The Indiana Supreme Court handed down a controversial decision (pdf) last week that said that Indiana would no longer recognize the common law right to resist unlawful entry by police officers.

At common law, a person had the right to resist, using reasonable force, the unlawful entry of police into one’s home. The Indiana Supreme Court decided, in effect, times have changed since the old days, and the costs outweigh the benefits in our modern times. In the bad old days, the king’s men could abduct you, hold you indefinitely, and torture you. And, if you did get out of the dungeon, you had no recourse against the king. Today, you have a right to bail, speedy trial, a probable cause hearing, etc., and you can sue the government for false imprisonment and other violations. With those protections, the dangers are reduced, and make the dangers on that side of the scale less than the dangers you get when you allow people in tense situations to make snap legal decisions about whether police action is lawful and use force to resist the police.

Not mentioned in this decision, but quite possibly on the judges’ minds, was the prospect of everyone who used force against the police making up some unlawful entry story in retrospect and making violence against the police a more viable alternative for criminals.

Philosophically, I’m uneasy about this case. As a practical matter, under the facts of this case, I’m not too troubled. I think I would have preferred that the court use language to allow resistance in egregious cases, but not under close calls like this one. Justice Dickson and Justice Rucker’s dissents urge something like this course.

The police apparently got called to the apartment to respond to domestic violence in process. Husband was throwing stuff around the apartment and had apparently ripped a phone out of Wife’s hands and thrown it against the wall. When the police got there, Husband & Wife met the police in the parking lot. Police followed them back to the apartment, Husband barred entry while Wife said things like “just let them in.” Police tried to force their way, and Husband resisted physically.

The majority almost certainly could have issue a narrower rationale for telling Husband he wasn’t allowed to do what he did.

The Common School Fund has been in the news lately because of its connections to civil forfeitures and some controversy over whether proceeds from civil forfeitures should be going to defray law enforcement costs or to the common school fund or some combination thereof.

I’m not going to get into that right now, but I did want to do some research into what the Common School Fund actually is and does. According to a brief summary from a tax and appropriations handbook, it goes something like this:

The Common School Fund was created by Article 8 of the Indiana Constitution. The common school fund may be used as follows:

#Assist local school corporations and school townships in financing school building construction and educational technology programs through school loans.

#Make advances to school corporations and to school townships to aid disaster loss.

#Make advances to school corporations and to school townships for certain anticipated transfer tuition costs.

#Make advances to charger schools for certain operational costs under IC 20-49-7.

#Until December 31, 2010, IC 20-49-8.2 allowed the fund to be used to assist school corporations that experienced a shortfall of at least 5% in the collection of property tax levies because of certain reassessment errors or changes.

As of August 1, 2010, the outstanding loan balances were about $474.4M for construction loans, $59.1M for technology loans, and $56.3 M for charter school loans. Revenues, aside from loan repayments, deposited into the Common School Fund are from fines and forfeitures, unclaimed funds, and escheated estates. Loan repayments and investment proceeds from the Treasurer’s Office also go into the funds.

Fines and forfeitures have contributed about $6 – $8 million per year between 2006 – 2010, and escheated estates have resulted in about $600,000 in total over that period. Loan repayments have amounted to about $30 – $50 million per year. For fiscal year 2010, the total equity of the fund was $545 million and the unobligated reserves for the fund was about $83 million.

What I had not gleaned from previous discussions of the common school fund is that this is a fund for making loans to schools which, to be sure, helps them out. But, (without getting into the time value of money), it’s not a subsidy that really reduces the amount of money schools have to come up with on their own. They have to pay back the money from the common school fund.

The Associated Press is reporting that the Indiana Supreme Court has granted transfer to review a decision of the Court of Appeals that overruled a trial court judgment in favor of the City of Evansville Animal Control.

The Court of Appeals case was Davis v. Animal Control – City of Evansville (pdf), a 2 to 1 decision in favor of overturning the trial court decision (h/t Indiana Law Blog). At issue was whether Animal Control’s failure to abide by the city ordinance’s and designate a private individual’s dog to be a “dangerous animal” led to the dog biting the Plaintiff’s child and was something the Plaintiff could sue the city for.

The City argued that it was immune under the Indiana Tort Claim Act’s law enforcement immunity provisions which prevents liability by a governmental entity for failing to enforce the law. If this weren’t in place, you’d see lawsuits against the police department every time they failed to enforce the law against, for example, battery. Laws aren’t insurance against bad acts by private individuals. The Court of Appeals offered some (in my mind) muddled reasoning for holding that designation of the dog as a dangerous animal wasn’t part of the enforcement mechanism for the Evansville animal control ordinance. Judge Kirsch advanced this argument in his dissent.

If the Court of Appeals decision stands, it might be financially responsible for municipalities to get rid of their animal control ordinances altogether if they stand to be liable to pay for dog bites where a plaintiff can convince a jury the municipality slipped up on following the procedures set forth in the ordinance.

Back in February, Jeff Cox, a deputy in the attorney general’s office, was called out by a Mother Jones reporter for advocating the use of live ammunition against the labor protesters in Wisconsin. Today comes news that Carlos Lam, a deputy prosecutor for Johnson County, Indiana, wrote to Wisconsin’s Governor Scott Walker to suggest that he stage some sort of attack against himself by a person pretending to be a union supporter.

“If you could employ an associate who pretends to be sympathetic to the unions’ cause to physically attack you (or even use a firearm against you), you could discredit the unions,” the email said.

Sure hope he’s not involved in any cases where his witness is claiming self-defense.

The Court of Appeals came out with a Not For Publication case (meaning it’s a case you’re not supposed to cite as precedential) today with a fact pattern that shows you how not to handle collection cases for a client.

Attorney had represented Finance Company in consumer collection cases for 20 years. A couple of things came to light that caused Finance Company to look more closely at the files Attorney was handling. First, a collections letter was sent to a Finance Company customer who had received a discharge in bankruptcy, triggering a Fair Debt Collections Practices Act suit against Finance Company. Second, a county clerk alerted Finance Company that, pursuant to the direction of the IRS, it was sending garnishment funds in Finance Company cases to the IRS to cover a tax lien held against Attorney.

Unsurprisingly, Finance Company terminated its contract with Attorney, then demanded his files and an accounting. After a replevin order, they finally got their files. (A replevin order is basically the court’s order that someone should turn over property to someone else.) Finance Company never got anything like a proper accounting. Even after Finance Company had sued Attorney, he took in collection money, deposited it the trust account, then spent it himself without accounting for it.

This particular case involved Attorney’s challenge to the trial court’s order appointing a receiver to manage the files and to perform an audit.
The specific legal discussion wasn’t of too much interest, but the fact pattern – particularly the apparently cavalier handling of the client’s money – was a little startling. Nothing sours a professional relationship (or attracts the attention of the disciplinary commission) quite so fast as losing a client’s money.

Earlier in the week, the Court of Appeals published its opinion in the case of Burke v. State. The case involved a challenge to IC 35-43-2-1(1)(B)(ii). It’s a sentence enhancement for breaking and entering when the structure is a structure used for religious worship.

The convict challenged this enhancement as violating the Establishment Clause of the First Amendment to the U.S. Constitution and Art. 1, Sec. 4 of the Indiana Constitution. The gist of the argument is “why is the State giving a preference to churches? The crime should get the same penalty as breaking into any other place.” The Court of Appeals reasoned, speciously in the opinion of Ed Brayton, that the purpose is not to give added protection to structures used for religious worship. Rather the purpose of the statute, according to the Court of Appeals, is to ensure the appropriate sentence for the offender. It reflects a legislative recognition that: (1) structures used for religious worship have a “traditional absence of security measures” and are thus easy targets of crime; (2) crimes against structures used for religious worship are “more repugnant to the community;” and (3) it takes more time to reform and rehabilitate those offenders who commit acts society deems more repulsive.

Personally, I think a better statute would be one that enhances the penalty for burglary of a property of any non-profit 501(c)(3) institution. That would capture the intent divined by the Court of Appeals in a more neutral fashion – reflecting the notion that a person willing to commit a crime against a do-gooder organization deserves greater punishment. (I imagine some legislators would get their hackles up over a sentence enhancement that increased the punishment for someone burgling Planned Parenthood.) But, of course, this statute was designed to reflect a greater concern by the General Assembly for religious institutions than for the average non-residential property. Is it a religious purpose? Sure it is. Does it go too far? I don’t know. For me, it seems like a “no skin off my nose” kind of statute. But, if we take the language of the case law at face value, there’s probably no terribly compelling, non-religious state purpose that justifies singling out religious institutions for special treatment.

So, I think you get the Court of Appeals doing contortions in a case like that. There isn’t a big appetite to stir up the shitstorm that would inevitably come if they reduced this guy’s sentence by striking down the law. But, to get a non-religious purpose, the Court of Appeals has to offer rationales that can be pretty well deconstructed by guys like Brayton.

I’ve made the argument before that a cumbersome, error-ridden eligibility determination process for state welfare benefits is seen by the current administration as more of a feature than a bug. ACLU-Indiana just won a battle against that sort of error-by-design. They successfully challenged FSSA’s practice of sending denial letters based on non-cooperation that fail to specify which document(s) the applicant supposedly did not provide.

It’s certainly not hard to imagine the FSSA spitting out a form letter in error that just says generally, “you failed to provide all of the necessary documentation.” Then, when the applicant tries to protest, he or she cannot point to the specific document that caused (or allegedly caused) the denial.

One of FSSA’s defenses was that there was a telephone number where you could call to ask about what the problem was. Rumor has it that telephone number required long waits and frequently kicked off people on hold. That didn’t cut it with the Court of Appeals that said due process requires the FSSA to provide denied applicants with some specifics about why they were being denied.

Standing as a thin shield between Hoosiers and a plague of bare (female) breasts, Judge Cale Bradford wrote an opinion rejecting a 16 year old girl’s fourteenth amendment claim that it’s a violation of the Constitution’s equal protection guarantees to outlaw the public display of female breasts while allowing men to flaunt their nipples freely.

But Judge Bradford knew better. He recognized that, in its ultimate wisdom, the Indiana General Assembly recognized that a girl’s chest is a threat to public safety where a man’s chest is not. (I paraphrase). The reason? Men’s nipples are not erogenous zones. So, if you thought otherwise, you now know better:

We do not believe that it can be seriously disputed (and C.T. does not) that Hoosier society, in general, considers the female breast to be an erogenous zone but does not consider the male breast to be one: public display of the former is almost certain to cause offense and unease while public display of the latter is not.

Aside from the weirdness of suggesting that erogenous zones have to be covered up — hats over those ears, people! And no sandals for you toe freaks! — there’s a chicken & egg problem here. If female breasts were on display 24/7, I’m pretty sure the offense and unease would disappear.

The outcome here doesn’t really bother me. Women have been able to thrive and advance themselves even without the right to flash people in passing cars at 4 a.m. But where Bradford gets into trouble and opens himself up to smart asses like me is when he tries to pretend something like this is rational. It’s not. It’s utterly arbitrary. But some things are just like that – we make folks toe the line on made up customs as part of living in our society. (I think cults do this too, come to think of it.) For example, why some words are “bad,” swear words has no real rhyme or reason. But, you don’t go saying them in front of your mother if you have any respect. (Criminalizing this stuff is troublesome, however.)

Anyway, I think Judge Bradford probably should have said, “it makes no real sense, but we’ll leave it up to the legislature to change it.” Or follow it to its logical conclusion and overturn it because it serves no particularly rational purpose.

There is a principle, probably applicable in lots of areas, but I know it from arguing about the law. Basically, you don’t want to buy into the way the other guy frames the debate. If you buy into the frame, the rest of the argument is going to be a lot harder. I think the Journal & Courier is buying into a flawed frame in this opinion piece about the Voter ID law.

The writers suggest that the General Assembly can avoid some future litigation and heartache if they simply come up with an identification system for absentee voters, thereby avoiding disparate treatment of in-person voters versus absentee voters:

It would not be surprising, however, if another party filed a new challenge to the voter ID law, claiming he was treated unequally. That’s the way the legal system works.

The General Assembly could end this argument before it begins by creating a law requiring some form of ID from those voting absentee.

The attempt to check voter fraud is laudable, and the voter ID law fulfills that goal at the polls. But absentee ballots are the subject of most allegations of voter fraud.

If lawmakers adopted an identification system for absentee voters, it would add confidence to the election process and answer critics’ legal challenges.

Voter ID was never about preventing fraud. There hasn’t been any evidence that in-person voter impersonation at the polls has been a problem. The fact that absentee voting fraud – where there has been at least some problem – was not addressed suggests that fraud was just a pretext.

The level of the “problem” and the way it was addressed suggests that this was about shaving votes at the margins in an effort to gain an advantage at the polls. Fact is that the population consisting of people who do not vote absentee, would go to the polls in person, but who do not have their paperwork in order are more likely to vote for Democrats. I don’t think this is a significant population, but in politics a small margin can make the difference.

My suspicions will be confirmed next session when there is a luke warm or non-existent effort to confront absentee voting fraud by those who were so passionate about confronting the ravages of in-person voter impersonation at the polls.