Howard County Judge & Kokomo Mayor contempt incident raises interesting questions

Jim Shella, writing for WISHTV, reports that a Howard County judge has, at least ostensibly, found the Kokomo mayor in contempt for issues having to do with construction around the courthouse.

Outside the Howard County Courthouse there is construction underway on the Industrial Heritage Trail. The construction has at times forced changes in the normal delivery of jail inmates to the courthouse.

Then, on Tuesday afternoon construction materials were placed in the driveway blocking access. To Judge Menges that was an act of contempt by Mayor Goodnight.

He sent the Sheriff to Goodnight’s office with a message. “If you don’t come with me over to the judge’s chamber,” Goodnight quoted the Sheriff as saying, “we’re going to take you to jail.”

Through a spokesperson the judge said he can’t comment on the record. His contempt order says the mayor blocked access to the courthouse and says it was “intentional and done solely for the purpose of disrupting the regular proceedings of the court.”

I’m not going to say I have the authoritative answer on these issues, particularly based on what is probably an incomplete set of facts, but some questions come to mind:

1. Wouldn’t that be, at best, indirect contempt, requiring the court to provide due process, including appointment of a special judge, before threatening to incarcerate the mayor? (See IC 34-47-3).

2. Given that there are multiple judges at the Howard County courthouse is Judge Menges authorized to take action absent the consent of his colleagues with respect to matters concerning the courthouse generally as opposed to his court room in particular?

3. When does that part of the courthouse stop being under the jurisdiction of the state judiciary in the person of the judge (or judges) and start being under the jurisdiction of the Board of Commissioners? If, for example, the judge asserts the authority to clear obstructions to the drive; does he then become liable if someone slips and falls on the driveway from a hazard he had the power to remedy?

4. Did the City have a construction easement that authorized the use of the real estate in that fashion?

This would be a good exercise for a law school exam!

UpdatePat Munsey, writing for the Kokomo Perspective, has some additional details.

On the order of Howard Superior Court I Judge William Menges, Goodnight was brought to court and summarily sentenced to the Howard County Jail on a charge of direct contempt of court.

During the hearing, Menges explained that the courthouse’s west entrance had been blocked, making it impossible for the county to transport “dangerous” prisoners to the court for a Friday hearing. Initially, the county determined that it would fill an area with gravel leading to the concrete pad so that the transports could be completed.

The rest of the story describes Menges summarizing information he seems to have received second and third hand before finding Mayor Goodnight in “direct contempt.”

IC 34-47-2 describes “direct contempt” as involving activity taking place “in a court of record” while the court is in session. That’s clearly not what took place here. Sometimes the courts take the position that the legislature can go pound sand when it comes to defining the court’s powers, so maybe the Indiana Supreme Court has its own definition of “direct contempt” that goes beyond the statute. But I can’t imagine that what’s described in these news reports satisfies the requirements of due process.

Update 2 The court’s order on “direct contempt” is here (pdf). The court’s rationale for calling this “direct contempt” (which can be punished with much less in the way of process) instead of “indirect contempt” (which would seem to require appointment of a special judge) is that the judge witnessed the placement of construction materials in the courthouse drive. I don’t see that the court had direct, first-hand knowledge of the mayor’s acts or omissions.

Science Wants You To Coddle Your Teenagers To Help Them Learn

Rachel Morello, writing for State Impact Indiana, has a story about doctors recommending later school start times for middle schools and high schools to accommodate adolescents need for sleep and thereby improve their ability to learn while they’re at school. This will never catch on because life is a morality play, and anything that seems enjoyable or pleasant is immediately suspect. Can’t coddle “kids these days”(tm) you know. Misery builds fortitude which is why piling on homework and yelling at students to work harder will always be a more popular approach to education by policy makers.

Oral Arguments in 7th Circuit Marriage Equality Lawsuits – Posner, Williams, and Hamilton Panel Judges

The 7th Circuit is conducting oral arguments today in combined Indiana and Wisconsin cases considering the constitutionality of laws prohibiting same sex marriages. The panel drawn to hear the cases are Judges Posner, Williams, and Hamilton. Posner is a Reagan appointee, Williams is a Clinton appointee, and Hamilton is an Obama appointee. This is not a good draw for the Attorney Generals of the states seeking to have their laws prohibiting same sex marriages upheld.

Posner who, just from a two-dimensional political analysis, might be expected to be the most sympathetic to the marriage laws on the books is not a reliable enthusiast for socially conservative positions. Looking at his Wikipedia page (how is that for legal analysis!) he has expressed opinions sympathetic to abortion rights and skeptical of the drug war. With respect to gay marriage in particular, Judge Posner offered a discussion at his blog with Gary Becker. He believes the available evidence suggests that homosexuality is innate and, as such, “if homosexuality is innate, it becomes difficult to see why it should be thought to require regulation.” He concludes:

It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.

(emphasis added).

I can’t imagine the chances of the State attorneys general gets any better with Judges Williams and Hamilton. Ian Millhiser, writing for Think Progress, says of the panel draw, “Marriage equality supporters just won the lottery.”

A couple of health care news items

Rick Callahan, writing for the Associated Press, has an article entitled “Health-care fears loom large in gay marriage cases.” The article discusses how health care benefits can be a strong motivating force for gay partners who want recognition of their relationship as a marriage which entitles them to their partner’s health care benefits.

Yesterday, Tony Cook, writing for the Indianapolis Star had an article on Seema Verma, an individual who works as a health care consultant for the State of Indiana, designing the “Healthy Indiana Plan” while working as a vendor for that plan.

No time to comment, but it’s unfortunate that health care protection can be so variable even while it’s so important to our lives, meanwhile it’s hard to escape the suspicion that the system is corrupt, and we’re chumps enriching some privileged few who have gamed the system.

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.