Wednesday, January 25, 2012

The Tri-Partisan lawsuit - Reminder

A quick reminder, oral argument at the Indiana Supreme Court will be webcast live tomorrow morning, Thursday, January 26, 2012 at 9:00 am EST.  The webcast can be seen here:

It will also be available later if you can't view it live.

The "TriPartisan lawsuit" is nothing less than an attempt to preserve real democracy in Fishers, by protecting the right of the people to vote for a Mayor of their choice, and a City Council with real districts.  It is opposed to the so-called "hybrid city" being advanced by some which would not allow such popular elections.  So to say that this is an attempt to preserve democracy is no exaggeration.

Sunday, January 22, 2012

The Tri-Partisan lawsuit - part 2

In a prior post, I introduced a discussion about how 3 Fishers residents, a Republican, a Democrat, and a Libertarian, filed a Federal Court lawsuit against the "hybrid" city proposal but forth by the former members of the Fishers Town Council (3 new members were elected in November).  That lawsuit challenges the legality and constitutionality of the "hybrid" proposal as obstructing and attempting to trump the rights of Fishers' citizens for voting for a Mayor and council of a real City organized as other Indiana cities are organized.  The Federal Court has now certified the state law questions to the Indiana Supreme Court, and oral argument is set in the Supreme Court this coming Thursday, January 26th.

The parties have now filed their briefs with the Supreme Court, and there is some real interesting reading in them.  Let me summarize some of the points made in the briefs:


  • Since the Reorganization Plan (the official document creating the "hybrid" proposal) calls for NO election for a Mayor by the citizens, and NO election of the first "City" council, that it violates both Indiana law and the state Constitution.  The Reorganization Plan makes the Town Council 7 of the 9 members of the new "hybrid" council, and appoints (not elects) the Fall Creek Township Trustee as the 8th member and allows the President of the Fall Creek Township Board, the President of the Fishers Town Council, and the President of the Hamilton County Commissioners to appoint the ninth member.  There is NO election by the voters until 2015, at least. 
  • That the Reorganization Act does NOT provide for creation of new forms of government, but does allow governmental bodies to reorganize into an already-accepted form.   This means any merger into a City would have a Mayor elected by citizens and a Council elected with real districts as all other second-class cities in Indiana.
  • That the Reorganization Act does not allow for elimination of citizen's rights to vote for a Mayor or city council.  
  • That the Reorganization Plan cannot trump the Indiana Constitution and Indiana laws, and believe it or not, it says it DOES, rather like Mr. Faultless et al. wanted to set up their own independent country.
Not surprisingly, the brief filed by Fishers takes a much different tune.

  • That the Reorganization Act "authorizes previously unheard of local government arrangements and allows the voters to decide what is best for them".
  • That the Reorganization Act is an act of home rule which would allow all local governments to reorganize into any form of government at all, subject only to voter approval.
  • In footnote 5 of Fishers' brief, they state:  "In the event that the citizens of Fishers approve both referendum (sic) and the citizens of Fall Creek Township approve the plan, Fishers would become a reorganized city", in other words, the hybrid wins.  

Fishers never argues, as some have, that the "hybrid" (which is nothing of the sort) was not intended to block the referendum to change to a traditional City.  Indeed, they simply ignore it and play a game of "gotcha", claiming that they can literally do whatever they want under the Reorganization Act.  This is almost exactly what Scott Faultless told me at the outset of the reorganization study process when I said their interpretation would allow for formation of a monarchy, a dictatorship, or any other absurd result, and he agreed and shrugged it off.  

However, in a later discussion with State Senator Beverly Gard, she told me that the General Assembly intended nothing of the sort, but intended that merging or reorganizing bodies end up as a currently recognized form, such as a city.  Otherwise, two or more townships for example could create their own county, or dukedom, or whatever.  It sounds absurd, and it is, but that is exactly where the Fishers' version leads us.  

The Fishers version not only leads to something not intended by the legislature, but to something which CANNOT BE CHANGED.  And Mr. Faultless has said so, as there is nothing in State law, or the Reorganization Plan, which would allow for voters to change it, EVER.  

The ""hybrid" is structurally identical to the current "town" form of government.  All that is really changed is the number of council members and the name.  So the dual referenda, by Fishers' own argument, give three out of four chances to keep the current version of government that many want to change to something more democratic.  Instead, by playing "fool the voter", they are trying to lock their self-interested structure that the citizens can never try to change, ever again.  

"Fool the voters" indeed.  Shame on Scott Faultless and all the others who were a party to this sham.  I hope the Courts and the voters of Fishers see through this blatant fraud.  

Thursday, January 19, 2012

Charlie White case - An Odd Twist

In a breaking development, it seems as if Indianapolis Star reporter Carrie Ritchie has been subpeoned to testify in the Charlie White criminal case.  At this time, it is not clear to me who issued the subpeona, but at least one source indicates that both the special prosecutor and White's attorney, former Marion County Prosecutor Carl Brizzi, may have issued Ms. Ritchie a subpeona to testify. 

The Star's attorneys have filed a Motion to Quash the subpeona.  Presumably, a hearing will be held on that motion prior to the start of trial on January 30th.  This is probably based on Indiana's Reporter Shield Law.  However, that law only protects sources, not the information gathered. 

I think I can see why the special prosecutors would want Ms. Ritchie.  If memory serves, the Star published an interview with White after his resignation from the Fishers Town Council wherein White admitted that he had moved to his new condo outside of his Town Council district in February 2010.  White now tells a very different story about sleeping on his ex-wife's sofa, while his present wife lived in the condo.  Such an admission to a reporter, if admissable, might be very damaging to White's defense.

But this would not explain why Brizzi would want her testimony.  Frankly, that part has me stumped for the moment. 

Stay tuned, doubtless there will be more odd twists to the story.

Monday, January 9, 2012

The "Tri-Partisan" lawsuit against Fishers, part 1

This will be the first part of a mult-part series about a lawsuit filed by a Libertarian, Mike Kole, a Republican, Glenn Brown, and a Democrat, Joe Weingarten, against the (former) Town Council of Fishers.  What is this suit about?  There are long and short answers.

The short answer is that the lawsuit is about democracy, and protecting the right of the citizens of Fishers to chose a form of government where they directly elect a Mayor, as with all other Indiana communities the size of Fishers, and many smaller. 

The long answer has become so complicated that many or most Fishers residents probably have no clue that the lawsuit even exists, or what it is about.  So I will begin by introducing the parties, and some history behind the lawsuit.  Later posts will expand on the issues involved, and why they are important.


Mike Kole is a former Libertarian Party chair for Hamilton County and a former Libertarian candidate for Indiana Secretary of State.

Glenn Brown is a former Town of Fishers employee, and was a candidate for Fishers Town Council in the 2011 Republican primary. 

Joe Weingarten has been a two-time Democratic candidate for Indiana General Assembly and was the Democratic candidate for Fishers Clerk-Treasurer in the 2011 election.

The Defendants are the former members (prior to 1/1/12) of the Fishers Town Council and also Fall Creek Township is named as a Defendant.


Prior to May 2010, a non-partisan organization known as CityYes was collecting signatures for a referendum on whether or not to convert Fishers into a City with an elected Mayor.  Despite its size, Fishers uses the "town" form of government, which has no elected mayor and no separation of legislative and executive power, as do all other levels of government, federal, state, county, and all cities in Indiana.

The day prior to the May 2010 primary, CityYes submitted 1700 certified signatures of Fishers voters, more than legally required, asking that the question of conversion to a city be placed on the November 2010 ballot.  The former Town Council ignored the petition.  To this day, that question has never been certified to be placed on the ballot. 

Instead, shortly after the primary, the Town Council and the Fall Creek Township Board started a process to consider a merger between the Town and Fall Creek Township.  A study committee was appointed, and by the end of December 2010, a report was adopted calling for the merger of Fishers and Fall Creek.  BUT, and this is where it gets interesting, it was also proposed that a supposedly NEW form of government be created, that of a "hybrid" city, which would have a Mayor appointed by the new City Council, from among its members, and not Elected by the citizens. 

A side note, it was also proposed that this "merger" include Delaware Township, by Mike Colby, then a member of the Delaware Township Board and now a member of the Fishers Town Council, but that was rejected by the other members of that Township Board.

The Town Council then voted to provisionally place BOTH questions on the ballot at the same time, at the Presidential election of November 2012, where they will be at the end of a very long ballot.  HOWEVER, to this date, neither question has actually been certified to the County Election Board. 

With this background, the three individual Plaintiffs decided to file suit to try to determine if the "end run" around the ORIGINAL referendum was either legal, or Constitutional.  Suit was originally filed in a Hamilton County Court, where Fishers' lawyers complained that it should be in Federal Court.  So the Plaintiffs dropped that suit and refiled in Federal Court in Indianapolis.  Promptly, Fishers' lawyers complained it should be in STATE court, back in Hamilton County, as there were issues of conflicting state laws that needed to be sorted out by state courts.

So where is it now?  The Federal District Court has "certified" a question of Indiana State law to the Indiana Supreme Court.  That question is:  “May a political unit reorganize into a city under Indiana Code article 36-1.5 (the “Reorganization Act”) in a manner that eliminates voting rights recognized under Indiana Code sections 36-4-5-2 and 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?”

That question is now on an expedited briefing schedule, and oral argument will be held in the Supreme Court on Thursday, January 26, 2012, at 9:00 a.m, in the Supreme Court chambers in the State Capitol.  Oral arguments are webcast live, and can be accessed on this page:   Look for the case of "Michael R. Kole, et al. vs Scott Faultless, et al."

I will expand the discussion of what the lawsuit is about, and the complexities of where this issues leads, in future posts.  Any questions you would like to see addressed, feel free to email me, or leave a comment.