Settling Scores and Legislating Badly

To this day, despite my aging memory, I can still vividly recall my law school Income Tax class–and not just because it was taught by the legendary Larry Jegen. The class was my first introduction to the phenomenon of laws like the one Jegen called “the crazy cousin rule.” This otherwise inexplicable provision, written in the appropriately impenetrable language of the tax code, allowed a tax deduction for any support rendered to certain relatives in mental institutions. Presumably, the author of the measure had such a relative, and he was using his elective position to write tax laws that would benefit him personally, by allowing him to recoup some of the costs involved. Public policy had nothing to do with it.

Which brings me to Mike Delph and his attempt to abolish the use of Grand Juries in Indiana.

As faithful readers of this blog (there are some, right?) will recall, I blogged about this odd proposal a while back, expressing my puzzlement. A more savvy observer of the political scene posted a comment, suggesting a motive for this seemingly bizarre effort: Delph, he said, was a friend of Charlie White, the Indiana Secretary of State who had been indicted by a grand jury on charges of theft and vote fraud.

That seemed petty and irrational even for Mike Delph, but an article about Charlie White’s upcoming trial in this morning’s Indianapolis Star has leant support to that explanation. In the lengthy background piece, Delph is quoted at several points about his friendship with White, and his conviction (no pun intended) that the charges were politically motivated. According to Delph, he and Charlie often pray together in Charlie’s office.

Now it all makes sense. A grand jury indicted his friend. Abolish grand juries.

It needn’t stop there. If your friend is mistakenly arrested by the police, abolish the police; if a doctor’s treatment harms your friend, abolish the practice of medicine….

I don’t know the content of those devotions in Charlie’s office, but may I suggest adding a prayer for less grandiosity and more common sense?


There’s Law and There’s Politics

A lawyer friend of mine recently sent me an email commenting on the Recount Commission’s ruling on Charlie White’s residency.

“Contrary to what I repeatedly heard from the Commission members yesterday, mostly Wheeler, Indiana law does not state that residence is totally a function of one’s intent.  While important, the Supreme Court in the Evan Bayh case said these things about the role of intent in domicile cases.  First, it said that “a self-serving statement of intent is not sufficient to find that a new residence has been established.” (“I intended to live at Broad Leaf at the home of the woman I divorced 3 years earlier, while I was engaged to another woman, and after I’d leased and then purchased a condominium with a 30-year mortgage and paid all the utility bills while my fiancé was living there.”) Second, the Bayh case held that residency requires both intent and “evidence of acts taken in furtherance of the requisite intent, which makes the intent manifest and believable.”  In other words, one’s professed intent, to be made believable, requires conduct that is consistent with that professed intent.  And third, the Court in the Bayh case emphasized that a location cannot be one’s domicile unless it is one’s “true, fixed, permanent home,” not a place (like one’s ex-wife’s home) where one goes occasionally to “crash”, i.e. a purely temporary arrangement.”

The Commission essentially ruled that all White needed to do was profess an intent to reside at his ex-wife’s home.  But as my friend pointed out, his ex-wife explicitly testified that the arrangement was “never intended to be permanent but only temporary.” Furthermore, White’s contemporaneous conduct and the circumstances surrounding his divorce and engagement to another woman was–in any world most of us inhabit or recognize–totally inconsistent with his testimony that he intended to take up permanent residence with his ex.  He leased and then purchased the new condo and moved his fiancé into it at no charge to her; he represented to his lending institution, to his future employer, to his prior employer and to the IRS that this condo would be his permanent residence. If this were a made-for-TV movie, the obvious question would be: “Were you lying then or are you lying now, Mr. White?”

As my friend conceded, the process is and was intended to be political rather than judicial in nature, so that a political rather than a judicial outcome would result.  And that is precisely what happened here. If White thinks he will have as easy a time of it when the criminal charges against him are heard, he’s likely to be very disappointed.

The great irony is that, by refusing Republican and Democratic demands that he resign, White is continuing to embarrass the same Republican party that provided him with last week’s Pyrrhic victory.


Appearances of Impropriety

Yesterday, following the announcement of the Recount Commission’s finding that Charlie White had been eligible to run for Secretary of State (or, more accurately, their conclusion that they couldn’t conclusively prove otherwise), I got a call from a reporter. Her question was not about the Commission’s conclusion; instead, she wanted to know whether the chair should have recused himself from the deliberations, since he had hosted a fundraiser for White, and his firm had donated $5000 to White’s campaign.

My answer, of course, was yes.

It is perfectly possible that–as he claimed–the contribution and prior support did not influence the chairman’s decision. But that is irrelevant. The facts of the matter raised an appearance of impropriety, and that appearance alone was enough to require recusal. Citizens have to be able to trust that their public institutions are operating impartially and fairly; otherwise, suspicion and cynicism will undermine our faith in the legitimacy of government and erode respect for–and compliance with–the laws.

Instances of what we might call “ethical insensitivity” seem to be proliferating: recently, commentators have reported on activities of Clarence Thomas (and especially his wife) that raise serious questions about the Judge’s impartiality. A couple of years ago, Justice Scalia shrugged off criticism of his cozy vacation with Dick Cheney during a time when a lawsuit against Cheney was pending at the Supreme Court.  Closer to home, we have the President of the City-County Council insisting that his vote to award a lucrative city contract to a client of his law firm did not constitute a conflict of interest.

In each of these cases–and many others–the person accused of a conflict insisted that the relationship at issue didn’t affect his judgment. Perhaps it did, perhaps it didn’t. But that isn’t the point. The point is that such relationships inevitably cast doubt on the integrity of the proceeding.

Think about it: If you were a party in a lawsuit, and you knew that the opposing party regularly played poker with the judge, and had supported him politically, how confident would you be that the Judge’s ultimate ruling would be impartial?   Wouldn’t you ask for a change of venue, or a different judge? If you were a taxpayer whose elected representative was voting to spend your tax dollars on a deal that benefited his brother-in-law, or a big client, how confident would you be that he cast that vote based solely on policy considerations?

And how reassured would you be if such public servants pooh-poohed your reservations?


Charlie White, the GOP, and the Rule of Law

After the Republicans in the Statehouse passed House Bill 1242, changing the election law in order to avoid the consequences of having run an ineligible candidate, my husband shook his head. “It’s enough to make you ashamed of ever having been a Republican.” This from a man who worked for the GOP for over fifty years–working on campaigns, working at the polls, driving people to vote, and serving in a Republican administration.

We have both bemoaned the radicalization of the party we used to call ours: the mean-spiritedness, the shortsighted focus on tax caps at the expense of public goods, the homophobia and the thinly veiled racism that emerged in the wake of Obama’s election. But HB 1242 is nothing less than an attack on the rule of law.

John Adams famously said that our constitution established the rule of law, not the rule of men. The Founders gave us limited government. That didn’t mean that the size of government was to be limited, as many seem to think. It meant that the same rules have to apply to everyone, that there are limits to the ways in which official power can be used.

Scholars identify eight elements of the rule of law:

  • Laws are necessary, and must apply to all–including government officials.
  • Laws must be published.
  • Laws must be prospective in nature so that the effect of the law may only take place after the law has passed.
  • Laws must be reasonably clear and specific, in order to avoid arbitrary enforcement.
  • Laws must avoid contradictions.
  • Laws cannot require people to do impossible things.
  • Law must stay sufficiently constant through time to allow rules to be understood; at the same time, the legal system should allow for timely revisions when the reasons for the law have changed.
  • Official action should be consistent with the declared rule.

Our sense of fundamental fairness is offended if someone is punished for violating a rule that was passed only after he acted. We would be outraged if a person who violated an existing law managed to get it changed so that he escaped punishment. We might not be able to point to the precise element of the rule of law that had been violated in such cases, but we’d know instinctively that it was wrong.

This over-reach by the Indiana GOP has generated a petition drive, asking Governor Daniels to veto the measure. I don’t hold out much hope, but I signed the petition, and I hope many others will as well.

If the legislature ultimately decides that current laws governing electoral vacancies should be changed, fine. Those new rules can be applied prospectively, to future cases. Changing the rules when they fail to favor you, so as to escape the consequences of your own misbehavior, isn’t just unfair. It isn’t just contrary to the rule of law.

It is unAmerican.