Tony Bennett aide: Once & Future Cisco Systems Employee

Tom LoBianco, writing for the Associated Press, has a good piece of investigative journalism which takes a look at the relationship of former Tony Bennett chief of staff, Todd Huston, with his once and future employer, Cisco Systems, and the Indiana Department of Education.

It looks like Huston left Cisco to come work with Bennett at the Department of Education, maintained a close relationship with the Cisco people while he was at the IDOE and arranged contacts between Cisco sales people and the Department of Education, then left the IDOE to go back to Cisco while still providing education policy advice to Bennett and facilitating contacts between Cisco sales people and the IDOE.

The story has a sort of Mitch Roob feel to it.

ILB on Bowling v. Pence & Judge Young’s Scolding of the Governor

Judge Young of the United States District Court for the Southern District of Indiana issued a decision in Bowling v. Pence, another marriage equality case, and reached the same conclusion that Indiana’s prohibition on same sex marriage is unconstitutional. He stayed his order pending the 7th Circuit’s consideration of that case or the related cases on the issue.

As the Indiana Law Blog does a wonderful job of laying out, what makes this case more notable is that the court chides the Governor for what it regarded as a misrepresentation by the Governor as to whether he had enforcement authority with respect to Indiana’s same sex marriage law and would, therefore, be a proper party to the lawsuit.

A suit for injunctive relief is a request from the petitioner asking that the court order the respondent to do or not do something. In prior litigation, the Governor’s response was, essentially, “I have no power to enforce or not enforce here, don’t sue me.” That argument carried the day in an earlier case, and the Court dismissed Gov. Pence as a defendant. However, following Judge Young’s prior decision concerning same sex marriage and subsequent issuance of a stay by the 7th Circuit, the Governor’s office issued memoranda instructing the executive branch agencies on how to comply with the court’s order. This, to the Court, was evidence that the Governor had authority he had previously disclaimed.

The memoranda issued by the Governor clearly contradict his prior representations to the court. The Governor can provide the parties with the requested relief as was evident by his initial memorandum on June 25, 2014, and he can enforce the statute to prevent recognition as evident by his correspondence on June 27 and July 7. Thus, the court finds that this case is distinguishable from the cases cited by Defendants because it is not based on the governor’s general duty to enforce the laws. It is based on his specific ability to command the executive branch regarding the law. Therefore, the court finds that the Governor can and does enforce Section 31-11-1-1(b) and can redress the harm caused to Plaintiffs in not having their marriage recognized.

Judge Young characterized the Governor’s misrepresentation as “troubling.”

Ferguson & Tennesse v. Gardner

After the police released a statement about Mike Brown supposedly committing robbery and stealing some cigars before being killed by a police officer while running away, I couldn’t help but notice the similarity in facts to a prominent Supreme Court case about the use of deadly force. The case was Tennessee v. Garner, 471 U.S. 1 (1985). Per the Wikipedia entry:

At about 10:45 p.m. on October 3, 1974, Memphis Police Department Officers Leslie Wright and Elton Hymon were dispatched to answer a burglary call next door. Officer Hymon went behind the house as his partner radioed back to the station. Hymon witnessed someone running across the yard. The fleeing suspect, Edward Garner, stopped at a 6-foot-high (1.8 m) chain-link fence. Using his flashlight, Hymon could see Garner’s face and hands, and was reasonably sure that Garner was unarmed. The police testified that they believed Garner was 17 or 18 years old; Garner was in fact 15 years old. After Hymon ordered Garner to halt, Garner began to climb the fence. Believing that Garner would certainly flee if he made it over the fence, Hymon shot him. The bullet struck Garner in the back of the head, and he died shortly after an ambulance took him to a nearby hospital. Ten dollars and a purse taken from the burglarized house were found on his body.

Hymon acted according to a Tennessee state statute and official Memphis Police Department policy authorizing deadly force against a fleeing suspect. The statute provided that “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”

The United States Supreme Court decided that the officer’s actions violated the decedent’s Fourth Amendment rights. This was, apparently, a departure from the common law where deadly force was permitted against a suspected felon who, given the opportunity to submit to the police, nevertheless attempted to flee. The Supreme Court in Garner reasoned:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.
. . .
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.

For those interested in such things, Graham v. Connor, 490 U.S. 386 (1989) is another landmark Fourth Amendment case concerning police use of force — more generally and not just the use of deadly force:

The Fourth Amendment “reasonableness” inquiry is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.

An interesting wrinkle to this objective reasonableness test is that it attempts to assess the use of force from the perspective of an “objectively reasonable” officer. The upshot is that constitutionally permitted use of force isn’t rendered unconstitutional due to the subjective malice of the actual officer and constitutionally prohibited use of force isn’t rendered permissible due to the subjective good faith intentions of the officer.

Police and Optics

Dave Bangert, writing for the Lafayette Journal & Courier, has a good column discussing the issue of military hardware in the possession of local police forces. West Lafayette has, most notably, a mine-resistant ambush protected vehicle (MRAP).

The column was unsurprisingly prompted by the news and images coming out of Ferguson, MO where the available evidence so far suggests the police are behaving badly. And the images coming out of that community are full of police in riot gear with military grade hardware. But, to date, the primary damage has come from a fairly ordinary sidearm wielded by the police officer who killed Mike Brown.

The use of scary looking tools in Ferguson has done the police more harm than good. So far as I know, the actual uses of force employed by the police in Missouri have been fairly conventional. The deployment of high tech, menacing, military grade (I’m not sure exactly what this term means, but it’s been employed a lot) hardware has been mostly for show. I don’t know that the police have actually used capabilities that wouldn’t have been available to them 35 years ago.

On the other hand, the optically menacing display is feeding the narrative of jack-booted thugs run amok with its center-piece being the shooting of Mike Brown in the manner described by witnesses sympathetic to Brown and hostile to the police. If the Ferguson police have their own, less inflammatory narrative where the shooting was justified, it is being drowned out through a combination of police silence, horrible optics, and probably a healthy dose of good old fashioned being in the wrong.

As for West Lafayette and other communities, I think the relationship between the police and the communities they serve is going to be far more important than the particulars of the hardware available to the police forces. It’s critical to have a police force that is drawn from and active in the community being policed. We are fortunate to have that in Tippecanoe County. St. Louis County and Ferguson, not so much.

Indiana Issues Statewide Report on School Bullying

Rachel Morello, writing for State Impact Indiana, has a story on the State’s report on school bullying. Consisting of about 9,400 reported incidents:

Data collected by the Indiana Department of Education shows 44 percent of cases reported during the 2013-14 academic year were verbal and 21 percent physical. The rest involved written or electronic threats, as well as social relational issues.

Eric Weddle, writing for the Indianapolis Star, also had a story on the subject.

The data collected is an initial step. It’s tough to make too much of it right now, but the report creates something of a baseline. Lack of any reported bullying might be a red flag that schools are not being observant or forthcoming. Bullying is not easily defined, but the State took a stab at it:

Overt, unwanted, repeated acts or gestures, including verbal or written communications, that create an objectively hostile school environment for targeted students that place them in reasonable fear or harm or affects their mental health or school performance.

I know I had some difficulties as a kid. Being a scrawny, academically oriented boy doesn’t exactly endear you to some of the bigger, less-academically oriented boys who (more often than not) had chaotic home lives to deal with. (Bringing to mind Warren Zevon’s line, “You know, the Sheriff’s got his problems too. He will surely take them out on you.”) And, I recall being on the giving end for at least one kid who became a target among the boys because he seemed to have a much greater affinity for the girls in the class than the boys. (Years later, I sought him out on Facebook and apologized — he didn’t seem to remember me, so there is a good chance my behaving poorly was more of a minor problem for him).

What I don’t get is the hue and cry from parents who apparently think maintaining civility in schools is going to soften up their kids. You want your kid to be tough? Let him treat you the way you’d apparently have him act in school. Maybe let his siblings beat him around if that’s what you’re into. Leave it at home though. Getting my books dumped, getting my arm punched repeatedly, and being harassed for using 5 syllable words didn’t make me a better person. It turned me into a vengeful trial attorney. I think we can all agree we don’t need any more of that.

Media Stuff

In no particular order:

I went running with my 10 year old son yesterday. As we were chatting, he mentioned that you shouldn’t trust the news too much because they liked to exaggerate. He was thinking mostly of TV news. I shared with him the notion that, “if you’re not paying for it, you’re the product.”

CBS is terminating its affiliation with WISH-TV, channel 8 and beginning one with WTTV, channel 4 beginning January 1, 2015. If WISH-TV can reboot Sammy Terry and Cowboy Bob and somehow broadcast all of the Purdue and IU basketball games (including the Farm Bureau tuba kid and Martha the mop lady intros), I think they’d be fine.

Rumor has it that the Indy Star is laying off a lot of people today. My opinion is that the long term future of news organizations is going to be investigating and reporting on local issues. Those are things that can’t effectively be outsourced or replaced otherwise. Going for short term gain by replacing those more expensive functions with cheap content like opinion or news wire reports is going to erode the long term viability of the organization because that stuff is replaceable.

Need to Amend the Indiana Constitution

H/t to Jared for drawing my attention to Art. 7, sec. 3 of the Indiana Constitution. Looks like it could use some updating:

Section 3. Chief Justice. The Chief Justice of the State shall be selected by the judicial nominating commission from the members of the Supreme Court and he the Chief Justice shall retain that office for a period of five years, subject to reappointment in the same manner, except that a member of the Court may resign the office of Chief Justice without resigning from the Court. During a vacancy in the office of Chief Justice caused by absence, illness, incapacity or resignation all powers and duties of that office shall devolve upon the member of the Supreme Court who is senior in length of service and if equal in length of service the determination shall be by lot until such time as the cause of the vacancy is terminated or the vacancy is filled.

The Chief Justice of the State shall appoint such persons as the General Assembly by law may provide for the administration of his office. The Chief Justice shall have prepared and submit to the General Assembly regular reports on the condition of the courts and such other reports as may be requested.


Section 9. Judicial Nominating Commission. There shall be one judicial nominating commission for the Supreme Court and Court of Appeals. This commission shall, in addition, be the commission on judicial qualifications for the Supreme Court and Court of Appeals.

The judicial nominating commission shall consist of seven members, a majority of whom shall form a quorum, one of whom shall be the Chief Justice of the State or a Justice of the Supreme Court whom he the Chief Justice may designate, who shall act as chairman. chair. Those admitted to the practice of law shall elect three of their number to serve as members of said commission. All elections shall be in such manner as the General Assembly may provide. The Governor shall appoint to the commission three citizens, not admitted to the practice of law. The terms of office and compensation for members of a judicial nominating commission shall be fixed by the General Assembly. No member of a judicial nominating commission other than the Chief Justice or his the Chief Justice’s designee shall hold any other salaried public office. No member shall hold an office in a political party or organization. No member of the judicial nominating commission shall be eligible for appointment to a judicial office so long as he the individual is a member of the commission and for a period of three years thereafter.

There. Fixed. Mostly.

Norm Ornstein on Main Stream Extremism

Norm Ornstein, not known as a liberal wishing ill for the Republican Party, thinks the Grand Old Party is in the midst of an existential struggle between bedrock conservatives and radicals. (h/t Sheila Kennedy). It caught my eye because I’ve seen variants of a lot of these make their way into proposed Indiana legislation:

That the Texas Legislature should “ignore, oppose, refuse, and nullify” federal laws it doesn’t like.

That when it comes to “unelected bureaucrats” (meaning, Hertzberg notes, almost the entire federal workforce), Congress should “defund and abolish these positions.”

That all federal “enforcement activities” in Texas “must be conducted under the auspices of the county sheriff with jurisdiction in that county.” (That would leave the FBI, air marshals, immigration officials, DEA personnel, and so on subordinate to the Texas versions of Sheriff Joe Arpaio.)

That “the Voting Rights Act of 1965, codified and updated in 1973, be repealed and not reauthorized.”

That the U.S. withdraw from the United Nations, the International Monetary Fund, the World Trade Organization, and the World Bank.

That governments at all levels should “ignore any plea for money to fund global climate change or ‘climate justice’ initiatives.”

That “all adult citizens should have the legal right to conscientiously choose which vaccines are administered to themselves, or their minor children, without penalty for refusing a vaccine.

That “no level of government shall regulate either the ownership or possession of firearms.” (Period, no exceptions.)

That seems to be the current struggle going on. Ornstein notes that the Republicans was being fractured from the left at the beginning of the 1900s with guys like Teddy Roosevelt and Robert La Follette pushing Progressive policies, and the Democrats being pulled from the left a little earlier than that with William Jennings Bryan running around with his Cross of Gold speeches and whatnot; and again in the late 60s and early 70s with the McGovern wing briefly taking hold.

Ornstein finds the roots of the Republicans’ current challenge in the strategies and tactics of New Gingrich:

Clinton’s election in 1992 moved the Democrats firmly to the center on previously divisive issues like welfare and crime. But it also provided the impetus for the forces that have led to the current Republican problem. These forces were built in part around insurgent Newt Gingrich’s plans to overturn the Democratic 38-year hegemony in Congress, and in part around a ruthlessly pragmatic decision by GOP leaders and political strategists to hamper the popular Clinton by delegitimizing him and using the post-Watergate flowering of independent counsels to push for multiple crippling investigations of wrongdoing (to be sure, he gave them a little help along the way). No one was more adroit at using ethics investigations to demonize opponents than Newt. In 1994, Gingrich recruited a passel of more radical candidates for Congress, who ran on a path to overturn most of the welfare state and who themselves demonized Congress and Washington. At a time of rising populist anger—and some disillusionment on the left with Clinton—the approach worked like a charm, giving the GOP its first majority in the House in 40 years, and changing the face of Congress for decades to come.

For the current struggle, Ornstein sees a push back against the radicalism but doesn’t foresee the return of the kind of problem-solving conservatism he’d like to see. Instead he says:

It is a measure of the nature of this intra-party struggle that the mainstream is now on the hard right, and that it is close to apostasy to say that Obama is legitimate, that climate change is real, that background checks on guns are desirable, or even that the Common Core is a good idea.

One thing this piece reminds us of, simply by recounting some of the history, is that trajectory lines are not constants. A lot of the current dismay and dissatisfaction about government comes from drawing a line between the way things were and they way they are now and simply projecting that line to the future. But there will be an inflection point. Things change, they always do. Often, but not always, for the better.

Justice Loretta Rush named Chief Justice of Indiana Supreme Court

Good news for Indiana. Justice Loretta Rush has been selected as the next Chief Justice for the Indiana Supreme Court. She presided over Tippecanoe County Superior Court 3 since 1999 and did a fine job with the juvenile cases there. Two years ago, she was appointed to the Indiana Supreme Court. And today the Judicial Nominating Commission selected her as the Chief Justice who will replace Justice Dickson who stepped down after a brief tenure. Justice Dickson was in the same law firm as Justice Rush here in Lafayette and was apparently a mentor of hers. He saw his role as a transitional Chief Justice to bridge the gap between the long time previous CJ, Randall Shepard.

I have a certain hometown pride going on – Justice Rush was not only a Tippecanoe County lawyer, she was also a Richmond High School graduate. That bias aside, she’ll make a good Chief Justice. I never had any cases in front of her, but as one of the county attorneys, my impression was that, in addition to sound legal judgment, she was a good court administrator. Her responsibilities in administering the Indiana court system will be several orders of magnitude greater than in Tippecanoe County, but she has a solid foundation to work from.

No doubt the future holds a legal opinion or two with which I’ll strongly disagree, but for now, I’m very happy with the JNC’s choice for the position.

Sen. Long cites “national excitement” over Constitutional Amendment process

Sen. Long has a guest column in the Journal & Courier about his participation in efforts to amend the U.S. Constitution through the untested state convention process rather than through the process initiated by Congress that has been used for every Constitutional amendment to date.

There is a growing national awareness, and corresponding excitement, over a state-led effort to propose amendments to the U.S. Constitution.
. . .
The Founders feared that without this provision, states could never be assured of protection from the threat to their sovereign rights by an over-reaching federal government.

He then raises the specter of trampled upon states rights, a fearful national debt, and waves away fears of a runaway convention.

I suppose that when you’re messing around with the guts and inner workings of the Republic, it’s appropriate to raise fearful images of tyranny. But, for starters, the “trampled upon” states rights are over stated. I haven’t noted Indiana being ground down by the boot heel of Washington. I’ve seen political parties who control state-level government having different policy preferences than political parties who control federal-level government and resulting squabbles from often venal politicians and lobbyists.

Once again, Sen. Long speaks to organizing the process, a vague description of the problem, and an almost non-existent indication as to the solutions he has in mind. Debt’s a problem? Why do I feel like extracting some extra portion of the nation’s GDP to those citizens who have been more successful in appropriating it to themselves in order to pay the nation’s bills isn’t on Sen. Long’s mind?

But, interestingly, I recently found out that Sen. Long’s side of things, Citizens for Self-Governance, isn’t the only state convention organizing effort afoot. There is also the Wolf-PAC effort. Rather than debt, states-rights, and allegations of federal tyranny; the Wolf-PAC is calling for a state led convention in order to pass an amendment that would permit campaign finance regulations and overturn Supreme Court decisions that overturned campaign finance regulations.

Would Long’s group be willing to join forces with Wolf-PAC in order to get the necessary number of states?

In any case, I don’t think any of us should get behind these efforts unless we have a very good idea of the policy solutions the organizers want to propose. I haven’t seen that out of Sen. Long’s group. Give me sample amendment language you anticipate supporting. If it has to be tweaked later, fine. But we shouldn’t be buying a pig-in-a-poke.