If you pay attention to political or legal news then you should be familiar with the decision by Justice Steve David striking down an Indiana law that allows for citizens to use force to resist an unlawful entry into their domicile. The decision by the Indiana Supreme Court in Barnes v State of Indiana was handed down on 12 May 2011.
After getting additional information about the case and speaking with some civil rights attorney's I wrote briefly about that case and Justice David in “I tried to warn”. In that posting I specifically stated that I have had significant experience in the Boone Circuit Court and with Justice David in particular while he sat in that court.
Early on I was dismayed to hear that people, especially legal analysts, were stunned by the decision in Barnes and David's judicial activism. To me though it was business as usual for Steve David. As a bully from the bench he often intimidated litigants and went against long established legal principles. Lawyers refused to make a challenge knowing that their future clients would suffer equally by David's arbitrary and unlawful actions.
I took a stand, however, and Judge David took the path of avoidance. Never did he face my claim that I would reveal corruption by him and the Boone County Prosecutor Todd Meyer.
Last week while I was catching up on my reading of the higher court opinions in child custody cases I came across an attorney fee issue in a divorce. There were no children involved but it still caught my attention because Justice David had heard the case. So I read on.
Charles R. Bilyeu appealed the trial court’s order that he pay the attorney’s fees of Frani Bilyeu upon the dissolution of their marriage. Charles raised a single issue for review, namely, whether the trial court erred when it ordered him to pay Frani’s attorney’s fees. The panel reversed and remanded with instructions.
On April 8, 2005, Charles and Frani executed a premarital agreement that provided, among other things, that neither shall “demand, claim, take or receive from the other party attorney’s fees or other litigation expenses to which he or she might otherwise be entitled by reason of any rights arising out of the marriage and the relationship of the parties.” The next day, they were married. Charles filed a petition for dissolution of the marriage on July 28, 2008.
On June 16, 2009, Charles filed a motion to determine the validity and enforceability of the parties’ premarital agreement. The court held an evidentiary hearing on that motion on August 19. On September 21, 2009, Judge David entered an order on Charle’s motion, expressly concluding that the premarital agreement “is valid and enforceable.” Essentially Judge David determined and entered an order that recognized that the parties' had voluntarily entered into the pre-marital agreement and that it was an enforceable contract pursuant to Indiana Law.
On March 11, 2010, the trial court entered its dissolution decree, with findings of fact and conclusions thereon pursuant to Indiana Trial Rule 52. In the decree the court again acknowledged that the original premarital agreement was “valid and enforceable.” But the court also concluded that Charles “has far superior earnings and earnings potential” over Frani and shall pay a portion of Frani's “attorney fees in the amount of $5,500 . . . .”
Charles filed a motion to correct error, which the trial court denied. A motion to correct error is basically an appeal to the judge. A party details the basis for his or her belief as to why the judge made an error, what the underlying facts and law are and why the judge's decision was an error based upon the facts and the law.
In this instance Charles argued that he and Frani had entered into a contract concerning attorney fees, among other things, the day before they wed. Judge David had recognized that their agreement was lawful and binding and he was therefore barred from making any decision contrary to that agreement. Contrary to their agreement though Judge David decided that Charles would have to pay $5,500 of Frani's attorney fees to Thomas A Whitsitt.
This was contrary to established case law and was fundamental error. Fundamental errors are those which are clear on their face and need no interpretation. It would be the equivalent of saying that even though you had a green light and the intersection was clear when you entered it the guy who had a red light and t-boned your car was not at fault because you didn't have the right-of-way. Judge David should have corrected the final decree of dissolution of marriage in this case and eliminated the portion of the order where Charles was to pay $5,500 of Frani's attorney fees since Charles and Frani neither wanted the other to be responsible for the attorney fees of the other. Judge David didn't admit his error, something he never does, so Charles had to appeal.
The primary and overriding purpose of contract law is to ascertain and give effect to the intentions of the parties. If the intention of the parties can be gleaned from their written expression, that intention must be effectuated by the court. In determining the parties’ intent, all of the contractual provisions must be read as a whole. See Gillette v. Gillette, 835 N.E.2d 556, 561-62 (Ind. Ct. App. 2005).
Again, in his appeal Charles asserted that the trial court erroneously ordered him to pay Frani’s attorney’s fees. The panel of the Indiana Court of Appeals agreed stating, “Under the plain terms of their premarital agreement, Husband and Wife must pay their own attorney’s fees.”
In the March 11, 2010 decree of dissolution of marriage, at paragraph three, Judge David referenced the September 2009 order that found the premarital agreement to be “valid and enforceable” and again restated that. Nonetheless, in paragraph 41, David ordered Charles to pay $5,500 of Frani’s attorney’s fees. The panel found, “That order is contrary to the terms of the premarital agreement, which the court reaffirmed in paragraph 3 of the same decree to be “valid and enforceable.”” This was not a simple mistake on Judge David's part. Judge David was specifically told that paragraph 41 was contrary to the parties' agreement as he had stipulated in paragraph three of the same document was valid and enforceable. Judge David simply ignored the wishes of the parties and Indiana contract law and decided to make his own law instead; specifically that if one party has greater financial resources or potential then he pays.
It was this concept of potential that Judge David has often used when making decisions which are contrary to law. In child support payment cases judges are allowed to make orders contemplating the potential income a parent could earn if that parent is currently unemployed or underemployed and had a history of employment during the marriage. See Indiana Child Support Guidelines [ICSG] at Section 3(A). However, “the guidelines are not meant to force persons to change careers or work up to their full economic potential.” See Matter of Paternity of Buehler (1991), Ind. App., 576 N.E.2d 1354.
Yet, one of the things Judge David liked to do was say that a parent who may have been a stay-at-home parent had the potential to earn substantial income by entering the workforce if he took custody of the child from that parent. That is clearly against established law and the ICSG which state a parent cannot be forced to into the workforce just to maximize child support payment obligations.
Another thing Judge David would do in denying or restricting parenting time is say that a parent had the potential to abuse, neglect or harm the child. He would make this basis upon his own arbitrary standard. Indiana Code 31-17-4-2 states, “The court may modify an order granting or denying parenting time rights whenever modification would serve the best interests of the child. However, the court shall not restrict a parent's parenting time rights unless the court finds that the parenting time might endanger the child's physical health or significantly impair the child's emotional development.” [1997]
However, parenting time may not be denied or restricted unless the court finds that “the visitation might endanger the child’s physical health or significantly impair the child’s emotional development.” See Lasater v. Lasater, 809 N.E.2d 380, 400-401 (Ind. Ct. App. 2004). Even though the statute uses the term “might,” the year following passage of the law the appeals court interpreted the language to mean that a court may not restrict visitation unless that visitation would endanger the child’s physical health or emotional development. See Stewart v. Stewart, 521 N.E.2d 956, 960 n.3 (Ind. Ct. App. 1988), reh’g denied, trans. denied. This is why it is important to know case law as I do.
Judge David has long experienced this God complex where he decides, based upon his own experiences, wishes or assumptions what would be best for litigants or society in general regardless of the law, wishes of the parties or what is actually best for those affected by his decisions. Just as in this immediate attorney fees case he did the same thing in the Fourth Amendment case of Barnes v State where he declared void an Indiana statute giving citizens the right to resist an unlawful entry into their homes.
Here, the Indiana Court of Appeals was rather clear about David's judicial activism – “Accordingly, we conclude that the trial court erred as a matter of law when it ordered Husband to pay $5,500 of Wife’s attorney’s fees. That part of the court’s order is contrary to the plain and unambiguous language of the parties’ premarital agreement and contrary to the court’s own unequivocal determination that the agreement is “valid and enforceable.”” [emphasis added]
Reversed and remanded with instructions.
Justices BAKER, and SHARPNACK, Sr., concur with Justice NAJAM
Still, there are people out there who hold a strange allegiance to Justice David and feel that he does no wrong. For those of us who respect the law and hold such documents as the Bill of Rights or the Indiana Constitution sacred and who value our personal liberties – we will be voting NO on the Justice David retention question on the November 2012 ballot.
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©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Friday, June 10, 2011
Justice Steve David can't follow simple Indiana law
Wednesday, June 8, 2011
How to Lose an Appeal - Indiana Appellate Procedure
As part of my regular routine I read all of the Domestic Relations and child custody cases handed down by the Indiana Court of Appeals and the Indiana Supreme Court. I consistently come across decisions like the one I am examining today. This time it is a pro se litigant who's appeal was doomed from the outset by failure to comply with one of the simplest rules. I have previously written about similar appeals in Pro-se Litigant Child Custody Appeals where I examined appeals by pro se litigants and also some disastrous appeals by attorneys.
In this appeal, Joseph N Wright represented himself arguing the the trial court had abused its discretion by not modifying his child support payment obligation. Wright had been ordered to pay $177.06 per week based upon an imputed income of $50,000.
Modification of a child support order is governed by Indiana Code section 31-16-8-1 (2010), which provides that child support orders generally may only be modified upon a showing of (1) changed circumstances so substantial and continuing as to make the terms unreasonable; or (2) that a party has been ordered to pay an amount in child support differing by more than twenty percent from the amount which would have been ordered pursuant to the child support guidelines.
The trial court found that Wright had not proved his case. The party seeking to modify a child support order bears the burden of establishing that the requirements of section 31-16-8-1 have been met. See Saalfrank v. Saalfrank, 899 N.E.2d 671, 675 (Ind. Ct. App. 2008).
Ultimately the panel of the appeals court found that Wright had not met his burden to show that the trial court had abused its discretion. The panel noted that the trial court observed his “nice jewelry” and “nice clothes,” and stated, “I do not see any change in your income or circumstances in this case.”
I disagree with Magistrate Nanette K. Raduenz and Judge Elizabeth F. Tavitas that “nice jewelry” and “nice clothes” should have an impact on establishing a child support payment amount or the modification of a child support order. I was recently given a suit that belonged to the late Henry Karlson, famed Indiana University law professor and civil rights attorney. It clearly falls into the category of "nice clothes" yet in no way does it change my paltry level of income.
Setting the substance of the case aside I move to a fundamental error made by Wright and quite a few others. The Court of Appeals noted as follows:
"As a preliminary matter, Wright has failed to supply this court with a copy of the transcript from the hearing or with citations to relevant parts of the record relied upon as required by Indiana Appellate Rule 46(A)(8)(a). Without a complete record and corresponding citations thereto, Wright’s claims are waived."
I do not know where Wright obtained his information on how to write and appeal but he missed one of the most basic rules which does not apply under only a very limited set of circumstances. The panel needs to see the trial court record!!! For some reason they just don't take a litigant's word that what is claimed was actually done or said in court.
Having a record to examine is essential to deciding an appeal. Following the rules is also essential. Appellate work is laborious, requires strict adherence to the rules and must be done using a mindset prepared to make logical argument.
The higher courts have consistently held that pro se litigants will be held to the same standard as trained attorneys. Appeals are something that should not be done alone. Even some attorneys use an assistant when doing appeals.
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Monday, June 6, 2011
Why Students should NOT place primary importance on Academic Achievement
Sci-fi movie fans and others may be able to recall Keanu Reeves plugging-in and learning martial arts or how to fly a helicopter in the movie The Matrix. Such a learning system would alleviate nearly every problem we have in our modern institutional education system and provide children with much greater opportunities for sports, general play, leisure time and a less stressful life. But such is not reality. So, instead, it is best that we strike a tenable balance between those.
In May I participated in the 500 Festival Mini-Marathon in Indianapolis. Later that month was a marathon mediation session in a very high conflict relationship where the parents have easily spent combined attorney fees in excess of $200,000. For the first time these parents were now engaged in meaningful dialogue and coming to agreement on what is best for their son.
The parties' child, an intelligent and academically successful young man, is now failing in school after last year being an honor roll student. I observed these embattled parents come to realize that they are causing the harm to their child. I offered suggestions about how they can see each other in a new perspective and how each of them had wishes contrary to what is best for their child.
Just when I think we are going to make it through every issue with some give and take the mother unloads the bombshell on me: the child cannot participate in any sports until he maintains a "B" average. When I said failing I meant failing. He must pass a course in Summer School just to stay at grade level.
Immediately I and her attorney both strongly objected to her ultimatum. My basis for my objection was that necessary balance that I had mentioned. Her attorney had also referred to the positive outcomes of organized school sports programs. Mother conceded that some type of sports should be allowed pending a return to the normal academic successes her child had enjoyed but nothing that would be a priority to his classroom performance. Still she protested that she didn't understand why athletics should be allowed when their son has more important things to concentrate on like academics and getting counseling for his mood and behaviour issies.
So, I have been prompted to delve further into what I instinctively know and to coherently provide the basis for my conclusion; that the focus on academic achievement is to the detriment of children.
There are a number of health–related factors that can contribute to a student’s academic performance, and therefore have an effect on his or her GPA. The amount of exercise, nutritional routines, and also the amount of social support the student perceives all can contribute to how a student academically performs (Hammer et al, 1998). Although I do not make the specific comparison here I do contend that institutional education is now based more on mastery of standardized achievement measures than learning, which is to the detriment of our children specifically and society as a whole.
So, what is the ultimate importance?
If you have seen the movie Mr Woodcock staring Billy Bob Thornton then you are familiar with this opening monologue to his primary school gym class.
"To survive outside these walls you need more than just math and science. The world does not stop for people who can spell fancy words or tell you the capital of Montana. The only thing that matters in this world, ladies, is strength. Strength of body and strength of mind. Now if you're not strong enough by the time you leave these doors you may as well give up and go home to your mommas."
I have spent some time around Riley's Hospital for Children, I have known doctors who worked there and also the children and their parents. The wishes I heard from these people were in stark contrast to those seeking an academic path to the top.
While the parents who attempt to live vicariously through their children have made it their mission to be the project manager of their child's ascent to the most prestigious academic institutions others seem to have a different calling. I have never heard the parent of a child who is suffering through an illness exclaim that they wish there child was more educated.
In fact, I can extend this to well beyond people of the typical institutional educational period. Neither have I heard the adults who are well educated but suffering the ill-effects of a lifestyle that did not value physical health say such a thing as -- at least I have my knowledge. In fact, the saying, "At least I have my health" is about as common as houseflies when disaster strikes while "At least I have my knowledge" is not part of our common vernacular.
I will stop short of calling one class of parents better than the other for my aim here is not to create a divide among parents, but rather, to offer a perspective on what is best for children that differs from that perpetuated by those who most profit from the classical viewpoint.
Ultimately, I believe that the impediments to academic achievement are the very things that lead to academic achievement and overall success in life, or rather -- living. However, when properly prioritized and balanced there is no reason why students cannot maintain positive whole health, learning and academic achievement.
Exercise
In a study in 2000 Trockel, Barnes, and Egget found “That students who exercised seven or more hours a week obtained significantly lower grades than students who exercised six or fewer hours weekly or not at all ”. Other studies have found the opposite to be true which leads to confusion for parents and policy makers. It is then necessary to determine if the relationship between exercise and lower academic achievement in some students is a correlation or causation effect.
"We now have evidence to support the claim that exercise is related to positive mental health as indicated by relief in symptoms of depression and anxiety." - The Influence of Exercise on Mental Health by Dr. Daniel M. Landers, Arizona State University. There is also the more cautious “physical activity appears to relieve symptoms of depression and anxiety and improve mood” - Surgeon General’s Report on Physical Activity and Health (PCPFS Research Digest, 1996).
Depression is a prevalent problem in today’s society. Clinical depression affects 2–5% of Americans each year (Kessler et al., 1994). Exercise has been proposed as an alternative or adjunct to more traditional approaches for treating depression (Hales & Travis, 1987; Martinsen, 1987, 1990). Across five meta-analytic reviews, the results consistently show that both acute and chronic exercise are related to a significant reduction in depression. The findings indicate that the antidepressant effect of exercise begins as early as the first session of exercise and persists beyond the end of the exercise program (Craft, 1997; North et al., 1990). These effects are also consistent across age, gender, exercise group size, and type of depression inventory.
Exercise may be a positive adjunct for the treatment of depression since exercise provides additional health benefits (e.g., increase in muscle tone and decreased incidence of heart disease and obesity) that behavioral interventions do not.
The psychological benefit of exercise, especially the release of Dopamine during aerobic workouts, may become an overwhelming drive for an already depressed student who may then become susceptible to compulsive workouts. This may account for the lower academic success rate of some students who report engaging in more exercise.
Additionally, students who have lower academic success and also exercise a significant amount of time each week may be those who are not academically proficient and therefore seek out an alternative source of satisfaction for success. Others may have started an exercise routine without compensating for other time demands such as employment. It cannot be concluded that exercise and a corresponding lack of academic achievement is a causal relationship.
Keeping in mind that learning is life-long it is best for one to be positioned well to facilitate the induction of information and retention of that knowledge. While not all students are depressed and therefore in need of placing a premium on exercise over pressures to achieve academically there is still a need for regular physical exercise by everyone.
Stress
Stress is the emotional and physical strain caused by our response to pressure from the outside world. Common stress reactions include tension, irritability, inability to concentrate, and a variety of physical symptoms that include headache and a fast heartbeat. In short, stress is a killer.
The great neurologist Walter Cannon coined the term homeostasis to further define the dynamic equilibrium between stress that builds or protects the person and stress that tears the person down. Through his experiments, he demonstrated the"fight or flight" response that man and other animals share when threatened. Further, Cannon traced these reactions to the release of powerful neurotransmitters, epinephrine (also called adrenaline) and norepinephrine (noradrenaline), in the response to stress. The release of these neurotransmitters leads to the physiologic effects seen in the fight or flight response, for example, a rapid heart rate, increased alertness, etc.
First among the causes of stress on students is academic pressure. A study by Diane S. Kaplan, Ruth X. Liu and Howard B. Kaplan [School related stress in early adolescence and academic performance three years later: the conditional influence of self expectations] found that early adolescent school-related stress, both independently and in interaction with high academic expectations, negatively affected academic performance 3 years later. These results suggest that for students in high stress school environments, an increase in academic expectations may serve to increase their school-related stress and impede their academic performance.
Students at either the secondary or post-secondary level of education experience stress from parental pressures. Parents pressure their children to succeed in school. They want to see good grades, but they also want to see success in life's other areas. In their attempts to guide their children, parents can become one of the major causes of stress on students by over-emphasizing academic success while neglecting physiological success.
Is the pressure to achieve academically causing stress related academic failures in our children? Modern times are seeing children treated for anxiety disorders and other stress related health problems more than at any other time. Medical appointments and taking mood-altering drugs can place an additional strain on already stressed children.
As previously noted the psychological benefit of exercise, especially the release of Dopamine during aerobic workouts, may become an overwhelming drive for an already stressed student who may then become susceptible to compulsive workouts.
The addition of medical related routines or appointments and the introduction of exercise to an already rigorous academic schedule may produce adverse effects on learning by depriving students of sleep or necessary "down time".
Scheduling
Our children are part of a generation that may be suffering from over-scheduling. We know they have higher incidents of anxiety and stress related illnesses, are being diagnosed and treated with drug therapies at a greater rate than previous generations and are showing significant failures in demonstrating applied learning in the workforce following the period of institutional education.
So, whatever happened to play for its own sake? We have serious, goal-oriented, skill-building adult-managed activities and programs instead of the freedom and carefree laughter of backyards, parks, fields and swimming holes. Many parents believe that the presence of free, unstructured, unsupervised time for their children is the equivalent of wasted time, missed meaningful opportunities and a reflection of poor parenting. They believe this in spite of recent scientific research that supports the theory that self-initiated, unstructured creative play is the single most important activity that young children can engage in to develop at all developmental levels, including neurological and cognitive growth.
In addition the rigorous scheduling of children's activities does not give them the opportunity to develop time-management skills, offer the necessary "down time" and can also interfere with restful sleep patterns. This is especially true when exercise routines or sports are scheduled within three hours of expected sleep time and the body is still experiencing a Dopamine rush.
Some past research on sleep suggests that people who sleep fewer hours a night may have psychological maladjustment. Sleeping shorter amounts of time has shown to increase factors such as anxiety and stress, which have been associated with academic performance (Kelly et al, 2001). These factors cause students problems by causing shortened attention span and also increasing the number of errors students make on tests.
Kubitz, Landers, Petruzzello, & Han (1996) found that acute and chronic exercise was related to an increase in slow wave sleep and total sleep time, but was also related to a decrease in sleep onset latency and REM sleep. Those engaging in an acute bout of exercise went to sleep more quickly, slept longer, and had a more restful sleep than subjects who did not exercise.
High school workloads, and later college workloads, are heavy for many students. For secondary students planning on tertiary studies, high school grades are important. So is the number of subjects. As a result, students may overload their schedules. In college, where a financial investment has been made, students may overwork to reach their goals and benefit from the money spent.
The adolescent years are also when biological forces drive the quest for interpersonal relationships with the opposite gender. Fighting this is a losing battle that parents may try to engage in. Instead ample free time for socializing must be afforded to the student while being balanced with other needs.
Prohibitions on socializing in lieu of other scheduled activities can have the opposite effect of that which is desired. The student may become resentful of the other activities and can also become socially outcast. Being socially ostracized can cause anxiety and depression which as previously noted can have a negative impact on academic performance.
This is an issue that I am often confronted with in mediation or litigation. I have a parent tell me "He has played soccer since he was seven and I want him to continue." The other parent may have already recognized that at age 15 he is into girl chasing now and soccer just doesn't carry the premium for him that it used to. Some of the schedules I see parents trying to maintain for their children make me dizzy.
Conclusion
When examining the issue of academics v athletics the evidence is clear that athletics or physical-activity in general is the most viable of the two. While there have been significant advances in medical technology brought about by the discoveries and training of those in academic institutions they still have not been able to replace or improve upon the well maintained and fit human body. While exercise has been shown to improve physical health a causal relationship between exercise and mental health has also been shown. No such evidence exists that while academics may be used to improve mental health that there is also a causal relationship between learning academics and improved physical health.
With the increase in legal and societal pressures for children to maintain top-tier academic performance there has been a corresponding increase in mental-health related illnesses. These may include anxiety, depression, general mood disorders, attentiveness/concentration issues, insomnia, stomach/intestinal issues and suicide.
The pressure to perform academically in lieu of maintaining proper physical health has produced a Catch 22. Institutional policies banning students with lower academic achievement from participating in athletic/exercise programs actually exacerbate the problem.
By removing what is sometimes the only positive factor to a child's potential academic achievement (or elevation in mood) parents and schools are creating more barriers to a child's academic performance, physical health, mental health and general satisfaction with life.
Students pressured to excel academically who are concurrently deprived of exercise are more likely to have physical ailments, difficulty sleeping, difficulty concentrating, become overweight, have lower self-esteem and suffer from reduced learning. Additionally, children deprived of the Dopamine induced "high" produced by exercise may turn to prescription pain killers or street drugs as an alternative.
What we know to be true is what we should practice. When all else has gone awry we claim to at least have our health, not our transcript or degree.
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Parents who would like to achieve the best outcome for their children in a contested child custody case should visit my website and contact my scheduler to make an appointment to meet with me. Attorneys may request a free consultation to learn how I can maximize their advocacy for their clients.
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Monday, May 30, 2011
Justice David - Spitting on the Graves of Soldiers
The irony of a US Army Colonel declaring one of the enumerated rights in the Bill of Rights and the subsequent statutory law void in Indiana cannot be avoided. On 12 May 2011 Indiana Supreme Court Justice Steve David declared that Indiana Code 35-41-3-2 and the Fourth Amendment to the United States Constitution are no longer applicable in the State of Indiana.
Justice David held, "that [sic] Indiana the right to reasonably resist an unlawful police entry into a home is no longer recognized under Indiana law." The essence of the Second and Fourth amendments are to ensure that the government does not unlawfully intrude into the private residences of citizens. Indiana has recognized this in its Indiana Constitution adopted in 1851 and statutory law recodified in 1976.
On a day when we should be honouring the men and women who have sacrificed their personal freedoms, families and lives in defense of our freedoms Justice David instead has decided that we can no longer enjoy the freedom from unreasonable search and seizure of our homes, person or personal affects.
As unbelievable as it is Justice David has elevated law enforcement officers to a special class of persons immune from legal restraint. Under the statutory and constitutional law specifically recognized in Indiana which Justice David has now declared void a woman could have felt safe in her home. But now, a drunk police officer acting outside the scope of his duties or not while on duty may break into a home and rape a woman without fear of physical restraint since Justice David has ruled she may no longer use force against an unlawful violation by a police officer. Justice David held, "As we decline to recognize a right to resist unlawful police entry into a home, we decline to recognize a right to batter a police officer as a part of that resistance. "
What has Justice David declared her relief now to be? "[P]olice department internal review and disciplinary procedure," and "civil remedies". In other words, a victim may make a complaint to the officers employer or file a lawsuit seeking monetary damages. I am sure our Founding Fathers would have been proud of this "soldier".
You can read more about how Justice Steve David Usurps Legislative Authority and that
I warned you about Supreme Court Justice Steve David.
To help remove Justice Steve David from the Indiana Supreme Court please click here and vote NO on the Justice David retention question on the November 2012 ballot.
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©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Sunday, May 29, 2011
2011 Indianapolis Motor Speedway - Indy 500
As I sit here watching the 2011 Formula Grand Prix of Monaco I am quite disappointed that I am unable to attend the IZOD 100 Years of Indy 500 Celebration. I have been going to the Indianapolis 500 since 1977 at age 8. From those early days when the Indianapolis 500 was a city-wide event and it seems everyone knew someone who was involved in the race I have noticed a decline in the significance, importance, excitement and ultimately attendance at the Indianapolis Motor Speedway.
Being a Formula 1 fan I could not have been more excited than when F1 came to Indy. I bought tickets for my son and I immediately, spending $600 for us to comfortably sit in box seats across from the Ferrari pit. It was well worth the expense to fold up the two extra seats and spread out a bit while we watched my favourite event across from my favourite team.
Inclusive of F1, MotoGP, NASCAR, all IRL events and the various auxiliary races at IMS I believe I have likely attended close to 100 races at the IMS and other tracks. Unfortunately this year marks the end of the Indianapolis 500 and the IRL unless I receive a personal apology.
What prompted the termination of my involvement with the Indianapolis Motor Speedway and the Indy Racing League was the extreme disrespect shown to me by employees and the track administration this year. It was Thursday 19 May, 2011 when Wendy Evans and the other "Yellow Shirts" at Gate 7 denied admittance to me because I had ridden a bicycle to the track.
This year I had specifically purchased a "fixie" bike to ride from the Boone County Courthouse in Lebanon, Indiana to the IMS each day. I first arrived on 12 May, the day after my bicycle arrived, and watched the track activity for a short period of time.
Here is a brief rundown of the various policies on bicycles at the IMS from the most permissive to most restrictive as I was told by the various people working the Safety Patrol, many of whom recognize and even know me by name. It should be labeled some type of Top Ten list.
1) You can ride your bike anywhere on the grounds;
2) You can ride anywhere except the Pagoda Plaza, you have to walk it through there;
3) You can only ride your bike on the roads inside the track;
4) You can't have your bike in the Pagoda Plaza, take it out the back gate of the garages;
5) You can ride in but have to lock it at the bike rack;
6) You have to walk your bike, can't ride it on the grounds;
7) You have to walk your bike but can't take it in the Pagoda Plaza;
8) You can walk it in but have to lock it at the bike rack;
9) You can't bring your bike into the IMS grounds; and
10) You can't have a bike on IMS property, this includes the fence surrounding the grounds.
What I have to ask and I am sure you are wondering is: what EXACTLY is the bicycle policy for the IMS? That is the question I went to the Administration Building and asked but was told that apparently there isn't a written one but they know bicycles are not allowed for safety reasons.
As you can see in this photo of my bicycle locked at the "Bicycle Parking Only" bike rack bicycles clearly are not allowed at the IMS and any explicit or implied statement to the contrary is completely unintentional. I suppose that sign and bike rack are for decorative purposes only just as are the dock and "Yacht Parking Only" sign along the lake in the infield golf course.
On 17 May I listened to Paul Paige and had quite a lengthy conversation with him about some of the problems that have led to the decline of the Indy 500 and the IMS and what we can do about it. Overall, I believe it is much too "corporate" now. The biggest problem I have is that I can predict with 100% accuracy who the winning engine builder, chassis maker and tire supplier will be for the 2011 Indianapolis 500 motorcar race. Yet, when I first started attending I had no clue.
It's not that over the years while I have gotten to know more drivers, team owners, chief mechanics, race strategists and the entire network of crew members but it's because there is only one engine builder, one chassis maker and one tire supplier for this competition between cars. As Paul Paige said, the excitement has been taken out of it.
Now, the current and recent administration has also taken "the event" out of it. What type of person pays $250 to attend a "Snake Pit Ball" and celebrates in a tent? Certainly not the type of person who was in the "Snake Pit" back in the 1970's. Everything is so sanitary and compartmentalized now. There are a series of specialized events to inspire attendance rather than an event that draws a crowd.
The extreme disrespect shown to me at Gate 7 on the 19th, when I was told, "Just get out!" was the crowning moment which leads to my perception that the Indianapolis 500 and the IMS no longer exists. For my son at least, I have arranged for a Speedway Police Department officer to take him into the facility so he may watch the race and not break his streak of attending since he started going with me when he was age 3.
I get told "Just get out!" because I arrived on a bicycle and told the Safety Patrol to call their Command Center. That is unacceptable. That was exactly what I had been told to do by the administration if "anyone gives you any trouble about bringing your bike in." I am not some drunk though. But it shouldn't matter who the person trying to enter the grounds is, they should all be treated with respect.
I find it overwhelmingly interesting as to what is considered safe and tolerated by the Safety Patrol: drunks, people pulling wagons around so loaded down that it appears the are moving out West, these collapsible aluminum and canvas "chairs" that are practically a living room suite now, coolers the size of an S10 and whatever else that is not a bicycle which people can shove into a vehicle and parade around the grounds. Yet I, in an IZOD suit jacket along with my bicycle am not allowed at the track. Yes, I do wear a suit, jacket or am otherwise dressed in fashionable clothing while at the track.
Just for background though here is a bit about who I am. I am a child-custody advisor and political activist. I have met and am recognized by nearly every member of the Indiana General Assembly, state officials, policy makers, attorneys and judges. I am well-recognized at the track. Anywhere I go in that facility people know me and greet me. Not just all of those I mentioned previously. It's numerous fans, clients of mine, other politicians I know, media personalities or those who simply mistake me for someone else or are curious as to who I am. I am a person who never meets a stranger.
The one interesting "qualification" that I have is being a former professional cyclist who had been invited to the Olympic Training Center in Colorado Springs, Colorado while I was in high school and have also raced with Lance Armstrong. One could assume I know how to ride a bicycle and even walk it alongside me.
Some of the highlights for my son include attending a cookout with Scott Dixon, his family and a few friends, about a dozen people total the day after the race one year; being recognized by Eddie Cheever as he sat with Tony George on a golf cart in the team bus lot. Eddie introduced my son to Tony.
It shouldn't matter that I started attending 34 years ago, that I have brought many people with me, that it is on the agenda of fans from throughout the country to see me at the track or that so many of the participants know me. Every customer should be treated with respect.
I was invited to a wedding of a crew member at the track yesterday and I went. Sadly, unless I get a personal apology, that will be the last time I go to the IMS, attend an IRL event or wear IZOD clothing.
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Tuesday, May 24, 2011
Comments due on Amended Proposed Indiana Parenting Time Coordination Rules
The Domestic Relations Committee and the Alternative Dispute Resolution Committee held a joint session on Friday 20 May 2011 to review public comment and amend the proposed parenting time coordination rules. The proposed PTC Rules were amended Friday based upon comments received by the Committee thus far. The public may still provide input until Thursday 26 May 2011.
The schedule is going to be strictly adhered to. The Supreme Court would like to have the Rules by July 1 to allow for time to send to WestLaw for publication effective 01 January 2012. The proposed rules will be sent to the Board of Directors of the Indiana Judicial Conference prior to the submission to the Indiana Supreme Court.
I have included as much of the comments and changes as I was able to from listening to the discussion. I make no claim that my following quotes are completely accurate.
The first change that the Committee noted was that all references to "both parties" or "both parents" have been changed to "the parties" and "either parent" is being changed to "a party". The purpose for this was to include all people that may be affected by the Parenting Coordinator's recommendations which may include subsequent spouses/partners, grandparents or other persons significantly involved in the lives of the children.
Much of the public comments received thus far have related to the qualifications for a PTC. The Committee has added commentary to Rule 2 as follows:
When the degree of conflict between the parties is so extreme that the appointment of a Parenting Coordinator is appropriate, the success or benefit to the family is directly related to the training and experience of the Parenting Coordinator. The cause of the conflict between the parties will vary with each individual case. The causation could include, but is not limited to, cases where domestic violence is persistent, or when one party is chemically dependent or mentally ill. The purpose of the rule is to create uniformity throughout the state in the appointment of qualified Parenting Coordinators. Requiring compliance with education standards and continuing education is necessary to maintain the degree of expertise required to identify the family's needs.
There had been significant concern expressed that there were existing PC who were effectively working with families who would have to be removed by the proposed qualifications. There was also concern as to whether some of the smaller communities had enough existing PC who meet the qualifications. In response rule 1.6 was added which reads;
"These rules apply to all parenting coordinator appointments made after the effective date of the adoption of these rules and do not modify existing parenting coordination orders. These rules do not limit a parties' right to file for modification under existing Indiana law."
In conceding to the wishes expressed in the public comments the Committee changed "shall" in Rule 2.3 to "should". Rule 2.4 was changed so that a PTC will not be required to have more education than mediators. The Committee felt that it was important to get these new rules in place and that they could later be amended to require greater educational requirements for Parenting Coordinators but that to do so now may jeopardize passage of the rules.
There was also acknowledgment that the commission does not currently have the manpower to check the qualifications of everyone.
There was extensive discussion about mandating PTC and the costs to the parties and what the threshold should be, whether it be consent, costs or best interest of the child. Judge Fee, the Chair of the DRC, believe that judges should be allowed to require parties participate in PTC. Some of the members felt that it should only be used by consent of the parties.
Although judges can order parents to high conflict classes or alternative measures they have not been able to order parents to PTC. There are currently cases before the Indiana Court of Appeals challenging orders to PTC. A decision last year has led to some confusion among judges about their authority to mandate PTC.
The 15 November 2010 decision is being read two different ways. 1) That the Court of Appeals said that Mother consented at the trial level so therefore it was not imposed upon the parties without consent and consent is still required; 2) That the Father in this case did not consent and since the Court of Appeals upheld the trial court that is interpreted as the court does not need the consent of both parties. However, I content that when the Father did not object at the trial court level or, in the alternative, later join Mother on the appeal then he did consent. Thus consent is still required.
Some public comment related to the term of the Parenting Coordinator and the six-month rule. Commentary was added to Rule 3 which includes, "This time period is necessary in order to give the Parenting Coordinator and the parents sufficient opportunity to become acquainted and to give the process a chance. The appointment is intended as a non-adversarial child-focused dispute resolution process."
Another major concern was the financial costs and who would be responsible or how the costs would be apportioned. Some of the commentary to Rule 3 reads, "The costs related to the appointment of the Parenting Coordinator be established through a private agreement between the parties and the Parenting Coordinator. The Parenting Coordinator may accept or establish a sliding fee scale based on the parties' respective incomes. The court also has the discretion to apportion the fee between the parties.
There has been concern that once PTC is effected that the parties lose access to the court. Commentary to Rule 4 has been added which reads;
The court does not relinquish its decision-making powers with the appointment of a Parenting Coordinator. The Parenting Coordinator may not unilaterally modify an existing order or parenting plan. Amy modification or major change recommended by the Parenting Coordinator and agreed to by the parties should be submitted to the court as set forth in Rule 7 below.
The PTC coordination process will still require the consent of the parents before it can be ordered.
Rule 4.10 was also amended and now reads;
If any of the Parenting Coordinator's recommendations are not accepted by one or all of the parties, a Parenting Coordinator may file and submit a written report to the court, the parties and the parties counsel. The written report shall include an explanation as to how the recommended change is expected to benefit the family as a whole.
The Committee also noted a distinction between mediation and PTC in the commentary to Rule 4;
There are similarities between a mediator and a parenting coordinator. The mediator's role is to assist the parties in identifying issues, reducing misunderstanding and finding points of agreements. The issues are finite. The Parenting Coordinator has a similar role, only the issues are infinite. The scope of the Parenting Coordinator's duties far exceeds that of a mediator.
I will be recommending a change to Rule 5.7 which currently reads;
The Parenting Coordinator shall be alert to the reasonable suspicion of any acts of child abuse or neglect, or of domestic violence directed at the other party, a current partner, or a child. The Parenting Coordinator should adhere to any protection orders, and take whatever measures may be necessary to ensure the safety of the parties, a child and the Parenting Coordinator."
What I propose is;
The Parenting Coordinator shall be alert to the reasonable suspicion of any acts of child abuse or neglect, or of domestic violence between the parents or directed at another party, including a parent, a current partner, or a child. The Parenting Coordinator should adhere to any protection orders, and take whatever measures may be necessary to ensure the safety of the parties, a child and the Parenting Coordinator."
Mutual Domestic Violence is present in a very large portion of DV cases. Mutual DV has a significant impact on a family dynamic and a child just as unilateral DV does. I feel that it is important to acknowledge this specifically even though failing to do so should not limit a Parenting Coordinator from being alert to it.
The Rule 6.7 of the Draft version has been removed.
Rule 7 was basically rewritten in whole as follows;
7.1 A written agreement which seeks to modify a court order, signed by the parties and the parenting coordinator shall be filed with the court within 20 days, with copies of the report provided to the parties and their counsel. The report shall indicate disputed recommendations, if any. There shall be no ex parte communication with the court.
7.2 A parenting coordinator's recommendations, which are not agreed to by the parties, may be submitted as a written report to the court for consideration. Copies of the document submitted shall be provided to the parties, their counsel and the parenting coordinator. The written report shall include an explanation as to how the recommended change is expected to benefit the family as a whole.
7.3 Any party may file with the court and serve on the Parenting Coordinator and other parties an objection to the Parenting Coordinator's report within ten (10) days after the report is filed with the court or within another time as the court may direct.
7.4 Responses to the objections shall be filed with the court and served on the Parenting Coordinator and other parties within ten (10) days after the objection is served.
7.5 The court upon receipt of a report and recommendations may take any of the following three actions.
7.5.1 Approve the recommendation
7.5.2 Reject the recommendations in whole or in part.
7.5.3 Take no immediate action upon the recommendation.
These proposed rules should provided a major step in assisting parents who are unable to overcome their personal differences which are detrimental to the children. Input from the public is needed and is highly valued by the Committee. I cannot stress enough that the Committee does listen to what the public has to say. You may make comment through the form provided here through 26 May 2011. If you would like to make comment to me instead I will blend that into my comments. Please do so by 3:00 pm on the last day, 26 May 2011.
Comments are due no later than 26 May 2011!!!
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©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
Monday, May 23, 2011
Justice Steve David Usurps Legislative Authority
As public discussion and outrage increase over the Barnes v State of Indiana case decided by the Indiana Supreme Court on 12 May 2011 there seems to be as much inaccurate information as there is accurate with all peppered by opinion. I didn't write about this until I warned you about Supreme Court (in)Justice Steve David published on Friday 20 May 2011.
In that I wrote about my experiences with Steve David as the Boone Circuit Court Judge and my failed attempts to prevent his ascent to the Supreme Court although I had warned people about his totalitarian and activism disposition.
Today I examine more closely the ruling and specifically how he has usurped legislative authority.
I am a strong advocate of the rule of law. Although I often disagree with laws and find many to be repugnant to my sense of morals or simple logic I participate in the process. I vote in every election, I write letters to the editor, I provide testimony to state policy makers and bodies, I engage in lively discussions on FaceBook and elsewhere to rally others to act, and I write this blawg.
I revere our United States Constitution and Indiana Constitution and the powers they restrict government from engaging in and the manner in which powers are delegated. Much as a theologian holds the Bible or spouses may embrace and hold sacred their marriage I find solace in those finely crafted instruments.
The three branches of government should wield an equal amount of power and each be embodied with the power and authority to ensure that no other abuses or exceeds the powers specifically granted by the respective constitutions.
Legislators [The Legislative Branch] are to write the laws. The Governor or President [The Executive Branch] are the first line of defense in that each possesses the power to veto a law and are also given the discretion of enforcement. The Judges and Justices [The Judicial Branch] are entrusted with the responsibility of ensuring that the legislators and police have complied with our constitutions.
Additionally, there is the Prosecutor. Although an entity of the Executive the prosecutor does act in a quasi-judicial manner. In criminal matters he is cloaked with the sole authority as whether to pursue a charge brought by the police or one he initiates himself. It is not his mandate to seek a conviction, but rather, it is his duty to seek justice. He represents the people in a role as an advocate to seek a conviction but also to ensure restraint in that the people do not obtain a wrongful conviction. Thus, he is a mini-judge between the people and the defendant.
The Barnes v State decision arose from the arrest of Barnes after he resisted a police entry into his home after he retreated there following a conversation in a parking lot. The police had been called to Barnes' residence by his wife. When they arrived Barnes was walking away from the residence with some belonging. The wife then appear, tossed more of Barnes' belongings out, made some comments and went into the house. Barnes followed. This is when the police attempted entry.
At issue is whether Barnes had a right to resist an unlawful entry by the police.
Although Barnes' wife had appeared briefly and observed the police she did not summon them for further assistance at that time. The argument in favour of a warrantless entry is exigent circumstances. It is well-settled that police may enter upon reasonable belief that a person is in eminent danger or that evidence is likely to be destroyed before a warrant can be obtained.
The Court did not get to the issue of whether the entry by police was unlawful as Barnes contended. There is legitimate concerns from both sides of the issue as to what is the balancing test. Barnes wife appear outside as he was leaving and did not seek additional assistance by the police such as asking for his arrest or that they ensure that he does not return. But he did return to the residence which alters the dynamic of the situation. Could the conflict in the residence escalate to the point where one of the parties becomes endangered.
This issue was not address in the opinion because (in)Justice David determined that regardless of whether the entry by the police was lawful; "Because we decline to recognize the right to reasonably resist an unlawful police entry, we need not decide the legality of the officers‘ entry into Barnes‘s apartment."
That finding by the Court is not extremely disturbing from the standpoint of a judicial interpretation of constitutional or common law as both must be applied based upon fact sensitive issue and the intent of the constitutional provisions.
What is extremely appalling though is that Justice David usurps the authority of the legislature who specifically crafted language to allow citizens to use deadly force against an unlawful entry into their home.
I.C. 35-41-3-2 first adopted in 1976 and last amended in 2006 provides this protection under section (b) which reads:
A person:
(1) is justified in using reasonable force, including deadly force, against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle.
This decision should have been decided much more narrowly consistent with constitutional protections and in-line with the particular circumstances of the case such as Justices Rucker and Dickson applied in their dissents. However, Indiana Attorney General Greg Zoeller sought an expanded and more broad application which (in)Justice David went beyond.
Knowing Steve David for over ten years and being one of the judges whom I have sued I was keenly aware of his judicial activism, abuse of power and propensity to support a totalitarian rule of law while using the bench for his personal gain.
What David has now done is giving special powers to a limited class of people based upon their employment status. In this opinion David made no distinction as to police acting in the scope of their employment or upon their cognizable duties and those acting in a personal capacity. Although the decision includes numerous references to the underlying action, being the entry into Barnes domicile in an attempt to place him under arrest the decision hinges upon the entry into the home not the arrest.
Therein (in)Justice David has now made such a broad ruling that by the status of being employed as a law enforcement officer, but not acting in such a capacity, a police officer may break into a home for whatever nefarious reason and it shall be unlawful to resist be it rape, robbery or a random search for evidence of a crime.
Even the countries we consider to be some of the most notorious human rights violators do not cloak their police with such privileges.
(in)Justice David MUST be removed from the Indiana Supreme Court. To help accomplish this I ask that you please attend the STAND UP for your Fourth Amendment rights rally at the Indiana State House on Wednesday 25 May 2011, Like the Remove Justice Steve H David in 2012 Facebook group, Vote NO to retain Justice David in the November 2012 election and tell all your friends about this or pass along this post.
If you would like to follow my activities more closely then send a friend request to my Political FaceBook page.
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More information about child custody rights and procedures may be found on the Indiana Custodial Rights Advocates website.
©2011 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.
