Hard Cases & Bad Law

If someone wants to worship God in accordance with Catholic beliefs, no problem.

If someone wants to marry a person of the same sex in accordance with his/her affection and preference, no problem.

If someone wants to run a company in accordance with his/her religious values, no problem.

The problems arise when these three situations (and countless others) intersect. For example, if the Catholic works at a law firm and refuses to do work on a divorce case, what then? If a Catholic owns a child care center and does not want his/her employees to publicly "flaunt" their homosexuality, does that mean that all employees have to live in "the closet" or risk losing their jobs?

This is the genesis of the phrase, "Hard cases make bad laws." For example, we certainly have the right to wear t-shirts with statements on them, but does a student have the right to wear a "Bong Hits for Jesus" t-shirt, to school? The Supreme Court said yes, but does that mean that the student should wear that shirt?

I ramble all of this in light of a story I read recently in the Indianapolis Star. Here are some excerpts:

Students, parents and alumni are rallying behind a Roncalli High School guidance counselor who they say may be fired after administrators found out she was married to a woman.

The south-side Catholic school and Archdiocese of Indianapolis defended their position regarding Shelly Fitzgerald after her supporters began criticizing the school on social media over the weekend.

"As role models for students, the personal conduct of every teacher, guidance counselor and administrator and staff member, both at school and away from school, must convey and be supportive of the teachings of the Catholic Church," Roncalli officials posted on the school's official Facebook page Sunday night.

This has implications galore. For starters, if the counselor can't be fired, is that not an infringement on Roncalli's First Amendment rights? If the counselor can be fired, isn't that an infringement on the counselor's 14th Amendment substantive due process rights, particularly given that Roncalli receives public money?

As the title says, hard cases make bad laws. I don't think that the guidance counselor should be fired, as a function of what is right and wrong. I'm not sure as to whether the counselor can be fired, as a function of what is legal.

I would, however, advise Roncalli to tread lightly. While Indiana, presently, is shoveling public money to religious schools, the political worm always turns, particularly when you taunt fate and encourage the worm to turn. How many more schools doing something like this would eventually result in a revolt against the idea of giving our tax money to schools that aren't accountable to our constitution? If religious institutions can't follow our laws, in accordance with their stated religious mission, perhaps we shouldn't expect them to . . . perhaps we shouldn't fund them.

Of course, on the other hand, if Roncalli is forced to hire and retain employees who it sees as antithetical to its mission, how long before it and other schools like it turn their back on voucher programs and essentially say, "There are too many strings attached. We'll go back to the old way of doing things."

Again, hard cases make bad laws. When you mix the public and private sectors, it is really important to properly delineate between those functions that are governmental functions (and thus subject to all of the laws, regulations, and (yes) the Constitution, and those functions that are non-governmental.

What is "Lochner" all about?

I talk about the Lochner era sometimes as though everyone else knows what I'm talking about. It occurs to me that perhaps I'm making an unwarranted assumption, so today's post will more or less clarify what that means.

First off, Lochner v. N.Y. was a 1905 Supreme Court case. In a nutshell, the state of New York had passed a law stating that no baker could work more than 6 days per week, 10 hours per day, or something similar to that. Mind you, this was in an era where the bakers worked in large industrial bakeries, often 12 hours/day 7 days/week. The State of New York decided that, for a variety of reasons, they wanted to limit how much a person could be required to work. Maybe they thought it was good public policy to allow workers to spend time with their families; go to church; etc. Maybe they thought it would help their economy by forcing the bakeries to hire more bakers. Maybe they thought it would be better for safety. Regardless, the State of New York made that decision.

Someone named Lochner decided to challenge the law's constitutionality on the grounds that it violated his right to contract and deprived him of his fundamental economic liberty. Recall that the U.S. Constitution prohibits the passage of laws that impair the obligations of contracts. (Art. I, Sec. 10). Recall also that the 5th and 14th Amendments guarantee due process under the law.

The U.S. Supreme Court ultimately sided with Lochner and invalidated New York's' law. As such, it set a precedent that, more or less, all workplace safety and labor regulations would be determined to be unconstitutional. The Lochner era that followed is widely considered to have lasted into the New Deal, when it was overturned.

There are many of us, myself very much included, who believe that this nation is slowly but surely heading down that path again, where workplace protections and laws designed to even the bargaining power between workers and employers are deemed to be unconstitutional infringements on the corporations' rights to due process under the law. Of course, the modern conservatives on the court (every bit the activists as the Lochner era conservatives) use the 1st Amendment instead of the contracts clause and the 5th/14th. You can see the seeds of that in the recent Janus decision: right to free speech means that you have the right not to associate with a union that is compelled by law to represent your interests.

When I say that Justice Gorsuch is a dangerous, activist, retrograde judge, I have reasons. When I say the same about Clarence Thomas, I have reasons.

Stewards of your Tax Dollars

For at least seven years, Indiana has been controlled at all three electoral positions (Governor, House, Senate) by Republicans (including the underwhelming Mike Young). For seven years, the Indiana state legislature (including career politician Mike Young) has passed anti-abortion legislation. For seven years, the ACLU has responded to this anti-abortion legislation by filing lawsuits. For seven years, Indiana's anti-abortion laws have been struck down as unconstitutional by Indiana's courts. 

See here:

As the American Civil Liberties Union of Indiana and Planned Parenthood of Indiana and Kentucky marked yet another legal victory in a challenge to an Indiana abortion law, the leaders of the organizations say they hope state lawmakers will begin to see what they say is the futility of the annual passage of abortion-restricting legislation.

On Wednesday, the 7^th Circuit Court of Appeals struck down a provision in House Enrolled Act 1337 signed in 2016 by Gov. Mike Pence that required women to obtain an ultrasound 18 hours before having an abortion.

Or, if you like, see here:

 “Indiana politicians continue devising new and ever more demeaning ways to interfere with women’s constitutional rights and endanger their health,” said Jane Henegar, executive director of the ACLU of Indiana. “The ruling affirms that deeply personal decisions about abortion should be made by women in consultation with their doctors, not politicians pursuing an extreme ideological agenda.”

Finally, there is this little nugget:

 The state’s Legislative Services Agency, in its report on that bill, noted that past efforts to enact abortion restrictions have been successfully challenged by ACLU of Indiana, resulting in the state paying about $290,000 in legal fees to the plaintiffs and their lawyers.

A free piece of advice to our state legislature . . . stop picking fights that you're destined to lose. We know that you love guns and hate abortions. You don't need to spend a quarter million dollars of OUR money (in attorney fees to your arch enemy the ACLU) to prove it.

Let's just agree to disagree, OK Mike Young & Co.? I believe that determining when, whether, and under what circumstances a woman carries a child is her own fundamental right. You believe otherwise. Can we just agree to disagree? Will you please stop picking my pocket to make your point?

Remember the Clerk?

Remember the Clerk in Kentucky who refused to issue marriage license to same-sex couples due to her sincere religious conviction that same-sex marriage was an abomination? That happened in Indiana as well:

A southern Indiana deputy clerk who was fired after she refused to issue a marriage license to a same-sex couple lost her civil-rights lawsuit against the county clerk. Her suit claimed religious discrimination on the basis of her avowed Christian belief that same-sex marriage is “against God’s law,” which is “above legal law.”

Harrison County deputy clerk Linda G. Summers refused to issue a marriage license to a same-sex couple that came to the courthouse in Corydon on Dec. 8, 2014. 

Now, I know that Indiana's hired Jackass-in-Chief was not yet in office at the time, so I can only wonder what his thoughts were on this refusal to perform a public obligation for which one is paid and accepted employment due to religious belief. 

I bring that up in light of this recent headline. Some notable quotes:

Indiana Attorney General Curtis Hill is hitting back at three county prosecutors who have declined to defend the state in its most recent abortion-related lawsuit, saying the prosecutors have no authority to determine how the case proceeds.

Hill released a statement Thursday morning criticizing the Marion, Monroe and Lake County prosecutors’ Wednesday announcement that they would not defend the state in a complaint filed against Senate Enrolled Act 340, Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner, Indiana State Dept. of Health, et al., 1:18-cv-1219. The law, set to take effect July 1, would require abortion providers such as PPINK to report “all abortion complications” and to submit to annual inspections, a requirement not placed on other outpatient settings or hospitals.

* * * * * * * * *

Marion County Prosecutor Terry Curry said the state’s unsuccessful defense of these laws has cost the state nearly $300,000 in legal fees pad to the American Civil Liberties Union of Indiana and has diverted other resources away from prosecutors’ offices. Curry, Chris Gaal of Monroe County and Bernard Carter of Lake County are named as defendants in the SEA 340 complaint because PPINK has clinics in their counties.The prosecutors are Democrats. Hill is a Republican.

“We are tired of being drawn into the annual act of legislative futility to pass abortion-related bills, which inevitably results in lawsuits at taxpayer expense,” Curry said in a Wednesday statement. 

So, to be clear, the Indiana State Legislature has repeatedly passed laws that any first-year law student would rightly conclude are unconstitutional. Then, after the State of Indiana attempts to enforce those laws, the ACLU sues the State of Indiana and wins. Following the win, the ACLU is then entitled to its attorney fees. Indianapolis, Bloomington, and Lake Co. have determined that they do not believe they will prevail in the present suit and do not want to expose themselves to liability for the ACLU's attorney fees. 

Indiana's Republican Attorney General Curtis Hill (who no doubt casts himself as "fiscally conservative" and a "constitutional conservative") demands that these communities shoulder the burden of these needlessly provoked culture wars. 

Awesome.

Cal Thomas - dial "O" for "Oblivious"

The right-wing victimization party is at it again. Recall, these are the people who advocate "personal responsibility" and constantly characterize themselves as "constitutional conservatives." Nonetheless, we get this from Cal Thomas in today's Indianapolis Star (note, I was only able to see it in the print edition and the link goes to Mr. Thomas' personal site):

This is the wrong approach. Instead of boycotts and threats, how about celebrating the First Amendment by encouraging people to say what they think? Then viewers can decide whether to “buy” what a program is selling or change channels. That was what the left said to do in the 1980s when conservatives were upset by some TV programming. “If you don’t like it, change the channel,” they said. If that was an option then, why isn’t it an option now?

By way of background, the "wrong approach" referenced is the campaign by various groups to get advertisers to stop paying to advertise on Laura Ingraham's show.

It seems that Mr. Thomas believes that this is somehow an infringement on Ingraham's First Amendment right. Accordingly, let's have another lesson in the constitution, for the benefit of Mr. Thomas and his adherents:

1. The constitution does not confer on Laura Ingraham or anyone else the right to have a cabal of advertisers willing to pay money for the right to advertise on one's show.
2. The constitution does not confer on Ingraham (or Hogg for that matter) any immunity from criticism.
3. Advertisers are free to determine for themselves, based on their own self interest, the party with whom they choose to place their advertisements.
4. Individuals are entitled to make their feelings known to advertisers, and advertisers are entitled to judge their own self interest (and act accordingly) based on the feedback they get.
5. Finally, and perhaps most importantly, the First Amendment reads, in full, as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Mr. Thomas, neither David Hogg nor Ms. Ingraham's advertisers qualify as "Congress," and there has been no law passed that prohibits the free exercise of Ms. Ingraham. Accordingly, Mr. Thomas, criticizing right-wing provocateurs is no more a First Amendment issue than criticizing wrong-headed newspaper columnists.

I have found that reading the constitution is helpful prior to making claims as to what the constitution does and does not prohibit. That's just me.

UPDATE: Upon further review, I've got a theory as to why Mr. Thomas decided to make this an argument about the constitution, albeit an utterly wrongheaded argument that any first-year law student would smack away.

If this issue is not about the constitution, then what is it naturally about? I guess, the question, absent any constitutional question, has everything to do with who the bully/jerk is. If that's the question, we're left with, on the one hand, a teenager who recently bore witness (whether personally or by proximity) to the brutal murder of his classmates; and on the other hand, an Ivy league educated, nationally known, media personality. 

Stated another way, on the one hand we have a teenager (I'm pretty sure he's under 18, but I can't represent that as a confirmed fact) and on the other hand we have a wealthy adult with a large media platform.

Who's the bully again?

The 2nd Amendment

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

I am always stricken by how many people focus on the latter part of this Amendment at the expense of the former. The Amendment could have read, "The right of the people to keep and bear Arms shall not be infringed." 

It doesn't.

Rule of Construction #1 is that every word of a contract, law, regulation, etc., should be given meaning. As I pointed out above, the 2nd Amendment could have been shorter, more direct, and more to the point. It wasn't and it isn't.

The next time some NRA absolutist starts spouting off about his 2nd Amendment rights, perhaps my readers can calmly (and without making any sudden moves, lest you upset the delicate snowflake and get shot) direct him to the first part about "well-regulated" and ask this NRA absolutist to what degree he feels his right to bear arms should be regulated in order to be "well regulated" and within the confines of the 2nd Amendment.

Absent the well regulated part, it isn't a constitutional issue and is instead a policy decision made by our elected "leaders."

Gun Control - 2 Modest Proposals

I have very mixed feelings about the issue of gun control.

I sympathize and respect someone who lives in the inner city and is tired of seeing handguns being as easy to obtain as hairbrushes. I get why that person would want to see guns harder to obtain, and I completely agree.

I also sympathize and respect someone who lives in the same inner-city neighborhood and wants to get a gun to protect him/herself and his/her family from the gun-toting would-be thugs roaming the neighborhood. I get why that person is thankful to have a gun, and I completely agree.

I further sympathize and respect those who live in rural areas, and for whom gun ownership is a cultural thing and a rite of passage. Look, both of my grandfathers were gun owners and hunters; my father learned to hunt growing up in eastern Michigan in the 1950s and 1960s.

I get it.

However, I also get that America is the only developed nation on Earth that has this problem of serial mass shootings. Canada, England, France, Spain, Australia, Germany, Poland, etc. don't have fewer crazy people than America does. They don't have fewer frustrated "ticking time bombs" than America does. They have fewer guns.

Now, some would say that "guns don't kill people, people kill people." I would alter that just a bit to say that guns don't kill people, bullets do. Nonetheless, point well taken.

It is in light of the above that I propose two seemingly simple policies:

1. Barcode Firing Pins

When a gun is fired, the firing pin strikes the bullet, igniting the gunpowder and sending the bullet out to its fate, be that a sandbag or a skull. We have the technology already whereby we can take a bullet and a gun and determine whether a particular bullet came from a particular gun. Why can't we mandate that gun makers place a microscopic barcode on the firing pin of the weapons they well, thereby imprinting the bar code on the bullet? Imagine, if you will, a situation where as soon as the bullet is discovered, we (the people) know which exact gun fired it. I believe that this would go a long way in solving violent crime, and it would not infringe on the right to own a gun whatsoever.

As my grandfather often told me, don't aim at something you don't want to shoot; don't shoot at something you don't want to kill. If you have a problem owning that you shot that bullet, then perhaps you shouldn't shoot that bullet.

Seems pretty simple to me. As an added bonus, it actually helps us delineate between the so-called "good guys with guns" and the "bad guys with guns." Once we find the bullet, we'll know whether the gun owner is a "good" or "bad" guy.

2. Mandatory Insurance Premiums Upon Bullet Purchase

If you drive a car, you have to carry liability insurance, just in case you injure an innocent third party. If you shoot a gun, shouldn't the same liability insurance requirement attach? 

Let's say, hypothetically, that my neighbor wakes up to find an intruder in his house. My neighbor then picks up his Saturday Night Special and blasts that intruder straight to hell. The only problem is that he shot three bullets at the intruder, and two of them either missed or passed right through the intruder and wound up in my gut.

Now, assuming I know who shot the bullets, I suppose I can sue someone for the untold damages this gunshot wound to the gut would inflict on me. I support my entire family with my job, but if I'm laid up in a hospital for 4 months, it's a bit hard to litigate, no? What about my exorbitant medical bills? Should I have to bear that cost?

Let's assume for a moment that the shooting was something less noble. Let's say that there were two cars on Moeller Rd., and one of the drivers had road rage. They then shoot at each other, and one of the shots misses and again lodges in my gut. The damages are the same. Do I just suck it up and call that the price of freedom? When I am not a gun owner; I didn't shoot anyone; I didn't do anything to incur this risk?

If the purchase of a bullet automatically results in the payment of an insurance premium, at least there would be a pool of money with which to compensate the very real innocent third parties that are harmed by inadvertent, negligent shootings.

As it sits right now, the cost of such inadvertent or negligent shootings are borne privately by the recipients of the bullets involved in the shootings. Why should they pay? Why not the category of people who have the greatest ability to avoid the harm . . . the shooters.

Finally, the cost of this insurance premium could be directly proportionate to the risk. Perhaps .22 caliber bullets don't represent the same risk that .45 bullets do. Well, premium goes down. Perhaps bullets bought from Store A have historically wound up in cadavers. Well, premium goes up. Along these lines, I suspect the increased cost for one bullet is minimal whereas the increased cost for the person who wants to fire 1,000 rounds/week would (hopefully) be prohibitive.

Conclusion

These are just a few thoughts on what to do about the prevalence of gun violence in our country. I recognize that some people don't think this is a problem. I recognize that others have determined that the best way to address gun violence is "do nothing." I am not one of those people. To detractors, I would say that unless you have a better idea, you don't have any ideas, and talking about how "we need to get God back" in XXXXXXX (insert classroom, govt., etc.) or how "we need stronger families" is not a solution; it is lamentation.

As a final note, I would say this to our elected "leaders." As long as your policy prescription to this problem is "nothing," you have made a legislative determination and policy decision that the lives of those who have died from gun violence are an acceptable price to be paid in service of something (what that something is, I can't begin to imagine).

My Letter to the Journal Gazette, published 11-2-17

As I've noted before, I tend to write letters to the Ft. Wayne Journal Gazette more often than I write letters to the Indy Star. Perhaps it's because I grew up in Ft. Wayne. I don't know. Anyway, here is the text:

I have read in The Journal Gazette and elsewhere recently that NFL players have a First Amendment right to kneel for the national anthem. I suppose they do, but it is entirely beside the point. The government is not threatening repercussions for their kneeling.

We all have First Amendment rights to free speech. This guarantees us the right to express ourselves without having to fear government retribution. The First Amendment does not deal with private actors, including employers. Unfortunately, if your boss wants to fire you for being a Democrat, the First Amendment won't protect you. If Jerry Jones wants to fire his quarterback for kneeling during the national anthem, the First Amendment won't stop him.

The NFL players' protests are, in my opinion, respectful and tasteful. I see nothing in their actions that demeans the troops, first responders, firefighters, apple pie or anything else people consider to be “all American.” They seem simply to be expressing the radical notion that duly empowered law enforcement officers should not be so cavalier when shooting members of their community. I hope they continue to kneel as long as they feel the need to do so.

Nonetheless, let's be clear about what the First Amendment does and does not protect: It protects your speech from restrictions by the government; it does not protect your speech from restrictions by overbearing bosses.

TABLETOP JOE

Speedway

Former Fort Wayne resident

"Disrespecting" the Flag

Here is a story about a contracted ref for a North Central H.S. volleyball game walking out on his contract after becoming so upset by a teenager taking a knee for the anthem. I suppose this is what happens when we go all in on "divisiveness" and decide to armor up, choose sides, and fight amongst ourselves. In the world of litigation, we call this "staking out a bargaining position." Of course, in the world of litigation, all controversies must end, eventually. However, as to this story, I found a few points to be illuminating:

Jim Saddler is sorry. That’s the first thing he wants you to know. Not sorry for being angry — he’s still pretty angry — but for the way he handled his anger when he saw a volleyball player kneeling during the national anthem. 

Kudos to Mr. Saddler, as an initial matter. He understands, perhaps in a way that Pres. Agent Orange, VP Empty Suit, Speaker of the House Eddie Haskell, Senate Majority Leader Doublechin, (see what I did there, giving Trumpian names?) and so many others don't, that we are supposed to be the adults. Our children are watching the way we interact with each other and will imitate it. Let's try to give them a good template. Well done in your penitence, Mr. Saddler. Hats off, if only for that.

As to the merits of your position, well . . .

That’s why when he saw a North Central girls varsity volleyball player kneeling before an Oct. 9 match he was supposed to line judge, he couldn’t stay and do his duty.
He was barely able to contain his anger when he saw fans “sitting on their butts” during the national anthem, but once he saw the player on a knee, he had to leave.
Saddler calmly walked to the scorer’s bench, turned in his flag, then approached the North Central coach to inform him why he couldn’t stay.

Well, Mr. Saddler, I suppose that is your right. However, this article addressed a few important points:

1. Neither the kneeling teenager nor Mr. Saddler's actions have anything to do with the First Amendment, as has been pointed out on this blog ad nauseum. The First Amendment has to do with government actions, not private ones. That a private individual chose to kneel,  and another private individual chose to walk out of the occasion, has absolutely nothing whatsoever to do with the First Amendment.

2. Mr. Saddler had a contractual obligation to referee the game. Punctas sans servandas, "promises are to be kept." Whether Saddler was paid $1 or $1m to ref the game is immaterial; he had a contractual obligation and he breached the contract. Between Saddler and the girl who knelt for the Anthem, Saddler is the one who is in the wrong. He breached a contract.

3. Saddler identifies himself as a vet, and the article goes on to describe his service as a flight attendant aboard Air Force One. I don't want to go too far out on a limb here, but I do not believe that all vets are created equally. 

If you're a combat veteran, I believe that you deserve every bit of the respect that you are given, ten times over. One of the reasons I did not join the military after 9/11 is that I am deathly afraid of dying, particularly in a violent manner. To the combat veterans of the world, you have my undying (no pun intended) respect. 

To non-combat veterans, I appreciate your service too, but let's not fool ourselves into believing that your service stateside or in Germany or Japan is the same as the Marine who took Fallujah. There are a lot of people who work for the government, with crappy pay and worse working conditions; teachers come to mind, as do social workers. 

Bottom line: When it comes to the kneeling-for-the-anthem "controversy," perhaps we should all just chill out a bit.

Meadowood Park Concert

There has been some discussion on NextDoor in the past day or so regarding the concert that occurred in Meadowood Park yesterday (Saturday, 10/14).

As an initial matter, I was not there and would like to extend my apologies to the organizers. I have no good excuse for my lack of attendance, I have erred, and I am sorry.

However, with respect to the discussion on NextDoor, this is ridiculous. People are on there complaining about the language of some local rapper.

Granted, the rappers should know his audience and not drop the f-bombs when he is surrounded by small children. However...

1. Kids These Days

Maybe the next discussion on NextDoor will not turn into an opportunity for people to brag about how they raised their own kids right but nobody else raised their kids wrong. It will be a first. The other thing I particularly love is how people "back door brag" about themselves by invoking their parents and "I was raised a certain way . . .".

Look, if you think that you're the last person to value hard work, you're not. You're just a narcissist. Similarly, if you believe that you are the first person in the world to think that "kids these days" just "don't have any respect" and feel "entitled" to everything, you're looking and a lot like my grumpy old uncle who died in the early 1990s. Care to share any complaints about "kids these days" with their "rock n' roll" and their "sock hops"? "Why, in my day, we listened to the sound of the belt hitting our behinds, and daggumit, we liked it!"

Simply put, take a broader view. The kids are fine. They are doing fewer drugs than "we" were doing, they are having less sex than "we" were, and they are studying more in school than "we" were. If we think their music sucks and fails to pay proper respect to their elders, perhaps that is normal and to be expected? If we didn't feel that way, perhaps something would be amiss.

2. First Amendment Thoughts

I've spoken a lot about the First Amendment on this blog. This is particularly interesting because I do not practice law in any area that is remotely associated with First Amendment (or Constitutional, for that matter) jurisprudence.

However, I want to be clear. The First Amendment does not apply to private actions; it applies to governmental actions. The suggestion that a permit to hold a concert in a public park should be contingent on the content of the speeches/performances in the park is blatantly unconstitutional. To withhold such permits because you don't like rap music is no different than withholding the permits because you don't like what Bernie Sanders or Donald Trump want to say at the political rally they (hypothetically) intend to hold in the park.

Inasmuch as we have obscenity laws, it is certainly within the purview of the SPD to write the rapper tickets or shut him down upon the explication of said profanities. Insofar as we don't, perhaps the Town Council wants to pass some (or not). If enough people in Speedway were passionate enough about the issue, one would presume that our political system would respond. Personally, I don't think that it's worth it, but I'm also not on the Town Council.

3. What DO You Want?

As I noted at the outset, I am very appreciative of the effort to put on this concert. I wish more such efforts would be undertaken in this neighborhood. I could hear the bands from my back yard, and I thought they sounded amazing!

I think that Speedway, the Home of the American Dream, should encourage local kids to play in rock n' roll bands (and by that term, I include rap, hip hop, metal, etc.). Playing music is a positive form of expression and a positive expenditure of youthful energy and exuberance. The kids who are good at basketball get a world of support, but the kid who likes to play drums is mostly looked upon suspiciously and given an "opportunity" to march in the band. (Don't get me wrong, I love the marching band. However, it is my experience that there are a lot of kids who love to play music but aren't wild about the opportunities to do so in school. Imagine if the only sports that Speedway offered were polo and cricket; I think a lot of kids would yearn for football, basketball, and baseball).

These musically inclined kids/young adults are the beating heart of this community, and we should be encouraging them to participate, just as the organizers of yesterday's festival did. Otherwise, what is the park going to be other than a place where people walk along the trail and look at the woods? (I note that a lot of the same people complaining about the music also complain about the kids in the park. I can't even . . .).

Bottom line on this is that Meadowood Park is going to be as awesome as we allow it to be. We can use it for positive purposes, as noted above, or we can fail to do so and allow the worst element to fill that vacuum. One way or another, the park will be put to use. I prefer it be used for positive and fun things, such as concerts, festivals, farmers markets, etc., as opposed to neutral or negative uses.

Just my opinion.

4. Yesterday is Gone

It ain't coming back folks. The days of having the sock hop with the Beach Boys cover band are over. If we are going to have events that are designed to encourage young people to live in Speedway (or even visit here), we have to accommodate modern preferences. Speedway can't, and shouldn't, remain Mayberry forever. The more we allow this Town's discourse to be dominated by a longing for yesteryear, the more this Town's discourse will neglect tomorrow.

I vote for an agenda focused on improving tomorrow, as opposed to a spiteful and futile attempt to recreate yesterday.

In conclusion, I heartily thank the organizers of the festival and all of the people who came out as spectators as well as all of the bands that participated. To the bands, I know you probably didn't get paid, and I thank you for donating your Saturday. To the organizers, I know you likewise probably didn't get paid, and I thank you for putting the needs of your community (regardless of how broadly you define "your community") ahead of your own needs.

To the detractors of this event, I understand your point; I think that inasmuch as you are concerned about this community, please dedicate those concerns to positive efforts that will enhance the value of the community and refrain from the backbiting and second-guessing that is destructive of our community.

Campus Bias

I read a few interesting articles in the Indianapolis Star yesterday that got me thinking about campus bias. The first one blares the headline, "Why Indiana, Ball State, Purdue universities are facing lawsuits alleging racial bias." Here are a few excerpts, specifically about IU:

At Indiana University, Kim Morris-Newson, an associate director for the Office of Community and School Partnerships, was told there was a hiring freeze for a position above her. But IU later hired a white woman for the job without posting the position, her lawsuit said.

Also at IU, former education professor Ray Haynes said he was unfairly denied tenure. Haynes recently lost his case, with a judge ruling against him, but his attorney said he plans to appeal.

According to the suit, Haynes was hired as part of a diversity initiative but felt like an outsider, surrounded by people who didn't look like him and didn't reach out to him.

He believed he was on track to earn tenure, his lawsuit said. When he applied, he went through a convoluted process, where he said some of his choices of reviewers were turned down, so he was evaluated by people unfamiliar with his area of study — mentoring people of color. 

I make no comment on the merits of these suits, but I do feel a bit for IU, which appears to be getting flack from both sides. Here is the Indianapolis Star's Conservative House Organ Tim Swarens with his "fairly" titled column, "How a Young Conservative Navigates Liberal IU":

So one day, when an English professor called out students in class for not being more active in liberal causes, Chambers had to decide whether to challenge the instructor's assumptions. He chose, probably wisely, to stay quiet. 

"You have professors here or there who are hostile to your world view. Some professors will go out of their way to insult conservatives and Republicans. That's their right; the classroom is not a democracy," Chambers said. "You just try to get through it, and you hope it won't have an effect on grades."

So, to combine these stories, IU is being lambasted for being TOO liberal and for not being liberal enough. Huh.

As to the apologist Swaren's column, I note a few important details.

First, the student highlighted is a student at the Kelley School of Business at IU. I also note that his complaint is about an English professor. Does the subject of this column have anything to say about the overwhelming conservative bent of the business school? I know numerous IU business grads, and they all say they same thing: the B-school is very conservative. This is unsurprising, given that conservatives who deify the free market tend to want to be a part of that free market. Contrarily, I was an English Education major in undergrad. Is it any surprise that people who are willing to work for peanuts and are happy to be critical of abstract notions in literature tend to be liberal? Is it any surprise that liberals are less swayed by the rewards of capitalism than conservatives, and thus choose their career paths accordingly? Is this just more Conservative/Affirmative Action whining?

Second, I note that there are not columns about the cold slap in the face that is the professional world. Here is a tip for anyone out there who hasn't learned it yet: your boss doesn't care about your 1st Amendment rights, and they don't apply to him. If I was your boss and wanted to fire you for voting Republican, I am within my rights to do so. If my boss wants to fire me because I'm a snarky liberal, or a Cubs fan, he can do so. I have yet to read a column about some poor idealistic liberal who was forced to temper his/her views about the world to avoid enraging his/her conservative boss.

Third, as to those who are suing IU . . . come on. I am a supporter of civil rights, as I should hope goes without saying. I support the Fair Housing Act, Voting Rights Act, Civil Rights Acts, etc. However, when these get pushed to their illogical extreme, you tend to turn people off. I have defended a few civil rights cases, and I can state categorically that my clients did nothing wrong nor did they intend to do anything wrong. Nonetheless, their good names got drug through the mud all because someone decided that suing was a better option for getting money than working. 

Just because someone got fired within a year of filing her third worker's compensation claim does not mean that she was retaliated against. Just because she got fired within a year of making her third unsubstantiated sexual harassment claim does not mean that she was retaliated against. Just because you are required to comply with the terms of your lease, mortgage, neighborhood covenant, zoning laws, etc., does not mean that you were denied fair access to housing.

As to the article about IU . . . just because you got turned down for a job AND happen to be black/female/gay/(insert protected group here) does not mean that you were turned down for the job because you are a member of the protected group.

As I've said many times before: I am an equal-opportunity hater.

My Letter to the Editor

For reasons that I cannot explain, I have stopped writing letters to the Indianapolis Star. If I were to speculate, it's probably because I don't like their online platform, but I haven't really put all that much thought into it.

I do, however, write letters to the Ft. Wayne Journal-Gazette from time to time. I recently had one published (August 22, 2017). Here is the text:

The Journal Gazette ran a letter on Aug. 9 by Richard W. Burridge that is quintessential AM talk radio spittle.

Burridge alleges that “it was never the government's duty to provide us with health care or demand that we buy insurance.” On what authority does he base this assertion? He politely refuses to disclose.

He then says that the government is “to provide help for the poor and needy, but we were to be self-sufficient, not government-dependent.” Again, he provides no authority for his statement.

The fact that Burridge believes something makes it an “opinion.” Things that can be independently verified are “facts.”

Here is a fact: The U.S. Constitution's first sentence gives the federal government the authority to “promote the general Welfare.”

My opinion is that health care is part of the general welfare. Perhaps Burridge's opinion is otherwise. Nonetheless, the Constitution says what it says.

If Burridge has some authority to support his opinions on the proper role of government, perhaps he should cite them. Otherwise, kindly leave the AM talk radio talking points on the AM dial and refrain from presenting opinions as facts.

Back to First Amendment Rights

This is the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Please note the first word: Congress. That is the entity to whom it is directed: Congress.

I write this in light of a letter published in my old hometown newspaper, the Ft. Wayne Journal-Gazette. Here is the text of it:

I read the article headlined “Citizens unite against hate” from the Aug. 17 Journal Gazette. Jamie Duffy wrote, “...violence broke out Saturday after a mix of white nationalists, neo-Nazis and other extremists assembled to protest the city's decision to remove a statue...” Apparently, these groups fought among themselves. 

There is no mention of the group that arrived to deny the former their First Amendment rights. Regardless of your political leanings, the latter group was there, and they were actively engaged in the violence.

The deliberate omission of the second group spotlights the bias of the author. Is reporting all the facts too much to expect from Journal Gazette writers? 

Now, leaving aside the Trumpian "both sides do it" angle of this, attempting to equate the White Supremacists with those who wanted to counter-protest neo-Nazis, this might be the stupidest thing I've read all day (and I've read a lot of stupid $hi+ today).

Let me say this as clearly as possible: The First Amendment applies ONLY to the government and its agents (who are acting within the scope of their governmental authority). I am not the government, and I can tell you that you MUST refrain from using words that start with "R" when you're on my property. That is my right, and the First Amendment has nothing to do with it.

If a Tea Party or Anti-Trump rally takes place in Meadowood Park, I can, consistent with the First Amendment, bring my guitar and amp out there and drown out the protesters completely. I can bring a bullhorn out there and shout them down. I can bring a white noise machine. By virtue of me not being the government, I have NO ability to deprive ANYONE of their First Amendment rights.

This is not a difficult concept. It applies to other amendments as well.

Bickering (with a point)

What a week for backbiting and bickering here in beautiful Speedway! Apparently, a long-simmering "civil war" of sorts between two factions of Speedway has lit up our friendly NextDoor feed. I have no comments on any of the substance being debated, other than to note that at some point all discussions can become so "high level" and abstract that they lose all meaning.

I do have something, however, to say regarding one gentleman's reference to a town ordinance setting the speed limit at 20 mph in certain areas of the town being contrary to state law. This, of course, piques my interest, and I have some thoughts, on a variety of levels. Please forgive the scatter-shot nature of these comments:

1. The gentleman referenced Indiana Code 9-21-5, though he failed to reference a particular section. As a practice pointer, when you argue from authority it is best to specify the authority from which you argue. I can only presume that this gentleman, who clearly cares very deeply about his community, was referencing I.C. 9-21-5-6(a).  Here is a link to the statute referenced.

2. There is mention of "if they want to have a low speed limit there, why not everywhere else" type arguments. As a general rule, these arguments are logical fallacies . . . if I'm going to work out my heart, why not also work out my legs? Don't they deserve exercise? Why take Saturday off work? Doesn't my family want to see me on Monday too? The point, as many surgeons will tell you, is that sometimes "better" is the enemy of "good," and "perfect" is the worst enemy of all. Why improve one part of Speedway when other parts also need improving? Because it's our town and it deserves improvement. Let's not allow perfect to be the enemy of good.

3. On a philosophical note, why does this upstanding gentleman side with the State of IN over the Town of Speedway? Does he honestly believe that state Senator Dean Kruse, from Auburn, IN, knows better what is right for Speedway than does the local town council? Why assume that Speedway is the villain here and not the overreaching state government?

4. Continuing on the philosophical point, why is it that "conservative," "small government," "close to the people" Indiana has laws that require a Town like Speedway to undertake an "engineering and traffic investigation"? Is this some sort of a "crony capitalist" racket on behalf of companies like American Structure Point? It is laws like these that stymie economic growth. If a community thinks that Course A is in its best interests, but the State of Indiana says "you can only take Course B," it doesn't take a rocket scientist to predict the results.

5. While we're on the topic of terrible laws, neither "engineering," "traffic," nor "investigation" is defined in Title 9. Perhaps, were this to go to court, the Town could merely say that they discussed this with their local police officers, who have been conducting an informal "engineering and traffic investigation" for years. Voila!

6. Getting away from the text of the law itself, there is also the common law notion of "standing." The gentleman suggested that everyone who ever got a traffic ticket there should form a "class action" lawsuit. Forget for a moment the intricacies of class action law (and there are plenty). Let's focus on standing. Can you identify someone who has been particularly harmed by this ordinance (who would not have otherwise been harmed), how such harm can be specifically related to the offense, and how court action can redress the harm. Without standing, your lawsuit doesn't make it past Day 1.

7. In addition to common law standing (as discussed above), can we even tell whether this statute provides for a private cause of action (i.e. lawsuit)? What if the only party/person that is authorized to sue over this is the state executive? Maybe it's the county commissioners? Maybe its the state legislature?

As I hope I've made clear, I have nothing but respect for the individual who cares so deeply about his community that he is willing to do a bit of research and put his opinions "out there" publicly. This is merely my randomized thoughts on one very small part of what this person had to say.

Google Answers

There is a rather large uproar lately about the infamous "Google memo" and its author's termination from Google for the contents thereof.

The snafu started with a Google engineer drafting a memo (disclosure: I haven't read the memo in its entirety; only parts of it) that theorizes that natural differences in men and women explain the paucity of female tech workers.

The utterly predictable, viral response to this memo was that it is res ispa loquitor (the thing speaks for itself) evidence of the "sick culture" of Silicon Valley. In response to the viral response, presumably, Google fired the guy who drafted the memo. Thereafter, certain elements of our society were predictably outraged at this engineer's firing, claiming that his 1st Amendment rights were violated, or something like that.

Once again, Google provides an example and answer to a commonly held misbelief. Neither you nor I have 1st Amendment rights with respect to our employers.

That's right.

Your employer can fire you for your views, political or otherwise. If your employer wants to only hire people whose favorite color is red, s/he can fire you if your favorite color is blue.

If your employer only wants to employ Republicans (or Democrats), s/he can fire you for voting Democratic (or Republican, as the case may be).

Do I like this state of affairs? No, not particularly. Nonetheless, the world is what it is, not necessarily what I want it to be.

Thus concludes our talk of one (miniscule) area of constitutional law.

"Legalize the Constitution"

I saw a bumper sticker that said this yesterday, and I couldn't help but think two things:

1. What a nice sentiment, and
2. Huh?

I understand that people want to wrap themselves in the constitution and claim fealty and loyalty to this supposedly "divine" document. I too revere the constitution, including its many flaws which in a perfect world would be rectified, but we man is a fallen being.

That aside, here is a little hierarchy for those playing along at home:

• The Constitution is atop all else in our legal framework. It is a vague statement of principles and grant of power to the federal government. It is the supreme law of the land and trumps (no pun intended) all other assertions of power. If it violates the constitution, it is illegal. The U.S. Supreme Court has the power to determine whether a law violates the constitution. See Marbury v. Madison.
• Based on the power granted under the Constitution, the Congress has the power to pass laws; the Executive has the power to execute the laws; and the Court has the power to adjudicate controversies about such laws (including whether they comply with the Constitution). This is basic schoolhouse rock stuff.
• As the constitution is generally vague, so too are laws at times. For example, a law that says that people aren't allowed to "pollute" needs a bit of explanation. Clearly, dumping cyanide into Lake Michigan, millions of gallons at a time, seems to count as pollution. What about throwing batteries away in my normal trash can? What about dumping a port-a-pot into the local creek? Poop is natural after all. I have a hard time entrusting our know-nothing congress critters to make that determination. I am more comfortable allowing them to designate that decision to actual experts who do such crazy things as read books in order to learn about what they're doing. This is where the administrative state comes into play.
• In the example above, the EPA would then be tasked with determining what amounts to "pollution" under the Clean Water Act. Different presidents will likely employ professionals who see things their way, i.e. a Republican will likely employ an EPA administrator who believes that environmental laws should be read narrowly, whereas a Democrat will likely employ an EPA administrator who reads environmental laws broadly. Nonetheless, they are each, in theory, employing knowledgeable people who can interpret and apply the law that Congress passed.

Please note, Congress can't pass laws that violate the constitution. Agencies can't pass rules that violate their "enabling" laws. These issues (whether a law violates the constitution and whether a regulation/rule violates its enabling statute OR the constitution) are litigated constantly.

To legalize the constitution is an oxymoron. It just doesn't make sense because literally nothing is legal if it does not abide the constitution, as interpreted by the U.S. Supreme Court.

Also, please note that there is more to the story than the framework laid out above, particularly when we start dealing with state and local laws, whether the Bill of Rights has been "incorporated," whether laws have been pre-empted, etc. That is a discussion for another day.

"Liberal" Academia

OK. I get it. I'm a lawyer, a former educator, a former public employee's union official . . . I fit the mold. I am the boogeyman that FoxNews and company harp about day in and day out.

In light of that, I was rather unsurprised to see that a majority of self-identified "conservatives" have a rather negative view of the impact of higher education on society. I suppose that wasn't too surprising to me, as I've heard more times than I can count some variation on the notion that my education is holding me back and preventing me from seeing some obvious truths in the world.

Paul Krugman, the New York Times columnist and award-winning economist, recently addressed this point:

A few days ago Pew reported that Republicans, who were already much less positive than Democrats about higher education, have turned very negative on the role of colleges in America. True to form, this worries some liberal commentators, who are calling for outreach – universities should examine their implicit biases, make an effort to hire more conservative faculty, etc..

And you can see the point. After all, among college professors 59 percent identify as Democrats versus only 13 percent as Republicans; senior faculty were even more liberal, with very few identifying themselves as conservatives.

Wow! That sure looks compelling. Continuing:

Oh, wait – that wasn’t a survey of college professors; it was a 2004 survey of the military, and the 59-13 comparison was of Republicans versus Democrats. Support for Republicans in the military has eroded since then, but the officer corps is still far more conservative than the country at large. Strange to say, however, I haven’t seen a lot of op-eds demanding that the military change its recruiting practices and practice what amounts to affirmative action on behalf of liberals.

Funny that.

The point is that your political orientation isn’t something handed to you, like your race or ethnicity. It’s a choice, reflecting your values – and those same values are likely to influence your choice of profession, and possibly how well you perform in that profession. Is there discrimination against would-be academics who express conservative beliefs? I’m sure it happens, but it’s not the main reason conservatives are less likely than liberals to join the academy, just as discrimination against would-be officers with liberal views probably isn’t the main reason the military trends conservative.

Agreed. Just as there's a reason that Gender Studies classes are full of people who are interested in the ways gender expresses itself in our society, Finance classes are chock full of people who are interested in determining how to use money to make money. This should not be surprising.

In conclusion, I will let Mr. Krugman say it, as he is the professional:

What this means for the future is grim. America basically invented the modern, educated society, leading the way on universal K-12 education, building the world’s finest and most comprehensive higher education system; this in turn was an important factor in how we became leader of the free world. Now a powerful political movement basically wants to make America ignorant again.

As Thomas Jefferson so memorably said, "If a nation wants to be ignorant and free, in a state of civilization, it expects what never was and never will be."

Origination

For the 4th of July, I will leave aside the cheap jingoism that too often accompanies the holiday and instead focus on what I believe was the founding idea of this great nation of ours.

For millennia, the commoners (like my ancestors) were expected to live at the pleasure of their royal "betters." The "landed gentry" was a term that arose in the context of a society where there were a few people who had land, and then there was everyone else who worked said land for the pleasure of its owners. These were the feudal lords, and at the culmination of this system were the titular royals who had the authority to grant land and titles, both of which directly correlated to more bountiful and comfortable lives. Pardon the oversimplification.

At some point, our founding fathers determined that they could set up a new system whereby power and wealth amassed not based on one's parentage but based on one's merit. Again, pardon the oversimplification.

I still believe that this is a beautiful aspiration: the populace governs itself, instituting policies that are based on objective evidence, and rejecting the policies that repeatedly fail. . . stubbornly refusing to repeat the mistakes of our peoples' collective history. A place, not unlike ancient Rome, where good ideas are always welcome; where we understand that those good ideas make our society better and are more than a mere vehicle to launch people into perpetual un/underemployment.

Maintaining such an idea requires vigilance and a constant longview. What may be good for today and tomorrow may be immeasurably bad for the day after. We need to be mindful of such things.

As I've written before, good policy outcomes in the past don't necessarily mean good outcomes in the future. Perhaps, we should have a conversation as to what outcomes we want. Then, we can move on to how we get there. That is the essence of self governance.

Happy 4th of July. Be careful.

About that Pesky "Private" Property Thing

There has been some discussion recently on Nextdoor about what to do regarding the eyesore strip mall that extends from PetSmart, through Kroger, and all the way to Donato's and the Speedway Chamber of Commerce.

As much as I'd love to suggest things the Town could do, unfortunately, hands are basically tied.

I read an interesting article out of northwest Indiana recently about similar troubles. I highly recommend it.

A few highlights:

With Kmart closing its Merrillville location in December, town officials are concerned what will happen with the vacant building. 

How long that building at 101 Lincoln Highway will go unused is unpredictable. A Kmart building near 95th Avenue and U.S. 41 in St. John has been unoccupied since October 2012. 

Sounds hauntingly familiar, no?

Officials in both towns might look into what Valparaiso did when the city faced a similar situation with a former Walmart at U.S. 30 and Ind. 49. That structure remained vacant for a long time before being torn down. A Tractor Supply Co. store was eventually built in its space in 2005.

 

Valparaiso city officials around that time decided to create a Big Box Abandonment Prevention ordinance that includes a plan of action in which the owner of the property must meet with the city and file a plan of action for reuse of the property. It includes maintaining the property, reuse of the site by the existing owner or active remarketing of the facility.

The ordinance, which Valparaiso has not had to put to use, states the property owner must file monthly reports with the city that detail, among other things, listing agents for the property, maintenance activities to prevent blight and decay, and improvement activities related to reuse of the property. Failure to file this plan, a binding contract with the city, would mean the city could provide notice of its intent to condemn and demolish the property and charging all costs to the owner. 

Often lost in the discussion of how to develop land as quickly as possible is what happens when the structures near the end of their useful life? Rest assured, property owners want to squeeze every last bit of value out of structures before tearing them down. I can't blame them, but when that desire results in costs that the property owner does not bear, then there is a problem.

Kil said the Kmart property is owned by Garden Properties in New Jersey, and they have no plans to sell it. He said he was told by one of its representatives that it is the policy and business plan of their company to not sell their properties. 

"They will only enter into long-term leases with what they consider to be blue chip tenants," he said. "They are willing to sit on properties for decades if that's what it takes."

Kil said he was given an example of a vacant property the company owns in Chicago's northwest suburbs that "took them 10 years to lease." 

"Their policy is real clear," he said.

When contacted by The Times, Garden Properties said there was no update regarding Kmart and they had no other comments.

It seems to me that there ought to be a mechanism in place whereby a community can force a property owner, be it a homeowner or the owner of a big box store, to maintain property in a manner so as to not negatively affect the surrounding properties or be subject to condemnation. In the case of a home, that probably means such things as keep the grass mowed. When it comes to retail space, that probably includes keeping the place generally occupied. It seems that this would compel all property owners to tend to their belongings or risk losing them.

These are scattered thoughts, of course. However, they seem pertinent in light of ongoing efforts to improve Speedway. Not only do we want it to be nice for 2017 and 2018, but also for 2030 and 2050.

Short-sightedness is no virtue.

Sen. Donnelly (D-IN)

Soon-to-be ex-Senator Joe Donnelly will not be receiving my vote in November, 2018. I would rather vote for my neighbor, or brother, or that crazy Tea Party/Trump guy I saw in front of the statehouse the other day. At least they have a spine.

Joe Donnelly does not.

I can't think of one instance of Joe Donnelly standing up for progressive values. Gun Control? Obamacare? Crickets.

Now, he has indicated that he will refuse to stand with the Democratic filibuster of the stolen nomination of Neil Gorsuch. Let's never forget that the American people decided who they wanted to choose Supreme Court Justices in 2016 . . . in November, 2012. For those who forget easily, that person was President Obama. He nominated Merrick Garland to the Supreme Court. Mitch McConnell et al decided that didn't count. Joe Donnelly is now complicit in this.

You own it Joe, but you will never again own my vote.

Your cowardice will garner you not a single vote from those who would fault you for filibustering this stolen nomination.

It will, however, earn you a "present" vote from me. I doubt I'll vote for your opponent, but how can I vote for you, Sen. Donnelly, when I know that you refuse to stand up for progressive values when it counts? Either you disagree with me on foundational issues (i.e. stolen Supreme Court nominations) or you simply refuse to stand up for what is right.

Neither rationale convinces me that I should vote for you. So I won't.