Saturday, February 27, 2016

Trump Says He Will Gut First Amendment Protections to Make it Easier to Sue Political Critics

While campaigning in Texas yesterday, Donald Trump said, if elected, he would gut the First Amendment protection for political speech in order to more easily sue critics:
"One of the things I'm going to do if I win... I'm going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win
Donald Trump
lots of money," Trump said during a rally in Fort Worth, Texas.  
"We're going to open up those libel laws so when The New York Times writes a hit piece, which is a total disgrace, or when the Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they're totally protected," he said. "We're going to open up libel laws and we're going to have people sue you like you've never got sued before."
That comment, in which Trump indicates a willingness to gut this country's guarantee of freedom of speech and press, harkens back to the Presidency of John Adams.  Adams, a Federalist, was the beneficiary when the Federalist-controlled Congress in 1798 passed the Sedition Act.  That Act criminalized untruthful comments about the President (but not the Vice President Thomas Jefferson, who was not a Federalist) and other federal officials, including members of Congress.
Federalist prosecutors immediately went about going after Adams' and anti-Federal critics, filing charge after charge based often based solely on opinions about the President and Federalists that were deemed untruthful.  These defendants include William Durrell, publisher and editor of the upstate New York weekly, Mount Pleasant Register, Benjamin Franklin Bache. editor of the Philadelphia-based General Advertiser known as the "Aurora," Thomas and Abijah Adams, editor of the Boston Independent Chronicle, William Duane, Bache's successor at the Aurora, Anthony Haswell editor of the Vermont Gazette, and Thomas Cooper, a newspaper editor of the Northumberland, Pa., Gazette   Also, Judah P. Spooner, a printer from Vermont was charged with sedition for simply publishing a letter written in 1798 by Vermont Rep. Matthew Lyon that was harshly critical of President Adams and his administration.  Lyon was also prosecuted successfully for that letter, but won re-election from a jail cell.

Probably the most famous sedition prosecution was of James Callendar, who wrote the election pamphlet, The Prospect Before Us, in which Callender described the administration of John Adams as “one continued tempest of malignant passions. As President he has never opened his lips, or lifted his pen without threatening and scolding; the grand object of his administration has been to exasperate the rage of contending parties, to calumniate and destroy every man who differs from his opinions.”  Calendar accused Adams of contriving “a French war, an American navy, a large standing army, an additional load of taxes, and all the other symptoms and consequences of debt and despotism.” He concluded by offering a choice: “between Adams, war and beggary, and Jefferson, peace and competency."

Federalist Judge Samuel Chase obtained a copy of the book and asked that Callendar be prosecuted.  Chase also acted as judge,, finding him guilty and sentencing Callendar to nine months in jail.  Chase had also presided over the conviction of Thomas Cooper.  It should be noted in most sedition trials, the only jury question was whether the comment was made; it was up to the judge whether the statement was considered to be false.

Lest anyone think only prominent people were prosecuted under the Sedition Act that person should know the story of poor Luther Baldwin who stumbled out Newark, N.J. bar and, upon learning that a guns were firing in salute to President Adams who visiting the city , remarked to his drinking companion that the guns should instead be aimed at the President's ass.  Both Baldwin, and his friend, who made a similar comment, were prosecuted for sedition.

While Trump's suggestion isn't for a change to criminal law, only civil, the distinction is without a difference.   Presently when lawsuits are filed by public figures complaining about critical comments, the result is usually a swift dismissal as there has to be some indication that the comments were made with "actual malice," a difficult standard to meet.  Trump apparently wants the "actual malice" requirement removed, a development which would subject news organizations, bloggers and even ordinary individuals to the prospect of continually being hauled into court if they dare to criticize those in power, people like Donald Trump.  Most people simply don't have the financial resources to defend themselves against protracted libel litigation.  The result is a profound chilling effect on free speech.

That Trump would advocate such an assault on our First Amendment protections should set off warning bells. Trump is already constantly threatening to sue anyone who dares cross him or even thinks of publishing a negative story about him.  While those threats are almost always laughable given First Amendment protection provided to political speech, if Trump actually effected a change in libel law his lawsuit threats would not longer be the joke they currently are.

Trump though seems oblivious to the fact that there is no federal libel law.  Each state has libel laws, but those laws are constrained by the protection of the First Amendment, including the New York Times v. Sullivan requirement of "actual malice" in order for a public person to sue for untruthful criticism.  Trump would have to make his change through court decisions, in particular a revisiting of the New York Times v. Sullivan holding.  That is unlikely to happen anytime soon.

Note: To see more detail on the sedition prosecutions, some of which was included in this article, check out the helpful listing providing by the First Amendment Center.

Thursday, February 25, 2016

President Obama Considering Republican Governor to Replace Justice Scalia

The Washington Post published an article yesterday on an unconventional candidate for the Supreme Court being considered by President Barack Obama:
The White House is considering picking the Republican governor from Nevada to fill the current vacancy on the Supreme Court, scrambling political calculations in what is expected to be a contentious confirmation battle in which Senate Republicans have pledged to play the role of roadblock.
President Obama is weighing the selection of Brian Sandoval, a centrist former federal
Governor Brian Sandoval (D-NV)
judge who has served as governor since 2011, according to two people familiar with the process. Though the review process is in its initial phases and it is unclear whether the governor could ultimately emerge as the president’s pick, even the prospect of his nomination poses a difficult dilemma for Senate Republicans who have promised not to consider any nomination before November’s elections.
While the selection of Sandoval might garner Republican support in the Senate, Senate Majority Leader continued to reiterate his position that there will be no action on an Obama appointment and that the decision on the replacement of conservative stalwart Antonin Scalia will be left to the person elected President this November.
The article notes that Governor Sandoval holds mixed policy positions that could entice some Republicans and Democrats into supporting him:
Nominating Sandoval would carry clear political risks for Obama. Sandoval is aligned with Democrats on some key issues, including abortion rights and the environment. As governor, he has moved to implement the Affordable Care Act, and has said he considers same-sex marriage to be a settled issue.
But Sandoval is not seen as labor-friendly — potentially alienating a swath of the Democratic base. His legal credentials are also lacking compared to some of the other names under consideration who are mainly sitting federal judges. And he initially called the landmark health-care law “unconstitutional,” signing onto a brief in 2012 challenging the constitutionality of the measure’s individual mandate. The Supreme Court ultimately rejected that argument, and upheld the law.
One thing that might entice Republican Senators to act is the progression of the 2016 presidential election.  If Donald Trump is the likely GOP nominee, many Senate Republicans will consider it no guarantee considering the New York businessman's liberal political resume that Trump will pick a conservative or even a Republican for the Court.  They may well decide to opt for Sandoval over an unknown Trump appointee.  Further, if Hillary Clinton is seen as the likely general election winner, and someone who might carry the Senate into Democratic hands, the Republican-controlled Senate might decide to confirm Sandoval knowing they won't do any better with a Clinton President.

It's probably a moot point.  Undoubtedly President Obama will get such blowback from his liberal base that the appointment of Sandoval will never happen.

Sunday, February 21, 2016

No, Virginia, President Obama Never Won in a "Landslide"

A friend of mine the other day remarked that President Obama won re-election in a landslide in 2012.  I had extensively researched the issue previously and today I found my research.  As I thought, Obama did not win re-election in a "landslide." Not even close. Nor did he win his first election in a landslide.

After the election debacle of 1800, there was major change to the Electoral College in the Constitution.. Thus my research starts with 1804 and the modern version of the Electoral College.
President Barack Obama
There have been 53 presidential elections between 1804 and 2012.  While I have electoral college results for all those races, the popular vote was not kept until 1824.  So popular vote totals are compared on the basis of 48 races, from 1824 to 2012.

In 2008, Democrat Barack Obama won his first term against Republican John McCain with 52.87% of the popular vote and won 365 of the 538 electoral vote.   His popular vote and electoral vote margin of victory placed 22nd and 23rd respectively on the "closeness" list.  So neither even fall in the top half when it comes to margin of victory

In 2012, President Obama won re-election against Republican Mitt Romney with 50.96% of the popular vote and won 332 of the 538 electoral vote.    The popular vote spread in that race was 13th closest (out of 48) since 1804 and the electoral college margin was the 17th closest (out of 53).  So not only was it not a landslide from either a popular vote or electoral vote standpoint, it was actually an historically close election.

For the record, the closest popular vote margin was the 1880 race featuring Democrat Winfield Scott Hancock and Republican James Garfield, a race Garfield won.  The closest electoral college race was in 1876 and involved Democrat Samuel Tilden And  Rutherford B. Hayes.  That race featured  electoral college deal in which Democrats agreed to propel Hayes to the presidency in exchange for the Republicans withdrawing troops which were in the South enforcing Reconstruction following the Civil War.

The biggest landslides?  On the popular vote side that would be Republican Warren Harding's victory with 60.32% of the vote in 1920.  His opponent, Democrat James P. Cox, only managed 34.15% of the vote.  As far as the Electoral College, the biggest landslide was Democrat Franklin Roosevelt's victory over Republican Kansas Governor Alf Landon,   The second biggest electoral college landslide was Republican Ronald Reagan's victory over Democrat Vice President Walter Monday.  Reagan captured 95.2% of the electoral vote compared to the 97% of that vote garnered by FDR.

Correction:  The original article had Obama winning 332 electoral votes in 2008 and 2012.  This was a mistake.  He won 365 electoral votes in 2008 and 332 in 2012.  The rankings were based on the correct 365 total and did not change.

Media Spin on Nevada, South Carolina Election Results Defy Reality

There is little I find more interesting the media talking heads interpretation of election result.  Last night proved very entertaining.


CNN reports that Hillary Clinton had a "decisive" win in Nevada.  Other superlatives I heard was that the Clinton's win was "solid,"  Let's examine that "decisive," "solid" victory that Clinton supposedly
Sen. Bernie Sanders

Clinton won the Nevada caucuses with 52.7% of the vote.  That translates into 649 vote victory over Sanders.  If just 325 Hillary Clinton voters anywhere in the state of Nevada changed their vote in the precinct caucuses, Sanders wins. 

To do the Math differently, Democrats hold their caucus in Nevada at the precinct level. There are 1,835 precincts in Nevada. Only one Hillary Clinton voter would have had to change his or her mind in every six precincts for Bernie Sanders to have won.

The notion that Hillary Clinton won a great victory last night is not borne out by the numbers.  This is especially true when you consider that the polling showed seven weeks ago that Clinton led in the Silver State by 28 points and previously polled ahead by 46 points.  Given that advantage, one would think a 649 vote win would considered to be close, and possibly a lose for Clinton.

For the record, that much discredited (at least in Democratic circles) media outfit Fox News characterizes the result as Hillary Clinton "edging" out Sanders in the "closely-contested caucuses" in Nevada.

I don't mean to say that Bernie Sanders is on track to win the nomination.  I think Clinton's solid support among African-Americans will trump (pardon the verb) Sanders in the long run.  Her southern "firewall" of states that have large percentages of black Democrats is a real thing.

There is a bigger story though on the Democratic side that most media outlets are missing.  Unlike the 2008 race where the contest between Barack Obama and Hillary Clinton drove record numbers of voters to Democratic primaries and caucuses, that doesn't seem to be happening this time around.  Even with some in the party "feeling the bern," Democrats are staying home while Republicans are the ones energized.


The media spin on the Republican side is equally absurd.  CNN reports that Trump had a "massive" victory.  New Republic possibly went even further calling Trump's win a "landslide."

In South Carolina Trump had 32.5% of the primary vote followed by Florida Senator Marco Rubio with 22.5% and Texas Senator Ted Crus with 22.3%.  I'm not sure there has ever been a "landslide" in which 2/3 of the voters voted for someone other than the winning candidate.

Like Clinton in Nevada, Trump had huge lead in South Carolina polls.  Most pegged him with a 15% to 20% lead.  A CBS poll released just a week before the South Carolina showed Trump's lead at 22%.  It was only a few days before the election that some polls started showing Trump's lead falling into the single digits. 

Listening to the political analysts, it seems the consensus was that if Trump didn't win by double digits it would be considered to be a loss.  So since Trump won by 10.0% that's considered a "massive," "landslide" victory while if his margin had fallen to 9.9% then it would be considered a loss?   Well possibly media spinsters round off, so maybe it would have had to fall to 9.4% to be a loss.  It is still absurd.

While the media talking heads seem ready to coronate Donald Trump as the GOP nominee, few seem to have noticed that there seems to be a 35% or so cap on Trump's support.  Scores of candidates have dropped out, yet Trump does not seem to be gaining any support from their departures.  Trump's 35% is a good performance in a race where the total vote is fractured among several candidates.  However, 35% does not look as good when the total vote is split between only two or three candidates.  Fortunately for Trump, although Jeb Bush suspended his campaign last night, Ohio Governor John Kasich and Ben Carson seem to be staying in for the long haul.

Friday, February 19, 2016

Bernie Sanders Takes Lead in First National Poll

Senator Bernie Sanders (D-VT)
Since late 2013, Real Clear Politics has published on its website polls on the Democratic presidential nomination. Hillary Clinton has led in every one of those 135+ polls.  In all but six of them the Clinton lead has been double digits.  As late as June of last year, Clinton polled 60 points ahead of Sanders.  But the lead has been shrinking the last several months and just this week the unthinkable happened - Sanders has taken the lead from Clinton in a national poll.

A Fox News poll released on Thursday, a bipartisan poll was conducted by Anderson Robbins Research (D) and Shaw & Company (R), shows Sanders leading Hillary Clinton 47% to 44%. 

A glimpse at the Fox News polls show how Hillary's once formidable margins have been shrinking since November 2015:

2/18/16  Sanders +3
1/22/16  Clinton +12
1/8/16  Clinton +15
12/18/15  Clinton +22
11/20/15  Clinton +23
11/4/15  Clinton +25

Other polling outfits also show Hillary Clinton's margin dramatically shrinking though the Fox News poll is the first to show Sanders in front.

Tuesday, February 16, 2016

My Thoughts On Justice Scalia and the Democrats' Crocodile Tears Over Politicization of the Confirmation Process

As a conservative attorney, I was naturally quite distressed to learn of the passing of the great Supreme Court Justice Antonin Scalia.  Scalia carried forth his judicial duties employing the only practical and the  logical way for judges to interpret the federal Constitution and statutes - a combination of textualism, originalism and deference to legislative bodies.

The Scalia approach is not new.  It's been the approach of many judges, including some liberal ones.  (In fact, there was a time when liberal justices used what I'm referring to as the Scalia approach to try to stop conservative judicial activism on the Supreme Court.) Scalia believed that judges should stick to the actual words used in the Constitution or statutes and try to ascertain the meaning of the drafters when faced with ambiguity.  When this doesn't answer the question posed to the court, Scalia's philosophy mandates that the issue be deferred to democratically-elected legislative bodies.

My liberal friends reject the Scalia approach.  They argue that judges shouldn't be confined to the actual words of the constitution or statutes or care about what the drafters intended when putting those words to paper.  After all, when it comes to the Constitution, how do we know what the Founders were thinking when they drafted the Constitution more than 200 years ago?  They argue that the Constitution is a "living document" and should be reinterpreted to reflect changing society.
The Late Justice Antonin Scalia

When I ask my liberal friends what approach they would utilize to restrain judges from imposing their views on society, they have no answer.  Their view of jurisprudence is that legislators are stupid and that it's perfectly okay for really smart, liberal judges to impose their views on society through the guise of interpretation.  So if judges want a constitutional right to abortion on demand or same sex marriage, the fact that the text of the Constitution and its history clearly mandates neither is no bar to my liberal friends.  Judges can just "find" such rights in the language.  Clever fellows those liberals judges are - always able to "find" things that others of us can't see.  Of course, when judges choose to take a conservative political position such as striking down a law limiting campaign contributions, liberals suddenly become champion of judicial restraint and legislative deference.  Liberals are flexible that way.

On those aforementioned issues, abortion and same sex marriage, Scalia's approach would be to follow the Constitution by deferring the issue state legislative bodies.  If state legislatures want same sex marriage and abortion on demand, they are perfectly free to impose those policies within their jurisdiction.  Many of course would and some wouldn't.   That's the way our system of government works.

The best issue for illustrating the problem with the judicial activist approach is the death penalty.  The Constitution and the amendments contain three references to capitol punishment.  It is absolutely clear from the language and the history that the Founders never intended to do away with the death penalty.  Yet some of my liberal friends who support judicial activism believe that unelected judges should declare that the death penalty is unconstitutional for being "cruel and unusual," a punishment prohibited by the 8th Amendment.  Why? Because society has "evolved" on the death penalty.

If society has "evolved" who better to recognize that evolution than democratically-elected legislators?  After all, states are not mandated to have the death penalty.  Many have done away with it in their jurisdictions. They have every right to do that.  It is nonsensical that my liberal friends think that unelected federal judges serving life terms, as elite group of people as they come, are better gauges of the public's sentiment than representatives of the people who regularly have to win re-election.

As thoughts turn from Scalia's passing to his replacement, the Democrats are screaming that the Republican-controlled Senate has indicated it will block the President's appointment to the Court.  It's a laughable complaint.  If the situation were reversed and a Republican President nominated a replacement for a very liberal justice in an election year, an appointment that would tip the balance of numerous issues decided by 5-4 votes, does anyone seriously think that a Democratic-controlled Senate would confirm his selection?  Of course not.

The fact is the Democrats have greatly politicized the United States Supreme Court, turning it into a super legislature in which their justice adopts their preferred liberal policies through the guise of interpreting the law.  So to expect Republicans to look the other way about the political views of an Obama appointee, when that person can be expected to impose his or her political views through the guise of interpretation is, well, absurd.

Let's not forget that while Democrats complain that the Republicans have politicized the confirmation of a Scalia replacement, it was Democrats who were the ones that started that too.  Prior to 1987, most nominations to the Supreme Court focused on qualifications of the appointee.  Then in 1987, the Democrats launched a no holds barred attack on the eminently-qualified U.S. Court of Appeals Judge Robert Bork.  The Democrats' reprehensible approach to the Bork nomination was escalated to a very personal level in the attempted "high-tech lynching" of Clarence Thomas.  Opponents through Thomas' trash looking for dirt and also liberal groups ran ads asking that people come forward to dish dirt on Thomas.  While the Democrats could have made a strong case that Thomas lacked the qualifications for the Court, they instead went after him personally.  Reprehensible.

All this is irrelevant though as Obama's appointment to the Supreme Court will be DOA. (Resist inserting Scalia joke here.)  But the one thing his death will do is galvanize both sides which now have irrefutable evidence that this presidential election, more than any in recent times, is critical to the future of the Supreme Court.

Friday, February 12, 2016

Public Interest Group Targets Indy Officials for Violating Indiana's Civil Forfeiture Law

The Virginia-based Institute for Justice has filed suit challenging Indianapolis' use of civil forfeiture.  The Indianapolis Star reports:
For several months, Jack and Jeana Horner did not have their two vehicles, and they did not know why or where they had been taken. 
Law enforcement officials seized the Horners' 2008 Jeep Grand Cherokee and 2003 Ford F150 in August 2013, after they suspected that Jeana Horner's son, who was borrowing the vehicles, used them to transport marijuana. Jack and Jeana Horner, who did not know about the drugs and did not face any criminal charges, spent more than nine months trying to get their vehicles back. 
The Horners exemplify an ongoing problem with civil forfeiture in Marion County, said Sam Gedge, an attorney for a national nonprofit group that is now suing city and law enforcement officials in Indianapolis.
There are two basic problems with Indiana's civil forfeiture law.  First, the Indiana Constitution says that the Common School Fund (which provides low cost loans for schools) is to be made up of "all forfeitures."  Attorney General Greg Zoeller has issued an advisory opinion that "all" doesn't actually mean "all" and that civil, as opposed to criminal, forfeitures can be excepted by the legislature.  The opinion is rejected by virtually every legal expert who has looked at it, including, it would appear, all the justices of the Indiana Supreme Court.

But there is a second problem, namely in how its being applied.  Even if the legislature can carve out civil from all forfeiture, despite a constitutional provision that says they appears to say otherwise, the law still says that civil forfeiture proceeds can only be kept by insofar as they cover law enforcement costs of the particular action that led to the civil forfeiture. All excess funds, by statute, have to go to the Common School Fund.  As the Star notes (and I have noted numerous times previously), that is not happening:
The state law in question is interpreted differently by each county. Some meticulously account for the investigative costs and send the remaining dollars to the school fund. Many do not put money into the school fund. In Marion County, forfeited funds are divided between the law enforcement agency and the prosecutor's office, according to court records.   
According to memorandums of agreement between the agencies, the prosecutor's office gets 30 percent of forfeited funds. The remaining 70 percent goes to IMPD or to the Metro Drug Task Force, a group of officers from Marion and neighboring counties, depending on which law enforcement body is involved in an investigation.
Officials also say forfeited funds do not fully cover their investigative costs. 
In other words, Marion County/Indianapolis officials take a collective approach to determining law enforcement costs.  But that is a direct contradiction to the statute saying court costs are determined on a case-by-case basis. As I noted previously on my blog, the statute defining "law enforcement costs" in a civil forfeiture action is IC 34-6-2-73:
"Law enforcement costs", for purposes of IC 34-24-1, means:

(1) expenses incurred by the law enforcement agency that makes a seizure under IC 34-24-1 (or IC 34-4-30.1 before its repeal) for the criminal investigation associated with the seizure;

(2) repayment of the investigative fund of the law enforcement agency that makes a seizure under IC 34-24-1 to the extent that the agency can specifically identify any part of the money as having been expended from the fund; and

(3) expenses of the prosecuting attorney associated with the costs of proceedings associated with the seizure and the offenses related to the seizure.
In Serrano v. State, a civil forfeiture case not involving a legal challenge to the practice, the Indiana Supreme Court went out of its way to note the publicity over the abuse of civil forfeiture and to point out that IC 34-6-2-73 requires that law enforcement costs be calculated on a case-by-case basis.  From a footnote to that decision the Court said:
From the proceeds, the court may except law enforcement expenses incurred ―for the criminal investigation associated with the seizure and a prosecutor‘s expenses associated with the forfeiture proceeding and the expenses related to the criminal prosecution. Ind. Code § 34-6-2-73 (2008). Whether this limited diversion, calculating actual expenses on a case-by-case basis, is consonant with the constitutional command that ―all forfeitures‖ be deposited in the Common School Fund is an unresolved question.
Still, despite a law directly on point and a Supreme Court directive, county prosecutors across the state, including Marion County Prosecutor Terry Curry, continue to ignore the law and pocket 100% 100% of civil forfeiture proceeds as law enforcement costs.

Unfortunately since defendants are no longer considered a party to the case when the civil forfeiture proceeds are being divvied up between the agencies, there is no one to object when law enforcement walks away with 100% of the proceeds with nothing going to the Common School fund..  So it is very difficult to get judicial review of the practice.  Still judges are supposed to be demanding proof of law enforcement costs as to that particular action and insist that a check for the excess amount be cut to the Common School Fund.  Many judges, including those in Marion County which have for at least a decade allowed law enforcement to keep 100% of civil forfeiture proceeds, are simply not doing their jobs.

Unfortunately Marion County Prosecutor has greatly expanded his use of civil forfeiture, while continuing his predecessor's practice of pocketing 100% of the money in violation of Indiana law.  The numbers bear that out:
According to the complaint, Marion County law enforcement agencies received an average of $888,112 in forfeited funds annually from 2003 to 2010. That number reached about $1.5 million in 2011 (the first year Curry took office), the complaint says.
There is an irony that law enforcement officials, including Prosecutor Curry, are charged with the responsibility of enforcing the law against lawbreakers, yet they insist on blatantly violating the Indiana Constitution and statutes in order to pocket money taken from those same lawbreakers.

Here is a copy of the civil forfeiture complaint which appears on the Institute for Justice's website.  Also, below are links articles I've written about Indiana's civil forfeiture law:

Saturday, October 24, 2015, Republicans in Michigan Lead Effort to Curb Civil Forfeiture Abuses

Sunday, April 26, 2015, Senate Democrats Turn Back on Civil Liberties in Supporting Civil Forfeiture Enthusiast for Attorney General

Friday, January 16, 2015, US Attorney General Holder Halts Abuse of Federal Civil Forfeiture Laws By Local Police Agencies

Wednesday, October 9, 2013, Marion County Prosecutor Terry Curry's Expansion of Civil Forfeiture Leads to Targeting Alleged Prostitutes for Shakedowns

Tuesday, July 23, 2013, Civil Forfeiture Critic Wins Right to Proceed With Malicious Prosecution Case; Notice Pleading Still Rules in Federal Court

Friday, May 3, 2013, Federal Grants and Civil Forfeiture: The Real Story Behind the Drug Task Force Prostitution Busts

Friday, April 5, 2013, The Indiana General Assembly Can Fund School Security With Civil Forfeiture Proceeds

Tuesday, July 26, 2011, An Example of Marion County Forfeiture Abuse: City Refuses to Return Woman's Vehicle Unless She Signs Waiver for Damage Police Caused During Search

Wednesday, July 13, 2011, Marion County Prosecutor's Office Confirms Dropping Felony Charges Against Omnisource; Omnisource Says Agreement to "Donate" $300,000 Unrelated to Dropped Charges

Friday, June 3, 2011, Marion County Prosecutor Terry Curry Omits Facts on Civil Forfeiture, Makes Disingenuous Argument for His Office's Continued Violation of Civil Forfeiture Law

Tuesday, May 17, 2011, It's Time for State's Judges to Enforce Civil Forfeiture Law By Demanding a Case-By-Case Calculation of Law Enforcement Costs With Rest Going to Common School Fund

Friday, May 13, 2011, Governor Mitch Daniels Vetoes Forfeiture Bill That Would Have Provided Windfall to Law Enforcement; Attorney General Greg Zoeller Fibs About How Forfeiture Works in Practice

Monday, May 9, 2011, Governor Daniels Needs to Veto SEA 215, New Indiana Supreme Court Opinion Suggests New Law Giving Law Enforcement Civil Forfeiture Windfall Is Unconstitutional

Wednesday, April 27, 2011, Indiana Supreme Court Unanimously Rejects AG's Opinion That Constitution's "All Forfeitures" Does Not Include Civil Forfeiture

Wednesday, April 6, 2011, Judge Tosses Out Civil Forfeiture Lawsuit, Expresses Doubt Civil Forfeiture Law is Constitutional

Saturday, December 18, 2010, State Superintendent Bennett Avoids Blaming Attorney General Zoeller for Not Insisting Prosecutors Pay Civil Forfeiture Money Owed to School Fund

Friday, November 19, 2010, Prosecutors Sued for Failing to Pay Money Owed to Common School Fund

Friday, September 10, 2010, Nuvo's Considine Looks at Civil Forfeiture and the Common School Fund

Sunday, August 15, 2010, Civil Forfeiture Misdeeds; The Role of the Attorney General

Thursday, July 22, 2010, Indiana Civil Forfeiture Law - Where is the Money Going?

Wednesday, February 10, 2016

Businessman Bill Smythe Announces Run For Hamilton County Commissioner

Press release published for a friend of mine.  Great guy who will fight against corporate welfare and push back against the never-ending efforts by some Hamilton County Republicans who want to raise taxes.
Fishers IN- Bill Smythe wasn't looking to run for office, but circumstances begged him to step up, including a recent decision to start a $142 million project with practically no local input or discussion. He believes voters and business owners across Hamilton County will be glad he did. 
Bill Smythe is a businessman and a family man, married to his wife Brenda for 34 years.
Bill Smythe
He isn't a power broker. He isn't looking to enrich his connected friends with contracts. He's looking out for the best interests of all Hamilton County citizens, with a focus on solutions without losers.
Bill has repeatedly brought people together so their voices could be heard. He recently formed a Route 37 business alliance, has fought higher food & beverage taxes, and helped form the Tavern League of Indianapolis to protect small business owners. Smythe has always stood up for others in the face of big government. Running for County Commissioner is his latest action in his consistent advocacy.
Smythe is like so many other business owners when he says, "I'd rather just run my business, make my living, and enjoy my family, but I'm concerned for the future of Hamilton County. The voters need a voice here, and it seems the only voices that get a hearing are vendors, and it compelled me to run for Commissioner."
Contact: Bill Smythe @

Tuesday, February 9, 2016

Governor Pence's Selection of Holcomb as Lt. Governor Leaves Conservative, Populist Wing of GOP Out in Cold

Today Governor Pence announced he selected former State GOP Chairman Eric Holcomb to be Lt. Governor, replacing Sue Ellspermann.  Holcomb, whose selection will have to be confirmed by the Republican-dominated Indiana General Assembly, will also be Pence's running mate in his re-election bid this year.

Media types like Mary Beth Schneider, Abdul Hakim-Shabazz and Matt Tully immediately praised the selection.  Even Democrat Jennifer Wagner weighed in with a column saying Holcomb was a "smart move."

The fact that a bunch of left-wing political columnists, a liberal Democrat, and a "moderate" Republican who acts as the party's Establishment mouthpiece thinks a decision is a good one should
Eric Holcomb
send off alarm bells for GOP populists and conservatives.

Tully even goes so far as to claim that the selection will help "shore up the [GOP] base."  Does Tully really believe that Holcomb has a big following among tea party people and evangelicals?  He does not. That's why the former GOP state chairman was heading for a third place finish in the U.S. Senate race before the Pence people threw him the lifeline of being Lt. Governor.

The aforementioned individuals all buy into the media's simplistic assumption that Pence is very popular among conservatives and that where he needs shoring up is among moderates.  It is safe to say that Schneider, Shabazz, Tully and Wagner don't spend a lot of time with members of the tea party and evangelicals who make up the majority of the GOP.  If they did they'd shocked to find out how alienated and angry they are at the Governor.  Whether it is the Governor's support for more local taxes, regional cities, Common Core-lite, "the Fix" and other measures. they feel the Governor has abandoned them at nearly every turn.  When it seemed like they were ready to give up completely on Pence, the Governor sent evangelicals an olive branch with his defense of religious freedom in his state of the state speech, a position that made people like Schneider and Tully uncomfortable.  Holcomb though makes them feel comfortable and that should be no comfort to conservatives.

Holcomb is widely considered to be an establishment, Chamber of Commerce Republican.  That part of the GOP coalition, by far its smallest component in terms of actual voters, was already solidly in Pence's corner.  They are, after all, thrilled with the Governor's willingness to use the power of government and Hoosier's tax dollars to help out big business.  For many people though Pence's approach smacks of corporate welfare, a policy which is an anathema to populists of all poltiical stripes and gave rise to the Tea Party some 10 years ago.

Holcomb does nothing to shore up Pence's unpopularity with the very populists who are dominating the GOP presidential campaign.  Many of those people who support candidates like Donald Trump, Ted Cruz and Ben Carson live in Indiana.  Can Holcomb build a bridge to those people while playing down his establishment, Chamber of Commerce reputation?  Doubtful.

Monday, February 8, 2016

Redoing My New Hampshire Primary Predictions

Last week, I made the last minute decision to change my prediction in the Iowa Republican caucus...changing my choice on who would win the state from Donald Trump to Ted Cruz.  That paid off big time as Cruz defied the polls and pulled off the victory.  My only mistake was dipping so low
as to try to pick the fourth place finisher on the Republican side, choosing Kentucky Senator Rand Paul to occupy that position instead of surgeon Ben Carson.  Okay, I also did err picking Bernie Sanders to edge out Hillary Clinton but since Clinton only won by a tiny fraction of 1% (.25%), I'm counting that as a victory too.

I've decided to emulate the Iowa caucus and make some last minute tweaks to my New Hampshire primary.  On the heels of Florida Senator Marco Rubio's widely-panned debate performance Saturday night, I am going to reshuffle my predictions.  Instead of Saturday afternoon's prediction of the top three finishers being, Trump-Rubio-Cruz., I think the negative press about Rubio's performance is going to help Ohio Governor John Kasich move past the Florida Senator.  I also see Cruz doing a bit better than expected. So my predicted finish is going to be Trump-Cruz-Kasich-Rubio.  Trump will be at about 30%, while Cruz will finish with about 18%.  Kasich and Rubio will also score in the teens.

On the Democratic side, I see Bernie Sanders victory  margin as being in the range of 12%-15%, much less than the 30% that some polls have.  I reiterate my earlier prediction that the Clinton camp will spin (successfully) the closer than anticipated loss as a win for Hillary.

Sunday, February 7, 2016

Will Football Ever Be The Same?

Tonight's Super Bowl features an intriguing matchup of the old versus the new guard.  Quarterback Peyton Manning, soon to turn 40, leads his experienced Denver Broncos against 26 year old quarterback Can Newton and his Carolina Panthers.  Denver and Manning went to the Super Bowl just three years ago, losing in a blowout to Seattle 43-8.  Carolina hasn't been to the Super Bowl since 2004 when New England quarterback Tom Brady engineered a last minute drive that led to an Adam Vinatieri field goal and a Patriots victory over the Panthers.

Oddly that great game, one of the few Super Bowls decided by a last minute drive, is more known for
Picture from
what happened at halftime, namely  the infamous Janet Jackson "wardrobe malfunction."

I have the erie sense that this Super Bowl, number 50 or L if you're still using Roman numerals, may be the end of an era.  In September 2015, researchers with the Department of Veterans Affairs and Boston University announced that they had identified chronic traumatic encephalopathy in 87 of 91 (96 percent) deceased NFL players that they had examined and in 79 percent of all football players. 

No amount of precautions against concusssions can fix the problem with CTE.  CTE is caused by repeated blows to the head that can fall well below concussion level.   The symptoms of CTE include memory loss, confusion, impaired judgment, impulse control problems, agression, depression anxiety, and, eventually, dementia.  These symptoms often show up decades after the football player stops playing.

It doesn't appear there is any way around CTE.  Better designed helmets do not eliminate the problem. 

The pipeline to the NFL is made up of youth leagues, high school and college.  It is only a matter of time before worried parents start putting their kids into sports other than football.  Eventually that pipeline is going to dry up and the popularity of football, no longer a participatory sport for many people, will wane.

So celebrate tonight's Super Bowl. Football may never be the same starting tomorrow.

Saturday, February 6, 2016

Expecting the Unexpected in the New Hampshire Primary

Predictions for Tuesday's New Hampshire primary:
Although Vermont Senator Bernie Sanders' lead in some polls is 30% plus, expect the margin over victory to be a notch or two less than 20%.  I'll go with Sanders with an 18% victory.   Although that should count as a solid Sanders win, the Hillary Clinton campaign will manage to spin it into her mounting a "comeback" similar to that of her husband in 1992.  In politics, particularly these early states, candidates are judged by whether they exceed expectations.  With the polls setting the bar so low, it would be difficult for the former Secretary of State to not better expectations.

On the Republican side, New York businessman Donald Trump leads the state with a 30.7% polling average on Real Clear Politics. Two tracking polls though show Trump at 35% and 34%, a 21 and 17 point lead, respectively over the candidate in second place Florida Senator Marco Rubio. Trump like Sanders though suffers from the horrible problem of expectations.  In Trump's case, if he falls below 30%, the media will label his performance a failure.   I expect though Trump will just clear the 30% bar with Rubio in the low 20% range...I'm going with 22%.  I expect Texas Senator Ted Cruz to score about 15% with the rest of the candidates being relegated to (mostly) high single digits.  In another week, dropouts will result in the Republican race narrowing to Trump, Cruz and Rubio.

This time bet the farm on Sanders and Trump, just don't give up too many points in doing so.

Friday, February 5, 2016

Quinnipiac University Poll Shows Dramatic Tightening of Democratic Presidential Contest

A Quinnipiac University poll released today shows a dramatic tightening of the race between former Secretary of State Hillary Clinton and Vermont Senator Bernie Sanders.  In the poll of 484 registered voters, Clinton edges out Sanders 44-42.  Clinton's 2 point lead compares to the 31 point lead she enjoyed over Sanders in a Quinnipiac poll issued in mid-December.

The poll also matches up the three top Republicans against Clinton and Sanders.  In virtually every poll Trump shows up as the worst general election candidate, which is also the finding in the Quinnipiac poll which has Trump losing to Clinton by 5 points and Sanders by 10.  Cruz meanwhile is even with Clinton and loses to Sanders by 4 points. Florida Senator Marco Rubio fares the best, beating Clinton by 7 points and even with Sanders.

In short, Trump is the worst Republican general election candidate and Rubio is the best.  On the Democratic side, despite Clinton's claims she is more electable, Sanders polls as the better general election candidate.

Thursday, February 4, 2016

Senate President Pro Tem David Long Faces Challenger

I recall a certain political blogger saying that a "compromise" bill that expands Indiana's civil rights law to include the LGBT community, while also purporting to protect some level of religious freedom, would be opposed both the right and the left and would never pass.   Indeed that is what happened.  This week, leaders in the Indiana Senate took that compromise bill, SB 344.  Although the bill passed out of committee, it was clear it did not have support to continue on.

I believe that blogger, who was of course me, also warned that Republicans who supported the bill would likely face a primary challenger.  Today we learn that Senate President Pro Tem David Long, one of the legislators leading the charge on SB 344, has drawn an opponent who seems very well qualified. The Indianapolis Star reports:
John Kessler
In the aftermath of a legislative fight for gay rights,Indiana Senate leader David Long is facing a primary challenge from fellow Republican John Kessler.
Social conservatives have been looking for a challenger to Long ever since he announced in November an effort to expand the state's civil rights laws to add protections for gay Hoosiers. Kessler appears to be that candidate.   
The Fort Wayne resident filed his paperwork with the Indiana Secretary of State's office today to take on Long in the May 3 primary.
Kessler directs of the Center for Economic Education at Indiana University-Purdue University Fort Wayne. He is an adjunct scholar with the Indiana Policy Review Foundation, a conservative think tank, and was a one-time military veterans liaison for U.S. Senator John McCain, according to a resume posted on IPFW's website. He is also a disabled Marine Corps veteran.

Tuesday, February 2, 2016

Trump Train Derails in Iowa

Well, I guess Donald Trump is not a "winner" after all, at least not in Iowa.

Last night a record number of Iowa caucus goers elevated Texas Senator Ted Cruz to victory with 28%.  Trump finished second with 24% followed by Florida Senator Marco Rubio with 23%.  As a result, Cruz will receive 8 presidential convention delegates, Trump and Rubio 7 each, Ben Carson, who finished fourth, won 3 delegates while Kentucky Senator Rand Paul and former Florida Governor Jeb Bush, who finished fifth and sixth respectively, each won 1 delegate.

Okay, not really.  The Iowa caucus last night was actually a series of county caucuses which actually
Texas Senator Ted Cruz
functions to select delegates for both Iowa's Congressional District Convention and the Iowa State Convention. They are the bodies which actually choose the delegates for the presidential nominating conventions, and they don't always choose the to support the same people that is chosen in the original county caucuses.   But those developments happen way down the road, long after the public has turned its attention away from Iowa and to other states.

Trump led in all the Iowa polls released the week before the caucus.  Last night though not only a record number of people showed up for the Republican caucus, but also a much higher number of them (63%) were evangelical than expected.   None of the polls expected the evangelical vote, which tends to favor Cruz, to be that great.  Also, the polling which was conducted several before the caucus didn't catch last minute shifts in support.  I suspect Trump's decision to skip the last debate hurt him as did Republicans who have continuously pointed out the very liberal positions Trump has taken on issues over the years.

But the caucus process itself also undermined support for Trump.  Iowa employs a 15% threshold requirement for support.  So if in a county Jeb Bush, Rand Paul, Ben Carson, Chris Christie etc., have the support of less than 15% of the caucus goers, those candidates' supporters have to shift to another campaign to support.  Polls show that Trump is not a popular second choice for many voters, so when those Iowans supporting those other candidates had to shift their allegiance, the beneficiaries were Cruz and, likely even more so, Rubio.  None of the caucus shifting would have been shown in the polls.

I expect that after the New Hampshire primary next week, the race will consist of three major candidates, Cruz, Trump and Rubio.  While the split field has helped Trump's polling in the past, I think the smaller split vote is soon to become his enemy.  Trump has a ceiling on his support more so than Cruz or Rubio.  I think eventually the majority of the GOP vote is going to coalesce behind a single candidate not named Trump and, for the first time, I'm betting that candidate is Marco Rubio.  All along I couldn't envision the the path to Rubio's eventual nomination.  But I finally saw it last night.

Monday, February 1, 2016

Iowa Presidential Caucus Predictions: Bet the Farm on Cruz, Sanders

I'm going to go out on a limb here and make some predictions about what's going to happen at tonight's caucuses in Iowa.

Republicans:  Last week on Jon Easter's JohnnyStir program, I predicted that Donald Trump would win Iowa.  I now want to change that prediction. I think Senator Ted Cruz will win Iowa, narrowly edging out Trump.  Third place will be Florida Senator Marco Rubio followed by Kentucky Senator
Rand Paul, nearly reaching double digits.  Ben Carson, who one time led the Iowa polls, will fall to fifth.

In the last couple days, two polls that were released show Trump's lead over Cruz at 1%.  Two others showed the lead at 5% and 7%.  I don't buy that Trump supporters, people who will stand out in the cold for hours to hear him speak, won't go to sit in a warm church basement for a couple hours to vote in the caucus.  But I think, in the end, the Cruz organization will push him ahead of Trump...albeit barely.  Exit polls will show that a key factor in the Cruz win will be Trump's decision to skip the last debate.  While that decision only influenced a small percentage of voters, it would only take a small slice of the electorate to push Cruz ahead of Trump.

Democrats:   Former Secretary of State Hillary Clinton has led in most Iowa polls though a Quinnipiac University poll released today shows Sanders ahead by 3%.  Although the polling edge goes to Clinton, polls are poor tools when it comes to measuring enthusiasm.  There is no doubt there is a major enthusiasm gap in the race that heavily favors Sanders.  I think Sanders will win by at least 5%.