Columbus Hockey Recap

Many thanks to my friend Bob May for putting a great event together. Some 20-25 guys in a party bus from Greenfield to Columbus, and as my great luck would have it, I got to sit on the bus next to Indiana Supreme Court Justice Mark Massa.

Let me tell you- Justice Massa is a big-time hockey fan. We geeked out for about an hour on the old school hockey that drew us to the game- for him, the Chicago Blackhawks of the late 60s and 70s and their greats Hull, Mikita, and Esposito. My first NHL game in 1976 to witness the Cleveland Barons host the mighty Montreal Canadiens. The Blackhawks would take on the Blue Jackets later in the evening.

The reason I was on the trip really was to play one last time. For as fun and great as the event was overall, playing really sucked. It was perfect, though. It erased all doubts about whether or not to stop playing. I mean it had it all- teammates who wouldn't pass if there was a gun pointed to their heads, opponents who would trip you behind the play even though they knew you were hurt, uncompetitive lopsided balance of talent. Yep, I've had my fill of that. It would be so cool to find a league somehow, some way, that was just into the fun of the game. Alas.

The tunnel the NHL's Blue Jackets players use to get to the ice, behind me.

Oh, did we turn it over without a pass? Time to get into the backcheck.

With Phil Partlan after the game, posing at center ice at Nationwide Arena. Phil's one of the good guys- so much so that I give him a pass for a Red Wings jersey.

If you've ever played recreational hockey, you'll love this. What's great about an event with an NHL team? The locker rooms! It's the little things: showers equipped with actual soap, and with both kinds of water; no slime on the floor; heat; adequate space. If you can't score three goals in your last hurrah (I didn't score any), you may as well have the amenities.

My non-hockey luck continued as I got to have dinner with Phil Partlan and Justice Massa, and sit with them during the game. It was a good game, too, as the Blue Jackets gave effort aplenty but came up a goal short. Loads of Blackhawks fans in attendance.

I found time in there to ask the Justice about my own Supreme Court case that was heard shortly before his appointment. With us being friends, would he have had to recuse himself? He said no, that simply playing hockey together is not nearly enough to give the impression of a connection that could prejudice his judgment. It would have been interesting, had he been behind the bench.

And now, to get my back looked at by my chiropractor.

Stunned By Decision

Kole v. Faultless, the lawsuit I am participating in against the Town of Fishers has been decided. The headline says it all.

More than anything here's the part that just flat out stuns me. We had this as our legal question, from Justice Shepard's decision:

In particular, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana has asked us the following question, certified under Indiana Appellate Rule 64(B):

Whether a political unit may reorganize into a city under Ind. Code art. 36-1.5 (the “Reorganization Act”) in a manner that eliminates voting rights recognized under Ind. Code § 36-4-5-2 and Ind. Code § 36-4-6-3(i), including reorganization as a city with (1) a council elected entirely at large; and (2) a mayor appointed by that council.

We have accepted this question and now hold that Article 1.5 of Title 36 does allow a political subdivision to do so.1

Are you kidding me? The question is, 'Can Fishers eliminate voting rights'? The answer is 'Yes!'?

I think the big learning curve for me here is that the consideration is strictly a legal question. Our question was framed in Indiana court, with it imposed against a particular law, the "Reorganization Act". They took an incredibly narrow view of the law. The law doesn't preclude a municipality from forming this kind of government, or any other. Shepherd points to a 'liberalization' over time in Indiana in reducing barriers and restrictions to the municipalities, and evokes a move away from Dillon's Rule, and towards Home Rule.

I'm not sure I buy that. My interest is in the people's self-government. Our petition was sandbagged by the Town Council so they could advance a plan crafted in its' own interest. I don't see that as Home Rule at all. A vote of the elected officials is nowhere near the same thing as a vote of people. Maybe I just badly misunderstand the term. Anything is possible. I thought this case was a slam-dunk.

The language of the decision suggests that a door is open for laws to be written that do specify the forms of municipal government entities can form. It offers no guidelines. So, wanna create a kingdom! Hey hey, go for it! Home Rule, baby!

What move comes next has not been determined. I do expect the Fishers Town Councilors to call a press conference, do a happy dance, and generally drag our names through the mud. Can't wait for that.

Mr. Smith Goes To Indianapolis

Yesterday, my case went to the Indiana Supreme Court for oral arguments. It was an interesting affair, to say the least.

The case is Kole et al vs. Faultless. To keep from the legal gobbledegook that would make the average reader's eyes glaze over, I'll describe it simply.

I see this as a good government case. In sum, the Fishers Town Council believes that the state's Reorganization law permits units of government to select any form of government it chooses. My position is that a reorganization must fit into existing forms. There are no municipal governments in Indiana with a selected mayor. If they want that, they need to amend the Indiana Constitution. The people get to vote on the mayor.

For instance, their plan advances a type of city that would feature a mayor selected by the new city council members. The people would not directly elect the mayor.

So, in that scenario, you can forget about the executive being a check or balance to the legislative. It is clear to me that they want a rubber stamp mayor. I do not believe this to be in the best interest of the people.

This case arose from a petition that the Town Council sat on. City Yes PAC circulated a petition, which I signed, that wished for a ballot referendum to put the question before the voters- city or town? The rationale was that the population of Fishers was so large (70,000+) that it was time to enter into that form of government. I wasn't entirely sold on that proposition. I was (and remain) wary of the other examples in Hamilton County, such as Carmel or Westfield, where the mayor is a strong arm pushing through pet projects, while their city councils are often the rubber stamps. But- and this is the important point for me- I believe that at the municipal level, the people should decide their form of representative government by their direct election. Put the question on the ballot, and let the people choose. It could go either way. This was done once before, and the people chose to remain a Town.

History could repeat itself, but apparently the Town Council wasn't too confident. So, when they received a valid petition, they did nothing with it. Thus, the lawsuits proceeded.

Link to Greg Purvis' take on the suit.
Link to Abdul Hakim Shabazz's report on the suit, complete with an interview with me.

There was nothing especially surprising in the Supreme Court proceedings, although there was one moment when I had to stifle myself a bit. One Justice asked Fishers' counsel what recourse citizens would have should Fishers get its way, become the city with an appointed mayor, and they find they don't like it. To paraphrase, he said that the people could petition for a referendum.

Are you freakin' kidding me?! This is precisely what happened at the front end of this saga, and it got sandbagged very intentionally. What right thinking person really believes the same people wouldn't do the same thing again?

There are some interesting ramifications that have occurred to me, should Fishers win. The reorganization law allows municipal officials to shape governments however they like, in their view. What's to stop them from eliminating mayors? Being hypothetical here, look at a city that has a strong inclination towards voting Republican or Democrat. Think of Carmel or Anderson. The latter is more apt for what is foreseeable.

Anderson normally votes Democrat, but from time to time, as in 2007, might elect a Republican mayor. Now they still had a predominantly Democratic council. In this scenario, great for checks and balances. But, lets say the council decides that's not politically expedient. So, they get together and put together a reorganization plan that eliminates the mayor. If they have the veto-proof numbers, goodbye mayor.

As a purely personal consideration, the Supreme Court is a very interesting corner of the Statehouse. The space is fairly intimidating, with an absurdly high ceiling, gold leaf pilasters and columns, stained glass, portraits of past Justices, the five Justices on a dais of high-backed throne-like chairs, the works. The Justices ask questions that poke holes in the arguments put forth by both sides.

I found myself trying to analyze the questioning. Did it mean that the Justice found the assertion invalid? Or, was it that he was inviting the counsel to help write the decision? If they did not question an item, was it because it was wholly worthless, or wholly without dispute? It was very hard to read into it.

Nothing to do now but wait for comment from the Court. We could wait months or even years, although we suspect they will decide the case in such time that the question could be placed on the November ballot.