Sweetheart Plea Deals (& A**hole Prosecutors who Get Them)

Certainly I'm not the only one who noticed that the Johnson County Prosecutor has pled guilty to a number of crimes, including felonies, and has been removed from his official position. Good riddance! I find the law enforcement apparatus to be sufficiently despicable (deplorable, anyone?) without having a known, convicted wife beater as a prosecutor. (Apologies . . . apparently it was his fiance).

Anyway, in reading through this story, I couldn't help but notice that this guy was charged on April 15, 2019 and signed a plea deal (that supposedly expired at 9:00 a.m.) on April 15, 2019.

This is a lot like the Scott Harris case and begs numerous questions. First and foremost, why is it that the powerful get advance warning of their impending charges and have a plea deal drawn up before they're even charged? How does that happen? It seems pretty obvious to me that there was "collusion" between the prosecutors and their "targets" in both cases to ensure that the "indiscretions" of the powerful were quickly swept under the rug.

I also can't help but note the difference between how these powerful men are treated and how, for example, educators (or professional athletes, for that matter) are treated when they get busted for OWI. Before anything is proven, and often before formal charges are even filed, these poor people have their faces plastered in the newspaper. For example, here is a prototypical "newsblotter" crime story.

Clearly my feelings on prosecutor tactics are unambiguous.

Why Judicial Appointments Matter

From Slate today:

Before Donald Trump nominated him to the federal bench, John K. Bush was perhaps best known as an anti-gay blogger who spread birther conspiracies. Now he is a judge on the U.S. 6th Circuit Court of Appeals. Bush was selected, in part, because of his conservative views on reproductive rights, including a belief that abortion is a tragedy on par with slavery. On Thursday, he transformed those views into law, upholding Kentucky’s “informed consent” law in an opinion overflowing with charged anti-abortion rhetoric.

The Kentucky law at issue is extraordinarily invasive. It requires abortion providers to perform an ultrasound, generally using a transvaginal probe for pregnancies of less than nine weeks, on all patients seeking to terminate their pregnancies. The provider must then describe the fetus in detailed terms, pointing out its organs, and play the sound of its heartbeat. Patients can only avoid this sound and description if they cover their ears and make noises to drown it out.

I am trying to identify what state interest this serves. Does it simply make the Kentucky state legislature feel better to know that they got to put some poor woman (who no doubt will wrestle with the decision to terminate her pregnancy for the remainder of her life) through a series of mental tortures?

Again, from the article, quoting a woman who testified regarding her experience during this "description."

While the staff at the abortion clinic did all they could for me, this experience was nothing short of torture. I had to lie on an examination table, with my feet in stirrups. My belly was exposed with the ultrasound gel and abdominal probe on it while we saw images of our sick child forming on the screen for the third time that day. Before the doctor even started the description, I began to sob until I could barely breathe. My husband had to calm me down and the doctor had to wait for me to find my breath.

The description the doctor provided was perhaps the most devastating part because although our baby was profoundly ill, he had healthy organs too. So, the doctor was forced to describe—and I to hear—that he had a well-developed diaphragm and four healthy chambers of the heart. His words were unwelcome and I felt completely trapped. I closed my eyes. I twisted away from the screen. The doctor and staff repeatedly apologized for making us go through this, but their compassion could not ameliorate my pain.

This is what is at stake when we talk about judges and reproductive rights. I had a commenter tell me that, even with Justice Kegstand Kavanaugh on the bench, Roe v. Wade will not be overturned. My commenter can be forgiven for not realizing that Justice Kennedy substantially limited Roe in the matter of Planned Parenthood v. Casey, which simply held that a state can't put "unreasonable restrictions" on a woman's right to family planning services, including abortion.

What amounts to "unreasonable," I can say from years of experience in litigation, is very much in the eye of the beholder.

Two final points:
1. Remember, a government that has the power to prevent you from getting an abortion is a government powerful enough to compel you to get one. Most pro-choicers, myself included, don't revel in the notion of terminating pregnancies. For us, the issue is who gets to choose to terminate a pregnancy or not. Apparently many pro-lifers believe that is a choice best left to the government (ironically, so many of these so-called pro-lifers label themselves "small government conservatives," but I digress).

2. Further, insofar as people argue about "states rights," just remember that if Kentucky can do this, New York or California can pass laws allowing abortion up to the day (or hour, or minute) before birth. When you devolve responsibility to the states, you can't then micromanage how they handle such responsibility.

My Favorite Punching Bag

Our esteemed statewide shame joke of an attorney attorney general Curtis Hill, as both of my readers know, is rather far down my list of esteemed attorneys in this state. (Indeed, I hold the state's best defender of child molesters in higher regard than Curtis Hill, but I digress).

As has been discussed on this blog previously, Curtis Hill is in some hot water with the Indiana Attorney Ethics and Disciplinary Commission for his grabassery. He was charged with ethical violations and has responded, to which the Ethics Commission replied that our jackass attorney general believes that, because he is an elected official, there are "layers of accountability" for him and the disciplinary commission is not the proper mechanism to hold him accountable (see the entirety here).

Pure bullshit.

This is a guy who has spent his entire career throwing the proverbial book at defendants who did not have the resources to defend themselves. I wouldn't be surprised if he was the type of prosecutor who overcharged on spurious grounds, threatening life in prison for a dime bag of weed or something, just to convince defendants to give up their constitutional right to see the evidence and confront witnesses against them.

This is just the kind of "justice for me but not for thee" attitude that I see all too often among our political elites. They can take that attitude and shove it where the sun doesn't shine, if you ask me. If I have to answer to the damn ethics commission, I don't think it's too much to ask that the elected chief attorney of the state answer as well.

Best quote from the disciplinary commission: "What [Curtis Hill's] motion boils down to is that the respondent seeks special and favorable treatment by the Court that no other lawyer would ever obtain. He seeks this Court, in essence, to declare that he is a lawyer whose conduct is above the Rules of Professional Conduct simply because he is the Attorney General. This Commission can think of nothing that would deepen the mistrust of the judicial system, diminish the esteem of the Supreme Court, and prejudice the administration of justice more than if the Court were to grant [Curtis Hill's] motion."

That sound you just heard? That was the mic being dropped.

More on Conservative Snowflakes

I wrote previously about how so-called conservatives seemingly can't get enough of the preferential treatment from the government that they routinely decry. For example, if you are a conservative who does not agree with abortion, apparently you can go get a job at an abortion clinic and not have to work . . . moral conscience you see. If you're a county clerk, it's OK if you refuse to do your job and issue marriage licenses yet continue to collect your paycheck . . . moral conscience you see. If you're a corporation (say, Hobby Lobby) that wants to take advantage of a generous tax break for providing your employees health insurance, you can still get the tax break even if you don't offer insurance that actually, you know, insures your health in the event you want to do some family planning. If you're a manufacturer of a death-dealing device, you get special laws immunizing you from the entirely foreseeable consequences of your product . . . maximal interpretation of the 2nd Amendment, you see.

Now, we get this story about a guy who left a loaded handgun in plain sight in an unlocked vehicle yet is immune from civil liability for this clearly negligent act. Of course, this is not due to a judicial determination but rather due to the Indiana General Assembly (where bad ideas go to thrive).

I hear about "responsible gun owners" having their 2nd Amendment rights protected all the time. Well, gun owners, what about the guy in this story? Is this the person you intend to protect? Are the dead kids just "the price of freedom" to you?

As the NRA types like to ape this photo, I can't help but ask them: "What are you willing to do about those who don't control their own guns?"

Sheila Kennedy, per usual, says it best:

If you have a tree with a loose limb in your yard, you need to take care that it doesn’t fall and hurt someone who might sue you. But if you have a loaded gun available to whoever walks by, no worries.

The Indiana General Assembly has protected you. 

Sometimes, you just tip your cap.

Indiana - Where Bad Ideas Never Die

So, the nation's worst legislature is at it again. Just today, the Indiana Lawyer (as well as NPR, which I listened to this morning on my way to work) discussed a new bill put forth by Indiana lawmakers:

Senate Bill 201, authored by Republican Sens. Liz Brown of Fort Wayne, Linda Rogers of Granger and Travis Holdman of Markle exempts nurses, physician assistants and pharmacists from being required to perform an abortion or assist in such a procedure. The legislation was approved by the upper chamber on a 39-to-1 vote and is moving to the House floor after being approved by the House Committee on Public Health along a party-line 9-to-4 vote.

So, let me get this straight . . . if nurses, PAs, or pharmacists have religious objections to participating in abortion (however they want to define it, which increasingly includes issuance of birth control), they get to keep their jobs and not do the work?

Am I the only one who notices how our "small government conservative" legislature keeps passing out "government goodies" to its favored constituents? Where is the bill that provides a police officer or a prosecutor exemption from being required to arrest or prosecute small-time drug offenders because they believe the War on Drugs is counterproductive and racist?

Oh, I hear the crickets. Those bills are only for gun makers who don't want to be held civilly liable for the utterly predictable consequences of their products; for gunowners who don't want to be held civilly liable for their trigger happiness; for so-called Christians who can't abide sending their children to public school but don't want to actually, you know, pay for their children's Christian education and upbringing (instead, they want the government to pay for it).

Note, I have merely ranted about the actual bill, not whether it passes constitutional muster, be that at the state or federal level. Something tells me that an employer has a pretty good takings argument, i.e. the government is taking the abortion provider's money by forcing it to employ someone in a ghost position who won't do the work of the business. (Interesting side note: How does this fit in with the arguments about Right to Work? How does this fit in with Indiana's "at-will employment" status?)

For those who can't tell, I've about had it with this sanctimonious group of ass bags calling themselves "public servants," to and including Senator Mike Young (who, of course, voted for this monstrosity).

Mike Young for State Senate 2020: Government Goodies for Favored Interest Groups

Sen. Mike Young & Hate Crime Legislation

Maybe you are OK with Indiana being one of 5 states without a hate crimes law. That's your right. Maybe you like that Indiana gets lumped in with Arkansas, Georgia, South Carolina, and Wyoming for this purpose (places with less-than-stellar track records of protecting minority rights). That too is your right.

The Indiana state Senate, yesterday, debated a hate crimes bill. It passed out of committee 9-1. For those keeping track at home, those 9 committee votes didn't all come from democrats; there are only 10 of them in the entire senate and 3 on this particular committee.

Anyway, the pertinent language out of committee was this:

The person committed the offense, including an offense involving the property of an individual or a group of individuals, with the intent to harm or intimidate an individual or a group of individuals because of a perceived or actual characteristic of the individual or group of individuals, including: (A) race; (B) religion; (C) color; (D) sex; (E) gender identity; (F) disability; (G) national origin; (H) ancestry; (I) sexual orientation; or (J) age; whether or not the person’s belief or perception was correct.

After debate was commenced on the floor of the senate, Senator Freeman (essentially representing Franklin Twshp. in Indianapolis) offered the following amendment:

“The criteria listed in subsections (a) and (b) do not limit the matters that the court may consider, including bias, in determining the sentence” 

So, if listing the criteria above doesn't limit what the court can consider in determining a sentence, then why do we list them? I deal in litigation on a daily basis; factors and criteria are precisely what people use in the justice system to determine whether they're following the law. Sen. Freeman, in essence, added another section to this hate crimes law that said, "Well, what we said before about protecting certain historically downtrodden populations doesn't really carry any weight."

And here's the punchline: your own senator, Senator Mike Young, like the good party man he is, voted with the majority of his Republican party colleagues to make sure that those in the minority in Indiana, whether the ethnic, gender, religious, or other minority, got the message loud and clear that they don't care about you.

If you voted for Mike Young, you voted for this. If you don't like this, don't ever vote for Mike Young again.

Quidam Stultus non Sulvit

Being a lawyer, I have probably heard a majority of the lawyer jokes out there. Most of them revolve around lawyers being greedy. (Ever heard of the law firm Dewey, Cheatham & Howe?)

Anyway, I saw an interesting writeup in Above the Law today about reasonable fees and decided to share a few things:

our ethical canon specifically prohibits such greed by imposing limits on attorney’s fees. In particularly, ABA Model Rule 1.5(a) states that “[a] lawyer shall not make an agreement for, charge or collect an unreasonable fee….”

And because reasonable is one of these amorphous terms not subject to clear delineation like “love,” “beauty” and “monogamy in a long-distance relationship,” Rule 1.5(a) goes further and lays out eight specific factors to consider in determining whether a lawyer’s fee is reasonable; such as the time and labor required, local market prices, the amount involved, the experience and ability of the lawyer, etc. And while it is true that the drafters of this rule were not clear in setting forth how many of the eight factors must be met for a lawyer’s fee to be deemed “reasonable,” at least they attempted to put some constraints on our rapacity.

In other words, the Model Rules of Professional Responsibility (I know, the rules of lawyerly ethics . . . probably seems like a contradiction in terms) prohibit lawyers from being too greedy. Of course, this is a violation of the canon of free markets, for those who take such things seriously.

This stands in stark contrast to the general rule of a free market economy, which generally presumes that any fee is reasonable so long as you can get some fool to pay it. In fact, I believe that Adam Smith said precisely those words when negotiating his publishing contract for The Wealth of Nations. Or perhaps, it was P.T. Barnum who first said it.

So, the phrase in the title? Well, I don't know many lawyers that would pass up the opportunity to say something in Latin that could easily be stated in English, but it means "some fool paid it."

If some fool would pay me $10,000 to mow his lawn, that's fine. If that same fool wanted to pay me $10,000 to handle his expungement or review a contract, I'd probably be in ethical hot water.

Just a thought.

 

"Standing"

I wrote this for the Speedway Town Talk, and I figured I'd post the un-edited version here:

I was approached recently[1] by a guy who “almost” hurt himself when slipping in a store, and another guy who was cut off by a truck driver “who could’ve killed someone.” Of course, in my line of work, the first question they asked me was whether they could bring a lawsuit.

                The answer is, generally[2], “No. You can’t.” My reason? “You don’t have standing.” The logical next question is, “What is standing? What does that mean?”

                Well, the answer is simple and infinitely complicated. Having standing means that you’re not asking the court to decide a hypothetical question. It means that you have actually been wronged and, at least assuming you can prove your allegations, are entitled to and can expect redress for your injury.

It means that the guy who almost hurt himself when he slipped in the store hasn’t been wronged and isn’t entitled to anything by the court; the guy who was cut off by the trucker wasn’t killed or hurt in any way . . . it’s not his fight. The doctrine of standing has nothing to do with the actual “merits” of the case. It doesn’t decide whether the store where the guy slipped was negligent; it doesn’t address whether the trucker was indeed driving like a maniac. It just asks whether there is an actual controversy to be decided by the courts.

                To have standing, one must generally demonstrate three things: (1) the Plaintiff suffered an “injury in fact,” i.e. a concrete, discernable injury, as opposed to a hypothetical or conjectural one; (2) the injury noted in element #1 is fairly traceable to some conduct of the defendant; and (3) a favorable judgment in court would fairly address the injury. See the late Justice Scalia’s opinion in Lujan v. Defenders of Wildlife if you are interested in more reading on the matter.

                As a fine (yet absurd) example, I can’t sue Satan (yes … the actual Prince of Darkness) for enticing Adam to eat the apple and thereby harming humanity, of which I am a member. Even if the Supreme Court of the U.S. sides with me, my injury is “non-justiciable.” There’s nothing they can do.

---

[1] Which is to say, “In my lifetime.”

[2] As always, this is not legal advice, as the world offers infinite circumstances that are open to interpretation.

I would like to point out that one of the reasons I write about standing is the overwhelming desire by so many people to insert themselves into a controversy even though it's not their controversy. I wrote recently about people trying to drive the new pet store in Speedway out of existence. It's not their controversy. I hear about people who want to do "something" about the way Zore's drivers drive. It's not your controversy.

Bottom line: if you don't have standing, then butt out.

Never Overlook Progress

Speedway has come a long way in recent years. While it is very easy to point out shortcomings and lament imperfections, I was reading through some old case archives and came across this:

A man was sentenced Wednesday to 85 years in prison for killing and robbing a guest at a motel where he worked.

Joseph Pryor had been convicted of murder and robbery in the October 2005 death of James Santelli in the Super 8 Motel in Speedway.

Police said Pryor, a maintenance worker at the motel, used a wooden coat hanger to stab Santelli, 45, of Palatine, Ill. A wooden coat hanger was found sticking out of Santelli's neck, authorities said.

Pryor admitted to stealing cash and tools from Santelli, a construction worker, police said. Pryor tried to cover the crime by pouring Listerine over evidence and sold the tools to a pawnshop, police said.

I note this particular matter because the civil suit that followed this crime wound up setting a rather important precedent in Indiana law.

May Mr. Santelli rest in peace, and may Mr. Prior find forgiveness some day. However, may Speedway work diligently to ensure that it never again becomes a home to dodgy "hooker hotels" that wind up having these kinds of violent crimes therein.

Milquetoast Joe Donnelly

To parrot what Sheila Kennedy wrote the other day, I think that Joe Donnelly is a horrible centrist sellout. I think that so many of his positions are cowardly, and I rank him down with Evan Bayh as a finger-in-the-air politico.

I will vote for him anyway, even if I have to hold my nose.

In light of that preface, I turn to a different but related topic: whether he should vote to confirm Brett Kavanaugh.

I think that he should not.

I actually wrote to the Ft. Wayne Journal Gazette recently about this. My point, then and now, is that there is not a single Republican out there who is (a) aware of who Brett Kavanaugh is AND (b) will be swayed to vote for Joe Donnelly and against Mike Braun. Contrarily, I believe that there are plenty of progressives (whether they count themselves as Democrats or not) who will stay home if Sen. Donnelly votes to confirm Brett Kavanaugh. After all, if Sen. Donnelly votes like a Republican when it counts, why bother to campaign/canvass/fundraise for him? Why not just let the few remaining governing positions in Indiana go to Republicans if all of the Indiana Democrats are going to act like Republicans when the rubber hits the road anyway?

In light of that, I present this from Abdul Hakeem Shabaz (he used to be "Abdul in the Morning" but I think the plug got pulled on that):

A new poll of the U.S. Senate race gives Democrat Joe Donnelly a 12-point lead over Republican Mike Braun, but it changes depending on whether he votes to confirm Brett Cavanaugh for the U.S. Supreme Court.

The poll of more than 1,400 likely voters, conducted by The Trafalgar Group, gives Donnelly a lead of 50.8 to 38.6 over Braun.  Ten percent are undecided.

However, that lead drops to 39.4 to 38.5 if Donnelly votes for the confirmation.  And if Donnelly votes against the confirmation,  his lead only drops to 45-38.

The number of undecided voters also grows to 22 percent if Donnelly votes yes; 16 percent if he votes no.

The poll was taken from July 31 to August 7.

It has a margin of error of +/- 2.6 percent.

Of course, a poll taken 3+ months before an election, combined with $3, is worth approximately $3 (ask Hillary Clinton). Nonetheless, I note that Sen. Donnelly's lead over Mike Braun drops more if he votes to confirm Brett Kavanaugh than if he votes not to. (I also note that Abdul mis-spells Kavanaugh's name, but who really cares?)

So, to that end, Sen. Donnelly, I implore you to vote against Brett Kavanaugh's confirmation. I don't like that Supreme Court nominations are political. That doesn't mean that they aren't. Senators often have to take tough votes; sometimes right before an election. It seems to me that someone who represents me in a legislature should be willing to vote his conscience, even if it costs him an election.

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.

About that Curtis Hill

Not only is he a creepy groper, drug warrior, and the worst kind of attorney (prosecutor), he also wastes our money on stupid partisan snipe hunts:

Last month, judge Sarah Evans Barker approved a consent decree reached by plaintiffs Common Cause Indiana and the Indianapolis NAACP and the defendant, the Marion County Election Board.

In a filing Tuesday, the attorney general argued that the consent decree cannot replace an election board's legal requirement to decide unanimously to create in-person early voting sites.

 For those following at home, the backdrop to this is that state law requires unanimity among the members of a county election board in order to open up new voting sites. The Marion County election board has consistently lacked such unanimity, as the Republican members of such board have repeatedly and consistently refused to agree to open new voting sites . . . seemingly part of the ongoing project to protect against voter fraud discourage voting.

Anyway, the county election board got sued. They eventually settled and agreed to put new voting sites in. Of course, Mr. AG had to come along and do anything he could to help his team distract from his own problems.

Marion County’s decision to open additional voting centers is being contested by Attorney General Curtis Hill, but the Marion County Election Board disputes his assertion that the agreement to offer more early voting sites is contrary to Indiana law or that the board lacked a unanimous vote.

A consent decree settling a lawsuit over access to early voting was approved by the U.S. District Court for the Southern District of Indiana in mid-July in Common Cause Indiana et al. v. Marion County Election Board, 1:17-cv-1388.

Hill, on behalf of the state, is challenging the consent decree that opens additional satellite voting centers in Marion County for the 2018 general election. He filed a motion Tuesday asking the federal court to withdraw the agreement. The board last month announced six early-voting sites around Indianapolis would be open in time for November’s mid-term election.

OK. What is Mr. Hill's reasoning for bringing a lawsuit, paid for by the taxpayers of Indiana, whose general purpose is to prevent those same taxpayers from being able to vote (without waiting in line for what tends to be, by most estimates, "forever")?

Hill’s office also argued “it is not in the public interest for a federal court to enter, enforce, and monitor a consent decree that dictates the operation of state-run elections.” Further, the AG’s office said the public interest is “jeopardized by the removal of (Defendant Election Board’s) minority leverage in the political process.”

You know, the candor of that is quite surprising. What is the AG talking about when he mentions "minority leverage in the political process?" Well, that's just what was mentioned above: Republicans wanted to make sure that voting remained inconvenient in Indianapolis, presumably to drive down turnout of what is viewed as a "liberal" electorate. You will note that polling places in rural locales far outnumber, on a per-capita basis, those in liberal urban locales.

Anyway, as to the two objections, I will let the Article III Judge Sarah Evans Barker have the honors:

The State argues that the consent decree is contrary both to state law as well as the public interest. Neither objection has merit.

That is nice judge speak for, "Get the hell out of my courtroom you clown." However, at least we can rest assured that, at least for a few minutes, AG Hill wasn't ass-grabbing all over downtown, as is rumored to be his style.

 

Brett Kavanaugh - What We Know

I have been scolded by a commenter for (paraphrasing) presuming that I know how Judge Kavanaugh will rule on issues that come before him. This scold is no more than a repeat of a partisan talking point. "We can't possibly know how Judge Kavanaugh will rule because every case that comes before him will be different, and he will reach his own conclusions, i.e. he's just calling balls and strikes."

Spare me.

when SeaWorld trainer Dawn Brancheau was killed by a whale that mauled her and then pulled her underwater until she drowned — the third time this particular whale killed someone while in captivity — Chief Judge Garland joined an opinion rejecting SeaWorld’s argument that “working with killer whales was not a recognized hazard because its training and safety program adequately controlled the risk.” Again, their argument was that working with killer whales was not a recognized risk. And this particular killer whale was a repeat offender.

Judge Kavanaugh, meanwhile, wrote a dissenting opinion claiming that the Department of Labor cannot protect whale trainers from dangerous workplaces, because that would be like regulating “tackling in the NFL or speeding in NASCAR.”

I guess we can kind of presume where his sympathies lie in cases that involve employment hazards.

Also, in Garza v. Hargan, Garland voted in favor of a woman that the Trump administration literally held prisoner to prevent her from obtaining an abortion. Kavanaugh dissented in that case too.

Of course, this case makes me think that I can presume where Judge Kavanaugh's heart is on reproductive rights vs. power of the government cases.

Oh, and Kavanaugh frequently attacks the EPA’s efforts to protect the environment, while Garland takes a much lighter hand with federal agencies.

Once again, Judge Kavanaugh has literally written, for himself (through his clerks) what I know about him. 

I also know this:

Q: Judge Kavanaugh, thank you for coming today. My name is Chris Johnswick (ph). I just had a question for you. You spoke about the chief justice’s role in both Roe and Casey. I wonder if you could elaborate as what would you say his biggest legacy is for us. You agreed with his dissent in those opinions.

JUDGE KAVANAUGH: As I said, he was not successful in convincing the other members of the Court to his position there. But, more broadly, in subsequent due process, or unenumerated rights cases more generally, he did write the Glucksberg opinion that prevents a general role for the Court in creating new social rights. So I don’t know if I can improve upon just that bare description of what he did. He clearly wanted to overrule Roe and Casey and did not have the votes. That’s where it was left. So it did not deter him or prevent the Court from reaching the result it reached in the later Glucksberg cases, as I mentioned, and that adopts a general framework for creation of new social rights that still applies today.  

For the record, the Glucksberg opinion, as Judge Kavanaugh states, "prevents a general role for the Court in creating new (unenumerated, specifically, in the Constitution) social rights." So, I for one will not be taking the bait to merely judge Judge Kavanaugh on his sterling resume; his substantive opinions about the law, which he has held for years and will continue to hole, are important and worth considering.

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?

Classic Indiana "Legislation"

My first law job was in Chicago, and it dawned on me that the dynamic in Illinois is essentially reversed from that in Indiana. In Illinois, Chicago essentially makes all decisions for the rest of the state, and the rest of the state just has to deal with it.

Contrarily, in Indiana, it has always seemed to me that the rural portions of the state make the decisions that the people of Indianapolis (and to lesser extents, Ft. Wayne, Evansville, South Bend, etc.) just have to deal with it.

Well, today I got an email from my state Senator Mike Young (boooo!). The notable portion of the legislation he touts:

Through the program, the Indiana Department of Transportation matches up to $1 million when localities invest in road and bridge repairs. Counties with populations below 50,000 and cities and towns with populations below 10,000 receive a 75/25 percent match, while counties with populations greater than 50,000 and cities and towns with populations greater than 10,000 receive a 50/50 percent match. 

So, to be clear, our Senator pushed through and now touts legislation that he presumably voted for that punishes his own constituents for having the temerity to live in a populated area, that he represents.

This is classic "kids gloving" the rural areas. Are they unable to pick up the tab for their own roads? I thought they were supposed to be "real Americans" who wanted the government to "leave them alone." I thought that Indianapolis was full of takers, per our state representatives? Why is it that the state picks up considerably more, proportionately, for roads in small counties? Add to that the fact that there are fewer people in such small counties, and we have a state government that spends considerably more per person who uses a road on rural routes than on urban ones.

Of course, it's not as though Indianapolis needs the money or anything, as anyone who's driven our pothole-riven roads will aver.

Will someone please run against this empty suit, Mike Young, and give us some real representation?

Employee Theft

I know that there has been a lot of local consternation regarding some alleged thefts from the Town of Speedway over the past few years. The two stories I have heard, in particular, involve the Redevelopment Commission and the Fire Department. I make no present comment on the veracity of those stories. However, I do write today to hearten my fellow Sparkplugs and note that we're not alone:

Two former Indianapolis Local Public Improvement Bond Bank employees have been charged with theft and insurance fraud by the Marion County Prosecutor’s Office after being accused of taking funds totaling nearly $400,000 from the bond bank.

Jacqueline Fitzgerald, 54, is charged with six counts of theft and two counts of insurance fraud, and Monica Durrett, 56, is charged with five counts of theft and one count of insurance fraud. While employed at the bond bank, the employees are believed to have claimed inappropriate benefit leave payouts and carried insurance on ineligible dependents. Fitzgerald also allegedly received unauthorized bonuses and incentive pay.

Fitzgerald and Durrett were fired from the bond bank in June 2017 after some of their alleged actions were discovered.

Both former employees had enrolled grandchildren in their employer-provided health insurance despite not being legal guardians of those children, according to a probable cause affidavit.

Fitzgerald was allegedly paid $170,000 during her last year of employment despite her annual salary being $57,523. She also arranged to be regularly paid for dozens of hours of benefit leave in addition to her normal paycheck.

Durrett also allegedly received inappropriate benefit leave pay. 

As tempting as it may be to blame Speedway's problem on something specific to Speedway, unfortunately, this problem appears to be rooted in human nature, not in Speedway.

 

Those Pence Brothers . . . They're Just so Nice!

Ugh! I think I need to go punch myself in the face just for writing that headline! Hopefully anyone who has ever read this blog recognizes the sarcasm in the title.

Anyway, this recently came to my attention:

Vice President Mike Pence turns nostalgic when he talks about growing up in small-town Columbus, Indiana, where his father helped build a Midwestern empire of more than 200 gas stations that provided an upbringing on the “front row of the American dream.”

The collapse of Kiel Bros. Oil Co. in 2004 was widely publicized. Less known is that the state of Indiana — and, to a smaller extent, Kentucky and Illinois — are still on the hook for millions of dollars to clean up more than 85 contaminated sites across the three states, including underground tanks that leaked toxic chemicals into soil, streams and wells.

Indiana alone has spent at least $21 million on the cleanup thus far, or an average of about $500,000 per site, according to an analysis of records by The Associated Press. And the work is nowhere near complete.

Well, I mean, what's $21m when you're a "christian first, conservative second, and Republican third" here in Indiana? It's not like you're some selfish school kid who wants to, you know, eat lunch or something. Million-dollar pollution problem? Great! Poor kids want lunch? Feed 'em to Rokita!

Kiel Bros. has paid for only a fraction of the overall effort.

OK. So here we are, the Pence family business has imposed tens of millions of dollars on us, the taxpayers, and people are still willing to believe in his so-called "fiscal conservatism." I tell you what, next time I'm looking for someone to get my spending under control, I'm not just going to let him (or her) do my spending for me!

In a statement, Pence’s older brother Greg Pence — who was president of Kiel Bros. when it went bankrupt and is now running for Congress as a Republican — distanced himself from the cleanup costs.

“Greg Pence has had nothing to do with Kiel Bros since 2004. This is another attempt by the liberal media to rehash old, baseless attacks,” campaign spokeswoman Molly Gillaspie said. 

A few things: first off, I forgot that the Pence brothers were multiplying . . . God help us! 

Second, Ms. Gillaspie, perhaps you weren't aware that underground pollution plumes take decades to develop. In fact, I'll bet that someone on one of the Pence teams has already acknowledged this:

Pence spokeswoman Alyssa Farah called the findings “a years old issue” that the vice president has addressed before. She did not elaborate.

So, what is it? Did the pollution occur during the Pence family's "stewardship" of Kiel Bros. or did it occur after? Maybe before? All I've seen is blah blah blah liberal media blah blah blah old blah blah blah liberal media blah blah baseless.

The fact that the company stuck taxpayers with the lion’s share of the cleanup bill rankles some observers, especially in light of the family’s reputation as budget hawks critical of government spending.

You don't say. It's like I've seen this tragicomedy before.

 Greg Pence, who is seeking the vice president’s old congressional seat, has total assets worth $5.7 to $26 million.

Nearly a decade after going under, Kiel Bros. sites still ranked among the top 10 recipients of state money for such cleanups in Indiana in 2013, the last year for which the petroleum industry has reliable spending data for the company. That was out of more than 230 companies seeking cleanup money that year, including major gas station chains with a substantially larger presence in the state.
Founded as an oil distributor by businessman Carl Kiel in 1960, the company expanded into the gas station business. Pence’s father, Edward, joined in the early years and, by the mid-1970s, rose to corporate vice president.
Mike Pence says he worked for the business — which mostly operated under the name Tobacco Road — starting at age 14. But it was his brother who took over after Edward Pence’s 1988 death and eventually became president.

Just so we're clear: the Pence family made a ton of money running this company. This company cut costs by polluting our air and water. Now we get to pay to not be poisoned while the Pence family gets to go and bring their special sauce to the nation as a whole.

 When an underground tank leaks, companies are liable for the damage, but Indiana has been especially amenable to using public money to pay for heavily contaminated soil to be excavated and for high-powered pumps to suck toxic liquid and vapor from the soil.

The state’s payout limit was $2 million per site until Mike Pence signed a 2016 law as governor, increasing it to $2.5 million. In 2016, Indiana paid out nearly two-and-a-half times the national average per incident, according to records.

I for one can't imagine why the state can't afford to do such trivial things as reform its child welfare issues, after a mere 15 years of studying the issue.

Pence 2018: Starve the kids and poison the water!

Shameful

When I last lived in Ft. Wayne (2013-2014), I heard constantly about how the "good conservative folks of Northeastern Indiana" would do this and that, would always act politely, gathered the facts before acting hysterically, etc. This was always pointed out in juxtaposition to Obama (a nation turns its lonely eyes to you Barack Obama). Among the things that the "good conservative folks of Northeastern Indiana" have been doing lately, apparently, is this:

Fort Wayne's Planned Parenthood Health Center is closing effective today after several years of increased harassment and intimidation.

“I'm pretty angry about this,” said Christie Gillespie, president and CEO of Planned Parenthood of Indiana and Kentucky. “This is not how decent and compassionate people behave. These are actions of harassment and intimidation that are done in the name of faith, religion and Jesus.

“It's an awful day for the Fort Wayne community. We will be back stronger.”

The Fort Wayne location at 3914 W. Jefferson Blvd. does not perform abortions and has four employees.

Gillespie said the community is losing a trusted health care provider that conducted tests for early diagnosis of cervical, testicular and breast cancer, provided birth control options and tested for sexually transmitted diseases.

Gillespie said the tactics used by Allen County Right to Life and other area groups go far beyond protesting outside the facility.

Planned Parenthood of Indiana and Kentucky provided copies of a mailer sent to Fort Wayne neighborhoods where a Planned Parenthood nurse practitioner worked.

It included her name and picture and said “There are killers among us.” It said the woman enabled “child killing by coordinating abortions off site.” It also gave her home address.

Absolutely disgusting and shameful. If, as they say, you are judged by the company you keep, then this list of people should be judged for keeping company with Allen County Right to Life and its shameful tactics.

NOTE: I haven't even addressed the fact that Fort Wayne Planned Parenthood (a) does not provide abortions but (b) provides no/low-cost STD screening. Perhaps someone can explain to me how these so-called "right to life" groups are targeting abortion and not conducting the so-called "war on women" with these kinds of tactics directed at clinics that don't provide abortions?

Explainer - Special Prosecutor

Perhaps I'm a bit premature, but I just saw on the Indiana Lawyer where Marion County Prosecutor Terry Curry has requested that a special prosecutor be appointed to investigate Attorney General Curtis Hill. When I saw the news, I was a bit perplexed. However, as I am a fan of Terry Curry (probably the only prosecutor on Earth who earns my fandom), I was willing to give him the benefit of the doubt; nonetheless, I looked into his reasoning for doing so:

Pursuant to Indiana Code section 33-23-13-3, the Attorney General’s Office is required to represent an elected prosecutor in certain civil matters. Hill is currently representing Curry in two civil matters pursuant to that statute, including a challenge to Indiana’s civil forfeiture law that is pending before the Indiana Supreme Court and the most recent Planned Parenthood federal lawsuit challenging an Indiana abortion law.

“We are a client of the Attorney General’s Office, and it would be entirely inappropriate for our office then to turn around and participate in a criminal investigation of the Attorney General,” Curry said. “When the information came to light last week, I had no doubt whatsoever that we could not be involved in any criminal investigation.”

Seems perfectly reasonable to me. As much as I'd love to see Terry Curry put the screws to Mr. Jackass Attorney General Hill, I am heartened to see that the Marion County prosecutor has a sense of what is and what is not appropriate; what does and does not have the appearance of impropriety.

Now if only we could have this kind of honesty, judgment, and discretion at all levels of government . . .