated that the should assume that the district court was wrong in applying Younger to dismiss the case.  Judge Hamilton remarked that "the absence of any constitutional defense to the law, the consent judgment and so on, this frankly looks a lot like harassment."  That is an exception to Younger.   As to Judge Barker's conclusion the statute was facially unconstitutional only as to me and Indiana Right to Life, Judge Hamilton was having none of it telling the Election Board's attorney "You're in a very tough spot.  [The statute] can't be facially unconstitutional only to Mr. Ogden."  Indeed, how could it be? That makes no sense.

The weakness of Mulholland's case for the judges was their struggle with what to do with the state court action. In rebuttal, Ken Falk for the ACLU said he filed in state court because he viewed it like a small claims court action, that given the federal court judgment finding the law unconstitutional and the Election Board was enjoined from enforcing it, he would get a quick settlement. With all due respect to Falk, he did not understand that it did not matter to the Election Board that a quick settlement was in the public's best interests.  There were Democratic and Republican attorneys who wanted to make a lot of money billing the public and the Mulholland lawsuits were just the ticket to do that.  In July of 2013, the Indianapolis City-County Council approved an additional $150,000 in defense of this lawsuit in defense of this indefensible lawsuit.  It should be noted that Marion County Clerk Beth White, who did vote for the Mulholland enforcement action, has opposed the partisan outside counsel who are running up these bills.

One thing that was not addressed is what to do with future violation of the law by the Election Board. Every member of the Board at the time was an attorney, including the Marion County Clerk. They all knew about the 2003 consent decree finding the Slating Statute and the agreed judgment enjoining its enforcement.  Yet they voted 3-0 to enforce it anyway and then enlisted an army of folks, some of who were attorneys who knew about the 2003 injunction, to go out and seize Mulholland's material.  As of present, there have been no consequences for these folks deliberate violation of a federal court order.  In fact, their violation of the court order has resulted in very profitable litigation for politically connected attorneys while at the same time the Board got exactly what it wanted - a non-slated candidate's literature seized.  A few elections from now, what is to stop the Election Board from once again attempting to enforce the unconstitutional Slating Statute?  Unless the federal court imposes sanctions, the answer is nothing.  They will do it again. 

Thursday, July 18, 2013, Taxpayers Should Not Be Billed for Election Board's Vote to Enforce Law in Violation of Federal Injunction

Monday, May 7, 2012, Reminder: Anti-Slate Law Was Determined to Be Unconstitutional in Ogden v. Marendt
Saturday, June 2, 2012, Marion County Election Board Sued for Violating Federal Injunction Prohibiting Enforcement of Anti-Slate Law Declared Unconstitutional 

Friday, June 8, 2012, Indianapolis Star Reports on Election Board's Violation of Federal Injunction to Seize Unslated Candidate's Literature

Tuesday, February 11, 2014

Indiana Supreme Court Strikes Down Evansville Smoking Ban; Indianapolis Ban Likely to Fall Within Days

Today, the Indiana Supreme Court ruled that the Evansville smoking ban which prohibits bars and taverns from permitting smoking violates the Indiana Constitution because the ordinance exempts riverboat casinos.  In particular, the court focused on the state equal privileges and immunities clause, Indiana's version of the federal equal protection clause. But as the Court demonstrated today, Indiana's equal privileges and immunities clause has considerable more bite than its federal cousin.

In the 3-2 ruling, the Court concluded:
We hold that the Amending Ordinance, on its face, violates the Equal Privileges and Immunities Clause of the Indiana Constitution because the disparate treatment—exempting floating casinos with "riverboat" statutory gambling authorization but not land-based bars and clubs, including those with gambling authorization from other statutory sources—is not reasonably related to the inherent differences between the divergently-treated classes.
Following the oral argument on the Evansville case which appeared to be very favorable to the bar owners, Attorney Mark Small drafted a complaint on behalf of Indianapolis bar owners that tracked the Evansville complaint.  That complaint has sat idle pending the outcome of the Evansville case. Today, Small filed for an emergency injunction against the Indianapolis ban based on the Evansville case.

Although smoking ban plaintiffs lost in the federal court system, those courts shied away from addressing the issue of Indiana's Constitution, namely the state equal privileges and immunities clause.  State supreme courts have absolute authority when it comes to interpreting their own state constitutions.

Indianapolis' smoking ban has a gambling facilities exception like Evansville, i.e. an exception that applies to the downtown Indianapolis off-track betting facility owned by Churchill Downs. But the exceptions in the Indianapolis ban actually go further than Evansville.  Cigar and hookah bars are exempted from the Indianapolis ban and veteran's halls can also takes steps to be exempted.  The same legal principle that led to the Evansville smoking ban being struck down is also present in the Indianapolis.  The supposed health dangers of secondhand smoke in a bar and tavern is no different than in an OTB cigar bar, hookah bar or veteran's hall.   As such, Indianapolis smoking ban also runs afoul of Indiana's equal privileges and immunities clause.

It would appear that the only choice the Indianapolis City-County Council has to try to preserve the ban is to pass a new ordinance that bans smoking at all 21 and over establishments that serve alcohol.  Last time there wasn't enough votes for such a comprehensive ban.

Indianapolis Council Republicans Block Investigation of Regional Operating Center

Over at Advance Indiana, Gary Welsh has a lengthy story about goings on the Indianapolis City-County Council's ROC Investigating Committee.  Gary's story has a clip of an exchange between Republicans and Democrats on the committee in which Republicans voted to block giving Council attorney Fred Biesecker the authority to subpoena documents from Corporation Counsel and Alex Carroll's company that entered into the lease with the city.  The later is represented by Republican political operative David Brooks.
Councilor Ben Hunter

Both Brooks and City Legal are refusing to provide documents that was involved in the ROC deal.  Republicans on the committee hemmed and hawed suggesting that the subpoena was not in the right form.  Wannabe attorney Ben Hunter said during the meeting that he did a "Wiki search" and found the document was not in the right form.  Actual attorney Aaron Freeman also suggested the subpoena was in an improper form and would be quashed by a court.   I can't figure out if Freeman was  blowing smoke or if he actually doesn't understand how subpoenas work in civil cases.  Republican councilor Marilyn Pfisterer then started talking about focusing instead on getting the original lease document.  It is not quite clear if she thinks the copy they have is somehow fraudulent.  Regardless by a 5-5 vote the subpoena was blocked.

Some observations.  First of all, there is no specific format that has to be used for a subpoena, despite wannabe Attorney Hunter's suggestion.   Second, Attorney Biesecker wasn't presenting to the committee the subpoena, but rather a request that he be authorized to issue a subpoena for documents.  Third, I'm not so sure a court would have the legal authority to quash a subpoena issued by a legislative body.   Finally, I must say Fred Biesecker is a very impressive attorney.  No matter the political nonsense going on around him and the cheap shots at him personally, he always does his job in a very objective, dispassionate manner.  The Council is lucky to have him.

But here is something important that I didn't hear anyone on the Committee address. When the city is a party to a document, that document is a public record under the open records law.  A subpoena shouldn't even be needed to get the city to turn over those documents.  Any reporter or member of the public should be able to obtain those documents.  Even as to the documents solely between Carroll's company and non-public entities (such as Fifth Third Bank) as to the deal, there is another open records law that makes those documents public.
Councilor Aaron Freeman

Buried in Welsh's article is a comment deserving of closer examination. 
Someone ordered the destruction of all video recordings of the Board of Public Safety during which Straub made presentations concerning the ROC agreement. 
Haven't found that yet on the video, but that could be a crime.

I totally agree with Gary's summation:
The Republicans' decision to block this investigation leads me to conclude that they have concluded within their internal discussions--after they booted the only independent-thinking member from their caucus, Councilor Christine Scales--that serious criminal wrongdoing took place and they are doing everything they can to prevent those facts from coming to light to prevent harm coming to Republicans in the 2015 municipal election. It's time for professional prosecutors in this town to step up and do what they should have done months ago and start hauling these stone-walling public officials before a grand jury where they will have to testify under penalties of perjury. Perhaps the Republicans on the council don't care that tens of millions of our public tax dollars were pilfered in this fashion, but this Republican sees it quite differently and expects that those responsible for allowing this to happen are held to account for their actions or inactions. It's obvious if this investigating committee is going to have any success, then it will be necessary for the Democratic-controlled council to adjust the membership on the committee to give the Democrats a majority of the membership rather than an even split as it currently is. It's obvious the Republicans have no intention of carrying out this investigation in good faith. The council leadership should start by booting Ben Hunter from the committee, who the Republicans should have had the good sense not to appoint to the committee from the outset due to his obvious conflict of interest. 
We Republicans need to be better than this or we don't deserve to have the Mayor's Office or a majority on the Council.  In the meantime, the Democrats should replace one of the recalcitrant Republicans on the committee.   Better yet, it's time for Marion County Prosecutor Terry Curry to get involved.

Monday, February 10, 2014

Court of Appeals Has Ruled that Indianapolis Ordinance Cannot Require Property Owners to Clear Public Sidewalks of Snow and Ice

This year, more than any other the issue has come up regarding Indianapolis' ordinance requiring that property owners clean the sidewalk in front of their business or residence or face a fine?   Complaints have mounted about the ordinance not being enforced.  Channel 13 just did a story on the failure to enforce the ordinance:
13 WTHR Indianapolis

I started thinking more about the legality of the sidewalk ordinance.  First, a sidewalk is always: 1) in the road right-of-way; or 2) a public easement on the owner's property  Regarding the former, there definitely would not be a duty of the property owner to clear the sidewalk as that is not even the owner's property. Regarding the latter, the property owner wouldn't be responsible for an "act of God" created by snow or even  third party pushing snow up onto a sidewalk while plowing the streets.  The prohibition is only on the property owner interfering with the use of the easement, not third parties or God.

It turns out that the Court of Appeals agrees.  In 2002, in the case of Lawson v. Lafayette Home Hospital, Inc., 760 NE 2d 1126, 1129 (Ind. App. 2002), the Court of Appeals stated:
It is well settled in Indiana that an owner or occupant of property abutting a public street or sidewalk has no duty to clear those streets and sidewalks of ice and snow. Hirschauer v. C & E Shoe Jobbers, Inc., 436 N.E.2d 107, 110-11 (Ind.Ct.App. 1982) (citations omitted). Additionally, municipal ordinances that require abutting owners or occupiers to remove snow and ice from public sidewalks do not, as a matter of law, create a duty under which an owner or occupier can be held liable to third party pedestrians. Carroll v. Jobe, 638 N.E.2d 467, 471 (Ind.Ct.App.1994), trans. denied; Hirschauer, 436 N.E.2d at 111 (citations omitted)....
In 2007, the Court of Appeals dealt directly with Indianapolis sidewalk snow remvoal ordinance.  In that case, Denison Parking, Inc. v. Davis, 861 NE 2d 1276, 120 (Ind. App. 2007), the Court of Appeals again said a municipality cannot use an ordinance to impose on a property owner a duty to clear a sidewalk from ice and snow.  Channel 6 covered the story back in 2007.

The reason Indianapolis is not enforcing the sidewalk snow removal ordinance is that the City can't.

Sunday, February 9, 2014

Indy Vanguard Notes that the Time is Overdue for a Democratic Candidate for Indianapolis Mayor to Step Forward

Christian Mosburg has written an excellent column for Indy Vanguard discussing that the time is long overdue for the Democrats to have a mayoral candidate step forward for the 2015 election.  The article points that even if someone files as of Monday to start raising money for the office, he or she will be 172 days behind the last Democrat mayoral challenge Melina Kennedy who started much earlier.
Indianapolis Councilor
Zach Adamson

I might part a bit from Mosburg when it comes to the importance of an early start on fundraising.  While the media always focuses on total dollars, the issue should be on whether a campaign is sufficiently funded to get the message out to the voters.  While I have no doubt that Indianapolis Mayor Greg Ballard's campaign can solicit enough contractors doing business with the city that he'll be better funded than any Democrat, I have little doubt that the Democratic candidate for Mayor will have sufficient funds to run a competitive campaign, especially in a county that is at least a 56% Democratic majority.

In this year or so leading up to the active campaign, however, Democrats need to have surrogates challenging Mayor Ballard on the various issues, particularly the poor priorities of this administration.   It would appear that the only one doing that is Christian's husband, Councilor Zach Adamson who is regularly in the media criticizing the Mayor on various issue, most recently on snow removal.  Most of the other Democrats, at least those on the council, were, as they usually are, silent on the issue.

What I found particularly insightful about Mosburg's article is how he pinpoints the Mayor's weaknesses, in particular character flaws that would make him vulnerable if pressed.  Mossburg aptly calls them "missed opportunities":
One obvious missed opportunity unfolded on January 2nd and came to a full head early on January 3, blowing into the next week. This was the first major snow of the season and the subsequent logistical failures that the poor planning of the city caused. For the record, the lack of response to the snow was 1 year and 10 months (669 days) before the
Indianapolis Mayor Greg Ballard
Municipal Elections. For the first three days after the initial snow, the mayor had seemingly gone AWOL: there was no official statement until the next storm was coming. Where was he? I don’t know. There was no evidence he was even in town. I will NEVER say someone shouldn’t be able to go out of town, but a good politician would at least seem present. Instead, there were fits of misplaced and poorly timed snarky comments on Facebook and Twitter. Elected leaders and concerned citizens were basically being told they were incorrect and all of the chaos that the poorly timed storm had caused was a figment of their imaginations and to move on. Essentially from the mayor’s office was: “Forget what you know and listen to what we’re telling you.”
Another lost opportunity actually came to light in an article in the Indianapolis Star written by Matthew Tully.

This article was written on January 18, 2014, which is 1 year, 9 months and 16 days before the election. I won’t summarize the entire article, I will instead quote the article.
“An arrogance and distance has crept into the mayor’s office. A political leader who won his first election by tapping into the frustrations of city residents now seems to ignore the views of anyone who dares to question him.”

 Earlier in that day the Mayor had done a Twitter Q&A with Jon Murray of the Indianapolis Star, where he gave very dismissive answers like:
Murray: “For some folks who aren’t necessarily familiar with city finances, it raises a question of priorities. Is that a valid question?” (speaking of Mayor Ballard’s Cricket Park.)
Ballard: “No, it’s not a valid [question]. Do you want me to shut down the park system? I mean, that’s kind of what they’re saying here, right?”
This example was a very public dismissal of the concerns of the residents of Indianapolis. Luckily for the mayor it didn’t get a lot of play, and he eventually apologized, but it showed the arrogance and distance that once didn’t seem to exist between this mayor and his constituents.
Mosburg seems to understand what a lot of Democrats don't - that Mayor Ballard has certain character flaws that make him vulnerable as a candidate.  The Mayor has a short fuse, is not knowledgeable about issues, has a tin ear when it comes to the public's concerns, and is prone to mistakes when questioned.   But if the Democrats don't challenge Ballard outside the election window when voters are less skeptical of the political motivation for such criticism, they have missed an opportunity to chip away at the the Mayor's approval rating.  That will be an important factor on whether a Democrat is elected Mayor in 2015 as the election will be a referendum on Ballard.

Obviously U.S. Attorney Joe Hogsett would have been a formidable Mayor candidate.  But, not surprisingly, he decided to continue with the high profile, non-political job that may lead to other opportunities.  Other Democrats I've heard mentioned as mayoral candidates is State Representative Ed Delaney and Councilor Vop Osili.  While both can raise money, they would not appeal to much more than the Democratic base.  They are also not fiscal conservatives, both being closely tied to the Indianapolis pay-to-play, corporate welfare structure of which the public is growing weary.

For my money, the best candidate for Mayor, at least on the Democratic side, is easily Councilor Zach Adamson.  He is one of the few Democrats who has taken positions against endless corporate welfare that is diverting more and more tax dollars away from basic city services, a very popular position.  Zach is a bright man with a populist appeal and a strong understanding of the media and how to craft a message.   He would appeal to many fiscal conservatives who might traditionally vote Republican but want an alternative in light of Ballard's never-ending increases in taxes, fees and borrowing.  Unlike Delaney and Osili, Adamson would have a cross-over appeal that would cut into the Republican base.  That was one of the faults of the Melina Kennedy.  She never made an effort to go after Republicans.  Ballard started out at 43% and the only issue was whether he could get enough Democrats to cross over to elect him.  Well, imagine a candidate picking off some of that 43%, a candidate who can attract Republicans yet still hold the Democratic base?  That's Adamson.

Adamson, the first openly gay Indianapolis councilor would be running to be the first openly gay Mayor of Indianapolis?  Would that be a negative?  No, I'd argue it would be a positive.  The only ones who probably would vote against Adamson for being gay are Republicans who probably wouldn't have voted for him anyway.  But there an awfully lot of Republicans couldn't care less, they just want to finally have a mayor who will be fiscally responsible and stop raising their taxes and borrowing to give more away to political contributors.  The Democrats would likely be solidly behind his campaign.  But more importantly much of that same political apparatus that is helping to defeat HJR-3 could be turned around to elect Adamson as Mayor.  

Run, Zach.  Please run.  Indianapolis needs you.