The World’s Most Expensive Refrigerator

In the 1980s and 90s, Robin Leach, host of Lifestyles of the Rich and Famous, gave viewers a glimpse into the (allegedly) real lives of the ultra-wealthy. At the time, there were few competitors to this conspicuous consumption on parade. Before social media democratized self-adulation, if Joe Sixpack wanted to explore the opulent world of the American social elite–their gold-encrusted tea sets, exotic sports cars, and panoramic views of Central Park–then Leach’s program was the way to do it. Aside from the occasional magazine spread, Lifestyles was the path to voyeurism of celebrity and wealth.

Aside from Leach’s distinctive vocal style (imagine Piers Morgan with an air horn stuck in his throat), the takeaway from Lifestyles was, “Wow. I can’t believe how much that thing costs!” or “How could someone pay that much money for one of those?” That was the show’s gimmick and it kept people watching.  Like viewers of MTV Cribs or later celebrity-strewn Twitter and Instagram, some people are fascinated with the way other people live and the choices they make. The more these choices and lifestyles contrast from the everyday lives of the viewers, the more they watched.

If Robin Leach were still doing his schtick today, do you think it would feature a segment about a $256,000 refrigerator in Michigan City, Indiana?  Maybe not. Still, we’d ask the same question: How could someone pay that much money for a refrigerator? 

Carney v. Patino is how. It’s a October 31, 2018 Indiana Court of Appeals decision. If nothing else, it’s an object lesson in the cost of choices.

Photo by rawpixel.com on Pexels.com

Background

The Court’s opinion explains that Mr. Carney purchased a Michigan City house at a sheriff’s sale, following a foreclosure. He went to the house and learned that Mr. Patino was still residing there. By all accounts, their first meeting was civil and Carney gave Patino additional time to move out.  So far so good.

But Carney and Patino disagreed about their second meeting. Patino said that Carney became angry when he saw Patino removing appliances from the property, blocked the door and refused to let him remove a refrigerator and washing machine that he had purchased. Carney maintained that the second meeting occurred on a different day altogether, and that Patino removed fixtures in the house and damaged the interior.

Carney reported to the police that Patino also stole light fixtures, a screen door, and other items that he believed should not have been removed from the house. Patino denied this, but the police believed Carney and charged Patino with theft.

Getting Attached

At this point, Carney and Patino’s behavior (or alleged behavior) raises a question that is not uncommon in real estate law: When does an appliance or other home amenity become part of the real estate?

To the disappointment of many armchair litigators, this is not a legal question with a one-size-fits-all-answer. Facts matter. In lawyerspeak, “it depends.” Here, it depends on the intent of the owner when the appliance was put into the home. This often involves  examining how much the item has been adapted to the home’s use, and whether damage would result from its removal. If the facts suggest the appliance was intended to be part of the home and damage would occur if the item were removed, then the appliance is part of the real estate–an attachment.  Typically, furnaces are attachments and toasters are not. But other appliances, like refrigerators, sometimes pose murkier issues.

Obviously, the police were convinced that Patino had removed attachments. As attachments, they reasoned, these items belonged to the home that Carney purchased at tax sale, and Patino committed theft by removing them.

We the Jury – Verse 1

The theft case against Patino dragged on for nearly five years, but eventually was tried to a jury. The jury found Patino not guilty.

Imagine being accused of a crime you did not commit. Not only by a single person–but by the State. For five long years. Former Secretary of Labor Raymond Donovan once faced federal charges so weak that his lawyers didn’t call a single witness and still won the case. Following the long ordeal and blistering scrutiny from the press, Donovan quipped, “Which office do I go to to get my reputation back?”

Mr. Patino’s answer was to head back to court.  After Patino’s acquittal, he sued Carney for defamation. Defamation occurs when someone (1) maliciously (2) publishes (3) a statement with defamatory imputation which (3) damages the subject of the statement. A statement that accuses someone of a crime automatically defamatory. Defamation is the legal umbrella for the more common terms libel and slander.

Patino argued that Carney’s report of the alleged crime was false and malicious and damaged Patino’s reputation through filing of criminal charges. Part of his damages were the attorney fees he had to pay to defend the criminal case, as well as the damage to his reputation.

Agreeing to disagree is a lost art.

We the Jury – Verse 2

At trial in this civil case, the jury found in Patino’s favor, and the trial court entered a judgment of $256,000 against Carney.

Carney challenged this determination on appeal, arguing that his report to the police should not be eligible to be considered as defamation.  Essentially, Carney argued that he should be immune from liability for reporting what he believed to be a crime.  This type of “qualified privilege” is recognized in the law, and acknowledges that even if a statement is defamatory in nature, there’s no way it can be made with “malice” if it is a good faith report of a crime. However, the appellate court found that the jury could have legitimately found that Carney’s actions went beyond merely reporting the crime, thereby losing the protection of the qualified privilege. The Court explained:

Patino presented sufficient evidence to show that Carney was not being truthful when he told police that  . . . he witnessed Patino removing various fixtures from the premises[.]

I believe it’s likely jury also called Carney’s motives into question when it heard that he appeared at Patino’s place of business the month after Patino moved out, demanding he return appliances, stating “When we’re done with you, we’re sending you back where you came from.”  Of Mexican ancestry, Patino took the statement to believe that Carney was suggesting Patino should be deported.

Finally, Carney argued that the jury’s award was excessive and should have been reduced by the trial court.  Again, the Court of Appeals disagreed. It noted that the law gives juries’ great deference when deciding the value of “pain, suffering, fright, humiliation, and mental anguish” because juries are in the best position to judge the evidence and credibility of witnesses. In this case, the Court explained, there was ample evidence that Patino suffered greatly from the “highly publicized” charge and arrest, the five years it took to get to trial, and the ongoing impact on his personal and professional life.

Champagne Wishes and Caviar Dreams!

Hindsight is never just 20/20. It’s better than that. It’s mental clairvoyance and historic x-ray vision. It’s emotional time-traveling. It’s the echo of regret.  I regret every time I eat BBQ wings wearing a tie.

I suspect Mr. Carney regrets making a big deal about some household appliances.

A great many legal battles are not worth having. Choose peace. It’s impossible to lose a fight that never happened.

People, Let Me Tell You ‘Bout Your Worst Friend

Tired of the endless political posts on Facebook?  It could be worse. Much worse. With apologies to the late Harry Nilsson (and Bill Bixby), imagine if your Facebook best friend posted something like this:

Hey, those people that you saw on the news killing cops? Yeah, they worked for me. They were confidential informants, so I’m glad they’re dead. But more importantly, I head up a the local group of anarchists and we are going to blow up the courthouse, and kill some cops and judges. We have explosives and a massive arsenal. We will accomplish this no matter the cost!

You would be pretty horrified, right? Not everybody-I-went-to-high-school-with-is-so-old-now horrified, I mean legitimately horrified. That’s essentially what the Samuel Bradbury did in 2014, according to yesterday’s 7^th Circuit opinion. I’ve paraphrased his diatribe in my example to starve it of any additional notoriety, but the essentials are there: (1) a shout out to recent, public, violent crimes, and (2) voicing an intent to take similar violent actions (3) against law enforcement and judicial officers.

Then, in the comment section, responding to a question from a friend, Bradbury explained that the entry was “complete satire . . .. This is simply a big mind game and satirical joke. . . . [I]t’s made to get you to think.” Though he deleted the message soon afterwards, the police received screenshots and an investigation followed.

The investigation led to Bradbury’s arrest and a search of his bedroom in his parents’ home. (That Bradbury still lived with his parents is easily the least shocking part of this story.) In the bedroom, police found thermite and magnesium, which probably means Bradbury is either really creepy or enjoys underwater welding in his spare time. Still, the defense must have been partially successful. After a trial, Bradbury was only convicted of maliciously conveying false information, which he appealed.

In any jury trial, the judge gives a set of instructions to the jury members. Think of them as answers to the Frequently Asked Questions the jury may have. These instructions often provide specific definitions of some of the terms used by the lawyers and the judge. In this case, the parties tasseled over the judge’s definition of maliciously. On appeal, Bradbury argued that the definition was too broad and would’ve allowed the jury to convict him even if the jury thought he was joking. But whether Bradbury intended to cause physical harm begs the question: when is a threat that puts people in fear or apprehension itself a criminal “harm”? The Court approved the trial court judge’s definition of maliciously, upholding Bradbury’s conviction:

To make a threat . . . is both intentional and malicious—intentional because [it is] deliberate and malicious because [it is] calculated to inspire fear and provoke a possibly costly response—even if the threatener doesn’t intend to carry out the threat. . . . Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. Sec. 844(e) . . . even if the harm that ensues is fright rather than physical injury.

Them’s Fightin’ Words

Watching the Summer Olympics recently, two things occurred to me. First, somewhere on planet Earth there are people who take badminton seriously. Second, I spent a lot of time watching Olympic events that weren’t actually events: awarding medals, raising flags, analysis, and interviews. Plus, there’s always an obligatory video montage of the athlete-of-the-night’s heroic story and hardscrabble fight to become the best and his/her incredibly obscure sport giving hope to his/her hometown (recently emerged from the grip of war or pestilence or telemarketers), which has made him a local hero of Springsteen proportions.

The Big Show

Still, I didn’t Tivo-hop over all the regalia surrounding the Olympics. The Summer Olympics without podiums and medals, national anthems, and the opening ceremonies would amount little more than Labor Day yard games with better-looking people. Stay tuned for the Men’s Lawn Jarts final. Can grandpa defend his title?

Yes, it’s probably just chocolate wrapped in foil. FreeImages.com/Alen Stojanac.

The Olympics isn’t the only time that sport is more than sport. All sports garnish the physical and mental contests with pageantry to heighten the entertainment of a great event (or distract from an awful dumpster fire of a game). The seventh inning stretch. The tee-shirt cannon. The Jumbotron. Mascots and mayhem, marching bands and the wave.

 

The most important accoutrements to sports, however, might be the words we use to describe them. Without talking about sports, we would lose roughly 1/3 of local news broadcasts. We would only read a newspaper for Dilbert and snarky Letters to the Editor. On the bright side, we wouldn’t have fantasy football. Still, Reggie Miller’s playoff exploits against the Knicks without Slick Leonard’s “Boom Baby!” would be downright two-dimensional.

In boxing, Ali-Frazier is considered the greatest fight ever by many. But how would it be remembered without its nickname: “The Thrilla in Manila,”? For that matter, it’s hard to imagine Ali’s career without his own boastful phrases or the staccato cadence of Howard Cosell journaling his exploits. Words shape the build up to these events and our perception of them for years to follow.

A Domestic Spat

Alas, however inseparable words are to our sporting pastimes, words in the law remain distinct from actions. On August 29, 2016, the Indiana Supreme Court handed down its opinion in Michael Day v. State of Indiana. After a dispute with his wife, screaming, threats, and four 911 calls, police arrested Day and charged him with disorderly conduct. In Indiana disorderly conduct occurs when a person:

[R]ecklessly, knowingly, or intentionally: (1) engages in fighting or in tumultuous conduct; (2) makes unreasonable noise and continues to do so after being asked to stop; or (3) disrupts a lawful assembly of persons . . .

On appeal, Day argued that the word “fighting” was ambiguous, and could mean either physical fighting or simply verbal arguing, and the ambiguity should result in a narrow interpretation. The Court ultimately agreed, holding that where the State charges a defendant with disorderly conduct for fighting, it must prove that a physical altercation occurred, not a mere verbal exchange. Fortunately for the prosecution–though not so fortunately for Mrs. Day–during their argument, Mr. Day spat in her face. I guess because he’s eight or something.

The Supreme Court said this was enough to make the fighting physical in nature: “Even under our narrow interpretation of ‘fighting,’ Day’s intentional, point-blank spitting on [his wife] constitutes sufficient evidence to support his conviction.”

So, if you’re keeping score at home:

1. Learn from Mr. Michael Day of Franklin County. Always keep your disagreements limited to constructive, gentile criticism such as “You #$%: @&%*! You will sign these papers for the house,” or “You #$%: @&%*! I ought to kill you,” played out within earshot of your young children. Just don’t spit on anybody and you should be fine.

2. Seriously, not even precious metals and the Star-Spangled Banner will make Americans care about badminton.

 

 

Improving the New and Improved

Indiana Statehouse

Each year, most of Indiana’s new laws take effect on July 1^st. Sure, January 1 sees a few, and some others are scattered around the calendar. But those are the also-rans, the red-headed stepchildren of legislation. The varsity really suits up mid-year. For a General Assembly that is (technically) part-time, the Indiana legislature still manages to crank out a lot of sausage.

What follows is a summary of the 2016 newbies, along with the Breaking Law Blog’s thoughts about how new laws could be improved. And if you think that judging legislation on a thumbs-up/thumbs-down model is too provincial for your tastes, give it time—they’ll probably pass a law against it next year.

Law	Summary	Verdict
SEA 80	Allows a pharmacist to deny cold medicine containing pseudoephedrine if the pharmacist believes the purchaser does not have a legitimate need.	This law is a good example of local communities finding solutions to guide State lawmakers. Pharmacists aren’t stupid. Nobody wearing a Bart Simpson tee shirt unironically actually buys Sudafed® so that he will feel 100% at work the next day. Still, one small improvement might be to also allow a Pharmacist to say, “I’ll sell it to you, but only if you get a note from the police that confirms you’ve identified your dealer.” You’d be surprised how well this would work.
HEA 1187	“Stolen Valor” law makes it a misdemeanor to obtain a discount or benefit by falsely claiming to be a military veteran.	Frankly, anyone convicted of this should be drafted.
SEA 339	Wagering on fantasy sports is classified as NOT gambling, but the online fantasy sports contests now have Indiana Gaming Commission regulations.	Putting real money on theoretical outcomes of events that don’t actually exist is like putting money into funds that don’t actually exist. Only Social Security is allowed to do that. Also, anyone choosing Tom Brady for a fantasy team should be forced to wear Uggs® at the Indiana State Fair.
SEA 1386	Purchasing alcohol on Sundays is allowed (up to 4.5 liters) if it’s manufactured and sold at an artisan distillery.	As long as we’re adding words like “artisan” to the Indiana Code, shouldn’t this law require only listening to vinyl?
SEA 1048	Drivers involved in minor crashes are to move their vehicles out of traffic if it can be done safely.	Good luck enforcing this one. Any car with only a dented fender left in traffic will soon remove itself from the definition of “minor.” Elegantly self-regulating.
SEA 248	Drivers speeding in a work zone twice in one year will receive a 60 day suspension, in addition to other penalties.	Since Indiana has declared the orange barrel to be the official state mammal, determining an actual work zone will require the use of police psychics.
HEA 1374	Cremains of a police dog may be buried near grave of its deceased owner.	If you don’t like this idea you’re a horrible, horrible person.
HEA 1378	Indiana’s Public Retirement System must end investments in businesses that support boycotts or sanctions against Israel.	Money talks. Even to anti-Semites.
SEA 216	Landlords can contract with police to enforce traffic laws on private streets in an apartment complex.	Did we run out of public streets with traffic laws in need of policing?

Confidence Game

 

Danny DeVito’s slimy Sid Hudgens in L.A. Confidential worked for a tabloid and gleefully reminded people that gossip from his paper was always, “Off the record, on the QT, and very hush-hush.” Of course, this was nonsense. He worked for a newspaper. But revealing information a reader perceives as secretive or confidential can inject it with a sense of authenticity, and of course, sensationalism. Legions of click-bait internet ads contain phrases like “secrets to . . .” and “what so-and-so doesn’t want you to know” because it appeals to our desire to have inside information.

From Indiana’s DCS website.

Still, some confidences are designed to stay confidential, and when they don’t, the consequences can be disastrous. Consider Indiana’s toll-free hotline to report suspected abuse or neglect of children, which received 202,493 calls in 2015. The identity of someone who reports abuse or neglect using this system is supposed to remain confidential. But what if that information is not held in confidence? What happens when the identity of a CPS caller is discovered, in spite of state law and DCS regulations?

First, remember that confidential does not mean anonymous. Although a report can be made anonymously, DCS Investigators must speak with the caller in detail to advance an investigation and the identity can be useful. The law requires that the name of the person who alerts CPS, (the “reporter”), if known, be redacted from documents shared with others, like the parents that are the subject of the investigation. The DCS website contains the following information:

From Indiana’s DCS website

As you might imagine, if DCS is processing a few hundred thousand reports annually, it’s not unthinkable that one might slip through the cracks, resulting in the name of a reporter being unintentionally disclosed.

In John Doe v. Indiana Department of Child Services, Doe (whose real name was withheld in the lawsuit for obvious reasons) reported suspected abuse or neglect to the DCS. During his phone call, he expressed reluctance at sharing his identity, but was assured by a DCS representative that it would be kept confidential and that no one would know that he had made the report. Sadly, it didn’t stay confidential. The Court of Appeals described the consequences:

About a week [after Doe’s report], on July 3, 2013, Doe was confronted in his front yard by Heather Ditton, who lived across the street and was one of the neighbors Doe reported. While screaming and yelling obscenities, Ditton angrily accused Doe of calling DCS. Ditton had in her possession an unredacted copy of the DCS report, which identified Doe as the reporting source. Other neighbors quickly became aware of the report Doe made. Upon realizing the report was not kept confidential, Doe felt like “somebody ripped [his] heart out.” * * * From that point on, the Doe family no longer felt comfortable outside their house. They wanted to relocate but could not afford to move. Doe indicated that he was “stared at, glared at, mooned, flipped off, yelled at, you know, every day, forever.” His daughter, Jane Doe #2, was bullied by other children. Both Doe and his wife missed work due to stress and lack of sleep.

Doe v. Indiana Dep’t of Child Servs., No. 49A02-1506-CT-682, 2016 WL 3013989 (Ind. Ct. App. May 26, 2016), p. 3 (Internal citations omitted).  In what the Court called an “issue of first impression,” meaning it had not yet been addressed before an Indiana appellate court, the Court examined whether a person who calls to report abuse or neglect has a right to sue DCS for revealing of his/her identity. DCS did not dispute that it violated the statute by disclosing Doe’s identity. However, in examining Indiana Code § 31-33-18-2, the Court stated that “[n]ot every breach of a statutory duty provides plaintiffs with a right of action.” Since the law here does not make a private right of action explicit, the Court examined whether the legislature intended to make it implicit.

Naturally Doe and DCS did not agree on what the legislature really intended. But rather than answer this question directly, the Court decided to “leave that issue for another day” relying instead on the special duty that occurred when Doe spoke with the DCS representative and specifically voiced concern over confidentiality, and was assured that DCS would protect his identity. The Court of Appeals concluded:

Justifiably relying on the DCS employee’s explicit assurance that such information would be kept confidential, Doe then provided the information. The reasonable foreseeability of harm to Doe and his family upon improper disclosure of this information was evident, as implicitly recognized by DCS’s own policies and I.C. § 31-33-18-2. Ultimately, the Does were left in a far worse position after Doe called the hotline and relied on DCS’s promise.

(p. 10). Although the litigation has yet to end, the Court allowed the lawsuit to continue. However, the decision of the 3-judge panel was not unanimous. Chief Judge Vaidik disagreed with the majority’s decision to side-step the issue of legislative intent, preferring instead that the Court address it, and arguing that the legislature did not intend to allow for a private right to sue DCS for disclosure. The dissent reasoned that: (1) the purpose of the statute is to encourage reporting of suspected abuse or neglect of children, not to protect reporters; (2) there is already a statutory consequence to wrongfully revealing a reporter’s identity (the public employee can be charged with a Class A infraction); and (3) courts have already held that victims of abuse or neglect cannot sue those who failed to report the abuse, and it’s logical to conclude that if abuse victims don’t have a private right to sue, then reporters don’t either.

Given the division of the Court and the importance of the issue, I think it’s very likely the Indiana Supreme Court will grant a request from the DCS to take up the issue later this year.

 

App-pendix Removal

Being an appendix is a tricky gig. At first, it may seem all cool not to have anything important to do. But if you spend enough time being blissfully unnecessary to the operation of the body, or you cause pain, you just might be sliced out of the torso and discarded like yesterday’s Kung Pao chicken. Exitus corpus.

Appendages aren’t limited to the physical body. There are societal appendages as well, like baton twirlers, kindergarten graduations, and the Vice Presidency. They serve no useful purpose, but haven’t faded away with time. Perhaps we keep them around has historical bookmarks, so the passage of time can be measured through methods more amusing than a ticking clock or flipping calendar pages.

Appendages abound in the legal world, too. Nowhere more prominently than in our language. Wherefores, Hereinafters, and Party-of-the-Second-Parts, which once dotted the plains and pleadings of the American legal landscape like so much pasture-devouring bison, are disappearing rapidly in the wake of the Plain English movement. But they aren’t on the endangered species list yet. I occasionally still see a clerk or lawyer use the phrase “Executrix,” a Victorian-era term for a female executor of one’s estate, even though I learned in law school around [*cough*] years ago that this term was already probably sexist and certainly antiquated.

But legal linguistic appendages encompass more than just the never-say-die aged variety. Lawyers also love their redundancies. And they love re-stating things. And they like repeating themselves. And they enjoy saying the same thing more than once.  This might be useful on occasion, or with contracts covering such vast human interaction that the difference between “rent” and “lease payment” matters, but lawyers have trouble choosing one and the redundancies often result from a “better safe than sorry” attitude toward contracts and pleadings. Still, that’s little comfort for the bogged-down reader.

Ladies and Gentlemen, Norwegians.

Illustrating the wonderful absurdities birthed by bad legal writing, the Norwegian Consumer Council (Motto: Fighting Swede Greed Since 1978!) recently conducted a live public reading of the Terms & Conditions of Norway’s 33 most popular smart phone apps as part of its #appfail campaign. If you want to challenge your own attention span, you can watch video of the event. The entire reading clocked in at just over 31 hours 49 Minutes. Even accounting for the length of words in Norwegian–a language which seamlessly mixes Klingon, an IKEA catalog, and chemical symbols for rare earth metals–that’s a lot of reading.

Of course, the point is that most of us don’t read Terms & Conditions. We ignore them, and tech companies know we ignore them. The result is the gradual loss–albeit voluntarily–of our data and privacy. Like all unacceptable, unwanted, or unneeded appendages, marathon-length Terms & Conditions will only be cut out and discarded when their costs outweigh their benefits. Right now, the world loves its smartphone apps, so the benefits are significant.

Time will tell whether the Council’s attempts to embarrass the tech industry (and by association, the legal industry) into developing easier-to-read Terms and Conditions will have lasting change.  But the Council stresses 5 common sense ways that terms and conditions could improve:

1. Cut back on the obvious;

2. Write so that people understand;

3. Keep it short and concise;

4. Structure the text (to highlight important elements); and

5. Adopt an industry standard.

Let’s hope that all types of legal writing, not just the App Store variety, learn to follow these examples.

 

The Hidden Pitfalls of Police Video

Indiana makes most government records available to the public for the asking. The law is formally known as the Access to Public Records Act (APRA). Its more famous federal cousin is the Freedom of Information Act (FOIA).  Most public records are, of course, mind-numbingly dull. Using public access laws can lead to strange results. For example, consider Mental Floss’s collection of ridiculous documents obtained through public records requests, which includes an FBI Twitter slang dictionary. I can only imagine how that impacted tweets in the bureau.

@SpecialAgentJones OMG your proposal for this task force had me totes ROTFLOL. #GManProblems.

I’m kidding. This can’t be an actual tweet. It uses the word “your” correctly.

Still, we’ve come to accept that the costs of APRA and FOIA are outweighed by the benefits of public accountability. So whenever someone wants to tinker with public access laws, it’s in our nature to fear that government accountability may suffer.  In that context, some proposed changes to APRA this session in the General Assembly have caused a stir.

Here are the basics of the law as it stands today:

General Rule: Government records are public.

→Exception: Agencies have some discretion to decide whether to release certain kinds of records. For example, I.C. 5-14-3-4(b) says that public agencies have the discretion to withhold “investigatory records of law enforcement.”

The law being the law, there are many other exceptions, of course. And even a couple exceptions to this exception–but you get the idea. An agency does not have to disclose an otherwise-public record if it is an “investigatory record.” Although policies can vary, this discretion typically means that videos that are part of an investigation might not be released to the public, or the press, while the investigation is ongoing.

There are good reasons for this. Many videos may show crime victims, who may not want the public attention that comes with a video. Also, witnesses may be less willing to talk with police officers if they knew the video and audio from the officer’s body camera would be public record.

Enter House Bill 1019, which would change the law in a few important ways.  First, it creates a new category of document called a “law enforcement recording,” which includes audio and video from body cameras and dashboard cameras.  Next, it creates a special standard for obtaining this video. This is where it gets a little more complicated. The person in the video can make a request and is entitled to see the video, with his attorney, at least twice, but is not allowed to copy it.  Anyone else who wants to see it must file a petition with the court and prove that (1) releasing the video is in the public interest, (2) no one will be harmed, and (3) there will be no “prejudicial effect” on any existing civil or criminal cases.

House Bill 1019 is now the subject scathing editorials in the Indianapolis Star and other papers, which can be a bit misleading.  With titles like “Police camera footage should remain public,” the editorials might lead the casual reader to presume that such videos are completely available to the public under the current law, which isn’t the case. Yes, HB 1019 would alter the way one requests a law enforcement recording, but even under current law, an agency has the discretion not to make such a record available if it’s an investigatory record.

To be sure, not every law enforcement recording will be an investigative record. If a police cruiser captures several hours of a 4^th of July parade where no crimes are alleged to have occurred, that video is likely not an investigatory record and would fall under the general rule allowing public access. But let’s face it, if a video is so uneventful that it’s not part of an investigatory record, no news agency is going to be interested in seeing it.

That’s not to say that HB 1019 doesn’t have some problems:

1. Identification of requesting party. I’ve seen many police videos. Although the quality has improved greatly in the past decade, it’s not always easy to tell who is in a video. The bill creates a scenario where somebody—probably a Sheriff’s Office or Police Department employee—will have to decide whether the person making the request for a video is the person in the video. In many cases, this will be undisputed, but, as the saying goes, “Hard cases make bad law.”

2. Cost of compliance. The costs of compliance for both law enforcement and those making requests could be significant. These include the cost of supervising someone who has a right to watch a police video because she is in it, and making sure she doesn’t use her smartphone to make a copy; the cost of redacting material that should not be revealed; the costs of making (or opposing) a written petition to a court and meeting nebulous legal standards like “public benefit.”

In an effort to restore additional accountability, some have suggested expanding the permissible requestors of videos to include journalists. This creates a new problem: putting counties, cities, and towns in the position of determining who is—and who is not—a journalist. Do bloggers count or must a brick-and-mortar television studio or printing press be required? The First Amendment does not elevate the free speech rights of journalists above the rights of citizens, and Indiana’s public access laws should not either.

HB 1019 is currently scheduled to be considered by the Senate Judiciary Committee on February 24, 2016.

***

UPDATE: 2/24/2016 – The Senate Judiciary Committee approved the amendment today which would switch the burden of proof to the public agency to withhold the video in any petition to obtain a Law Enforcement Video.

With Great Powerball Comes Great Responsibility

The Powerball is a multi-state lottery based in Florida, which I’m told is still a thing. Florida, that is. I knew Powerball was a still thing because I own several media devices which regularly dump media all over me. This week, the Powerball prize was large enough that if there had been a single winner, that winner could’ve become Batman.

Lotteries tout the contributions they make to citizens through expenditures on road construction, road signs, orange road signs, orange blinking road signs, and really big orange road signs with blinking text that drivers can read as they are driving, with helpful themes like “Don’t text and drive.” Sometimes, these signs are hacked by obnoxious teens to say obnoxious teen things like “Han Solo dies.”

In 1964, the first modern U.S. State-run lottery began in New Hampshire. Today 44 States and D.C. have lotteries, and the first multi-State lottery began in 1985. Since then we’ve learned a couple of honest-to-goodness facts about lotteries. First, poor people buy lottery tickets as a much larger percentage of their income than the middle-class. Second, lotteries really hate competition. (And not just State lotteries. Nevada’s gambling industry has successfully prevented a State-run lottery there.)

It’s easy to categorize the poor as being victimized by State-run lotteries. After all, the poor can least afford to lose discretionary income, right? But before you lament a low-income earner falling into mathematical quicksand as a result of ignorance or government predatory schemes (or both), consider the possibility that the poor are rational actors in playing the lottery. The argument goes something like this: a low-income person with a big mountain of debt who plays and loses the lottery still has a big mountain of debt. This same person who doesn’t play the lottery at all still has a big mountain of debt.  A chance of winning, however small, is the only chance of climbing atop the debt mountain. Depending on factors such as income and interest rates, this may be completely accurate. That’s not to say most poor aren’t objectively (financially) worse off for playing the lottery—they are. But lotteries would be broke if we were all objective. Humans, not calculators, buy lottery tickets.

Yep, they’re goats. In trees.

Americans also have a bad habit of not saving money. Sure, in a world where you can buy a 2016 Goats in Trees Calendar, who wants to save money?  I get it. Still, most of us know we should save more, but our national vices—including the lottery—seem to be an obstacle.

Some countries have harnessed the public’s desire to play a lottery to combat poor savings habits. The result is a Prize-Linked Savings (PLS) account. The concept is pretty simple. Suppose a regular savings account pays 3%. A PLS account pays less than 3%, maybe even nothing. But in exchange for foregoing all or part of the interest, the account owner is automatically entered into a lottery. PLS accounts have grown in popularity in the last 10 years.

Some critics of PLS accounts suggest that the cut in the interest rate hurts the poor. Would the poor be better off earning interest? Sure. Objectively.  But considering low-income household finances, the damage done by earning less interest in a savings account is minuscule compared to lottery spending and the financial risk for families that have no savings. Governments should not open candy stores and then feign shock when diabetics walk in the front doors, ignoring the “eat responsibly” signs.  Offering sugar free options might be a better response.

The PLS idea has caught on in such exotic, far off locations as Sri Lanka, Japan, and Michigan. How much does it help people save? The research of Peter Tufano, Dean at Oxford’s business school, noted that 56% of the participants in Michigan’s “Save to Win” PLS program were first-time savers.  At present, 12 states, including Indiana, do allow PLS accounts, but more states should. Even if it means fewer traffic signs.

O Brave New [Digital] World

 

The phrase “Digital Assets” has come to describe both assets purchased through a digital marketplace, such as songs in Apple’s iTunes store or placed into a cloud-based storage service, like Dropbox, as well as the pictures and comments we make on Facebook, Twitter, and Instagram.

The legal status of “Digital Rights” is in flux. Since at least 2007, Indiana has recognized the right of an executor of an estate to retrieve digital records from the holder of the records after someone’s death. See I.C. 29-1-13-1.1.

You haven’t lived until you’ve heard his cover of Dylan’s “Mr. Tambourine Man,” and after that, you won’t want to.

Apple’s iTunes Store doesn’t really sell a user ownership of a song, at least not in the way that most people think about ownership. Instead, iTunes sells a license for a user to play a song during his/her lifetime. Contract law allows Apple broad discretion in determining the terms of its contracts with users.  As a result, Apple can prohibit a user from allowing a friend or relative to access his digital assets if the user is ill or unable to function. These types of digital rights, by contract, essentially evaporate upon the user’s death, and the executor or personal representative of an estate would have nothing to access. Some social media outlets, like Twitter and Facebook, have developed their own policy to classify an account as inactive or terminate it entirely, after receiving some documentation, such as a death certificate.

But what if someone is not acting as the executor of a deceased person’s estate, but merely acting under a Power of Attorney for a still-living person—does that person have the same right of access? Although Indiana’s Power of Attorney statutes, particularly I.C. 30-5-5-19, could be broadly interpreted to include a right to access digital assets, there has historically been another hurdle: licensing agreements.

Without a law that forces the data holders to recognize the authority granted in a Trust or Power of Attorney, the Terms of Service with the original user will control the assets.  The result is that if Tom signs a Power of Attorney to allow Jerry to access his assets while he is ill, that will work fine for the brick-and-mortar bank, real estate agent, or brokerage firm, but it may be impossible for Jerry to help Tom handle his purely-digital assets.

This all may seem like a silly, academic discussion. After all, how valuable are my digital William Shatner spoken-word albums or pictures of last summer’s road trip to see the World’s Largest Ball of Twine?  For now, perhaps it does seem a bit superfluous to think of access to my online assets as anything approaching an essential part of my estate planning. (And that’s exactly what it is: estate planning. Dead or alive, your stuff is your estate. Deciding who controls it when you can’t is the heart of estate planning.) But consider how many creative assets (songs, movies, books, pictures, etc.) you only have in a digital format.  Is it more than half yet? Next, consider how many more of these you have in digital-only formats than you did 10 years ago. If this digital category is growing, then every year that someone can’t help you manage these assets is a year your estate plan is less effective than it used to be.

Indiana’s upcoming legislative session will bring with it an attempt to expand the ability of fiduciaries (a term which includes trustees and those granted authority under a power of attorney—not just executors of estates) to access digital assets. The bill will attempt to adopt the Revised Uniform Access to Digital Assets Act (RUFADAA). Similar attempts in 2015 failed, but the bill’s language has been amended to address privacy concerns, and many expect it to become law. This would pave the way for a Power of Attorney to clearly convey authority to access both digital—and conventional—forms of assets.

 

 

Should States Stop Playing the Marriage License Game?

An Alabama bill proposes a solution to the debate over the definition of marriage that, while not unique, is at least new to modern audiences: get government out of the way. The bill would end the practice of issuing marriage licenses. Instead of government telling you that you may marry, you would tell the government that you have married.

Some will argue that this bill is simply a response to the Supreme Court’s recent gay marriage ruling in Obergefell v. Hodges. They’re not wrong. It’s hard to think that this bill would even exist without the Obergefell case bringing matters to a head. But so what? Legislatures routinely change laws in response to court decisions. Even if some supporting it are motivated by no more than the bitter taste of sour grapes, that’s hardly an argument that the proposal lacks merit.

What should–and shouldn’t–the state do for the people? (Asheville, NC)

Stephanie Coontz, a professor of history at Evergreen State College has pointed out that marriage without the blessing/permission of government is not a new idea. Not until the 16^th Century in Europe did the state take an active role in permitting marriages. Prior to that time the vow–not the law–created marriage. Even marriages that the church considered illicit (an exchange of vows outside the church) were still deemed marriages.  Coontz also notes that American colonies generally required only that marriages be registered. Until the mid-1800’s American States would still allow mere cohabitation as proof of marriage. Indiana continued to recognize common law marriages well into the 1950s.

People willing to leave public comments on the interwebs tend to say not-so-nice things about others as a rule, and opinion about the Alabama proposal was no different. “Stupid,” “1950s social values” and the inevitable comparison to separate drinking fountains dominated a recent comment section of a local news article. One commenter even said that the bill was an attempt to “dehumanize us.”  I assume this meant dehumanize gays, not dehumanize internet comments, which I don’t believe is even possible.

Is it really so surprising that proposed legislation would follow in the wake of such a landmark SCOTUS decision? Courts are not supposed to be active institutions, but reactive ones. Is judicial activism now so commonplace, and legislative complacency so rampant, that when a legislature—the entity actually elected to make changes to the law—engages in activism of its own the populace must cry foul?

*** On a side note, “Judicial activism” as an insult is quickly approaching Red Scare status. At some point after 1990, calling someone a socialist in polite society meant that reasonable people should question the accuser, not the accused. But at least that name-calling could be criticized as one-sided, since a socialist represented a particular political viewpoint, and so his attackers had an opposing view. “Judicial activism” is politically neutral activity in theory (if not in practice), and can apply equally to the substitution of any judicial view for the will of the legislature. But no matter. Like many perfectly accurate phrases before it, it’s sure to be deemed an antiquated, unfashionable dog whistle signaling some evil and unspoken larger meaning–though deciphering the meaning always seems to need a Rosetta Stone of political correctness. Its detractors will be sure to replace it with a slur far a more gentile, if less lucid. I, for one, will lament its complete unavailability at some point in the near future. So long, “Judicial activism,” we hardly knew ye.***

So who are the winners and losers if States start getting out of the marriage business entirely?

For some conservatives, a more passive role for the state may prevent them from choosing between violating their consciences and keeping government jobs. (Though if former IRS chief Lois Learner’s actions are any indication, righties aren’t much welcome as civil servants anyway).  For some liberals, the proposal would give them the freedom they seek, and then some. Not only would any two people be allowed to marry, it would be nearly impossible for the state to regulate how the marriage contract is entered into or who solemnizes it. And despite what an hour of MSNBC or FOX News would suggest, I suspect most gay couples aren’t really interested in using their wedding ceremony as political theater—knowing in their sunset years they will fondly think back on the day they tied the knot, expressed their commitment, and made that redneck probate clerk the subject of some serious HuffPo clickbait. No, for most people, it doesn’t work like that. Non-deranged folks want to marry surrounded by people happy for them, not someone resentful because the bronze bust representing the enduring legacy of Justice Kennedy needed polishing. (Just kidding! There’s no bust. It’s a life-sized Ronaldo-esque statue and on the first Monday each October, it is appeased with sacrifices of clerks from middling law schools.) It’s not sacrilege or lunacy for honest people on all sides to seriously consider removing the appendix of licensing marriages from the corpus of government. What does anyone have to lose?

The casual observer might assume that the Supreme Court’s decision ended the issue, and any further legislation is unhealthy because it keeps us fighting. The Obergefell decision does seem, on its face, to require states provide marriage licenses. However, the Court did not seem to contemplate a State not giving marriage licenses to anybody, but the Due Process implications of providing licenses to some citizens and not others.

Besides, the issue wasn’t even over when it was over. Despite the canard that plural marriages (polygamy) had no logical correlation to the gay marriage issue, such a debate is coming. Chief Justice Roberts anticipated as much in his dissent:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” . . .  why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry?

In fact, the other shoe has already dropped. Less than a month after Obergefell, a Montana man, Nathan Collier, already voiced his intent to sue if he is denied a marriage license to marry a second wife, a contest he considers his own fight for “marriage equality.” More plural marriage proponents are sure to follow. USA Today recently cited a 2012 survey of 4,000 polyamorous individuals, and 66% reported being open to plural marriage. In the not-too-distant future, a trial judge with a polygamous marriage license application in one hand and Obergefell in the other may have only two choices: invalidate the state’s unconstitutional exclusion of plural marriage folks from marriage licensing requirements, or become . . . a judicial activist. (McCarthyism!)

But there are factions on both sides of the issue that won’t tolerate States bowing out of the marriage license game. Some gay marriage advocates won’t like this at all because it’s not freedom that they’re after. It’s state-sanctioned acceptance. To them, it’s not enough that their relationships merely be allowed. They must be approved. Like the bratty teenager who refuses to simply raid the liquor cabinet the weekend her parents are away, her self-worth demands she badger them with sophomoric rationalizations about why no sane society would restrict a sixteen year-old from downing Mad Dog 20/20 while Mom enjoys her after-dinner sherry.  Dad eventually gives in, though more from battle fatigue than persuasion. Her victory parade is complete when she boasts to her friends that she convinced her parents to finally see the righteousness of her cause.

Likewise, some gay marriage opponents will also oppose the new proposal. They remain committed to believing that official legal rejection of gay marriage is the only acceptable answer, however diminishing its chances. If the state licensing requirement disappears entirely, the clock will have run out on their cause, and the scoreboard’s tally is not in their favor.

For these loudest voices in the echo chamber, social reformation must trump personal freedom, for social reform cannot be a private affair. For them, the Alabama bill must be opposed. Angered at the prospect of winning without continuing the fight, (or losing without a rematch) their identity depends on dragging their opponent back onto the field for humiliation. No, this proposal just won’t do. The contest for marriage equality cannot be won by forfeit.

Finally, to libertarians, this may be a panacea. Imagine what society could do if government could just get out of the business of moralizing and back to legalizing weed. Wait–on second thought, forget libertarians. Maybe we should let the adults continue the conversation.