Tuesday, June 20, 2023
1:00 pm 6/20/2023 until: 2:00. 1 hour. Made a good start on writing down what I've had in my head over the weekend.
rough notes about hammond v indiana
after our meeting Nick sent me three documents in reference to City of Hammond v Indiana, Lake County Board of Elections, et al.
These are the state's memo in support of summary judgment, a detailed and substantive response,
the board's motion for sumarry judgment, a short empty argument saying they win on the merits, therefore the court lacks jurisdiction. in my country we call this the "does not follow."
i need to go check what the third document is; it is similar to the second. complains that the board has not done anything wrong, therefore not a proper party.
most of this writing will be in response to the state's filing, hereinafter "memo".
let's say that i can come up with a refutation of the state's argument, what do we do with it? a) send it over to hammond's hight priced lawyers. b) file it as an amicus from roberts and maybe me.
The structure of the state's memo is as follows:
Introduction..................................................................................................1
Summary Judgment Standard.........................................................................2
Argument.....................................................................................................2
I. Plaintiffs’ Claims Must Fail as This Court Does Not Have
Jurisdiction to Hear Them .......................................................2
II. Plaintiffs Voting Rights Act Claim ...........................................4
III. Plaintiffs Art. 4 § 23 Indiana Constitution Claim ......................8
IV. Plaintiffs Art. 1 § 23 Indiana Constitution Claims....................10
A. Indiana Code Section 33-33-45-28 Does Not Violate Art. 1, §
23 by denying attorneys the right to choose judges.............12
B. The Judicial Nomination and Retention Scheme Does Not
Violate Art. 1, § 23...............................................................13
Conclusion..................................................................................................14
---
I will follow that structure in responding.
The standard of review is mostly correct.
The court does have jurisdiction. 42 USC 1983 and the Voting Rights Act confer jurisdiction. There is live controversy between the parties. Section 2 is designed to remedy these kind of disputes. The court has dependent and ancillary jurisdiction over the state claims.
The state's concerns about a federal court deciding close questions of state constitutional law have some merit.
"Further, Plaintiffs’ remaining claims are first andforemost a question of Indiana constitutional law, and it would be inappropriate for this Court to decide these issues in federal court."
The best response would be to certify the state claims to the Indiana Supreme Court.
The court has the authority to take this step on its own initiative without a motion from the parties. BAPAC v Baldwin, Majors v Abell.
BROWNSBURG AREA PATRONS AFFECT. CHANGE (BAPAC) v. Baldwin, 943 F. Supp. 975 (S.D. Ind. 1996). wrong cite, that's the lower court opinion. 137 F.3d 503 (7th Cir. 1998).
https://casetext.com/case/brownsburg-area-patrons-aff-ch-v-baldwin
Because this case presents an important issue regarding the interpretation of a state statute, we certify this case to the Supreme Court of Indiana.
These possibly competing principles of statutory interpretation lead us to conclude that the most prudent course of action is to certify this case to the Supreme Court of Indiana pursuant to this circuit's Rule 52. See Blue Cross and Blue Shield of Alabama v. Nielson, 116 F.3d 1406, 1413 (11th Cir. 1997) (stating that the case for certification is even stronger where "the answer . . . depends upon reconciliation of the competing trajectories of a number of canons of statutory construction"). Here, a federal court would be required to determine whether the statutory language is ambiguous, but at the same time, construe the statute to be constitutional if possible.
Circuit Rule 52 states:
When the rules of the highest court of a state provide for certification to that court by a federal court of questions arising under the laws of that state which will control the outcome of a case pending in the federal court, this court, sua sponte, or on a motion of a party, may certify such a question to the state court in accordance with the rules of that court, and may stay the case in this court to await the state court's decision of the question certified. The certification will be made after the briefs are filed in this court. A motion for certification shall be included in the moving party's brief.
The Supreme Court of Indiana permits certification to its court under Indiana Rule of Appellate Procedure 15(O) which states:
When it shall appear to the Supreme Court of the United States, to any circuit court of appeals of the United States, to the court of appeals of the District of Columbia, or to any United States District Court sitting in Indiana that there are involved in any proceeding before it questions or propositions of the laws of [Indiana], which are determinative of the said cause, and there are no clear controlling precedents in the decisions of the Supreme Court of [Indiana], such federal court may certify such questions or propositions of the laws of [Indiana] to the Supreme Court of [Indiana] for instructions concerning such questions or propositions of state law which certificate the Supreme Court of [Indiana], by written opinion, may answer.
However, the United States Supreme Court recently reminded us that "`[s]peculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when . . . the state courts stand willing to address questions of state law on certification from a federal court.'" Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1074 (1997) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 510, 105 S. Ct. 2794, 2805, 86 L. Ed. 2d 394 (1985) (O'Connor, J., concurring)). Thus, in the interests of comity, certification is entirely appropriate in this case.
Moreover, an interpretation of the statute by Indiana's highest court will be outcome determinative.
Such an important determination is better left to the state's highest court. See Stephan v. Rocky Mountain Chocolate Factory, Inc., 129 F.3d 414, 418 (7th Cir. 1997) ("Although neither party here has requested certification, we are free to certify questions on our own motion."). Consequently, due to the breadth of impact of the issue at bar and the important concerns of federalism apparent when a federal court is asked to interpret a state statute, we respectfully certify the following question to the Supreme Court of Indiana....
[American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 327 (7th Cir. 1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986) note to self: hudnut did go to scotus after all, just no opinion.]
We therefore certify to the Indiana Supreme Court, pursuant to 7th Cir. R. 52 and Ind. Code § 33-2-4-1, the following question, upon the answer to which the further proceedings in this appeal will depend:
Majors v. Abell, 317 F.3d 719 (7th Cir. 2003)
https://casetext.com/case/majors-v-abell-2
The U.S. Supreme Court, in its first pronouncements as to certification in Lehman Bros. v. Schein (1974), advised that, while "[w]e do not suggest that where there is doubt as to local law and where the certification procedure is available, resort to it is obligatory," certification "does, of course, in the long run save time, energy, and resources and helps build a cooperative judicial federalism." https://www.reuters.com/legal/legalindustry/certification-questions-law-state-supreme-courts-2021-06-22/.
The state's challenge to jurisdiction is because it has gotten confused about the difference between federal claims and state claims.
"However, the mere presence of a federal issue in
a state cause of action does not automatically confer federal question jurisdiction." Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 813 (1986).
Here, there is a federal claim, under a federal statute. The court absolutely does have jurisdiction over this federal claim. That juridiction extends to the declaratory and injunctive relief sought. Because there is federal jurisdiction over the federal claim, the court also has supplemental and ancillary jurisdiction over the separate state claims. A party is not required to file its federal claims in federal court and state claims in state court; rule 1 urges cases to be simple when possible. Indeed, if plaintiffs had filed in state court as well, defendants would be arguing for abstention.
"Of the claims brought by Plaintiffs, only one claim invokes an alleged violation of federal law—the Voting Rights Act claim.... As discussed below, Plaintiffs’ federal Voting Rights Act claim fails, and thus, so does this Court’s jurisdiction to hear Plaintiffs’ case under federal question jurisdiction."
This argument wrongfully conflated the merits with jurisdiction.
Plaintiffs may win or lose on the merits. Either way, the court has jurisdiction under the voting rights act to reach and decide this question.
It would not serve the state well for its argument to prevail. If it were correct, plaintiffs could win on the merits, but could never lose on the merits. Under the state's theory, if plaintiffs stated a case that would lose on the merits, the court is deprived of jurisdiction, in which case it cannot reach any decision on the merits, but would simply have to dismiss for want of juridiction, so the question would remain unanswered.
===
2:30 wednesday june 21, 2023. to 2:55.
The lake county board of elections, filing 90, makes a similar argument in its brief in support of summary judgment.
1. legal argument
A. Legal standard:
I mostly agree with their setting out of the non-controversial standard for summary judgment. Liberty Lobby, Pepitone, Celotex, the usual stuff. Similarly, Lujan is on point for standing.
B: Plaintiffs lack standing:
This section is wrong. The board is, or pretends to be, confused about the difference between official capacity and individual capacity claims.
The board conducts retention elections and does not hold general elections for Lake County judge. This is the case and controversy that gives rise to Article III standing and justiciability. This is the live dispute between the parties. Holding judicial elections, similar to those of the other 89 counties, is what the plaintiffs are asking the court to order the board to do. The redressibility prong for standing is met.
The board is following the statute, which is proper, until superseded by a court order based either on the federal statute, federal constitution, or state constitution. It would be highly improper for the board to refuse to follow a final order of the court.
There is no allegation in this action that the board has done "anything wrong." If there were, there would be individual capacity claims against the members of the board, and we would be arguing issues such as qualified immunity. Instead, plaintiffs are properly seeking prospective injunctive and declaratory relief, under federal and state law, to which they are entitled as a matter of law. The board defendants' motion for summary judgment on jurisdictional grounds should be denied.
" The Election Board does not have the power to
confer or deny the Plaintiffs, or others similarly situated, the right to vote for Judges in Lake
County. Nor does the Election Board have the power to authorize the remedies sought by the
Plaintiffs described in their Second Amended Complaint."
We agree. The court, however, does have the power to confer this right and authorize the remedies. That's why plaintiffs are in court; there is a legal dispute between the parties which the court can, should, and must resolve. Such disputes are known as cases and controversies, and satisfy Article III standing under Lujan.
The Board's response is limited to this failed attack on the court's jurisdiction, and does not address the merits. The Board's motion should be denied.
===
2:55:
Document 93 is an amended brief similar to document 90. I am not yet clear what the difference is, but will give it a quick skim. I am still unclear on what changed, so I'll stick with my analysis above. Now back to the state's brief.
===
II - Voting right act claim:
“Despite the ratification of the Fifteenth Amendment, the right of African-Americans to vote was heavily suppressed for nearly a century.” State political processes would include “poll taxes, literacy tests, property qualifications, ‘white primar[ies],’ and ‘grandfather clause[s].’” "Brnovich, 141 S. Ct. at 2330.
We agree. The modern version of the poll tax is Voter ID. See Frank v LULAC, in which the Wisconsin Supreme Court found that a voter ID programs like Indiana's was an unconstitutional poll tax, and J. Souter's dissent in Crawford. In an earlier case about the problematic Lake County judicial elections, plaintiffs analogized the Indiana bar exam as being like a literacy test.
In Price v. Indiana, the leading case on the right to free speech under section 9, the Indiana Supreme Court described Indiana's history as a tension between aristocratic factions of landed gentry, and populism. [cite.] Having judges chosen by a judicial selection commission including lawyers and politicians instead of by an election of the people reflects that this tension is still very much alive.
Indiana parties have only very recently gotten rid of the slating conventions, which functioned similarly to Texas's jaybird primaries, a way for the elites to make sure that they got to choose the candidates, so the election was in form only, not substance.
Here, though, they no longer even go through the motions of holding an election. The elites, headed by the governor, directly choose the judges. That these judges are eventually subject to retention elections, which, as incumbents, they almost always win, does nothing to change the fact that these judges are chosen by the elite for the elite, instead of by the people for the people. Even if every judge lost every retention election, the elites would merely appoint a new set of elites; a popular choice of the people would still have no way to get nominated or chosen.
The voting rights act requires at least the semblance of a free and open election.
One thing has changed since 1965. The political system is no longer characterized by open hostility toward African-Americans. Here, the African-Americans of Lake, [ ] and Marion Counties are not being disenfranchised because they are Blacks. They are being disenfranchised because of a reasonable fear that if allowed to vote, they would choose Democrats.
It is not clear whether Indiana's free and equal elections clause protects against discrimination against Democrats. What is clear is that both section 2 of the Voting Right s Act and Article II of the Indiana Constitution do protect against the racial result here; that most White voters get to elect their judges, while most Black voters do not. This court has jurisdiction and authority to remedy this disparity by ordering the Board and the state to hold free and equal elections in Lake County, similar to those held in the 98 White super-majority counties.
=3:30, stopping here for now, 1.0 hours.
Monday, June 19, 2023
https://accounts.chase.com/investing/share/234339075
this is my link that i get $50 for if someone opens a chase brokerage account. i have found my chase account very easy to use, compared to my other account at schwab. on the other hand, chase doesn't give me margin, which schwab does.
there are perks for the person who signs up, but i'm not sure what they are.
i have to go track down my link for the $100 bonus of opening a chase checking account, or maybe it's the credit card. i have that also easy to use, and get 1 1/2% back. a person could use the first bonus to help fund the brokerage account, which takes $200. currently getting 5% on gas this quarter.
plan for thursday:
work on memos:
hammond, counties, memo to nick re sign case.
plasma 1/2
scrap run
saturday did: nothing. might go pay electric bill.
to do turn on capital one card by sending id photos. did not work.
make better list.
memo.
install mousetraps. fruit fly traps. find flytrap. work on back yard.
monday: plasma, scrap yard, memo.
letter re penalties re mom's taxes.
x pac@opac.in.gov letter sent.
this is a draft only. to do, send to kook.
To Bumpers.
I wrote to you 11 months ago asking you to prepare my mom's taxes after she died, Marion Stewart.
I emailed the address on your website. I never got an answer. Those have recently been filed, but with thousands of dollars in penalties and interest.
What I am writing about today is to ask you to file a request that the penalties be waived.
My mother died in may of 2022. I was her caretaker in 2020, and brought you her various records, and her taxes were timely filed that year. During 2021 her health declined further, and she had difficulty remembering things and organizing her finances, and it appears she did not get her taxes in that year. She was living in Hawaii under my sister's care when she died, and was not mentally alert in the final months. Under these sorts of situations, it is not unusual for the IRS to waive penalties.
Since you are a tax professional, it makes more sense for you to submit the request than for me; I am aware the process exists, but have not done one.
I do not know whether the IRS will waive the penalties, but we should at least ask.
The kansas penalty is only a few dollars so we can skip that.
I'm fine with however it turns out, and thank you for your help in getting the taxes filed. Having it done is more important than squeezing out the last dime. Nonetheless it is a large enough amount I would like the waiver request filed.
Another minor point: My mother was legally blind during her final years. I know approximately nothing about taxes, but I was under the impression that there was an extra personal exemption for the blind, that I did not see reflected in her tax filings for the past 3 years. I could easily be wrong, but please review this point.
Sincerely, Robbin Stewart.
cc: Jeanie Stewart
| Sat, Jul 2, 2022, 3:42 PM |  | ||
| ||||
To: Doug Kook
Hi. My mother has passed away, as of May 15 2022. We did not get around to doing her 2021 taxes.
We would like your firm to handle this, as you usually have, and also prepare a death return. My sister, Jeanie Stewart, is the executor. Her son Zach, at the 28 Marsh Woods Lane address, probably has any documents you need.
She might or might not have already let you know all this.
Cordially, Robbin Stewart.
friday did:
i didn't get much done today. i put $500 in the bank. i shoo'd a crackhead robber out of my house. i did a load of laundry. that was about it. i bought trash bags and mousetraps and bleached the trash containers and trimmed some shrubs. going to go pay electric bill.
to get rid of mice: onions, garlic, lavender, mint, cintronella, chysanthemum, catnip.
x trash
sort stairs.
omar.
clean car. the usual.
did: regular dumpster, a couple others. found cooler.
po box. $638. bank was closed. bought a good lawnmower $100. forgot to ask how it starts. needs gas.
got banned at crackers. had drink at metro. $6. Haircut $14.
friday:
scrap run. pay electric bill. x buy lawnmower.
plan for wednesday:
x 4 pm rathskeller
x 5:30 pm indybar marion county bar association meeting, then drinks. was hour late. skipped drinks.
x 7:30 church, or standup.
x take out trash.
email for thursday slot.
did:
emailed margaret and tommy.
lawyer zoom.
1.0 hours on memo, sent draft of memo to nick. washed floor in hall.
Guinn v. United States, 238 U.S. 347 (decided June 21, 1915): invalidating grandfather clauses exempting white people from written exam which everyone else (i.e., black people) had to pass in order to be allowed to vote (one imagines the written exams disappeared pretty quickly after this decision)
plan for monday:
sort stairs
unload van
write memo re summary judgment.
Friday, June 16, 2023
lie list notes
https://casetext.com/case/bradley-v-work
Future litigation may prove that the "totality of the circumstances" under the revised system shows a violation of the mandates of the Voting Rights Act. At that point, the parties could propose alternate means to rectify the violation from the menu of remedies typical of Voting Rights Act cases, properly tailored to this situation. Cf. Houston Lawyers' Ass'n v. Texas Attorney Gen., 501 U.S. 419, 423, 426 (1991); Barnett v. City of Chicago, 141 F.3d 699, 705-06 (7th Cir. 1998); Haster v. Illinois State Bd. of Election Comm'rs, 28 F.3d 1430, 1435-36 (7th Cir. 1993). The record in this case does not show any violation of the Act, however, so we need not consider the appropriateness of specific remedies.
lie list re: MEMORANDUM IN SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
general framework:
1. does the court have jurisdiction?
2. VRA claim
3. art IV 23 claim
4. art I 23 claim.
conclusions.
1. the court has juridiction. there is a case or controversy, on a federal claim.
2. vra applies. gingles test does not.
3. strong.
4. weak.
conclusion: P wins.
lie list. 1:23 am 6/16 friday, been at it for an hour.
p.1.
1. However, Plaintiffs’ claims fail as a matter of law.
2. The statutory scheme does
not violate the Voting Rights act.
3. Further, Plaintiffs’ remaining claims are first and
foremost a question of Indiana constitutional law, and it would be inappropriate for
this Court to decide these issues in federal court.
4. Second, if this Court does decide to
hear these issues, the method of nomination and retention elections has been heard
by other courts before and has been held valid under law.
5. Finally, Plaintiffs are
incorrect as to their claims under the Indiana Constitution because the statutory
scheme is constitutional special legislation [not sure.]
6. and no special privilege or burden has
been created by the nomination and retention method.
7. Because Plaintiffs present no genuine dispute as to any material fact and State
Defendants are entitled to judgment as a matter of law, this Court must grant
summary judgment in favor of the State Defendants.
p.2.
summary judgment standard: agree, mostly agree.
problematic:
Nor may the nonmovant defeat summary judgment by challenging the credibility of a supporting affidavit. Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988).
Does that mean a party can just perjure their way out of a lawsuit? seems unreasonable, nonmoving party should be able to attack a false affidavit. haven't read the case to see what it actually says.
p.3.
"A case arises under federal law when an essential element of the plaintiff’s cause of action depends for its resolution upon validity, construction, or effect of federal law. 28 U.S.C. 1331." true. now we get into the lie area.
8. "However, the mere presence of a federal issue in a state cause of action does not automatically confer federal question jurisdiction."
red herring not applicable here. this is a federal cause of action, not a state one.
9. "As discussed below, Plaintiffs’ federal Voting Rights Act claim fails, and thus, so does this Court’s jurisdiction to hear Plaintiffs’ case under federal question jurisdiction."
This confuses jurisdiction with the merits. If the court lacks jurisdiction, it cannot announce any decision on the merits. That would not give the state the answer they want; if that were the rule, they could only lose cases but never win them. Logically it would be possible for the state to prevail in a case in which the court did have jurisdiction. This argument is meritless.
9., repeated: Therefore, it would be inappropriate for this Court to claim jurisdiction under the federal question doctrine of 28 U.S.C. § 1331.
8., repeated: “[F]ederal jurisdiction over a state law claim will lie if a federal issue is:....
True: The
alleged violations of law claimed by Plaintiffs concern questions of Indiana constitutional law and should be decided by an Indiana court,
[ not a federal court.] - trueish.
The proper procedure here is certifcation. Majors v Abell 2003, BAPAC v Baldwin.
p.4.
10. Nevertheless, to the extent the Court decides to proceed, summary judgment in favor of State Defendants is still proper because neither the Voting Rights Act nor the Indiana Constitution has been violated.
agree: State political processes would include “poll taxes, literacy tests, property qualifications, ‘white primar[ies],’ and ‘grandfather clause[s].’” Id. (citations omitted).
These days we refer to Voter ID, bar exams, residence requirements, slating conventions, and gerrymandering.
agree: Section 2 prohibits voting prerequisites, practices, and procedures that discriminate on the basis of race or color.
The use of the missouri plan for the 4 mixed race counties, but free and equal elections for the white counties, is such a procedure.
agree: A Section 2 violation occurs if a plaintiff shows by the totality of circumstances that a state or political subdivision’s political process leading to nomination or election are not equally open to a protected class, where members have “less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
11. Section 2 does not apply to instances where officials are appointed, not elected.
while generally true, here it is false, because of the disparate treatment of counties.
Bradley v Woke: mckinny, upheld by 7th.
Bradley was largely the result of inept litigation, more than it was a decision on the merits. Plaintiffs in Bradly actually prevailed, in that the legislature responded to the suit by amending the process. the original claims became moot due to changed circumstances, and the new circumstances were too new to generate a body of evidence.
i have a quote somewhere above from bradly.
lie list notes
https://casetext.com/case/bradley-v-work
Future litigation may prove that the "totality of the circumstances" under the revised system shows a violation of the mandates of the Voting Rights Act. At that point, the parties could propose alternate means to rectify the violation from the menu of remedies typical of Voting Rights Act cases, properly tailored to this situation. Cf. Houston Lawyers' Ass'n v. Texas Attorney Gen., 501 U.S. 419, 423, 426 (1991); Barnett v. City of Chicago, 141 F.3d 699, 705-06 (7th Cir. 1998); Haster v. Illinois State Bd. of Election Comm'rs, 28 F.3d 1430, 1435-36 (7th Cir. 1993). The record in this case does not show any violation of the Act, however, so we need not consider the appropriateness of specific remedies.
2 am. might stop here for now and pick it up in the morning.
2 pm next day, friday june 16th.
p.6.
11. "Bradley litigated and settled the issues presented in this case."
That is false. Bradley contained no state constitutional issues. Bradley did not argue for free and open elections (now i'm not sure what bradley argued.) Bradley barely got its case to the 7th circuit at all, waived some of the claims it had made below, had much of its evidence disallowed, .. am i confusing it with the mckinney case? Anyway, this case presents very different arguments and evidence than the Bradley case, which is not controlling here.
12. Therefore, the issues present in the instant case are no different from those in Bradley, as Plaintiffs in both cases make nearly identical claims concerning the Voting Rights Act implications of Lake County’s judicial selection statute.
false. bradley was about the makeup of the judicial commission, not about whether mixed race counties may be denied the same free and open elections that the all-white counties get.
Quinn may be on point and I haven't read it yet. section 2 claim about chicago school board members appointed while elected in the white parts of the state. i'm not sure i trust how the meo characterizes the case. so read it later.
13. The same holds true here—there is no disparate impact nor vote dilution created by the appointment statutes because, although minority groups do not vote for the position, neither does anyone else and thus, the system does not violate §2 because no group of Lake County voters elects trial judges before they are eligible for retention.
False. in 98 white counties, voters get to vote for their judges. that's the whole point of this case, that black voters should be allowed to vote for judges the same way the white voters do.
switzerland county for example is 96 % white, 1% black, and has free and open elections for judge.
"Further, as stated by the Seventh Circuit in Bradley, §2 of the Voting Rights Act does not apply to appointments of officials. Therefore,...." repeats error #13.
"Therefore, as the 7th Circuit upheld thechallenged statute and the Plaintiffs’ claims do not follow established precedent, there is no genuine dispute of material fact present here and this Court should enter summary judgment in favor of the State Defendants.
repeats error 12, then jumps to a false conclusion.
p. 8., the state constitutional claims.
true: Here, the challenged law is undoubtedly special legislation, as it only affects Lake County.
note: generally, statutes are presumed constitutional. this presumption disappears, however, in the election context. there is an inherent conflict of interest. when the republicans are in power, they will tend to rewrite the election laws to favor republicans; when the democrats are in power, they will tend to rewrite the laws to favor democrats. therefore, courts have a duty to provide close exacting scrutiny. i do not know if there is case law that says this in relation to Article IV. I don't even have a good quote file of cases that say it generally, although i've read that sort of passage before.
“A special law is permissible ‘when an affected class’s unique characteristics justify the differential treatment the law provides to that class.’”
Here, the unique characteristic is that too many of Lake county's voters are black, and thus at risk of electing democratic judges.
That's why the legislature has chosen a different system for Lake, @, Allen and Marion Counties, where the minority voters, than in the other 89 counties which have white supermajorities.
suggested structure for this memo.
part 1. list 20 lies. part II list 20 truths. part III explain the lies.
part IV: conclusion. once the lies are redacted, the truths left are not sufficient to support summary judgment.
(“Bonnet Aff.”) - there's an evidentiary record in this case that i have not seen. that's probably gerry bonnet, assistant secretary of state.
possible true: it was noted that a majority were unsatisfied with the judges elected via partisan elections, citing unequal caseloads among Lake County Judges, inconsistent application of Indiana’s trial rules, and an excessive number of cases being sent by Lake County judges to venues in outside counties.
To the extent that these represent real concerns, they could be remedied with narrowly tailored means which are not racist.
14. Due to the results of the survey and interviews, Lake County presents a unique scenario that is not amenable to the general unform operation of judicial elections;
15 therefore, the hybrid system in Lake County is a constitutionally allowed special law.
14.
11.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Thursday, June 15, 2023
Both sides seeking summary judgment under Voting Rights Act, Indiana Constitution in suit challenging appointment of Lake Co. judges
https://www.theindianalawyer.com/articles/both-sides-seeking-summary-judgment-under-voting-rights-act-indiana-constitution-in-suit-challenging-appointment-of-lake-co-judges
(paywall)
Competing motions for summary judgment are seeking to resolve the litigation against Lake County’s merit-based judicial selection process, with each side urging the Indiana Northern District Court to rule in their favor on claims under the federal Voting Rights Act and the Indiana Constitution.
The motions were filed this week by both the plaintiffs and defendants in City of Hammond, et al. v. Lake County Board of Elections, et al., 2:21-cv00160. The case — initially filed in May 2021 and later amended — alleges the process of appointing superior court judges in Lake County, rather than electing them, is racially discriminatory.
Plaintiffs include the city of Hammond, Hammond Mayor Thomas McDermott and voter Eduardo Fontanez. Indiana State Sen. Lonnie Randolph, a Democrat from East Chicago, has also joined the complaint in his personal capacity.
notes on defendants motion for summary judgment:
1. state constitutional issues should be in state court:
this issue presents important concerns of federalism and comity.
we agree. the appropriate remedy is to ceritify the statte constitutional questions to the indiana supreme court.
baypac v baldwin, majors v abell. especially the article IV section 23 claim.
wrong about the federal claim being a state claim. it's a federal claim.
State political processes would include “poll
taxes, literacy tests, property qualifications, ‘white primar[ies],’ and ‘grandfather
clause[s].’” Id. (citations omitted).
Today these are known as voter ID, bar exams, residence requirements, slating conventions, and gerrymandering.
[could cite souter, stephens, ginsburg,posner, wisconsin supreme court, on voter ID being a poll tax.]
“Despite the ratification of
the Fifteenth Amendment, the right of African-Americans to vote was heavily
suppressed for nearly a century.” we agree. the current method choosing judges in indiana continues this voter suppression. it is not new. the form varies, but the substance remains.
nick2: thoughts on prayer for relief 5 pm. - 5:15.
you asked what i thought the outcome of the case should be.
we are both concerned that the legislature will try to replace the current system of free and open elections in 89 counties with a missouri plan whereby the governor appoints judges who then win retention elections.
(i need to find where the lake county case said there were two who failed retention.)
our best counterargument is your article 7 claim; the state constitution says there have to be elections. appointment by the governor doesn't count. we both realize this is a weaker claim with little case law. but it's a winner for us.
we can propose a set of options for how to do it constitutionally, and let the court decide on an interim plan while the legislature comes up with something.
here are a few.
1. one voter one vote:
20 judgeships county wide, each voter gets one vote, the top 20 get elected. advantages: fairest, most diverse. a winning candidate only needs 5% of the vote. that would even give me a shot. disadvantages: not much precedent for this approach. it's essentially proportional representation, which some people don't like. it would probably be about half dem and half gop, with the dems having a slight advantage, and maybe 1 or 2 independents or libertarians.
2. 20 different districts, county wide. one d v one r, and maybe a libertarian or independent. first poast the post sytsem.
disadvantage: all 20 would be democrats, and that would piss people off. advantage: the threat of doing it this way is a club we can use to promote a deal, such as 1 above.
3. nonpartisan, otherwise like 2.
4. merit selection stattewide, missouri plan: disadvantages: violates state constitution. disenfranchises blacks. gives control to non-local elites. upsets incumbents and supporters in the 89 counties.
5. i feel like i'm forgetting some 5th option we talked about.
6: stay while the legislature comes up with something, but court retains jurisdiction, and must approve whatever new system they come up with.
draft to nick,
confirming our conversation,
we met from 2:59-3.59 thursday 6/15/23 at your office. 1.0 hours.
I had spent 2.0 hours preparing for the meeting, by rereading your filing, reading common cause v indiana, and a lake county case linked therein. We have had 15 emails so far, which I bill in 9 minute minimum billable increments, at my standard rate of $235/hr. This is not a bill. I suck at recordkeeping, which is one reason I do not practice law for a living, but I will try to track time spent on this in the event that someday you are declared a prevailing party and asked to submit your hours. If it ends up all being pro bono, I'm not worried; I have a day job at the Woodstock Club. But this is the rare case that is within my area of competence, Indiana election law.
I enjoyed meeting you.We discussed the overall case, made some notes in reference to a possible first amendment complaint, seem to have decided against adding me a coplaintiff. I had 0.5 hours in travel time, 4pm to 4:30. I have received the 3 filing you sent me and will look at them next.
I will write separately outlining my thought about including a count on Article I sections 1,2,9,12, and 31, and will write seperately about my conflict with marion county election board, which includes a public records dispute, a likely uncounted provisional ballot, the denial of casting a provisional ballot at the primary, a threat of arrest for filming the denial of a provisional ballot, and a sign disclaimer dispute. Between these issues, I think I have a shot at becoming the prevailing party. The sign dispute is a rehash of Stewart v Taylor (1996), in which I settled for $7,000. I would not have settled that low if I had known they would refuse to follow the judge's order to stop violating my first amendment rights. My sign had said "Robbin Stewart for Township Board Vote Tuesday".
The next case in that sequence was Majors v Abell (2004).
All for now; I like to send these "confirming our conversation" emails to help document time spent. 15 minutes.
6/15 at brads 1/2 hour. 1-1:30 pm
The fundamental liberties protected by the Fourteenth Amendment extend to those
central to individual autonomy and include the individual’s choices that define personal identity
and beliefs. Obergefell v. Hodges, 576 U.S. 644, 663 (2015). “The Constitution promises liberty
to all within its reach, a liberty that includes certain specific rights that allow persons, within a
lawful realm, to define and express their identity” Id. at 651-52. T
6/14/23 at fountain square brewing. notes from common cause v indiana.
"[V]oting is of the most fundamental significance under our constitutional structure." Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (citing Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964))
State laws regulating elections "inevitably affect[]—at least to some degree—the individual's right to vote and his right to associate with others for political ends." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).
Therefore, a "more flexible standard applies,[2]" which requires the court to "weigh `the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' against `the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration `the extent to which those interests make it necessary to burden the plaintiff's rights.'" Id.[takushi] at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564).
This balance means that, if the challenged regulation severely burdens the First and Fourteenth Amendment rights of voters, the regulation must be narrowly drawn to advance a compelling state interest. Id. (citation omitted).
Next, the court is called upon to "identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule." Anderson, 460 U.S. at 789, 103 S.Ct. 1564. In response to Common Cause's interrogatory request, Defendants declined to offer any justification for the Statute.
In sum, the Defendants asserted state interests do not justify the challenged Statute. Accordingly, the court finds and declares that Indiana Code § 33-33-49-13(b) is unconstitutional.
This balance means that, if the challenged regulation severely burdens the First and Fourteenth Amendment rights of voters, the regulation must be narrowly drawn to advance a compelling state interest. Id. (citation omitted).
12:49 6/5/23 at brads. plan: 4 complaints. carroll, hendricks, marshall, dearborn.
notes added 1/6/2023 4:43 began, at 3 carrots so no wifi. stopping at 5:16.got home 6pm.
did: plasma. +50 walmart.32 3 carrots. 16 thift store $12 dollar store 8?. mousetraps, shirt guyabera tie bleach water ointments coffee coffee dinner.
3/29.1 pm. planning to add hendricks county complaint because i cant find my earlier draft.
7:47 thursday sept 15th.
11:20 3/8/23 editing. at iu hospital.
caption
[needs state case caption format]
in the [district? superior?] court of carroll county indiana
county of caroll}
state of indiana }
John Doe
v. Cause number ______
Carroll County Election Board, County
Clerk, and County Prosecutor.
Complaint
1. Introduction.
This is an action to declare unconstitutional and enjoin IC 3-9-3-2.5, a disclaimer statute which mandates the contents of political signs, and for damages.
2. Jurisdiction
This is a court of general jurisdiction, which is empowered under the Indiana declaratory judgment act, has equitable jurisdiction to issue injunctive relief, and has concurrent jurisdiction under 42 USC 1983, 1985. et seq. @add text
3. Venue: Venue is proper in Carroll county, where the election board has its offices, and where the signs at issue will be posted. However, we are not opposed to a change of venue if the local court has conflicts of interest with the county clerk.
4. Parties
Plaintiff John Doe is an Marion County Indiana resident who desires to put up signs in Carroll County, of the general format "Vote for Smith." They expressly advocate the election of candidates of the Libertarian Party and or other pro-liberty candidates. A motion for leave to proceed under a fictitious name is filed herewith, because their right to remain anonymous is a key issue in the litigation, and would be infringed if they were obligated to sue in their own name.
5. Defendants the Carroll County Election Board currently consists of Election Board President Drew Sandora, County Clerk Sharon Milburn, and Sandy Cripe, who are named in their official capacities. Additionally Clerk Milburn is named in her personal capacity. The County Prosecutor, currently ____, is named solely in official capacity.
6. The Indiana Attorney General, currently Todd Rokita, is not a party, but, per statute, has a right to notice and 30 days to intervene as of right if he chooses to do so, because the constitutionality of a statute is at issue.
Facts:
7. John Doe wanted to put up signs in Carroll County, with the general format "Vote for Smith". They expressly advocate the election of candidates of the Libertarian Party and others, both in 2022 and in the future. However, because counsel was not able to resolve this matter prior to the election, they did not post their signs during the 2022 election cycle, fearing arrest, fines, or other retribution.
They hope to get this matter resolved, at least preliminarily, before the fall 2023 municipal elections. They intend to remain active in Indiana politics in the future. These signs are an independent expenditure by the plaintiff, or are personally produced by them, rather than being created by a candidate or committee. They are not currently coordinated with or authorized by any candidate or committee, although plaintiff reserves the right to do so in the future.
8. They are threatened with arrest and fine by action of IC 3-9-3-2.5.* and the way in which the county and state have adopted a sign censorship policy even more extensive than that of the statute.
Table I: [text of statute]
IC 3-9-3-2.5 Communications regarding clearly identified candidates; soliciting contributions; disclaimers
Sec. 2.5. (a) This section does not apply to any of the following:
(1) A communication relating to an election to a federal office.
(2) A communication relating to the outcome of a public question.
(3) A communication described by this section in a medium regulated by federal law to the extent that federal law regulates the appearance, content, or placement of the communication in the medium.
(4) Bumper stickers, pins, buttons, pens, and similar small items upon which the disclaimer required by this section cannot be conveniently printed.
(5) Skywriting, water towers, wearing apparel, or other means of displaying an advertisement on which the inclusion of a disclaimer would be impracticable.
(6) Checks, receipts, and similar items of minimal value that do not contain a political message and are used for purely administrative purposes.
(7) A communication by a political action committee organized and controlled by a corporation soliciting contributions to the political action committee by the stockholders, executives, or employees of the corporation and the families of those individuals.
(8) A communication by a political action committee organized and controlled by a labor organization soliciting contributions to the political action committee by the members or executive personnel of the labor organization and the families of those individuals.
(9) A direct mailing of one hundred (100) or less substantially similar pieces of mail.
(b) This section applies whenever a person:
(1) makes an expenditure for the purpose of financing communications expressly advocating the election or defeat of a clearly identified candidate; or
(2) solicits a contribution;
through a newspaper, a magazine, an outdoor advertising facility, a poster, a yard sign, a direct mailing, or any other type of general public political advertising.
(c) For purposes of this section, a candidate is clearly identified if any of the following apply:
(1) The name of the candidate involved appears.
(2) A photograph or drawing of the candidate appears.
(3) The identity of the candidate is apparent by unambiguous reference.
(d) A communication described in subsection (b) must contain a disclaimer that appears and is presented in a clear and conspicuous manner to give the reader or observer adequate notice of the identity of persons who paid for and, when required, who authorized the communication. A disclaimer does not comply with this section if the disclaimer is difficult to read or if the placement of the disclaimer is easily overlooked.
(e) In addition to meeting the requirements of subsection (d), a disclaimer that appears on a printed communication described in subsection (b) must comply with the following:
(1) The disclaimer must be of sufficient type size to be clearly readable by the recipient of the communication. A disclaimer in 12 point type size satisfies the size requirement of this subdivision when the disclaimer is used for a yard sign, a poster, a flyer, a newspaper, a magazine, or a direct mailing.
(2) The disclaimer must be printed with a reasonable degree of color contrast between the background and the printed statement. A disclaimer satisfies the color contrast requirement of this subdivision if:
(A) the disclaimer is printed in black text on a white background; or
(B) the degree of color contrast between the background and the text of the disclaimer is not less than the color contrast between the background and the largest text used in the communication.
Notwithstanding subdivisions (1) and (2), a disclaimer satisfies the requirements of this subsection if the minimum type size of the disclaimer is 7 point and the type color of the disclaimer contrasts with the background color.
(f) A communication that would require a disclaimer if distributed separately must contain the required disclaimer if included in a package of materials
(g) This subsection does not apply to a communication, such as a billboard, that contains only a front face. The disclaimer need not appear on the front or cover page of the communication if the disclaimer appears within the communication.
(h) Except as provided in subsection (i), a communication described in subsection (b) must satisfy one (1) of the following:
(1) If the communication is paid for and authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication has been paid for by the authorized political committee.
(2) If the communication is paid for by other persons but authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state that the communication is paid for by the other persons and authorized by the authorized political committee.
(3) If the communication is not authorized by:
(A) a candidate;
(B) an authorized political committee of a candidate; or
(C) the committee's agents;
the communication must clearly state the name of the person who paid for the communication and state that the communication is not authorized by any candidate or candidate's committee.
(4) If the communication is a solicitation directed to the general public on behalf of a political committee that is not a candidate's committee, the solicitation must clearly state the full name of the person who paid for the communication.
(i) A communication by a regular party committee consisting of:
(1) a printed slate card, a sample ballot, or other printed listing of three (3) or more candidates for public office at an election;
(2) campaign materials such as handbills, brochures, posters, party tabloids or newsletters, and yard signs distributed by volunteers and used by the regular party committee in connection with volunteer activities on behalf of any nominee of the party; or
(3) materials distributed by volunteers as part of the regular party's voter registration or get-out-the-vote efforts;
must clearly state the name of the person who paid for the communication but is not required to state that the communication is authorized by any candidate or committee.
As added by P.L.3-1997, SEC.183. Amended by P.L.38-1999, SEC.31; P.L.176-1999, SEC.42; P.L.225-2011, SEC.42.
9. By counsel, Doe wrote to the county clerk in June, July, and September of 2022, seeking clarification of what the county's policies are. Ex. 1-3.
10. In September, the clerk responded writing that they enforce the state statutes, as interpreted by the state election commission. and referred further correspondence to the county attorney, Ted Johnson, who has not responded. Ex 4-7. [Table 2, brochure.]
11. Time is of the essence, since the campaign season is already in progress.
Election cases are to be given accelerated handling on the docket, because of the strong public interest factor. Plaintiff's speech is being chilled, while numerous other political speakers are either engaging in compelled speech, or are having their speech chilled, distorting the marketplace of ideas, harming the integrity of the election process.
Law:
12. The right to distribute signs with no disclaimer was established in 1960 by Talley v California as part of the civil rights movement. See also NAACP v Alabama, Bates v Little Rock. These cases created a right of privacy and a right to associate politically, an aspect of the first amendment right of assembly and petition. Defendants seek to return to the era of Jim Crow and Gobitis in which political signs were censored and speech compelled.
13. This right is clearly established, by cases including NIFLA v Beccera, Janus, and Reed v. Town of Gilbert. These cases have resolved previous uncertainty about the constitutionality of the Indiana statute. Because the right is clearly established by these recent controlling cases of the United States Supreme Court, there is no qualified immunity.
14. The no disclaimer rule of Talley is a subset of the general right to remain silent, to be free from compelled speech, outlined in cases including Barnette v Board, Wooley v Maynard, Tornillo v Miami Herald, Riley v. Fed. of the Blind, McIntyre v Ohio Elections Commission, Buckley v. ACLF, Watchtower v. Stratton, Hurley v. @, and AID v Open Society [year].
15. Indiana courts have recognized the right on multiple occasions, including Stewart v Taylor, Ogden v Marendt, Mullholland v Marion County Election Board, and AKKKK v Goshen.
16. Since at least 1993, strict scrutiny has been the standard of review in political speech cases under Article I section 9 of the Indiana Bill of Rights, clearly established by Price v Indiana.
17. For the board, via the clerk, to disregard the state and federal constitutions, which they have sworn to uphold, is misfeasance and malfeasance in office, is illegal per 18 USC 241, and, here, is tortious under 42 USC 1983, the Ku Klux Klan Act of 1871. @ cite text
18. The Board's policy is racist (Talley v California), sexist (McIntyre v Ohio Election Comm'n.), fosters religious discrimination (compare Barnette v Board with Gobitis), and is incompatible with the idea of a marketplace of ideas.
19. The Board is interfering with free and equal elections in Indiana, the opposite of what they are supposed to be doing.
Claims
20. Count 1.
The Board's disclaimer requirements violate the right to freedom of speech under Article I section 9, which reads "Section 9. No law shall be passed, restraining the free interchange of thought and opinion".
20.5 [added 6/15 1130 am] Making it a crime to post a sign that reads “Vote for Smith” restrains the free interchange of thought and opinion.
21. Count II
The Board's disclaimer requirements violate the right of freedom of the press under Article I section 9 which reads "or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible."
21.5 Making it a crime to post a sign which reads “Vote for Smith” restricts the right to speak, write, and print, freely. Such a sign is not an abuse of the right; it is not libelous, obscene, or an inducement to crime.
22. Count III
The Board's disclaimer requirement violates Article II section I, which reads, elections shall be free and equal.
When campaign speech such as “Vote for Smith” is criminalized, elections are neither free nor equal.
23. Count IV
The Board's disclaimer requirement violates Article I when read as a whole, including sections 1, 2, 3, 9, 11, 12, 16, 21, and 31. (expand)
24. Count V
The Board's disclaimer requirement violates the press clause of the First Amendment. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. The First Amendment has been incorporated to apply to states via the 14th Amendment.
The right to anonymously engage in political speech is the core of the First Amendment.
25. Count VI
The Board's disclaimer requirement violates the free speech clause of the First Amendment.
26. Count VII
The Board's disclaimer requirement violates the petition and assembly clauses of the First Amendment.
27. Count VIII
The Board's disclaimer requirement violates the right to privacy of the First Amendment.
28. Count IX
By commandeering part of the sign's content, the Board's disclaimer policy is a seizure without probable cause in violation of the 4th Amendment and Article I section 11.
29. Count X
By commandeering part of the sign's content, the Board's disclaimer policy, if not void for the reasons in counts I-IX, would be a taking under the 5th Amendment, requiring due compensation at market rates.
30. Count XI
In the event that the court finds no violations of Amendments 1-8, the sign policy violates Amendments 9 and 10. The right to publish without an identification disclaimer has been considered part of the rights, as Englishmen, of the American colonists since John Peter Zenger's case in 1735. The founders had this case in mind when they adopted the First and Seventh Amendments. The 9th and 10th Amendments incorporate the common law rights of the Anglo-American unwritten constitution into the written constitution.
Count XII
31. While the US Bill of Rights has been largely incorporated into the 14th Amendment against the states via the due process clause, the policy also violates the privileges or immunities of American citizens including plaintiff.
32. Count XIII
The Board's policy, as described in the disclaimer brochure, is not even authorized by the void statute, as interpreted by case law, Majors v Abell, note 11, to not apply to under 100 signs at a time. Doe typically distributes less than 100 copies of a sign. The Board, as a municipality, is liable under Monell. While the legislature's action is ultra vires, exceeding its powers under the state and federal constitution, the county's policy is ultra vires, exceeding whatever authority the void statute might have provided.
Relief sought:
Plaintiff seeks a temporary restraining order, preliminary injunction, permanent injunction, declaratory judgment that IC 3-9-3.2.5 is unconstitutional and void, damages as determined by a jury trial as to each count, court costs, legal fees, and such other relief as is in the interest of justice.
=
summons
waiver of summons forms
civil cover sheet
motion to proceed under fictitious name
motion for temporary injunction
memorandum in support of injunction
draft of motion for partial summary judgment.
press release
CARROLL COUNTY COMET
PO Box 26 Flora IN 46929-0026 Susan Scholl, editor@carrollcountycomet.com, attn debbie lowe.
=
notes for a motion to proceed under a fictitious name.
caption
Comes now plaintiff by counsel and for their motion for leave to file under a fictitious name states as follows.
The general rule of civil litigation, in Indiana as well under the federal rules, is that a case is captioned with the plaintiff's name. This furthers important public policies of open courts and the public right to know. cite volokh.
But rules have exceptions, and this case is within those exceptions.
For instance, in millions of cases involving juveniles, minor parties are referred to by initials. A well known example is TLO v New Jersey. So the rule is far from absolute.
Another category of exceptions is when listing the plaintiff's name would unduly intrude on protected privacy interests, or defeat the purpose of the litigation. The best known example is Roe v Wade, recently reversed on other grounds. Roe, Norma McCorvey, prevailed, at the time, in her claim that her right to privacy protected her interaction with her doctor, including terminating her pregnancy. To reveal her identity during the litigation would have unduly burdened the same privacy rights the court upheld.
This case is similar. Plaintiff seeks to be free to post signs of the format "Vote for Smith" rather than "Vote for Smith. Paid for by John Doe, 123 Main Street, not authorized by Smith." While their main interest is freedom of speech, being able to choose the content of their own signs, their privacy rights are implicated as well, and it would legal error and violate due course of law to make them reveal their identity as a cost of engaging in the legal process. E.g Doe v Cahill.
Doe has past, present and future disputes with various levels of government, and has legitimate concerns that calling attention to himself via being named in potentially landmark litigation might harm his position in these other disputes.
For example, counsel had a prior case on this issue, Anonymous v Delaware (2000), where the anonymous plaintiff, Scott Huminski, had a separate case going in Vermont, in which he was represented by Robert Corn-Revere, which was later settled for approximately one million dollars. Huminski naturally did not want any possible adverse publicity from the Delaware case to harm his negotiating position in the Vermont case.
Courts use a multifactor test in evaluating whether a party can proceed under a fictitious name. These factors have been summarized as:
Risk of retaliatory physical or mental harm to innocent non-parties.
The extent to which the identity of the litigant has been kept confidential.
The magnitude of the public interest in maintaining the confidentiality of the litigant’s identity, or whether, because of the subject matter of the litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s interest which is normally obtained.
Whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities.
The undesirability of an outcome adverse to the pseudonymous party and attributable to the party’s refusal to pursue the case at the price of being publicly identified.
Whether the motivations of the party seeking to pseudonymously, or those opposing the use of a pseudonym, are legitimate.
Whether the defendant is a government authority.
Whether the plaintiff risks prosecution for admitting to engage in illegal activity.
Possible disclosure by plaintiff of information of “the utmost intimacy.”
Risk of injury to plaintiff if identified.
Age of the litigants.
Possible prejudice of defendant by plaintiff’s use of a pseudonym.
Degree of economic harm to the plaintiff if her or his identity is known.
Whether less drastic means of preserving the plaintiff’s interests are available.
Here, the factors that weigh in favor include:
The government is the defendant.
Here, the policy, and the statute, are void facially as well as as-applied. It doesn't matter who the plaintiff is, so long as it is a person with standing, which this plaintiff has.
The burden on the Board's misconduct is not limited to Plaintiff and their unique facts, but burdens political speakers generally, and burdens voters by deterring speech about elections, and burdens the general public by harming the integrity of the election process.
The privacy rights of the plaintiff are related to the merits of the case; forcing them to self-identify could moot some of the interests at issue.
Plaintiff is willing to participate in discovery, such as interrogatories, and is willing to reveal their name in camera, if requested by the court, and the request is not made for an improper purpose.
Each factor here weighs in favor of granting the motion to proceed under a fictitious name. No factor favors denial. We request that the motion be granted.
respectfully submitted, certifications go here.
= time note: 12:50-2:50 sunday september 18, at brads.
all for now. next up: hendricks county complaint.
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