to do this week, cases stuff. so today is monday. markets closed. 1: am to 3:32 and counting.
0. go through old lists, make new list of stuff that didnt get done in 2022. examples:
casey foley real estate
american airlines.
nebraska. nebraska. bryant emergency room bill. maybe even security deposit in lincoln. salvation army thift store theft.
move 100 shares of tesla to schwab account from chase.
pay off bank of america and get $200, pass go.
catch up billing records for eric barnes.
look up free dental clinic for tommy.
so for tonight i could:
1. casey
2. cle
3. hour on cases.
4. unload van
5 make a comic.
1 call senate candidate in gary.
2. work on carroll county complaint
3 hendricks
4 marshall county public records request
5. decatur county complaint, no damages.
complaint. motion for fictitious name. interrogatories. trial notebook. exhibits. offer of settlement. proposed findings of agreed fact and law. waiver of service of process.
6 sf ca amicus
7 alaska amicus
8 mousetraps. 33rd mouse.
5. decatur county complaint, no damages.
indiana style caption
in the @blank court of decatur county indiana
John Doe, plaintiff
v cause number _____ judge ____
Decatur County Election Board, defendants
COMPLAINT
1 Introduction. This is a suit to enjoin and declare unconstitutional Indiana's disclaimer statute, IC 3-9-3-2.5, and the county's policy of enforcing a disclaimer policy.
2. Jurisdiction: This is a court of general jurisdiction. This court has subject matter jurisdiction via the Indiana Declaratory Judgment Act and 42 USC 1983 et seq.
3. Venue is in Decatur County, Indiana, where defendants have their offices.
4. Parties:
Plaintiff John Doe is a voter who lives in Marion County Indiana. He makes and distributes political signs throughout Indiana, including Decatur county. A motion to proceed under a fictitious name is filed herewith. The signs contain express advocacy, often for Libertarian party candidates. In the past his signs have been seized by election officials for lack of a disclaimer.
5. Defendants comprise the Decatur County Election Board, and are
Adina Roberts - Clerk, @ and @. They are named in their official capacity.
6. The Indiana Attorney General, currently Todd Rokita, is not a party, but has a right to notice and the right to intervene within 30 days, because the suit challenges the constitutionality of a statute.
7. Facts:
Shortly after the previous statute was declared unconstitutional per McIntyre v Ohio, Indiana passed IC 3-9-3-2.5, in 1997, re-enacting the unconstitutional statute with minor immaterial changes. The statute makes it a crime to make 100 signs such as "Vote for Smith". Instead, it compels a disclaimer, such as "Vote for Smith, Paid for by Doe, 123 Main Street." The statute is set forth in Table I.
8. During the 2022 fall election cycle, the Decatur County Election Board met to consider a disclaimer complaint by a Tony Blodgett, against the wife of a sheriff's candidate, who had distributed a mailing.
The complaint and mailing are set out in Table II.
9. At a later meeting, Blodgett withdrew his complaint, and the board closed the file.
10. The state election division distributes a Political Literature brochure setting out a disclaimer policy, which we think the county adheres to as their own policy. Table III.
11. By counsel, Plaintiff wrote to the Board's attorney advising her of the unconstitutionality of the statute. Counsel did not respond substantively, but did, via the clerk, provide a copy of the Blodgett complaint.
12. That the board convened a meeting to consider the complaint, and did not cease and desist after the letter from counsel, in addition to the text of the statute, presents a live controversy. Plaintiff's speech is being chilled.
13. However, because, at the request of Blodgett, the complaint was dismissed with no fine assessed and no referral for criminal charges, it is not clear that the board has taken affirmative steps to enforce its apparent policy, so no personal capacity claims are made here against the members of the board or their staff, and no Monell claim has been alleged. In the event that discovery reveals that affirmative steps are being taken to enforce the void unconstitutional policy, we may seek to amend the complaint to add damage claims, since the right to make political signs is clearly established, and the county is a municipality which can have 1983 liability under Monell.
Claims:
State claims:
Count I
14. The sign censorship policy violates Article I section 9 of the Indiana constitution. "No law shall be passed, restraining the free interchange of thought and opinion...."
Count II.
15. The sign censorship policy violates Article I section 9 of the Indiana constitution. No law shall be passed ... 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. Price v State (1993). While there is no Indiana case exactly on point, 13 states have found a right to anonymous speech under their state constitutions. Most of these cases involved similar disclaimers as are at issue here.
Count III
16. The sign censorship policy violates Article II section I, elections shall be free and equal.
Count IV
17. The sign censorship policy violates Article I section I,
WE DECLARE, That all men are created equal; that they are endowed by their CREATOR with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that all power is inherent in the PEOPLE; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well being. For the advancement of these ends, the PEOPLE have, at all times, an indefeasible right to alter and reform their government.
Count V
18. The sign censorship policy violates Article I section 3, Section 3. No law shall, in any case whatever ... interfere with the rights of conscience.
Count VI
19. The sign censorship policy violates due course of law under Article I section 12.
Count VII
20. The sign censorship policy violates Article 1 section 31, Section 31. No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for their common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances. Political signs such as Vote for Smith are an example of peaceable assembly, consulting for the common good, and applying for redress.
Federal Claims:
Count VIII
21. The sign censorship policy violates the First Amendment right of freedom of the press.
Count IX
22. The sign censorship policy violates the First Amendment right of freedom of speech.
NIFLA v Becerra, Janus v Municipal Workers, Talley v California, McIntyre v Ohio Elections Commission, Buckley v American Constitutional Law Foundation, Watchtower v Stratton, Riley v Federation of the Blind, Tornillo v Miami Herald, Wooley v Maynard, Barnette v Board.
Count X
23. The sign censorship policy violates the First Amendment right of assembly and petition, also referred to as political association. NAACP v Alabama, Bates v Little Rock.
Count XI.
24. The sign censorship policy violates the First Amendment right of privacy.
Count XII
25. The sign censorship policy violates the 14th amendment, including the due process clause, equal protection clause, and privileges or immunities clause.
Relief sought:
Plaintiff seeks a preliminary and permanent injunction, declaratory judgment, court costs, reasonable legal fees at counsel's standard rate of $235/hr., and such other relief as is in the interests of justice.
3:00 am - 5:04 am 1/2/2023, 2 hours drafting complaint. 7:20 resume, begin marshall county complaint
to do: proposed consent decree. look for an example.
https://legal.thomsonreuters.com/en/c/practical-law/section-1983-toolkit <useful resource for templates.
free week available.
http://lukenbill-law.com/adam-k-lukenbill/
general@lukenbill-law.com. Lukenbill & Lukenbill, llp
501 East Jefferson Street
Plymouth, IN 46563
Deb VanDeMark, 14750 Tulip Road, Culver,
Sean Surrisi
City Attorney
Phone574-936-2948
Fax574-936-4371
Email cityattorney@plymouthin.com Physical Address 124 N Michigan St
Plymouth, IN 46563
Primary Department: City Attorney
to do: trt cles.
5. decatur county complaint, no damages.
indiana style caption
in the @blank court of marshall county indiana
John Doe,
plaintiff
v cause number _____ judge ____
Marshall County Election Board, Sean Surissi, Jane Doe #1 and #2,
defendants
COMPLAINT
1 Introduction. This is a suit to enjoin and declare unconstitutional Indiana's disclaimer statute, IC 3-9-3-2.5, and the county's policy of enforcing a disclaimer policy, and for damages.
2. Jurisdiction: This is a court of general jurisdiction. This court has subject matter jurisdiction via the Indiana Declaratory Judgment Act and concurrent subject matter jurisdiction per 42 USC 1983 et seq.:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,
3. Venue is in Marshall County, Indiana, where defendants have their offices.
4. Parties:
Plaintiff John Doe is a voter who lives in Marion County Indiana. He makes and distributes political signs throughout Indiana, and intends to distribute signs in Marshall county. A motion to proceed under a fictitious name is filed herewith. The signs contain express advocacy, often for Libertarian party candidates. In the past his signs have been seized by election officials for lack of a disclaimer.
5. Defendants comprise the Marshall County Election Board, and are Adam Luckenbill, Ralph "Rick" Huff and County Clerk Deb Vandemark. They are named in their official and personal capacities. They maintain offices at 211 W. Madison St, Plymouth, IN 46563.
Sean Surrisi is a former member of the board. He is named in his personal capacity. He maintains an office at blank. Jane Doe #1 and #2 are staff of the election department who have conspired to actively enforce the campaign censorship policy. They are named in their personal capacity. Their true names are not known at this time. Whether defendants have personal liability will depend on whether they have acted in some affirmative way to promote and enforce the policy. They are not liable personally simply by holding the office, nor by adjudicating cases, since that is a quasi-judicial activity. Because the unconstitutionality of the statute is clearly established, by cases including NIFLA v Becerra and Reed v Town of Vincent, they do not enjoy qualified immunity.
Surrisi also serves as the city attorney. It is a violation of attorney ethics for a lawyer to participate in a conspiracy to violate civil rights by censoring campaign literature in violation of the Indiana constitution and First Amendment. This court may choose to refer that issue to the Indiana Disciplinary Commission if it finds good cause to do so. This court does not have direct disciplinary jurisdiction over Surrisi. Similarly Huff and Luckenbill are also an attorneys and may be in violation of attorney ethics for the same reasons.
6. The Indiana Attorney General, currently Todd Rokita, is not a party, but has a right to notice and the right to intervene within 30 days, because the suit challenges the constitutionality of a statute.
7. Facts:
Shortly after the previous statute was declared unconstitutional per McIntyre v Ohio, by Stewart v Taylor, Indiana passed IC 3-9-3-2.5, in 1997, re-enacting the unconstitutional statute with minor immaterial changes. The statute makes it a crime to make 100 signs such as "Vote for Smith". Instead, it compels a disclaimer, such as "Vote for Smith, Paid for by Doe, 123 Main Street." The statute is set forth in Table I.
8. During the 2022 fall election cycle, the Marshall County Election Board met at least once to consider disclaimer complaints. One case was resolved with a $250 fine, while another case may remain pending.
9. These meetings were the subject of news articles. https://max983.net/2022/10/marshall-county-election-board-holds-hearing-on-complaint/.
10. The state election division distributes a Political Literature brochure setting out a disclaimer policy, which we think the county adheres to as their own policy. Table III. https://www.in.gov/sos/elections/files/2022-Disclaimer-Brochure.pdf.
11. By counsel, Plaintiff wrote to the Board's attorney advising her of the unconstitutionality of the statute. Counsel did not respond substantively, but did, via the clerk, provide a copy of the Blodgett complaint.
12. That the board convened a meeting to consider a complaint, and did not cease and desist after the letter from counsel, in addition to the text of the statute, presents a live controversy. Plaintiff's speech is being chilled.
13. However, because, at the request of Blodgett, the complaint was dismissed with no fine assessed and no referral for criminal charges, it is not clear that the board has taken affirmative steps to enforce its apparent policy, so no personal capacity claims are made here against the members of the board or their staff, and no Monell claim has been alleged. In the event that discovery reveals that affirmative steps are being taken to enforce the void unconstitutional policy, we may seek to amend the complaint to add damage claims, since the right to make political signs is clearly established, and the county is a municipality which can have 1983 liability under Monell.
The county election board has adopted a policy of fining and or investigating political signs containing core political speech in violation of the First Amendment. The county, a municipality, is thereby liable under 42 USC 1983 under Monell.
Claims:
State claims:
Count I
14. The sign censorship policy violates Article I section 9 of the Indiana constitution. "No law shall be passed, restraining the free interchange of thought and opinion...." IC 3-9-3-2.5 restrains the free interchange of thought and opinion.
Count II.
15. The sign censorship policy violates Article I section 9 of the Indiana constitution. No law shall be passed ... 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. Price v State (1993). While there is no Indiana case exactly on point, 13 states have found a right to anonymous speech under their state constitutions. Most of these cases involved similar disclaimers as are at issue here. IC 3-9-3-2.5 restricts the right to speak and write or print. A sign such as "Vote for Smith" is not an abuse of that right.
Count III
16. The sign censorship policy violates Article II section I, elections shall be free and equal. Elections are not free when a person such as Doe can be jailed or fined for a sign that says "Vote for Smith." Elections are not equal when the board engages in content-based discrimination of which core political signs will be allowed.
Count IV
17. The sign censorship policy violates Article I section I,
WE DECLARE, That all men are created equal; that they are endowed by their CREATOR with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that all power is inherent in the PEOPLE; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well being. For the advancement of these ends, the PEOPLE have, at all times, an indefeasible right to alter and reform their government.
Doe here is one of the people. Their right to alter and reform the government is interfered with if they are threatened with arrest or fine for making and distributing campaign signs.
Count V
18. The sign censorship policy violates Article I section 3, Section 3. No law shall, in any case whatever ... interfere with the rights of conscience. A campaign sign is an example of the exercise of the right of conscience. Section 3 is not limited to religious issues, but includes political speech, as here.
Count VI
19. The sign censorship policy violates due course of law under Article I section 12.
Count VII
20. The sign censorship policy violates Article 1 section 31, Section 31. No law shall restrain any of the inhabitants of the State from assembling together in a peaceable manner, to consult for their common good; nor from instructing their representatives; nor from applying to the General Assembly for redress of grievances. Political signs such as Vote for Smith are an example of peaceable assembly, consulting for the common good, and applying for redress. IC 3-9-3-2.5 restrains these rights.
Federal Claims:
Count VIII
21. The sign censorship policy violates the First Amendment right of freedom of the press.
Count IX
22. The sign censorship policy violates the First Amendment right of freedom of speech.
NIFLA v Becerra, Janus v Municipal Workers, Talley v California, McIntyre v Ohio Elections Commission, Buckley v American Constitutional Law Foundation, Watchtower v Stratton, Riley v Federation of the Blind, Tornillo v Miami Herald, Wooley v Maynard, Barnette v Board are among the controlling cases of the Unites States Supreme Court which prohibit the government from compelling speech.
Count X
23. The sign censorship policy violates the First Amendment right of assembly and petition, also referred to as political association. NAACP v Alabama, Bates v Little Rock.
Count XI.
24. The sign censorship policy violates the First Amendment right of privacy.
Count XII
25. The sign censorship policy violates the 14th amendment, including the due process clause, equal protection clause, and privileges or immunities clause.
Relief sought:
Plaintiff seeks a preliminary and permanent injunction, declaratory judgment, court costs, reasonable legal fees at counsel's standard rate of $235/hr., and such other relief as is in the interests of justice.
- finished first draft at 9:12 pm 1/2/23. 7:20-9:13 = 1.9 hours.
