A Citizen's Guide to Indiana

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Rash of violence follows the Fourth of July

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There was a mass shooting in Broad Ripple when, as I understand it, a couple of patrons bumped into each other and decided to resolve their differences with lead; a police officer was killed in Indianapolis by a guy toting a high powered rifle; a Gary officer was shot in his patrol car; and two men were shot in Lafayette while sitting on their porch in what has been described as a “walk by” shooting. Prior to the Fourth, an individual was arrested in Lafayette after he posted threats to kill a West Lafayette police officer, the Tippecanoe county Sheriff, and two judges as well as a threat related to blowing up the Tippecanoe County Court House. A search of the man’s home revealed aluminum powder and black iron oxide – both substances used to make thermite.

In response to some of these incidents, Sen. Jim Merritt has indicated that he intends to push for legislation next session that would dramatically increase penalty enhancements for criminals that use a gun.

Rep. Jud McMillin is skeptical of an approach that just enhances penalties:

Rep. Jud McMillin, R-Brookville, sponsored last session’s gun crime enhancement bill and is one of the architects of the state’s criminal code overhaul. He says the legislature can’t only focus on punishing crimes after the fact.

“It’s not as simple as just throwing the book at somebody after it happens,” McMillin says. “And even if it is, you’re still handling it after it happens…and we want to prevent these things from happening in the first place.”

McMillin says lawmakers need to focus on helping treat mental health issues and addiction, which he says are often at the root of these crimes.

Despite the apparent surge in newsworthy violence, I think the overall trend is that crime is down. So, it’s entirely possible that we are safer these days even as the world feels less safe. So, some caution is perhaps in order when we devise policy responses. On the other hand, the U.S. has troubles with gun violence that no other developed country seems to have. As the Onion put it, “‘No way to prevent this,’ says only nation where this regularly happens.'” Sure, there are bad actors everywhere. But the ready availability of firearms enhances the force available to these people and the availability of similar force to good actors doesn’t seem to mitigate the damage all that much. Regardless of how the cost/benefit shakes out, the Second Amendment puts an additional wrinkle in the calculation. Even if we decide that the wide availability of firearms is a net harm to our society, short of Constitutional amendment, what remedies are available to us?

Fort Wayne Journal Gazette on Fireworks Lobbying and Laws

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The Fort Wayne Journal Gazette has an editorial published July 2, blaming/crediting the aggressive fireworks industry lobby for Indiana’s lax fireworks laws. Bob Morris (of “Girl Scouts are a tactical arm of Planned Parenthood” fame) and Eric Turner (of lucrative nursing home regulatory environment fame) get special mention as advocates for the industry. The fireworks lobby apparently contributes more here than in neighboring states in spite of the comparatively low cost for political campaigns in Indiana.

The upshot of the editorial seems to be that we have lots of fireworks at all hours and our General Assembly is a bargain!

Fourth of July #238

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On July 5, 1852, Frederick Douglass gave his speech, “The Meaning of the Fourth of July to the Negro,” which contained this passage:

What, to the American slave, is your 4th of July? I answer; a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sound of rejoicing are empty and heartless; your denunciation of tyrants brass fronted impudence; your shout of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanks-givings, with all your religious parade and solemnity, are to him, mere bombast, fraud, deception, impiety, and hypocrisy — a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices more shocking and bloody than are the people of the United States, at this very hour.

Twelve years later, and 150 years ago this Fourth of July, Gen. William Tecumseh Sherman was rectifying some of that harsh criticism by forcing back the armies of those in the South who committed treason in defense of slavery. On the Fourth of July in 1864, Joe Johnston was retreating back behind the Chattahoochee River, the last major defensive obstacle before Sherman would reach Atlanta.

We, as a nation, have certainly had some growing pains when it has come to realizing the ideals our Founders called self-evident and have struggled mightily at times to secure rights for our citizens, an ironic thing when those rights are described as “inalienable.” But, I hope, our efforts in this regard have been more forward than back. And the Fourth is a time to reflect on the remarkable amount of good our country has achieved over the last two hundred and thirty-eight years.

Court of Appeals – Potentially Troublesome Case on Statutes of Limitation

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A few days ago, the Indiana Court of Appeals issued an opinion in Imbody v. Fifth Third Bank that I’m having trouble following. The decision had to do with whether suit was filed within the six year statute of limitations. The court was clear enough about why it believed the cause of action accrued when it did, but after the cause accrued, the debtor made some payments toward the debt and the court was not clear, in my opinion, about why the statute wasn’t tolled when those payments were made.

Imbody had a loan secured by a truck. Imbody defaulted on the payments, the Bank seized his truck, sold it at auction for less than the remaining debt and claimed a deficiency balance of about $15,000. Imbody made some payments toward the deficiency for awhile but then stopped.

At issue was whether the Bank filed suit within the six year statute of limitations. That issue turned, in part (or I believe it should have only been part of the analysis), on when the Bank’s cause of action accrued. The time line went like this:

7/23/2004 – Note signed
5/3/2006 – Default on loan agreement.
5/31/2006 – Truck repossessed.
?/?/2006 – Truck auctioned, deficiency remains
2/29/2008 – Last payment toward deficiency.
6/5/2012 – Complaint filed by Bank against Imbody.

After a trial, the trial court entered judgment against Imbody and in favor of the Bank. On appeal, however, the Court of Appeals said that the Bank had filed suit after the statute of limitations had run. The loan agreement had a provision saying that, if the debtor missed payments, the Bank wasn’t obligated to wait around for years for payments to become due and owing on the same schedule as if payments were continuing. Rather, it had an option to accelerate the entire note — in other words, the remaining balance comes due at once. However, the Bank wasn’t obligated to accelerate the note. Obligated or not, the Court stated that the act of repossessing the truck constituted an acceleration. Fair enough. That makes cause of action accrue on May 31, 2006. June 5, 2012 is more than six years later and, had nothing else happened, outside of the statute.

The general rule, however, is that when a debtor is making payments, the statute is tolled. Why make a creditor go to court if the debtor is making payments that are acceptable to the creditor? After the truck was sold and a deficiency balance of around $15,000 was established, Imbody made 14 payments of $100 per month through February 29, 2008. If the clock doesn’t start running until 2008, then the Bank is within the 6 year window.

In Clark v. University of Evansville, 784 N.E.2d 942 (Ind. Ct. App. 2003), the Court of Appeals said:

In construing the provisions of this statute, we have held that partial payment of a debt may constitute “an admission of continued indebtedness” which “remove[s] the bar of the statute.” Meehan v. Meehan’s Estate, 98 Ind.App. 9, 14, 186 N.E. 908, 909 (1933). In Meehan we also stated that such a partial payment must be “accompanied by circumstances or evidence amounting to an unqualified acknowledgment of more being due, from which a promise may be inferred as a matter of fact and not as a matter of law, to pay the remainder.”

The Court of Appeals in the Imbody case said, “the evidence shows that the parties had an informal agreement regarding payments on the deficiency balance. There is no evidence that the parties entered into a forbearance agreement.” If there is a requirement that a forbearance agreement be entered into for the statute to be tolled, the Court of Appeals does not cite the basis of that requirement. The Clark case suggests that it’s only necessary that there be evidence amounting to an unqualified acknowledgement of more being due from which a promise may be inferred as a matter of fact to pay the remainder. The informal agreement noted by the Court of Appeals seems to satisfy that and, in any event, the finding of fact would be the province of the trial court which found for the Bank.

So, I don’t know if I am missing something obvious on this one or if the Court of Appeals whiffed on the tolling issue. Hopefully the Court of Appeals will reconsider or the Supreme Court will review this case. Because I’d hate to have to drag a bunch of debtors into court to preserve a claim even where they are making payments that are acceptable to the creditor.

Defendant Threatens Tippecanoe County Law Enforcement & Judiciary; Calls It “Satire”

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Eric Lach, writing for TPM Muckraker, reports that Samuel Bradbury of Pine Village, Indiana has posted threats to kill West Lafayette, Ind. police officer Troy Greene, Tippecanoe County Sheriff Tracy Brown, Tippecanoe County Judge Les Meade, and Indiana Supreme Court Loretta Rush on Facebook on June 19. He said he was part of a group that intended to blow up the Tippecanoe County courthouse with thermite.

Police in West Lafayette got a tip about the post on June 21, and, that night, they executed a search warrant at Bradbury’s house. According to the affidavit, officers searching Bradbury’s room found three 115 gram bags of aluminum powder and three 345 gram bags of black iron oxide — both substances used to make thermite.

The post was bracketed by “disclaimers” – at the top and bottom of the posts, he claims that the threats were a free speech exercise. Bradbury claimed ties to the Las Vegas cop killers, Jerad and Amanda Miller. He now faces both state and federal charges related to the threats.

If that was meant to be “satire,” he’s doing it wrong.

100 Years Ago Today: Gavril Princip Precipitated World War I

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On June 28, 1914, Gavril Princip had participated in a failed attempt to assassinate Archduke Franz Ferdinand in Sarajevo. A co-conspirator had thrown a bomb at the Archduke’s motorcade but failed to hit his target. The motorcade got away from the planned route. However, not long thereafter, the Archduke’s driver took a wrong turn and, as he was backing up, the car stalled. As it happened, the car stalled in front of where Princip was standing. Taking his chance, Princip pulled out his pistol and shot the Archduke and his wife.

Princip was part of a Serbian separatist group that wanted parts of the Austro-Hungarian empire to split off and become part of a new Yugoslavia. The archduke was the heir apparent to the throne of the empire, so the Austro-Hungarian Empire was enraged and issued an ultimatum to Serbia – with a number of demands that Serbia simply couldn’t be expected to accept. After partially rejecting the ultimatum, Austria-Hungary declared war on Serbia. Serbia turned to Russia which regarded itself as “protector of the Slavs.” Austria-Hungary turned to Germany with which it had an alliance against Russia. Russia, in turn, had an alliance with France against Germany.

Germany’s plans for war with Russia (Schlieffen Plan) was premised on the notion that it would have to fight France in any conflict with Russia. Being situated between Russia and France, and believing it would take Russia some time to mobilize, the war plan for such a conflict required Germany to move swiftly into France, neutralize the forces there, and then swing back east to deal with Russia. The longer it entertained diplomatic solutions, the less likely the plan was to work. Additionally, the German plan took it through neutral Belgium to get to France more quickly. England was allied with Belgium against violations of its neutrality and was drawn into the war when Germany invaded.

There are a lot more details and nuances involved in the beginnings of World War I, but that’s the thumbnail sketch. The details get hopelessly complicated pretty quickly. But, at that point, Europe was like a forest full of dry dead wood and undergrowth. The relatively small spark of Princip’s assassination of Franz Ferdinand was all it took to set the whole thing off. The Great War was really a bridge into modern times. The early parts of the war feature guys on horses with plumed uniforms and whatnot facing off against industrial weaponry. The conflagration would turn into an absolute meat grinder, particularly after it settled into the trench warfare for which it became famous. It was a war of attrition on a scale not previously seen. And, for the most part, it seems that the combatants were fighting out of a combination of pride and accident.

It tends to be a forgotten war – overshadowed locally by the “good” wars like World War II, the Civil War, and the Revolutionary War, where the United States can be discussed in heroic terms and the narrative of the war and what it accomplished can be stated more simply. But, I think we ignore the lessons of World War I at our peril: that pride and lack of foresight can cause enormous losses; that there is nothing inherently noble about war; that individual bravery can be meaningless.

I suspect I’ll have more to say about the Great War in the near future. Among other things, I was a history major in undergrad and Great Britain’s involvement in World War I was the subject of my senior seminar. I don’t pretend to be any kind of an expert, but it’s an area of interest for me.

Aftermath of Judge Young’s marriage equality decision

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Some good items at the Indiana Law Blog and Advance Indiana on the aftermath of Judge Young’s ruling on same sex marriage:

– The Indiana Law Blog on Gov. Pence’s General Counsel, Mike Ahearn’s memo to executive branch offices directing them to take necessary measures to change their processes to abide by Judge Young’s order.

– The Indiana Law Blog on the Daviess County Clerk’s refusal to issue licenses reportedly based in part on her religious beliefs.

– Advance Indiana pointing out the obvious flaw in Eric Miller / Advance America’s contention that amending the Indiana Constitution to prevent marriage equality would have done anything to alter Judge Young’s rationale. Based as it was on the United States Constitution, the Supremacy Clause dictates that state constitutional provisions would have to give way where they violate the federal constitution.

Oh, and also not so incidentally, the news has lots of stories out there about happy couples getting married. Which, I suppose, was the point of the exercise in the first place.

Update Late Friday afternoon, the 7th Circuit granted the Attorney General’s request for a stay of Judge Young’s order pending appeal.

Repealing the 17th Amendment is a Bad Idea

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Note: A version of this post originally ran as an Indianapolis Business Journal Forefront column. Generally, I refrained from posting columns of mine published in Forefront, but I particularly like this one and wanted to share.

In 1854, the Indiana Democratic Party was led by a man named Jesse Bright, a man described as “hateful and extraordinarily ambitious.” He rose to power as a bully and apparently remained one thereafter. His pugnaciousness was no small part of the series of events that led to a two year period in which Indiana had only one U.S. Senator instead of the customary two. At the time, the General Assembly was responsible for choosing U.S. Senators. However, in 1854, a backlash rose against passage of the Kansas-Nebraska Act, an act that permitted slavery in states north of the Mason-Dixon line. Bright, himself a slave owner with holdings in Kentucky, pushed a state party platform that endorsed the Act. This was not popular with all Democrats, but Bright and his machinery punished those who opposed it, driving a wedge in the state Democratic party and giving rise to a confederation of former Whigs, Free Soilers, Know-Nothings, and dissident Democrats who joined into a fusion movement that swept the elections that year. They took control of the House of Representatives, but the Democrats narrowly hung on to the state Senate.

The first order of business for the new General Assembly was selecting a United States Senator. However, rather than permitting the choice of a Fusionist, the Democrats refused to caucus. As a consequence, from 1855-1857, Jesse Bright was Indiana’s lone Senator. In 1862, the United States Senate would go on to expel him from the Senate for acknowledging Jefferson Davis as President of the Confederate States of America and for facilitating the sale of arms to the Confederacy.

Dysfunction and machine politics were not unique to the Indiana Senate selection process. In 1906, Hoosier native and DePauw graduate, David Graham Phillips wrote a series of articles entitled “The Treason of the Senate” which played no small part in the eventual passage of the Seventeenth Amendment providing for the direct election, as opposed to legislative selection, of United States Senators. As the industrial might of the country grew in the post-Civil War era, those with major business interests came to understand that they could best exert their influence on the U.S. Senate by offering financial incentives to the state legislators who selected its members. Phillips documented some of these abuses, for example the close alignment between the Rockefellers and the political machine of Rhode Island’s Nelson Aldrich. Rhode Island’s legislature and, therefore, its two Senate seats could be had at very little expense.

Following popular anger at the dysfunction and abuse of the legislative selection system, the United States passed the Seventeenth Amendment, removing the selection process from frequently corruptible legislatures and providing for direct election of our Senators.

Now, however, Indiana officials, including state senator James Smith (R-Charlestown) and Indiana’s Attorney General, Gregory Zoeller have advocated repealing the Seventeenth Amendment. Earlier this year, Smith introduced legislation proposing to take the legally dubious step of rescinding Indiana’s ratification of that Amendment. Zoeller recently expressed his distaste for popular election of Senators at a meeting of the Federalist Society. The old way, he contends, was better because it made Senators instruments of the State rather than instruments of the people, thereby enhancing our federalist form of government with the States themselves being represented in Congress.

My high school history teacher told us that “today’s reforms are tomorrow’s corruption.” And our current U.S. Senate certainly is not a model organization. However, trading in today’s abuses for yesterday’s corruption is not the way to go about reform. If the state legislatures are at odds with the popular will, the solution is not to neuter the will of the People. More likely the solution is to change the composition of the legislature.

World War I: Easy to Forget

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Coming up on the centennial of the assassination of Archduke Ferdinand, triggering The Great War, Christopher Doyle has a good column entitled, “World War I: A war too easy to forget.”

In contrast to America’s favorite wars (Revolutionary, Civil, and World War II), it’s a war that lends itself to hard questions:

From a Socratic perspective, World War I offers perfect material for asking hard questions. How, for instance, could a relatively inconsequential act of terrorism committed by a teenage extremist from the margins of Europe drag the great powers into conflict? Why did trenches and a pointless war of attrition develop and persist for more than four years on the Western front? How did the bombing of cities, mass conscription, modern propaganda techniques, poison gas and the starvation of civilians by blockade come to be seen as acceptable, even essential, behavior? Were troop mutinies and pacifist activities justified? Were peace advocates heroes? How about official measures to stop them: Were they ethical? Were any higher principles at stake? Did good prevail? And, of course, how did the botched peace result in the rise of the Nazis?

I’ve mentioned it before, but Dan Carlin’s Hardcore History has some good podcasts up on World War I in his “Blueprint for Armageddon.”

The ambiguity of World War I is, in my mind, more representative of the nature of war than are America’s greatest hits – particularly the mythologized versions of those wars.