A Citizen's Guide to Indiana

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The State, Charlie White, and Judicial Estoppel

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I caught some of the Twitter coverage of oral arguments in the Supreme Court’s review of the Indiana Recount Commission litigation on Charlie White. It occurred to me that there might be an argument to be made that the State is judicially estopped from arguing that White was legally registered at his ex-wife’s residence.

Seems to me, you have one arm of the State in the form of the Prosecutor in the criminal case arguing (pdf) (successfully) that White was lying when he claimed his ex-wife’s place as his residence. Specifically the State took the position that on or about February 23, 2010, White committed fraud by representing that his address was on Broad Leaf Lane in Fishers when he knew he was living on Overview Drive in Fishers. The State obtained a conviction against White on that basis.

On the contrary, however, another arm of the State in the form of the Recount Commission is taking the position (pdf) (h/t Indiana Law Blog) in front of the Supreme Court that during that period of 2010, White resided at the Broad Leaf address and that his registration at the Broad Leaf address was proper. (Brief of Recount Commission at p. 6, 11.)

Maybe there is an exception when the party is as big as the State of Indiana where the left hand is not accountable to the right hand. But, generally speaking, the doctrine of judicial estoppel says:

Judicial estoppel is a judicially created doctrine that seeks to prevent a litigant from asserting a position that is inconsistent with one asserted in the same or a previous proceeding. “Judicial estoppel is not intended to eliminate all inconsistencies; rather, it is designed to prevent litigants from playing ‘fast and loose’ with the courts. The primary purpose of judicial estoppel is not to protect litigants but to protect the integrity of the judiciary.” “The basic principle of judicial estoppel is that, absent a good explanation, a party should not be permitted to gain an advantage by litigating on one theory and then pursue an incompatible theory in subsequent litigation.

Morgan County Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App. 2008).

The State embraced the position that White was fraudulently claiming residence at the Broad Leaf address in March of 2011, following a grand jury investigation, when the Prosecutor filed its indictment in the Hamilton Superior Court. It embraced the contrary position that White resided at the Broad Leaf Address, following the Recount Commission hearing, on June 28, 2011 when the Commission entered its own findings of fact.

It’s not a slam dunk, by any means, but I think there is a reasonably strong argument to be made that the State of Indiana is barred from taking these inconsistent positions before different courts on where Charlie White resided in February 2010.

David Brooks Looks Into the Abyss, Finds It Staring Back

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David Brooks, stopped clock of the New York Times, has a column entitled The Possum Republicans. He describes the process by which otherwise reasonable Republicans get forced ever rightward by less reasonable members of their party.

It reminds me of a couple of sayings I’ve seen in other contexts: “Whoever cares least in a relationship has the most power.” The rightward edge of the party (I hesitate to call it the “fringe” anymore) doesn’t care about elections or governance nearly as much as it cares about ideological purity. Unless they see unalloyed conservative purity — as defined by them, of course — they’ll attack through a primary or otherwise. Witness Mourdock v. Lugar. Sen. Lugar is a lock as a candidate, is essentially sound with his governance, and is hardly a liberal. Yet, because he dares to talk with the “other side,” he’s persona non grata among the more foaming elements of his party.

The other notion is that “If you’re trying to beat me up, and I’m trying to kill you; I’m going to win.” Ideologues of any kind are simply more ferocious than pragmatists. They’re more emotionally invested and less prone to restraint. Moderates simply don’t have the energy or incentive – at least in the short term – to stand up to these people.

But, sooner or letter, there is going to be an inflection point. I don’t know how far away it is or what pain will be involved when it arrives, but eventually the ideologically approved spectrum will be so narrowly defined that the in-group will simply be overwhelmed by the sheer mass of the out-group; ferocity and purity notwithstanding.

Romney Telling Mourdock-esque Stories About Auto Bailout

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I’ve heard this twice in the last couple of days, Romney taking the Mourdock-type talking points about the auto bailout. In particular that the unions, as unsecured creditors, got more than they should have in the Chrysler bankruptcy in light of the fact that secured creditors got lss than 100%. Politifact takes a look and calls Romney’s claims false when he says that Obama gave the companies to the unions. I heard one of Romney’s surrogates regurgitate the nonsense about how secured creditors were getting shafted in violation of 200 years of bankruptcy law.

I recall, at the time, Abdul and Josh Clayborn giving some credence to this notion. Abdul was mainly relaying Mourdock’s claims while Josh seemed to embrace it. But, the bankruptcy judge specifically addressed the claim that the secured creditors were being unfairly treated and rejected it. Mourdock’s complaint was that entities that happened to be unsecured creditors were getting paid before secured creditors got 100%. O.k., sounds like a problem.

Let’s say Joe has two creditors, one is the bank that loaned him the money for a car, the other is his buddy Fred. The bank is secured and he owes the bank $1,000. He also owes Fred $1,000. His only asset is the car, only worth $500 at the moment. Now typically what would happen is that you sell the car, the bank gets the $500 and Fred gets nothing. If Fred gets $200 and the Bank only gets $300 of the proceeds of the car, that’s a problem.

But, in this case, there is a third party. Let’s call him Barry. Barry comes in and says he’ll pay $1,500 if he gets the car and Fred and Joe agree to go to work for him. $750 goes to the bank and $750 goes to Fred and Joe as a sort of signing bonus. In this scenario, the bank has no cause to complain. It gets more than it would have if the car was simply sold.

Mourdock and Romney’s bellyaching is a lot like the Bank throwing a tantrum because it didn’t get all $1,500 or the $1,000 left on the bank note. Their main complaint is that Fred and Joe got something out of the deal; preferring, apparently, the scenario where they only get $500, so long as Fred and Joe get nothing. They ignore that, without the take-it-or-leave-it offer by Barry, they don’t even get the $750. They get $500.

If the complaint is that Barry is the government instead of Bain Capital, that’s a policy disagreement, not some sort of miscarriage of bankruptcy law. Fact is, Bain Capital (or anyone else) weren’t willing to step up and offer the secured creditors any more than they got.

SB 329 – Eminent Domain Written Exception Deadlines

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Sen. Hume’s SB 329 changes the deadline for a landowner in an eminent domain action to file an exception to the assessment of benefits or damages in an eminent domain action. Currently, it’s 20 days from when the clerk mails out the notice of the appraisers’ report, and under the new legislation, it increases to 45 days.

The general eminent domain procedures are here. But, basically, appraisers are appointed by the court and charged with determining the fair market value of property and improvements to be acquired and damages to remaining property by virtue of taking out the part sought to be acquired. The landowner can take the money or file exceptions, challenging the determination of the appraisers.

Charlie White Sentenced

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Former Indiana Secretary of State, Charlie White was sentenced yesterday. The judge left his felony convictions in place and sentenced him to serve multiple terms of home detention concurrently, with the upshot being he got one year of home detention and a $1,000 fine. While the fairest sentence under the circumstances would probably be to make him serve that home detention in his ex-wife’s basement, I’m reasonably satisfied that the sentence fits the offense.

I suppose my sense of retribution would be more satisfied by some jail time. The fact that no jail time was imposed makes it feel like upper class criminals get nicer treatment than your average drug user. And, maybe that’s true, but that speaks more to the deficiencies of the criminal justice system in other areas than the sentencing in this case. He’s not a threat to society. He’s not going to do this again. His sentence is significant enough to provide a deterrent effect to others in his position.

Going forward, it will be interesting to see how the Supreme Court resolves the replacement issue. There has been some argument that, because he has been convicted and replaced by the Governor, that should trump the action against his eligibility. As a matter of logic, I don’t think that holds up. If he was never eligible to be a candidate, then his election was void ab initio. In a sense, it never happened. So, I don’t think Vop Osili supporters have a problem from that angle.

What could cause problems is if you wind up with the Supreme Court insisting on the inconsistent factual backgrounds from the two hearings — he lived at the townhouse with his fiance and was lying about living with his ex-wife in the criminal matter; but was telling the truth in the election board matter. On top of the latter, the Supreme Court could determine that the trial court got the law wrong based on the underlying facts (even while the result would’ve been correct, and White an ineligible candidate, if that judge had been working with the facts found by the jury in the criminal matter.)

So, it’s possible, we could end up with White being an eligible candidate because he was telling the truth about where he lived but properly removed from office because he was lying about where he lived.

Sheila Kennedy on SB 327 – Specialty Plates

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Sheila Kennedy has a blog post entitled Those Hits Keep Coming which discusses the latest committee amendment to SB 327. (The committee amendment is not yet online.)

The amendment to that bill apparently has a veneer or neutrality but comes in the wake of the freak out over the Indiana Youth Group license plates and, not coincidentally, would have the effect of preventing those gay-friendly plates from coming into existence.

In an effort to cloak the new rule with a veneer of impartiality, the measure requires–as a condition of approval–a burdensome amount of financial information from the petitioning nonprofits, 500 signatures of Indiana residents, and evidence of a “statewide public benefit from the use of the money the group would receive from the sale of license plates.” And each plate would have to be sponsored by a lawmaker and individually approved.
. . .
In order to prevent the predictable calamity that would occur if license plates bearing the legend “Indiana Youth Group” were allowed to roam freely over Indiana highways, the committee eliminated plates for the Indiana Association of Chiefs of Police, IU Health, Indiana Soccer, the Zoo, the Marine Foundation and Ducks Unlimited. (Just as well. You can’t ever tell what those ducks might be up to…)

I’m no fan of specialty plates. I wasn’t when I was drafting specialty plate legislation 15 years ago. Their proliferation was out of control then and hasn’t gotten any better since. The General Assembly should return to exactly one message neutral plate that serves its bureaucratic function and no more. But, if we’re going to have “In God We Trust,” “Choose Life,” and the rest of it, then the General Assembly shouldn’t get in the business of setting up a system that endorses only conservative-neutral-to-friendly messages for the plates.

Indiana: One Class Basketball, One Standard Time, One License Plate. Hmm, I wonder if a legislator would be willing to endorse that slogan for a specialty plate.

SB 88 Proof of Residency for Homestead Deduction

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Sen Kruse’s SB 88 would allow a county auditor to require proof that the property on which a taxpayer claims a homestead deduction is the person’s principal residence. It says that the auditor may limit the acceptable proof of that fact to a state income tax return, a valid driver’s license, or a valid voter registration card.

It repeals 50 IAC 24-3-2 (pdf). That administrative rule is much more permissive on the types of acceptable evidence, allowing:

(1) An Indiana identification card issued by the state of Indiana.
(2) An Indiana driver license or permit with a photo issued by the state of Indiana.
(3) An Indiana gun permit.
(4) A bank statement issued within sixty (60) days of application.
(5) Form W-2 (federal or state) or Form 1099.
(6) A state or federal tax return.
(7) A computer generated pay check stub.
(8) A valid employee identification card with a photo.
(9) A valid Indiana professional license.
(10) A valid insurance card.
(11) A Medicare or Medicaid card.
(12) U.S. military discharge or DD214 separation papers.
(13) An Indiana residency affidavit.
(14) A voter registration card.
(15) A valid Indiana vehicle or watercraft title or registration.
(16) Any other document with the applicant’s name and the address of the residence for which the applicant claims the
homestead standard deduction that provides information with reliability factors similar to the documents listed in subdivisions
(1) through (15) and that tends to show that the residence is the applicant’s principal place of residence.

The Wingnuttery: It Burns!

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Niki Kelly, writing for the Fort Wayne Journal Gazette, has a post entitled Lawmaker won’t honor ‘radicalized’ Girl Scouts. Rep. Bob Morris (R-Fort Wayne) has offered an explanation for his refusal to sign on to House Concurrent Resolution 17.

[Rep. Morris] said he did some web-based research and found allegations that the Girl Scouts are a tactical arm of Planned Parenthood, allows transgender females to join and encourages sex.

Morris also said the fact that First Lady Michelle Obama is honorary president “should give each of us reason to pause before our individual and collective endorsement of the organization.”

“I challenge each of you to examine these matters more closely before you extend your name and your reputation to endorse a group that has been subverted in the name of liberal progressive politics and the destruction of traditional American family values.”

He sounds like a crank calling into a right-wing radio program of the sort which the host usually finds nuts but deftly gets off the phone while neither endorsing the caller’s ideas or alienating like-minded listeners.

You know, I’ve done some web-based research and found allegations that Glenn Beck raped and killed a young girl in 1990. I assume those allegations are not true, but we should all examine this matter more closely before tuning into any of Mr. Beck’s current or former television and radio networks.

The Journal Gazette has made available the full text of Rep. Morris’ letter here.

[A]bundant evidence proves that the agenda of Planned Parenthood includes sexualizing young girls through the Girl Scouts, which is quickly becoming a tactical arm of Planned Parenthood.
. . .
Liberal progressive troop-leaders will indoctrinate the girls in their troop according to the principles of Planned Parenthood[.]
. . .
Many parents are abandoning the Girl Scouts because they promote homosexual lifestyles.
. . .
Of the fifty role models listed [in a Girl Scout seminar, 47 of the 50] are feminists, lesbians, or Communists.

Feminists, lesbians, and communists, oh my!

I think the resolution speaks for itself on why Rep. Morris picked the wrong paranoid conspiracy on which to hitch his political wagon:

#The Girl Scouts helped girls emerge from isolated home environments and enter into the world of community service and the open air;

#[Girl Scouts Founder] Juliette Gordon Low encouraged girls to prepare for traditional homemaking, for possible future roles as professional women in the arts, sciences, and business, and for active citizenship outside the home;

#The Girl Scouts organization welcomed girls with disabilities with open arms at a time when they were often excluded from many other activities;

#For 100 years, participation in the Girl Scouts has helped girls “develop their full individual potential, relate to others with increasing understanding, skill, and respect, develop values to guide their actions and provide the foundation for sound decision-making, and contribute to the improvement of society through their abilities, leadership skills, and cooperation with others”

#The Indiana General Assembly wishes to congratulate the Girl Scouts on the occasion of the 100th anniversary of the organization’s founding and to thank the group for the strong positive influence it has had on the American woman.

The antipathy toward Planned Parenthood and contraception is just reaching a fever pitch these days. Perhaps the General Assembly could convene an all-male study committee to research the Girl Scout/Planned Parenthood connection.

President’s Day

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It’s Presidents Day. I’ll just throw out there that my two favorites are Abraham Lincoln and Teddy Roosevelt. Lincoln because he saved the Union and seemed sharp as a whip and possessed of a genuinely good nature and deep sense of humor. Roosevelt just because of his sheer energy. He was full of himself and had not a few contradictions, but looking at all he accomplished and how quickly, it’s hard to read any biography of him without feeling like an unaccomplished layabout.

I like James K. Polk because he kept his campaign promises and got us a bunch of territory I happen to enjoy. (Though, I probably wouldn’t vote for him today for approximately the same reasons I am glad to have had him in our nation’s past.) And Dwight Eisenhower gets a special mention just because he’s a cousin (albeit several times removed.)

Wikipedia has a grid with a bunch of “best president” surveys and one column for the aggregate results.

Top ten: Lincoln, FDR, Washington, Jefferson, TR, Wilson, Truman, Jackson, Ike, Polk.

Second ten: JFK, John Adams, James Madison, Monroe, LBJ, Obama*, Reagan*, Quincy Adams, Cleveland, McKinley.

Third ten: Clinton*, Taft, HW Bush*, Van Buren, Hayes, Ford, Carter, Arthur, Garfield, Hoover.

Fourth ten: Coolidge, Nixon, Benjamin Harrison, GeeDubya Bush*, Taylor, Tyler, Grant, Fillmore, William Henry Harrison, Pierce.

Last: Andrew Johnson, Buchanan, Harding.

*In my subjective opinion, Reagan and beyond are too recent for these lists to reflect good, historical evaluations of their Presidencies.

Anthony Comstock: Weeder in God’s Garden

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Erik Loomis on Anthony Comstock at Lawyers, Guns, and Money. Sounds familiar:

Comstock pushed through Congress in 1874 the notorious Comstock Law, which made illegal sending “obscene, lewd, and lascivious” material through the U.S. mail. Examples of such material included information on birth control and biology textbooks that showed accurate representations of the human body. Comstock believed the birth control devices caused lust to rise in the human body and lewd behavior to follow.

In a previous post, I became reacquainted with my distaste for Augustine. His Greek-inspired notions of spirit/flesh dualism mixed with Christianity has been pernicious. The flesh is seen as an affliction to be subjugated. Fervent believers in that worldview like Comstock become ascendant from time to time and cause all kinds of misery. Comstock used to brag that he drove fifteen people to suicide through his efforts.