Indiana Court Of Appeals: Gender Bending Doesn't Void Marriage In Indiana

What's the status of a marriage entered into between a man and a woman in Indiana after one of the partners to the marriage changes genders? The answer may surprise you. According to an Indiana Court of Appeals' decision picked up on by the Indiana Law Blog this past week, the marriage remains valid and, unlike other same-sex married couples, the two spouses can petition in state court for dissolution of their marriage.

A trial court in Monroe County in In Re The Marriage of Melanie Davis and Angela Summers after originally granting a provisional order concerning the custody of the couple's child later determined that the marriage became void under Indiana law once David Summers ceased being a male and became Melanie Davis after changing the gender on his birth certificate. The Court of Appeals reversed the trial court, finding that there is nothing in Indiana law that permits a legal marriage to be voided after one of the parties to the marriage changes gender, effectively making it a same-sex marriage.

David Summers had been diagnosed with gender disorder after the couple's marriage in 1999 and the birth of their only child. He had his name legally changed to Melanie Davis in Marion Circuit Court in 2005, the same court from which he obtained an order changing the gender on his birth certificate from male to female three years later. The trial court found that the marriage became void when the circuit court ordered the gender change on Davis' birth certificate. A footnote in the Court of Appeals' decision notes that the decision on whether the Marion Circuit Court acted within the law in issuing an order to change the gender on Davis' birth certificate was not before the court in this case. Davis filed for divorce four years after the change in gender on her birth certificate and seven years after her change in name. The trial court, in denying the petition for dissolution petition, found that because the marriage became void once both parties became female, it lacked jurisdiction to dissolve it.

The trial court relied on the second part of Indiana's Defense of Marriage Act, which provides that "a marriage between persons of the same gender is void in Indiana even if the marriage is lawful in the place where it is solemnized." The Court of Appeals, rejected this reading of the statute, holding that it does not void a marriage that was initially valid in Indiana "simply because one of the parties to the marriage has changed his or her gender."

To conclude that the parties' marriage somehow became void when the gender was changed on Davis' birth certificate would permit David to effectively abandon her own child, even though the parties were validly married at the time of the child's birth and even though Davis is the child's father. It would also leave the parties' child without the protection afforded by Indiana's dissolution statutes with regard to parenting time and child support.

In summary, under the specific facts and circumstances before us in this case, a marriage between a man and a woman that was valid when it was entered into does not automatically become void when one of the parties has his or her birth certificate amended to indicate a change of gender. The statute prohibiting same-sex marriages does not apply to the particular set of circumstances in this case because the parties did not enter into a same-sex marriage in Indiana or into a same-sex marriage that was solemnized in another state. In addition, a marriage such as the one at issue here is not listed among those marriages declared void ab initio under applicable Indiana statutes, and would be improper to interpret the statute otherwise. Accordingly, we reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.

Big Surprise, Pay-To-Play Consultant Picks Airport Site As Most Suited Site For Criminal Justice Complex

Only in the corrupt pay-to-play world in which the City of Indianapolis conducts business could a consultant produce at taxpayers' expense a report claiming that the most suited site for building a half-billion dollar criminal justice complex would be next to the Indianapolis International Airport right on the county line on the far west side next to Hendricks County. That's precisely what the Star's Jon Murray is reporting that a useless report prepared by CB Richard Ellis is recommending.

That site is on the northwest corner of airport property — a stone’s throw from the Hendricks County line.

Although it is designated as the “preferred site,” scoring highest among 14 properties considered in a preliminary evaluation by real estate firm CBRE, the airport location already has critics.

Chief among them are several Marion Superior Court judges.

In short, they say it’s too far from Downtown and too inaccessible by existing public transit. Judge Mark Stoner, who presides over a major-felony court, envisions the danger posed by victims, witnesses, defendants and jurors from overlapping cases riding in the same bus to the outlying airport site from transfer points Downtown.

There is much to like in an airport site because the land already is tax-exempt and readily available, but Stoner says another issue should take precedence.

“This is a constitutional issue for us,” Stoner said. It’s about “the public’s right to have ready access to the court system.”

Other judges who have voiced worry about the airport site include Becky Pierson-Treacy, James Osborn and Circuit Judge Louis Rosenberg.

As soon as Mayor Greg Ballard recently announced this plan to rely entirely on a private developer to build, operate and maintain a massive new criminal justice system that envisioned moving the entire criminal justice apparatus out of downtown Indianapolis to a new location, I knew that this project was being driven entirely by one law firm that controls every major decision made in the mayor's office and one private contractor with whom Sheriff John Layton has become a bit too cozy.

Sheriff Layton let the cat out of the bag when he mouthed off to reporters that a site near the airport was preferable because it would make it more accessible for federal inmates who the federal government would pay to house at the jail, which could help offset costs for running the jail. The current private operator of Marion Co. Jail II, Corrections Corporation of America, which is expected to bid on the project, currently houses some federal inmates and immigration detainees at that jail under contract with the feds. Barnes & Thornburg, which is paid to advise Mayor Ballard and for all practical purposes exercises total control over his administration, also represents CCA regarding its current contract with the county to operate Jail II.

It is sickening beyond belief that our taxpayer dollars were used to pay money to a politically-connected consultant to produce a bogus report to stack the deck in favor of the private developer the downtown mafia has already decided behind closed doors is going to win this half-billion dollar project. This is the same consultant that the City agreed to pay at least a million bucks to assist it in relocating a downtown fire station, IFD headquarters and the Firefighter's Credit Union from their current location on Mass Avenue. The consultant came up with a site in Lockerbie owned by developer Joe Whitsett, who had previously committed to the neighborhood to build a suitable residential development on the parcel. The neighborhood exploded in outrage upon learning of the change in plans, and it was clear during a meeting with the neighborhood that this high-paid consultant had performed zero due diligence in picking that site other than to accommodate a backroom deal the Mayor's Office was trying to make with the developer regardless of what the neighborhood thought.

After much teeth gnashing, the Mayor's Office moved to Plan B to relocate the IFD headquarters and fire station to the site of the Red Cross, which had to be paid to relocate to a new site on Meridian Street, and the credit union had to be paid to relocate to another site near College and Mass Avenue, a move that will cost taxpayers more than double the original projected costs, keeping in mind the only reason for the deal in the first place was to free up a prime piece of land on Mass Ave for development by another pay-to-play developer to be partially funded by the city's taxpayers. None of these deals have anything to do with what's in the best interest of the public; they're always about what's going to make the most money for the pay-to-play developers who've paid off the politicians.

By moving the criminal justice complex out of downtown, the Mayor's Office will kill four birds with one stone. With the completion of the Eskanazi Hospital project, the pay-to-play contractors are demanding a large new public works project to perpetuate their racket. The project itself can be rigged to favor the private developer the Mayor's Office has already decided in consultation with the law firm client that is driving the project. The large payments to be made for decades to come assures a steady stream of money flowing into the downtown racket that benefits from the project. By moving the criminal justice complex outside of downtown, prime parcels of land housing the two jails and the Sheriff's Department can be redeveloped, naturally with taxpayer subsidies, to make even more money for the pay-to-play developers. And finally, by moving the criminal justice system out of the downtown area, the downtown mafia hopes that it can clear out what it views as the blight created by low-income whites and minorities who make up a disproportionate share of criminal offenders.

Mayor Ballard claims that the reason it makes sense to rely on a private developer to build, operate and maintain the new criminal justice system is because it can be accomplished without raising taxes. That's a claim that is not sustainable over time because anyone with a brain can figure out that undertaking the project in this fashion will cost taxpayers a lot more money over time. Radio talk show host Amos Brown did some simple math in his latest column to make this point:

Two years ago, a group analyzed what it would take to build a facility like this and they came up with an outrageous estimate of $500 million. Lucas Oil Stadium cost $750 million. So do they want us to believe this combination of courtrooms, jails and office space would cost almost as much as that stadium?

On “Afternoons with Amos,” Lotter said the sheriff and other government agencies currently spend some $19 million yearly on rent. Over a 30-year lease that comes to some $570 million.

But if the cost of constructing the new justice center is $500 million, that doesn’t include interest payments on the debt the private entity would have to obtain to build the facility. And it doesn’t include the 15 to 20 percent profit margin the private developer would charge to make their money on the deal.

Lotter’s rent projections are far too low.

Brown also raises in his column a valid concern about the negative economic impact moving the entire criminal justice complex out of downtown will have on area businesses. All the freed up space in the City-County Building will allow other employees to be consolidated into the building, resulting in more vacant commercial property downtown, which already has a high vacancy rate of 20%. Law firms, bail bond companies and other businesses located downtown only because that's where the criminal justice complex is currently located might also relocate out of downtown if the criminal justice complex is no longer located there. And of course, a central location for the criminal justice system makes it the best location for those it serves, but that's the least of the concerns of those pushing this project for their own self-serving ends.

Department Of Education Releases A To F Grades For State's Schools

The Department of Education released the A to F accountability grades for the state's schools today for the 2012-13 school year, and the grades indicate that statewide schools are performing better than the previous year. More than two-thirds (67%) of the state's schools received an A or B grade. That's up from 62% the previous school year. Even better, the percentage of schools earning a D or F grade fell from 20% to 16%. “These grades are a credit to the hard work of students, teachers, and families,” said Sarah O’Brien, District 4 representative to the board.  “It’s encouraging to see our schools make continued gains in student academic performance.”

Radio talk show host Amos Brown broke down the numbers for Indianapolis schools and, like the statewide results, he found improvement in the overall grades, although the city's charter schools fared worse than the previous year. Brown found 28 schools in the city receiving a failing grade, which is down from 36 the previous year. The number of failing charter schools in the city jumped to 7 from 4. The list of failing charter schools includes the Christel House Academy, which was the source of controversy that led to former Supt. of Education Tony Bennett's ouster from his new job in charge of Florida's schools after it was revealed that he changed last year's grading to improve the schools grade from a "C" to an "A." The Gulen-affiliated Indiana Math & Science Academy received a failing grade compared to the "B" grade it earned the previous school year.

Overall, six charter schools earned an "A" compared to fourteen earning a "D" (7) or "F"(7). Four of the failing charter schools in Indianapolis includes those administered by the Mayor's Office, while two are administered by Ball State University. Overall, six of the charter schools administered by the Mayor's Office earned an "A" compared to eight that earned a "D" or "F." Ball State's best charter school only earned a "C", while three earned a "D" in addition to the two earning an "F." Brown also found that the failing IPS schools taken over by Mayor Greg Ballard's Charter School Office (Arlington, Howe, Manuel and Emma Donnan) all received failing grades.

According to Chalkbeat, Christel Academy officials are blaming testing errors last spring for the school's failing grade this year. CEO Carey Dahncke claimed that 90% of the students who passed state tests the previous year but failed the most recent test were among the students bounced offline while the test was being administered. “That was the common element,” he said. “It is due to the testing disruptions.” The school's appeal of its failing grade was turned down by the state. Click here to use Chalkbeat's search engine to find out how schools across the state fared.

Ballard Blames Council For City's Lower Bond Rating

This week, S&P lowered the City of Indianapolis' bond rating two notches from AAA to AA. If you read the rating announcement, you understand why the rating was lowered. Firstly, S&P has adopted new standards for analyzing GO bond ratings for municipalities. Applying the new standards, the rating agency found the debt level being carried by the city was too high based on available revenues to pay its debt obligations.

According to the Indianapolis Star, Mayor Ballard reacted to the lowered bond rating by blaming the Democratic-controlled council for its failure to raise property taxes by eliminating the homestead property tax credit, which would have made a negligible difference in the city's financial situation. To piece together its latest budget for 2014, the city is tapping one-time sources to balance the budget.

What Ballard doesn't explain, which is largely the reason the city's bond rating has been lowered, is that he has continued the municipal financing scheme of expanding the areas of the city's tax base that are within a TIF district, thereby starving other municipal services of funding needed for basic operations. The growing tax revenues diverted into the TIF districts, now approaching 15% of the property tax base, are used to leverage more borrowing to finance more publicly-subsidized private development undertaken by contributors to Mayor Ballard's campaign committee. City-County Council President Maggie Lewis released a statement in response to Mayor Ballard's criticism of the council, which appears to recognize the role TIFs have played in worsening the city's credit worthiness.

“We are disappointed that Mayor Ballard would lay the blame for city’s credit rating downgrade at the feet of the City-County Council, particularly after we worked so closely with him to craft a budget that passed with bipartisan support.  For the last six years, Mayor Ballard has neglected to adequately finance and staff public safety in our city, and our citizens have been forced to deal with the consequences of his inaction every day.  Protecting our citizens is our number one priority, and Mayor Ballard signed off on this bipartisan plan with the 2014 budget.  Rather than revise the past, I, along with other Councillors, have been working on a new set of polices that will make the use of Tax Increment Financing in our city more transparent, disciplined, and responsible, as well as leading a study commission to identify public safety funding and staffing needs for the long term.   Working together on these kind of initiatives is the way forward.” 

I wish Lewis had put her words to action when Councilor Brian Mahern was pushing for TIF reforms and to put a break on establishing even more TIF districts after the council went to the trouble of having a report prepared that demonstrated the long-term havoc TIF districts were wreaking on the city's finances. If the council had listened to him, it would have never expanded the downtown TIF district and created the near-northside TIF district that ripped a new, giant-sized hole in the city's property tax base.

Citizens Energy CEO Earns Nearly $2 Million While Nonprofit Loses More Than $80 Million

It's supposed to operate as a nonprofit, public benefit corporation with a mission of providing public utilities to Indianapolis' citizens at an affordable cost, but Citizens Energy operates no differently than a fat-cat, privately-owned public utility looking to stiff utility consumers at every turn. The IBJ reports that Citizens Energy will report a loss of $81.3 million during its 2013 fiscal year despite seeing its operating revenue jump 15% to $711.5 million, but its CEO Carey Lykins will still earn nearly $2 million, down from the nearly $3 million he earned last year.

At least half of Citizens Energy's losses this year are attributable to a bad investment it made in ProLiance Energy, which it sold off for a huge loss this year. The utility is now seeking authorization from the Indiana Utility Regulatory Commission to stick its utility consumers with yet another 13.3% increase in water rates and 21.6% increase in stormwater rates. These increases are, in effect, attributable to the overpayment Citizens Energy made to the City of Indianapolis to purchase the water and sewer utilities so that Mayor Greg Ballard would a have a half billion dollar pot to distribute to the pay-to-play contractors stuffing money in his pockets.

The City of Indianapolis screwed over the public more than a decade ago when it allowed the Indianapolis Water Company to be sold off to NiSource instead of Citizens Energy, which then ran the utility into the ground while selling off its most profitable assets before selling it back to the City of Indianapolis instead of Citizens Energy as required by state law for a premium, which in turn handed control of the utility to the French-owned Veolia (think Beurt SerVaas), costing Indianapolis ratepayers even more. Mayor Ballard then sold off the utility to Citizens Energy, which intentionally overpaid knowing that it could simply shove it up the assess of utility users again with higher rates. This is what happens when you have a totally corrupt state utility regulatory agency that doesn't give a damn about the utility consumers whose interests it's supposed to be protecting.

Ballard's Former Personal Assistant Pleads Guilty In Land Bank Scam

A former personal assistant to Mayor Greg Ballard and special projects manager for the Department of Metropolitan Development, John Hawkins, has pleaded guilty to one count of federal wire fraud in connection with kickbacks he received from the sale of abandoned property by the City's Land Bank to a nonprofit group according to the Star's Jon Murray. "The plea agreement says Hawkins’ potential penalty ranges from no time in prison to 20 years," Murray writes.

Four other persons charged in the scam are awaiting trial, including Reginald Walton, the Department's assistant director in charge of the City's abandoned property program. Three others awaiting trial include: David Johnson, 47, executive director of the Indiana Minority AIDS Coalition; Randall K. Sargent, 57, president of New Day Residential Development; and Aaron Reed, 35, Walton's partner in the for-profit Naptown Housing Group. The defendants face a number of charges, including wire fraud, bribery and conspiracy to commit money laundering.

UPDATE: It looks like Reginald Walton had cooked up another kickback scheme concerning a mowing contract for properties held by the Land Bank. The U.S. Attorney's Office also announced new charges against Walton and the mowing contractor, Mark Harsley, who was awarded a one-year, not-to-exceed contract of $40,000. Harsley has been employed as a legislative liaison for the Department of Workforce Development. According to the indictment against the two, Walton did not actually receive any kickbacks; rather, he had merely solicited them from Harsley. Walton was indicted last spring before Harsley received his first payment under the contract.

This is still small-time crap to give the impression that Hogsett's office is actually prosecuting public corruption. The big cases involving much larger sums of money go unprosecuted. Nobody cares about these affirmative action hires that Ballard only put on the city payroll to give the black community the impression he was doing something for them. Where was Olgen Williams and Greg Wilson while all this stuff was taking place? They put these hucksters in their jobs without regards to their qualifications. They've also been at the forefront in pushing an affirmative action plan for hiring persons with prior criminal records. How's that working for you, Greg?

Federal Judge Slaps Down President Obama For Governing By "Secret Law" In Document Disclosure Case

For the second time this week, a federal district court in D.C. has issued a stinging opinion against the Obama administration. On Monday, a federal district court judge appointed by President George W. Bush ruled that the NSA's bulk gathering of telephonic metadata involving the telephone records of all Americans violated the Fourth Amendment's protection against unreasonable searches and seizures. Yesterday, a federal district court judge appointed by former President Bill Clinton ruled that the Obama administration's claim of executive communications privilege in refusing to release a document pertaining to foreign aid amounted to governing by "secret law."

The case involved a single document containing a presidential directive titled "Presidential Policy Development on Global Development" that was widely distributed within the executive branch of government. The White House had released a detailed fact sheet on the document "touting it as a 'first of its kind by a U.S. administration' that 'recognizes that development is vital to U.S. national security and is a strategic, economic, and moral imperative for the United States" and the President had spoken publicly about its contents Judge Ellen Huvelle noted in her opinion. The directive purported to "communicate policy relevant to national security and foreign relations" even though no part of the document was deemed classified or was there a claim of national security made when the Center for Effective Government filed a FOIA request with the State Department seeking its release. Instead, the administration claimed a presidential communications privilege exemption from disclosure when the group made its FOIA request in 2011.

In ruling against the claim of privilege, Judge Huvelle criticized the government for adopting "a cavalier attitude that the President should be permitted to convey orders throughout the Executive Branch without public oversight . . . to engage in what is in effect governance by 'secret law'" by claiming privilege under an exemption that was only intended for communications with the President's closest advisers. The administration's position conflicted with "the very purpose of FOIA . . . to permit access to official information long shielded unnecessarily from public view." To hold otherwise, she said would allow "no effective limitation on a President's ability to engage in 'secret law.'"

Former Child Care Worker Charged With Theft And Forgery

Marion Co. Prosecutor Terry Curry filed theft and forgery charges against Marsha Thompson, the former executive director of the Indiana Association for Child Care Resource and Referral. Her agency receives funding from the Family & Social Services Administration. She is accused of filing fraudulent time sheets and spending more than $6,800 for personal use. According to the complaint, Thompson used a credit card issued to her agency to buy an airplane ticket, motel room, restaurant meals, bar tabs and other personal expenses for her and her boyfriend. According to the Fort Wayne Journal Gazette, state investigators learned of the theft and forgery while investigating another employee of the agency who told them about Thompson's use of the credit card for improper purposes. The fraudulent credit card charges allegedly began in January, 2011 and continued through March of this year. The fraudulent time sheets were submitted in June, 2012 according to the complaint.

Pence Supports State Police Collection Of Bulk Cellphone Data Without A Warrant

I can't same that I'm surprised by his comments, but Gov. Mike Pence has finally spoken out about a recent Indianapolis Star report on surveillance software purchased by the Indiana State Police earlier this year that permits the agency to capture in bulk cellphone data within a particular radius from where it is being operated without a warrant. Pence thinks the unwarranted, unconstitutional snooping is acceptable, showing just how willing he is to violate the oath he took as governor to uphold the constitution, not to mention the oath he took as an attorney admitted to practice law in this state.

Speaking with reporters, Pence said he met with police officials last Thursday for a briefing after an Indianapolis Star report revealed the agency had acquired a “Stingray” device for $373,995.

“I believe this technology is in the interest of public safety, and I believe it has enhanced our ability to both protect and save lives,” Pence told reporters. “I was informed that in the limited number of cases where this technology has been used that it has only been used with strict judicial oversight.”

But when pressed, Pence didn’t answer repeated questions about whether the agency obtains search warrants before turning on the devices.

Pence’s press secretary Kara Brooks referred further inquires about the devices to State Police spokesman Dave Bursten, who didn’t immediately return a message this morning from The Star.

Previously, Bursten has declined to answer questions about the devices and would not say whether the agency uses Stingrays without a search warrant.

The NSA compels telephone companies to turn over telelphonic metadata in bulk, a step it claims is necessary to protect national security interests, which today means protecting us from terrorists. A federal district court ruled this practice unconstitutional. Of course, most terrorists are funded, trained and directed by the CIA so their activities are curiously never detected in advance by the NSA's snooping. The accused Boston Marathon bombing suspects are perfect examples. Despite being sponsored for immigration to this country by an uncle who works for the CIA and being placed under constant monitoring by the FBI, the two young Tsarnaev brothers we are told somehow managed to build, place and detonate two "bombs" in an area crawling with police and extra security. (Yes, I deliberately put the word in quotes because only made-for-movie special effect bombs were exploded next to crisis actors who were paid to pretend to have suffered injuries, which is self-evident to anyone who views the video of the blast scenes with open eyes).

It's total nonsense for Pence to suggest that a civil police agency has any need to collect cell phone data in bulk for any legitimate law enforcement purpose. It's an unchecked fishing expedition of the worst order that can be used for all sorts of nefarious purposes, not the least of which includes spying on political enemies. No citizen of this state should trust the Indiana State Police to use this spying capability responsibly. Legislation is clearly needed to limit its use strictly to instances where it has obtained an order from a court based on a finding of probable cause, and to impose harsh penalties on those who would use it otherwise.