The seventh circuit has asked this court to decide between a narrow and a broad reading of a statute. That opinion suggests, without deciding, that the statute is likely to be declared unconstitutional if interpreted broadly, under cases such as
Talley and Mcintyre. Similarly it suggests without deciding that the statute is likely to be upheld if narrowly drawn, although no authority is cited for such a ruling, and any such ruling would conflct with binding supreme court precedents including talley, mcintyre, aclf, watchtower, new york times v. sullivan, smith v california, and republican party of minnesota.

In actuality, the statute is unconstitutional under the first amendment regardless of how it is construed, unless limited to the "false malicious and defamatory" standard of nyt, and a mens rea element imputed, so certification
is not actually necessary, but is a happy accident here, because it allows an opportunity to address the constitutionality of the statute as a matter of state law, and to expand on Price v. Indiana in a content more directly political than the disorderly conduct setting of Price and Worthington.
In 1996 stewart v taylor declined to reach state constitutional law issues, finding that the prior version of Indiana's disclaimer law
was a first amendment violation under McIntyre. No saving construction was found, even though 3-9-3-1 had the same relationship to 3-9-3-2 as it now does to 3-9-3-2.5. In 1998, the complaint in this case, Majors v Abell, was filed, listing a series of state constitutional issues.
Initially a joint motion for certification of the state constitutional issues was granted, but the district court neglected to transfer the file and submit the certified question, and the case became dormant while wating for this to happen. After a change in personnel assigned ot the case, the Attorney General's office found objections to certifiation, and sought to derail the case with a series of procedural motions. These led first to a temporary stay of certification, then a permanant stay as state claims were dismissed on abstention grounds. Later the case was improperly dismissed as moot after the statute was construed narrowly.
spent several more hours on this, 2:45-4:45 2/7/03

The statute, whatever it would have meant, is unconstitutional and void when considered under the indiana constitution as a whole.
The free and equal elections clause of article II, as well as the Indiana Bill of Rights, sections 9, 1, 3, 12, 13, 23, 32 each bear on this issue. Read together, they express strong limits of the ability of the legislature to restrict electoral speech.
Section 1 incorporates the politcal philosopy of the declaration of independence. Price v Indiana examines the historical context of the adoption of the 1916 constitution, after which the 1850 constitution is closely based, and find that the founders of Indiana intended to enact a charter for limited government, in which neither the legislative or executive branch would be allowed to (infringe) on rights retained by the people. The United States is a system of dual soveriegnty, in which the federal government has limited but supreme authority over the states, and together these comprise the federal system.
Under the declaration, the constitutions of states such as Indiana, and the Ninth Amendment of the US Constitution, individuals retain a part of their soveriegnty, and have not ceded all personal autonomy to the state. This is a system of triple soverienity - the individual, the state, and the federal government each have their proper role, and none may usurp that of the other.
In the declaration of independence, the purpose of government was found to be to protect rights to life and liberty, and when a government overstepped it bounds the people were entitled to change it or end it.
Indiana's founders agreed with this view, and also believed that the declaration served as organic law. Article 1 Seection 1
is written in a way that is evocative of the declaration of independence. It protects liberty, without the limiting language of
"except by due course of law" or some such. More than a rational basis is required, under such a system, for an intrusion into personal liberty which is not justified by directly protecting the equal rights of others.
Plaintiffs do not raise a claim that section 1 by itself makes this statute unconstitutional. Such a case can wait for another day.
Plaintiffs claim is that when section 1 is read together with other relevant sections, including 12, 9, 23, 3, 32, and 13, and Art. II section 1, that it compels a determination that banning political speech, electoral advocacy, is outside of the powers of the legislature and of the indiana election commission.

nor is it a saving construction.
the statute, narrowly interpreted, is just as unconstitutional as the statute broadly interpreted.
Its reach would be less. Instead of anybody who talks about politics risking jail, the statute is now directed only at thiose with the greatest need to talk about politics - candidates, their committees, party committees.
This creates an equal privileges problem. There is nothing about becoming a candidate that waives one's right to discuss politics.
In a narrow interpretation, the statute fails to accomplish its apparent goal.
Candidates wishing to smear their opponents with false malicious and defamatory statements now need only have someone else pay for it. Candidates who make harmless statements such as "Vote for Smith" would be the ones most likely to face the treat of prosecution.
The result is chilling of electoral speech in violtion of the right to free and open elections.

constitutional outline of argument to the supreme court of indiana - two views of what the statute means. - no inherent preference - tactical preference for broad interpretation. - void statute cannot be construed. outline of argument back at the 7th.

summary of argument. 3-2-3-1 says the statute applies to, but does not say applies only to.
A principle of statutory construction is that the specific govern over the general. 3-9-3-2.5 says specifically "persons"
The plain meaning of the term "persons" should have some relevence.
It strains the concept of due course of law for statutes to be written in a secret code which cannot be understood by laypersons.Therefore, words should be used to mean what they mean, unless perhpas when defined elsewhere in the code.
(persons has no definition in chapter 3?)


Found it! Eureka!
3-5-2-36
"Person means an individual or an organization"
The statutory definition should control, even in light of the rule of construction that criminal statutes are to be construed narrowly.
Also, the statute should be construed in such a way that it is consitent with how the term is used elsewhere in the statutes.
see 3-14.
The proposed definition would make the statute unworkable. Currently an anonymous sign "Vote for Smith" is evidence of a crime, or would be if the statute were not void by reason of its unconstitutionality. Under the propsed interpreation, we would have no way of knowing whether the sign were the result of a candidate or committee or someone else.
One could then ask Smith, is that your sign, and she would say yes, of course, and they would say off to jail with you, smith.
revise.
The proposed interpretation contradicts 15 years of how the statute has been used in practice.
It contradicts the will of legislature, which was to ban anonymous political speech.
It is not a saving construction, since the statute is unconstitutional either way, under stewart v taylor, not binding on this court
but interpreting the interaction between 3--9-3-1 and the prior disclaimer statute.
It contradicts what the defendants themselves contiue to claim, in their brochure, that the statute means.
We have no reason to beleive the argument that this is a plausible interpretation was made in good faith.
It was made in the context of false arguments that the case was moot and that plaintiffs lacked standing, among a series of other false arguments presented by defendant's counsel, once scott chinn was replaced as counsel by beth henkle. revise.

and here's the other smoking gun.
3-14-1-3.
"An individual, an organization, or a committee" .. commits class A misdeameanor.amended from "person" in 1988.
page of statutes cites stewart v taylor.






These arguments have been overruled by the 7th circuit.

The new "arguability" standard allows the state to knowingly and intentionally resist indefinately compliance with the Supreme Court's decisions in Talley McIntyre ACLF and Watchtower.
Without damages, plaintiffs like Majors have little incentive to bring legal actions to correct such pattern of unconstitutional conduct.
The state knowing and intentionally is resisting compliance with the district court's holdings in Stewart v Taylor.
This is not the good faith exception of Harlow v. Fitzgerald.
This standard encourages and rewards actual bad faith.
The result is a neverending pattern of litigation, as one unconstitutional disclaimer statute is enacted after another,
each used as a temporary shield of "official immunity." This is a waste of the court's resources, inconsistent with FRCP 1.
Congress enacted 42 USC 1983 in order to deter unconstitutional conduct of the sort involved in this case.
Damages were the mechanism for deterrance.
Here, injunctive and declaratory relief have been withheld for 5 years. Irreparable harm has been done.
To deny damages for this harm would reward the delaying tactics used by opposing counsel.

There are two claims of unconstitutionality for which plaintiffs seek monetary redress.
The first is based on the statute. The second is based on the brochure.
Under the court's analysis the statute may be unconstitutional, if read broadly, or may be constitutional, if read narrowly
to discriminate against and criminalize express advocacy by candidates, political committees, and political action committees which does not contain certain governmentally-imposed content.
This analysis is flawed, since it contradicts McIntyre Watchtower and Republican Party of Minnesota, but it is controlling at this stage in the case.
Under this view of the possible constitutionality of the statute, there is a genuine issue of law which calls into play the qualified immunity standard of harlow v fizgerald.
As to the brochure, however, there is no genuine issue of law. If the statute is read broadly, it is unconstitutional.
If the statute is read narrowly, it provides no support for the claims in the brochure.
The brochure is an unconstitutional threat against protected first amendment speech.
The law is clearly established. The facts are not in dispute.
When Stewart v. Taylor instructed these defendants that the policy of banning anonymous speech was unconstitutional under McIntyre, and in light of Talley ACLF and Watchtower, four controlling supreme court decisions, the existence of several anomolous cases such as Connecticut and the 11th circuit's Public Citizen case does not invalidate the "cleary established" prong of when state officals can have liability under 42 USC 1983.
Harlow v Fitzgerald was designed to protect officials from defending frivolous lawsuits, and not to eradicate the idea of constitutional torts.
There is no official immunity for state officials who knowingly violate clearly established rights.
The brochure violates clearly established rights. Majors and the other plaintiffs are entitled to recover damages.
The amount of the damages should be sufficient to deter such conduct in the future. Deterrance was a congrerssional objective in enacting § 1983.
The rights at stake here as as well established as the right to be free from torture, to not have confessions coerced,
to not hang a man without a trial. Anonymous political speech has a long and honorable history in the united states,
from Zenger to the Federalist Papers. When Indiana made it a crime to anonymously criticize an elected official, this struck at the core of the first amendment and was declared unconstitutional. Continued publication of the brochure in light of this finding is
subject to no immunity.
Further, when courts will not entertain actions for damages for willful violation of clearly established rights,
they encourage the sort of tactical maneuvering with false charges of mootness or non-justiciability as we have seen here.
The court should reverse its error and reinstate the claim for damages.
To deny plaintiffs damages, after allready having denied injunctive relief for five years, means that plaintiffs are denied all meaningful remedies, effectively denying them access to the courts.
When a country has no working court system, and wrongs cannot be redressed though judicial proceedings, men are placed back into a Hobbsian state of nature where they must resort to direct action.
4:01 pm thursday.
This case was chosen carefully, in an area where the rights in question are most firmly established. The first amendment is
the most established part of the bill of rights. A second or third amendment claim might give rise to a qualified immunity defense,
because the law is scarce or unsettled.
No aspect of the first amendment is more clearly settled than the right to engage in political speech about elections
Such speech implicates the speech, press, assembly, and petition clauses of the First Amendment.
There are unsettled areas in first amendment law, involving defamation, privacy, commerical speech, indecent speech, but this is not one of those. If there is any legal principle at all in the United States which is well established, it is the right to campaign for office without being threatened with being put in jail.
McIntyre, Buckley v. ACLF, Watchtower v Statton, and Republican Party of Minnesota did not invent this right;
each cited many decades of cases.
The willful refusal to follow any of these cases is enough to defeat all claims to qualified immunity.
The "official immunity" standard cited for dismissal of damage claims is not one recognized by the supreme court.

[2/3/2003 11:01:50 PM | gt bear]
6:00 pm outline of argument to the 7th.
wrong about hibernating.
The series of events that involve this case include:
In 1960, the U.S. Supreme Court ruled that anonymous political speech is protected by the first amendment.
Between 1960 and 1997, Indiana successfully resisted the supreme court's ruling.
In 1995, the Supeme Court clarified in McIntyre that there is no elections exception to the rule in Talley, that anonymous political speech is protected by the first amendment.
In 1996, Indiana refused to comform its conduct per McIntyre. In 1997, Stewart v. Tayor found that Indiana may not ban anonymous political speech. In 1997 3-9-3-2.5 was enacted to continue to resist the Supreme Court's position that for it to do so would violate the Supremacy clause. reword. Citing 2.5, election officials resumed their ban on anonymous political speech
and republished the brochure, referencing the new statute.

This case was filed in October of 1998.
The Attorney General's office, represented at the time by Scott Chinn,
moved jointly with plaintiffs to ask the court to certify certain issues of state law to the Indiana Supreme Court.
The court however never sent the motion and file to the Indiana Supreme Court, and did not tell the parties it had not done so, so there was a delay. By the time the parties reconvened at a second status conference, Chinn had become lead counsel to the City of Indianapolis and was replaced by Beth Henkel. Plaintiffs' motion for injunction was distributed and discussed, although not formally filed until _. Plaintiffs had sought to have the county stipulate to a voluntary cessation during the litigation, but this was refused.

It was Henkle's position that plaintiffs could not seek both a temporary injunction pendente lite and certify a state question.
This contention is erroneous and may not have been made in good faith. A temporary stay of the certification was sought and granted before notification to plaintiffs. The state then sought to permanantly stop the certification. The court dismissed
state claims under an abstention doctrine. date _
So this is what was going on with the case during the hibernation period.
Meanwhile, back at the Supreme Court, In Buckley v ACLF, all nine justices agreed that McIntyre is stare decises; that in the election context anonymous political speech is protected by the first amendment. Nontheless, Indiana continued to defy the Supreme Court.









Date:


wrong about question presented for certification
The question presented for certification subtly misstates the issues before the Indiana court.
In order to try to save the statute from unconstitutionality, it might construe the statute more narrowly
than the 7th circuit suggests.
It might find a mens rea requirement to be implicit, in order to avoid the problems of Smith v. California and Indiana v. Keubal.It might find that the statute cannot be applied to a candidate, per Republican Party of Minnesota v. White.
It might impute the terms of New York Times v Sullivan, that such regulation be limited to that which is false, malicious and defamatory
Therefore, we urge that the wording be changed from _______ to ___________.






wrong about damages issue
in an offhand dimissive final paragraph, the court's opinion cites "official immunity" due to "arguability".
Here the court finds it ok that the state officials of Indiana are wilfully wantonly and .........
rephrase.
Here the Seventh Circuit announced a new standard of immunity for officials.
Arguability - the ability to hire endless numbers of lawyers at taxpayer expense to cover up the intentional wrongdoing by government officials.



Such








outline of argment to the supreme court of the united states -
need not be made until case is final.
- erred in dismissing damages claim
- erred if found statute constitutional

outline of argument to the supreme court of indiana
- two views of what the statute means.
- no inherent preference
- tactical preference for broad interpretation.
- void statute cannot be construed.

outline of argument back at the 7th.
-even if narrowly construed, still unconstitutional
-if narrowly construed, plaintiffs are prevailing party

odd it got the time wrong.
[2/3/2003 6:01:50 PM | gt bear]
2:56 am edit next day.
6:00 pm
outline of argument to the 7th.
outline of argment to the supreme court of the united states - need not be made until case is final.
outline of argument to the supreme court of indiana
outline of argument back at the 7th.


[2/3/2003 11:01:50 PM | gt bear]
6:00 pm outline of argument to the 7th.
wrong about hibernating.
wrong about question presented for certification
wrong about damages issue

outline of argment to the supreme court of the united states -
need not be made until case is final.
- erred in dismissing damages claim
- erred if found statute constitutional

outline of argument to the supreme court of indiana
- two views of what the statute means.
- no inherent preference
- tactical preference for broad interpretation.
- void statute cannot be construed.

outline of argument back at the 7th.
-even if narrowly construed, still unconstitutional
-if narrowly construed, plaintiffs are prevailing party
[edit]
supreme court of indiana - two views of what the statute means. - no inherent preference - tactical preference for broad interpretation. - void statute cannot be construed. outline of argument back at the 7th. -even if narrowly construed, still unconstitutional -if narrowly construed, plaintiffs are prevailing party

test i worked.

6:00 pm
outline of argument to the 7th.
outline of argment to the supreme court of the untied states - need not be made until case is final.
outline of argument to the supreme court of indiana
outline of argument back at the 7th.