Monday's Show

Join me Monday night at 10 p.m. when I'll recap the August 4 meeting of the New Albany City Council. The substance part of the gathering takes place during a work session at 6 p.m. The "form" part takes place beginning at 7:30 with public comment on the pending ordinance to prohibit smoking in the workplace.

By all accounts, the ordinance will neither survive nor thrive, but stranger things have happened than a passage on first reading. If exceptions are made, then the ordinance will be invalid on its face, so we'll discuss the smoke and mirrors of the actual meeting. But what happens in the work session will be the meat of our show.

Commentary: A Diversion and a Digression

I don't intend for this to be either a partisan blog nor an "attack" blog. At root, it is a billboard for the radio show. In the past, I have been boisterous and opinionated and have often, by my vitriol, caused even friends to recoil. You can search around to find my mothballed blog to verify that for yourself.

Nowadays, I take keyboard in hand to comment on the blog postings of others with discretion, contributing to other blogs only when I feel it is truly needed.

That does not mean that I have retired from the field, though. On occasion, though, something demonstrably egregious arises, and this blog will not erect any fences prohibiting frank commentary. New Albany Now is and will continue to be a bright light shining on the issues in this city. That is our purpose. That does not mean i will arbitrarily muzzle myself when an injustice is done.

I posted an historic broadcast last evening. For the first time in many, many months, the deliberations and debate of the New Albany City Council were made available to the public. And for the first time ever, that record is continously and forever available ON-DEMAND. If you need to refer to it, it will always be there.

With that in mind, I'd like to point out that Thursday night's meeting was (as usual) degraded and tarnished by yet another vicious, venal, and veracity-challenged circus of horrors, orchestrated awkwardly by Dan Coffey, the embarrassment of a human being who reigns over the seat intended to represent the interests of constituents in the 1st District of New Albany on the City Council.

I imagine that Coffey once found himself bed-ridden and without batteries and thereby forced to watch a one-hour documentary on Wisconsin senator Joseph McCarthy. Apparently, he saw that as a "good thing," and decided that would be his model.

Late in Thursday's meeting (segment 6 - slide the show slider to the last 20 or so minutes), Mr. Coffey put on an abysmal dramatic performance. Co-star Diane McCartin Benedetti (D?-D5)played foil to Coffey in a feeble attempt to slime at-large council member John Gonder.

Simulating a great concern for "comity" and decorum, Mr. Coffey practically soiled himself while presenting a sham concern for an individual who was "concerned" about a "fax" that had been circulated declaring the "news" that Mr. Gonder had been one of the original people who believed that New Albany shouldn't be unique in the state of Indiana, unique in the roster of municipalities across this great land of ours, and that its legislative (city council) districts should be drawn to offer equal representation as guaranteed under The Constitution of the United States.

It was "brought to" his "attention" by this "fax" that Mr. Gonder was once a plaintiff seeking the deserved assistance of the U.S. Federal District Court to enforce the law.

Please show me ONE person who believes that a "fax" caused Mr. Coffey and Ms. McCartin Benedetti to become aware of Mr. Gonder's past status as an advocate for the law and The Constitution.

Over the previous 10, or 110 days, Coffey had plotted his ambush, his blatant attempt to smear Mr. Gonder with fecal matter and to attempt to intimidate him from casting a considered vote on whether the city should continue to be a rogue city or whether this city, New Albany on the Ohio, should conform to the requirements of the 14th Amendment.

During a serious, substantive portion of the council meeting, Coffey and city council attorney Jerry Ulrich conducted their own meeting, and Mr. Ulrich, knowing that Coffey stand fully prepared to lever him back into fully private practice, signed on to the smear attempt.

Ulrich, Coffey, and McCartin Benedetti struggled to appear sincere in their faux concern that, somehow, having stood up for the law, Mr. Gonder was thus unqualified to vote on G-08-05, the ordinance to, at long last, draw lawful districts for the first time since at least 1992. Ulrich went over the line in his attack by saying to Mr. Gonder that if his "conscience" were clear, he couldn't see why Mr. Gonder should recuse himself from voting.

I, for one, looked around to see if Karl Rove had entered the room, for this was a classic Swift-boat attack. That Gonder stood up for the law before he was elected and continues to stand up for the law now that he is in office became, with the full complicity of a majority of the City Council, a declared black mark on Gonder's reputation.

Without any fear of being disputed, I'll tell you that Coffey manufactured, fomented, and stoked a fake popular uprising, including a disingenuous "fax," to smear his colleague.

As would be expected by anyone who knows John Gonder, the enormously popular at-large council member handled the kneecapping with inordinate grace, willingly identifying himself as the member who Mr. Coffey pretended to be so concerned for, for whom Mr. Coffey shed crocodile tears over the fact that he simply had to step forward and pour a bucket of excrement on.

What has New Albany come to that an entire council (well, a majority of the council) would be complicit in trying to eviscerate a man who stands up for following the law?

What is, indubitably, a virtue, was treated as something to be ashamed of by the city council and its attorney. They, individually, and as a body, owe Mr. Gonder an abject apology.

I urge you, if you are reading this, to demand it. Write to your newspapers, call your council members, and tell all your neighbors about the atrocity that was committed at Thursday's meeting.

John Gonder is a ray of sunshine on this council. We couldn't do better to have eight more of him serving this city. Don't let this political crime go unpunished.

Coffey, who like a majority of his colleagues believes he "owns" his district, needs to realize that constituents pick their representatives, and not the other way around. Mr. Gonder, who received more votes in the last election than all but one other candidate, has more credibility in a single eyelash than the combined integrity of Gahan/Coffey/McLaughlin/Price/McCartinBenedetti.

Clarity of Thought

I'm partial to shadow5's "Twelve Questions," but there's more to be said, and we'll say it today at 2 p.m. We're calling the show The Truth About Equal Representation, and we welcome callers with opposing viewpoints...although who in their right mind would be opposed to equal representation in this day and age?

Discredited and outmoded ideas from the 1950s are no substitute for established law and it's an embarrassment that the blatant contempt for the law shown by New Albany's powers has gone on for as long as it has.

It has to be nothing more than inattention, the congenital forgetfulness of Indianapolis that "Southern Indiana" doesn't begin and end at the Columbus exit on I-65. Steve Carter is seemingly unaware of the failure of New Albany to redraw districts after the 2000 Census. Mitch Daniels is seemingly unaware, too, despite the fact that his wife hails from good ol' N.A. And they're Republicans. What incentive do they have to protect a corrupt Democratic regime?

Did you know that Indiana has one of the highest standards for equal representation for city legislative districts? That's right. The U.S. Supreme Court gives some leeway to the states - "as equal as practicable" and "substantially equal." But Hoosier lawmakers imposed a much higher standard - "as equal as possible," a standard applied nationwide to Congressional districts.

Connie Sipes, New Albany's senator, and Bill Cochran, New Albany's state representative, know the situation, but they seem to be participating in the coverup instead of stepping up and demanding that New Albany follow the law.

There seems to be a meme, on the Internet and elsewhere, that the idea of equal representation is some kind of "furrin'" idea. I likened the redistricting conversation hereabouts to another likely one between Bert and Gertie.

"Cain't believe they let that guy off. Whoever heard of needing probable cause, a search warrant, Miranda rights, and due process. They wuz guilty. 'Nuff sed."

Ayuuhh. That kind of stuff did go on, and still goes on, and cave-dwellers still say such things. They use words like "uppity" and "outsider" and appeal to "the way we've always done things."

Fortunately, we live in a nation of laws and not a city of lies.

Perhaps the most disappointing aspect of my time observing city government has been watching Jeff Gahan deteriorate before my eyes from a voice of reason to a champion of corruption. It is entirely fair to say that Jeff Gahan represents complete unaccountability to the law. And his ignorance and animus is so far gone that it's clear he is the definitive exhibition of a politician who believes his position grants him immunity from being responsible. I've said it before: there are only two choices - he's either totally corrupt or totally ignorant.

Pick 'em.

On the Schedule This Week

As of Saturday morning, we have a light schedule of programming for the coming week. Again, the schedule is heavy with public affairs programming, but with no pre-arranged guests.

Wednesday's show is an afternoon segment at 3 p.m. We invite people who have questions about the imminent redrawing of city council district boundaries to call in. Apparently, a great number of people don't understand why this has become an issue and don't know what some citizens are demanding be done. We will discuss it, and if anyone wishes to debate it or discuss "concerns" and other aspects of the situation, we'll be happy to talk about the law or the politics. Fair warning: our view is that the council must redraw the boundaries and they must redraw them lawfully and promptly

Thursday should be more relaxed and without a predesigned format. At this moment, the agenda hasn't been published, although it will have been made available to the council in hardcopy. Rumor has it that the ineffective ordinance that endured a first reading on 7/7 will not be placed on the agenda for additional readings. That remains to be seen.

We'll concentrate on the debate, the actions, and the inactions of the council that night, with the added bonus of attention to the contributions from non-elected petitioners.

Consequences

The integrity of government is our topic today.

Representative government depends on each resident being able to count on equal representation.

In New Albany, Indiana, that is most definitely not the case. And a majority of the current city council couldn't care any less.

First, let's talk about the law.

IC 36-4-6-3 is the controlling statute. It requires the legislative body (the city council) to redraw its district boundaries every ten years.

After each decennial census - 1990, 2000, 2010 - local and state governments are provided with their official census numbers, their populations.

The population numbers for New Albany were reported in 2002.

In that year, the council was required to create six districts with populations that are equal, as nearly as possible.

That they did not do. A council that included Maury Goldberg, Dick Bliss, Larry Kochert, Bill Schmidt, and Dan Coffey could not or would not redraw the existing 1992 boundaries. Since 1992, populations have shifted significantly and New Albany has added a significant number of new residents by annexation.

As the story is reported, none of the council members elected from districts was willing to pick up new constituents or give up old ones.

That council was still arguing over districts in November of 2002 when state law kicked in, stopping in its tracks any efforts to redraw the districts. You see, council cannot redraw districts within one year of a city election. Since 2003 was an election year,waiting until mid-November to redraw was a fatal error.

What that meant was that all six of the members elected from districts in 2003 were elected from unequal districts, and they knew that. Democrat Beverly Crump defeated Republican Dick Bliss and was elected from the smallest district, District 5, with a population of approximately 5,300.

Meanwhile, in District 2, incumbent Democrat Bill Schmidt was elected to his final term, representing a district with a population of approximately 8,800.

Those are the extremes, but all six districts were either too large or too small, based on the 2000 U.S. Census.

That council was replaced in the 2007 elections, so those clearly illegitimate 2003 elections are a moot point.

But what is not moot is the legitimacy of the 2007 elections. We've now had two consecutive elections that were patently illegal.

Perhaps, PERHAPS, the 2003 election was understandable. The relevant statute both REQUIRED that sitting council to redistrict and PROHIBITED them from doing so after mid-November. No one challenged it, by the way, but it was nonetheless unlawful.

Which brings us to 2004, 2005, and 2006. No matter what happened in 2002, by 2004 the city council knew its districts did not comply with the law. The disproportionate populations were a matter of common knowledge and frequent conversation in the city. Many informal discussions of the situation took place. Though some council members today claim they "did not know," the truth is they DID.

In May of 2006, 20 residents filed suit in the U.S. District Court for the Southern District of Indiana, New Albany Branch, to compel the council to comply with the statute. The suit was filed at that time so that the council would have plenty of time to follow the law and not to repeat the willful disobedience seen in 2002.

Instead of moving immediately to comply with the law, the city council fought tooth and nail to continue to violate IC 36-4-6-3. As a consequence, ANOTHER election was held under an illegal district scheme. To date, the city council districts are severely out of balance, severely unequal, and clearly in violation of the law.

And for all six of the council members elected from districts, their right to continue to hold office is questionable.

Now, as I read the law, declaring those seats vacant might make no difference. Unless a court ordered it, no new elections would be held when those seats are declared vacant. On petition of a resident with standing (you, me, some other guy), a court will absolutely order the council to immediately redraw the districts to comply with the statute. There is zero chance that the city can win on that issue.

New districts that are equal WILL BE DRAWN and will be drawn THIS YEAR.

Additional remedies are up to the petitioners and the judge. If petitioners ask that the illegal seats be declared vacant, and I predict that will be part of a suit, the judge is more likely than not to grant that remedy.

What would likely happen then is that the Democratic Central Committee will scramble to appoint six council members. The Republicans won't be involved, because they have no party members elected from districts. In fact, the only Republican on the council is Kevin Zurschmiede, elected at-large. Since none of the at-large members were elected illegally, they would stay in office.

BUT WAIT.

The Democrats could not appoint replacements unless a legal district plan were in place. If there are only three legal council members,they could not act.

What a mess! All of this could have been avoided if the last council had acted in accordance with the law. And it probably wouldn't be necessary now if Jeff Gahan and a council majority would draw lawful districts now.

Instead, the council majority, and most particularly council president Gahan, are digging in. They say that they are no longer under any obligation to draw new districts.

THEY ARE WRONG!

Mr. Gahan has revealed his plan. Want to know what it is?

The Gahan plan is to conduct a THIRD election under the illegal districts, and I think he believes he can get away with it.

So. New Albany is in a pickle. The legitimacy of the city council, our legislative body, the people who authorize all spending of city funds, the people who decide where this city goes and how it gets there, the people who authorize us to borrow money, is at stake. Under the law, not one of the six members from the districts was elected legally.

Call it a gerrymander, call it an incumbent protection racket, call it whatever you want to call it. That's in the past, though.

What's at stake right now is the next election. Whether you are completely happy with your current council member, or totally appalled and embarrassed at who purports to represent you, you deserve to know three things.

One: Will the next election be fair if the districts are unequal? Two: Which of my neighbors will share the district with me? Three: Who is running or should be running?

You deserve certainty. The incumbents deserve certainty. New Albany deserves certainty and fairness.

Why is Jeff Gahan opposed to that? Why is Mr. Gahan saying we should let a third election be conducted under unequal districts that will be 19 years out of date?

Now, I've been talking about what you deserve. A lot of people who don't know me, don't understand me, and have no intention of getting to know me, everything I've said is being filtered through rumor and hatred.

But you know what? It doesn't matter.

It doesn't matter if you believe I favor redistricting because I want to "get" somebody, to take someone out. Maybe I do, maybe I don't. It doesn't matter. It makes no damn difference whether I or anyone else has a political agenda. It makes no difference if I or anyone else wants to replace a council member with someone else.

It's the law, completely and fully settled, that says the districts MUST be redrawn.

Shadow5, a blogger, put up a posting called "Twelve Questions." It deserves to be reposted here.

FIRST: Is the council obligated to redistrict? Yes. Indiana state law requires it.
SECOND: Has the council redrawn the boundaries? No. The districts today are the same as they were in 1992.
THIRD: What does the County Commission have to do with this? Nothing. They are not empowered to say or do anything with regard to the legislative districts of a city of the second class.
FOURTH: How about the County Clerk? Nope. The council does have to give the clerk ten days notice in certain instances and does have to implement elections based on the districts, but the clerk otherwise has nothing to say about it.
FIFTH: Who can redraw the districts? The council, and the council alone.
SIXTH: What if they don't? Or what if they draw illegal districts? Someone must ask a court to order it done.
SEVENTH: Does it matter? According to the U.S. Supreme Court, it does.
EIGHTH: What will happen if someone sues? The court will order the council to draw legal districts.
NINTH: What if the council refuses to draw legal districts? They could appeal the order, and lose, and appeal the order, and lose. Then they could be fined or jailed if they continue to refuse.
TENTH: Who would pay the fine? Probably the taxpayers.
ELEVENTH: If they go to jail, how would they get out? They wouldn't until they agree to draw legal districts.
TWELFTH: What if they agree to do it, but don't? They will go to jail again. See ELEVENTH question.

Wow.

But why would they even consider NOT redrawing the lines? Are they that dumb?

It appears that they might be. With Gahan taking the lead to propose doing nothing until 2012, he's lost all credibility as a legislator.

For a lawmaker, and make no mistake about it, that's precisely what a council member is, to advocate willful violation of the law, should be a disqualifying event. Whether you like Gahan or not, how could you vote for him when he admittedly is leading his colleagues to violate a law so fundamental to representative government?

Isn't that official misconduct? Is willful violation of the law a felony? As it stands right now, Mr. Gahan wouldn't deny his intention to continue to flout the law. I can't redraw the districts. You can't redraw the districts. Only the council can redraw the districts, and Mr. Gahan and his cohort have no intention of doing so.

Over the course of the last 26 months, a lot of crap has been put out by the council, their lawyer, their supporters, and frankly, by people who have been fed a big lie, who've been told that this is an ANTI-DEMOCRATIC attempt to subvert democratic government, that the residents of New Albany who want to see the law followed could only be asking for it because they don't like the players.

Listen to me. IT IS WELL SETTLED LAW THAT LEGISLATIVE DISTRICTS MUST BE EQUAL IN POPULATION, or at least as equal as possible.

Now, it might once have been a little unsettled. Heck, there was a time when state legislative districts, and even congressional districts, were allowed to be unequal. But around 1960, the U.S. Supreme Court declared that state districts must be equal. The case is Baker v. Carr. EVERY LAWYER knows it. Since that time, the case law has been refined and since at least 1994 there has been absolutely no question that states and cities could not draw unequal districts.

Equal representation is a right. For every degree that districts are unequal, somebody is getting the shaft. Somebody is being over-represented at the expense of somebody in another, larger district.

That's not permitted. The Constitution of the United States requires equality.

But even if that weren't the case, the Indiana Code demands it. It's beyond belief that any council member or any lawyer could say that the law and the Constitution don't apply to New Albany.

We live in a strange place, but the last time I looked we were in Indiana and in The United States.

If Mr. Gahan and his, I have to say it, partners in crime, wish to operate under a different set of laws, they had better take it up with the legislature. I don't know how they can figure out how to secede from the United States, but maybe they can get Bill Cochran and Connie Sipes to push a special law exempting them from the law statute.

Even then, the U.S. Constitution will apply, so start figuring out which side you are on.

Are you on Jeff Gahan's side or the side of the law?
Are you on Diane McCartin-Benedetti's side or the side of the law?
Are you on Dan Coffey's side or the side of the law?
Are you on Steve Price's side or the side of the law?

Now, Steve Price (now) says "let's redraw the districts." Maybe he's sincere. ummhmm. Has he called for a special meeting of the council yet?

Side with the criminals or side with the law.

Side with the criminals or side with equal representation.

Side with the criminals or side with fair elections.

Side with the criminals or side with the rights of the people.

No individual OWNS a legislative seat. Mr. Gahan and his pals can't violate the law without paying the price.

Dismiss everything I've written here, if you will. But neither you nor Mr. Gahan will be able to dismiss the very same analysis when it is delivered from the bench of the U.S. Federal District Court.

And it will be. Soon.

Then, will you still be siding with the criminals? Or will you realize that YOU are being betrayed, that you are being treated like a tool, that you are being used to do someone else's dirty work and helping them steal democracy from New Albany?

I imagine some of you actually won't realize it. Happy lawbreaking!

P.S. Mayor England and his staff make a big deal about how they are "glad" they don't have to deal with this. Is that the kind of leadership that was expected? Should the mayor and his staff be "warning" people to "lay off?" Should Carl Malysz be wielding the power of his appointed office to intimidate residents. Should Mayor England be allowing that? It looks pretty fishy to me when the mayor and the council president are together working to foster such blatant lawbreaking.

But that's just my opinion. Just ask Steve Price if I'm entitled to it. Or better yet, ask Prosecutor Keith Henderson.