Thursday, November 20, 2014

Democratic and GOP Attorneys Pocket as Much as Half Million Dollars Asserting Alleged Frivolous Defense in Mulholland Case (w/correction)

If you want to find out how Marion County politics works, study the case of Zach Mulholland, the unslated candidate whose literature was seized during the May 2012 primary pursuant to a statute which makes it a crime to distribute a piece of literature that has more than one candidate named on it without the express written approval of all such candidates filed with the Election Board before the election.

Greg Hahn
In 2003, in a case in which yours truly was the lead plaintiff (Indiana Right to Life was the other plaintiff), the Marion County Election Board agreed the statute was unconstitutional and that the Board would not attempt to enforce it to seize non-slated candidates literature in the future.  In direct violation of the federal court judgment reached in that case, Ogden v. Marendt, the Board, with the unanimous vote of three attorneys, voted to enforce the order and seize Mulholland literature.  The Board later even went so far as to make a referral to the Marion County Prosecutor's Office to try to get Mulholland prosecuted for violating an unconstitutional law.

David Brooks
Of course, the Board was wrong and had no chance of winning the lawsuit Mulholland filed.  I would think any attorney doing his or her ethical duty would have strongly advised the Board to admit it was wrong and settle.  Maybe Hahn and Brooks did exactly that.  If the Board, immediately settled, the taxpayers would have only been on the hook for the nominal cost of Mulholland's literature and a few thousand in attorney's fees incurred by Mulholland's attorney.

But that's not the way politics works in this town.  The Board instead hired a Democratic and Republican attorney, Greg Hahn and David Brooks, respectively, who apparently saw the litigation as an opportunity to run up a huge bill on the taxpayers.  Jim Shella of WISH-TV reports that new Board Chairman Cody Kendall has pulled a plug on the lawsuit, which yesterday climaxed in a Mulholland Shella reports that Kendall says that $300,000 to $500,000 were incurred in defense costs.  Taxpayers will also have to pay Mulholland's legal costs which total about $80,000.  Which leads to the obvious question, why it costs as much as $500,000 for the defense attorneys yet only $80,000 for the plaintiffs' attorneys.  Could it be because defense attorneys padded the bill because taxpayers were paying?

Coby Kendall
Before kudos are extended to Kendall for doing the right thing, he has been in his position for probably a year and only pulled the plug when the federal district court judge told him the defense needed to be dropped and the law never be enforced again.  (Given there were absolutely no sanctions for violating the 2003 order, I wouldn't be surprised if the Election Board tries to enforce it again.  After all, the non-slated candidate has no remedy after the election and the taxpayers get stuck with the legal costs.)  Kendall also earlier had the Board consider a criminal referral for Mulholland violating a statute he knew perfectly well had been declared unconstitutional and couldn't be enforced.  The Board later decided against the referral.

Finally, it should be noted that while Jim Shella does quote Mulholland as saying that the Board spent "half a million dollars that ... defending a law that a first year law student could tell you is unenforceable," Shella completely omits providing context as to WHY there was an assertion that the Board had taken a frivolous position - namely that the Board in 2003 had admitted the statute was facially unconstitutional and agreed not to enforce it.

CORRECTION:  An earlier version of this story indicated Kendall had voted to make a criminal referral of Mulholland.  Actually the Board decided against this at a subsequent meeting.  However, given the fact that Board members actually contemplated making a criminal referral, despite the Board's own agreement in 2003 that the statute was unconstitutional and wouldn't be enforced, and after being slapped down by the 7th Circuit earlier this year, reflects very poorly on the attorneys on the Election Board, particularly Democrat Kendall and the Republican appointee, Vincent Perez.

Also, it should be noted that Marion County Clerk Beth White, while voting to have Mulholland's materials seized, did vote against turning the legal defense of the case over to partisan attorneys Hahn and Brooks.

By the way, here is my story on the Board's meeting following the 7th Circuit decision, the meeting at which they contemplated trying to have Mulholland prosecuted.

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