At its heart, the body of work accomplished by the American Civil Liberties Union of Indiana over its six decades in existence has been in service to society's underdogs.
The underdog may be the minority or a minority group. Sometimes the underdog is the majority, insecure in its constitutionally mandated rights.
In many cases, the underdogs are underdogs because they represent unpopular causes, unfamiliar practices or because they have limited capacity to rally financial, social or political support. Underdogs are voices crying in the wilderness.
In 1953, the Indiana Civil Liberties Union was the underdog, denied the right to hold its inaugural meeting in a room at the Indiana War Memorial and blacklisted from several other facilities across the city.In the decades-long battle that followed, many of its opponents shared sentiments similar to Verne Cross, chairman of the Disabled American Veterans, who, at a 1968 hearing on the matter before the Indiana War Memorials Commission, said the group:
"...defends those who would overthrow the government. It defends kooks and cowards who demonstrate in our streets and refuse to serve our country and burn their draft card. Kooks and cowards have a right to their kookiness, but only in the privacy of their own kennel."
The ICLU found sanctuary at St. Mary's Catholic Church Downtown. The head pastor, Father Victor L. Goosens, explained his support of ICLU at the time on Edward R. Murrow's national television show See it Now:
"We all of us, at some time or other, are going to find ourselves in the minority group," Goosens said. "Perhaps it might be politically, or it might be religiously, or it might be just a minority group on some other question, but we are going to find that we are at some time or other a minority."
The ICLU, now known as the ACLU of Indiana, will celebrate its 60th anniversary at the Indiana War Memorial.
"The fact that we weren't allowed to meet in a public building demonstrated the need for this sort of organization..." said Jane Henegar, executive director of ACLU of Indiana.
- Jane Henegar, is an attorney and former deputy mayor of economic development under Indianapolis Mayor Bart Peterson. She joined the ACLU of Indiana as executive director about six months ago.
"It took 20 years and a case won by Henry Price [the groups long-time attorney and former board president] to get us into the War Memorial. So we're having a talk, not about that case, but we're having it at the War Memorial as a reminder that some things you just have to keep fighting for."
And, Henegar added, "They were very gracious about it even though we're suing them."
The current litigation, however, is not a personal matter between the commission and the ACLU of Indiana.
This case was filed on behalf of Eric Smith of Lebanon, a disabled veteran, who wanted to teach his son about exercising freedom by protesting an arms trade treaty under consideration by the United Nations that Smith considers to be a violation of the Second Amendment of the Constitution. Officials forced Smith and his son from the property, explaining that they needed a permit to conduct such activities on War Memorials Commission property. In its complaint, the ACLU of Indiana suggests that requiring a permit for expressive activity involving a small number of people (in this case, two) violated the First Amendment.
THE ROOTS OF FREEDOM
As the biggest dog on the geopolitical block, the United States is known to at times lose touch with its underdog roots. By extension, governing powers at state and local levels not too infrequently betray the core principles from which they draw their authority. They forget that underdogs, rebelling against the despotism and tyranny of Great Britain's monarchy, founded this country with the still-potent claims in the Declaration of Independence that among a people's "unalienable Rights" are "Life, Liberty and the Pursuit of Happiness."
The Constitution established a legal framework through which those rights would be protected. Hoosiers built on this tradition in Article 1 of the Indiana State Constitution when they declared, "That all people are created equal ... that all power is inherent in the people; and that all free governments are, and of right ought to be, founded on their authority, and instituted for their peace, safety, and well-being ..."
Both the federal and state constitutions include a bill of rights to which every citizen, regardless of underdog status, is entitled. These standards guide the ACLU of Indiana as they determine which, of the 800 or so calls the office receives each month, to champion with its staff of two attorneys and a paralegal.
The details of the cases vary from issues of due process and freedom of speech and association to election issues and prisoners' rights.
Some of these cases may appear to involve more serious attacks on civil liberties than others. There is the case of the Fort Wayne high school students denied freedom of expression by the school's policy that barred them from wearing "I ♥ boobies" bracelets in support of breast cancer awareness. And there are cases that involve a person involuntarily committed under Indiana's mental health laws who is not given the annual review hearing afforded to him by law or a person erroneously listed on the sex and violent offender registry who finds the Department of Corrections does not have a procedure to challenge a listing.
The Bill of Rights, said Ken Falk, the ACLU of Indiana's legal director, "is for people who, for whatever reason, cannot be heard through our majority political process."
Even in small cases, or cases that don't seem to make that much of a difference to the majority, it is important to pay attention, he said.
"Civil libertarians always talk about slippery slopes," Falk said. "And I think sometimes people roll their eyes because they have a hard time getting from nude dancing to not being able to read certain books in the library, and I admit that you have to go through a number of stretches to get there. But when you think of it more, not as a slippery slope but as the right actually disappearing or eroding, I think it makes more sense."
And so, to offset erosion, the fight for the underdog takes on proportions both humble and grand.
Randall Shepard, a retired chief justice of the Indiana Supreme Court, observed that Falk "approaches very prickly subjects without being prickly about it."
And, he added, the ACLU's work has had a definitive effect on Indiana's legal landscape.
"Twenty-five years ago, there was very little litigation brought based on the Indiana Constitution – they were all brought as federal," Shepard said. "I'd say the ACLU was the main contributor to revisiting various pieces of the Indiana Constitution."
One of these cases he remembered as "one of the most transformative pieces of state constitutional law litigation law in the last generation."
The case, brought by the Indiana State Board of Tax Commissioners as appellants and the Town of St. John as the petitioner, "prompted a complete revision to the way in which property taxes are collected and assessed and it ultimately promoted changes such as how much of government can be financed by property tax and the like," said Shepard, who is now an executive in residence at the Indiana University Public Policy Institute and a distinguished visiting professor at IUPUI's Robert H. McKinney School of Law and the School of Public and Environment Affairs.
"If you were to ask what case brought under the state constitution had the greatest impact for the greatest number of people, I'd say (the St John case was) it. And it wouldn't have happened without the ACLU and the people who lended aid in bringing those cases."
The case, as monumental as it was, may be bittersweet for the ACLU of Indiana and rest of the plaintiffs' attorneys.
"That litigation represents a tremendous amount of labor over years – four or five," Shepard said.
He explained that common fund doctrine suggests that if litigation produces a sum of money that benefits a large number of people, part of money should help compensate the legal effort to bring it.
But in the St. John case, the attorneys' common fund request "ultimately was not accepted by the Supreme Court," Shepard said, explaining that some property owners' taxes increased as a result of the litigation.
As a result of revisions to move everyone closer to fair market value, people who were overpaying across the state would benefit, but, Shepard remembered the court asking Falk, "What about the people who will pay more as a result of this?"
THE YEAR OF THE UNDERDOG
Over the past year, the ACLU of Indiana was won several major cases on behalf of underdog clients across the state.
It won on behalf of Planned Parenthood of Indiana when the state tried to strip it of federal funding. That case may not yet be over because the state filed for a review by the U.S. Supreme Court.
It won a case striking down the law that sex offenders aren't allowed to use social media and another upholding the right to pray in a group sought by American Taliban fighter John Walker Lindh, who is in prison in Indiana. And it won a case recently against the BMV after the agency waited eight years to revoke a person's license. The state has sought review in the Indiana Supreme Court on that matter.
In 2011, it won an injunction against the state's immigration law that would have broadened local law enforcement's powers into matters of federal jurisdiction and made illegal the use of consular identification cards. This case is still pending.
A NEW APPROACH TO MENTALLY ILL PRISONERS
On Dec. 31, 2012, the ACLU of Indiana won a landmark case filed on behalf of mentally ill prisoners held in isolation and denied adequate medical treatment. Mentally ill prisoners who are subjected to long periods of solitary confinement because prisons do not have the capacity to otherwise deal with behavioral issues that prevented them from safely functioning in among the general prison population.
- Mark Lee
- Ken Falk, legal director of the ACLU of Indiana, has been fighting for Indiana's since 1977. He began his career with Legal Services, moving to ACLU in 1996.
"It's a tough area because prisons are not meant to be mental hospitals. And they have— by dint of what's been happening out in the general public, in the lack ofmental health care and the deficiencies in that system — become mental health hospitals," Falk said.
"And what this lawsuit is seeking to do and what the judge's order requires it to do is sort of retrofit prisons ... the most inhospitable parts of prison, segregation units."
Most prisoners view solitary confinement as a punishment and will modify their behavior to avoid it or end the confinement as soon as possible, but for mentally ill prisoners, "the light bulb doesn't go off," Falk said.
That is leading to larger problems.
"Six percent of the population in DOC is in segregation at one time and almost 50 percent of the suicides are in segregation," Falk said, noting that from 2007 through part of 2011, 23 prisoners committed suicide, and 11 of them — almost 50 percent — were mentally ill prisoners in segregation.
Now, he said, the judge is forced to step into a role that should have been handled by the executive branch and tell the DOC to come up with a plan. The DOC is currently working to find a solution.
"There's a limit to what we can care about, I guess, and prisoners are way down on the list," Falk said. "But, aside from all of the high-fallutin' things to say about why we care, the real reason we should care, when you get right down to it, is that these guys and women are going to be getting out."
If the percentage of prisoners who never get out is less than one percent, he asked, "what state do we want people to be in once they get out?"
He said the he hoped the case would help institute better mental health care overall. And, he added, a bit of sympathy for the DOC.
"My experience with the DOC is that the people at the DOC are really good people doing a really tough job with not enough money to do the right thing."
Henegar applauded Falk's efforts.
"Obviously, we hope it will improve the lives of the prisoners who have been affected by the practices of the prison system," she said.
"We hope it will improve their lives once they regain their freedom and they're no longer in prison. We hope that then that will improve the lives of everybody who is around them, and I like to think it improves all of our lives by knowing we're a society that treats people humanely."
Ultimately, she said, she hopes the people can see the difference between the policy positions of the ACLU's clients, who have ranged from the Ku Klux Klan to the National Association for the Advancement of Colored People, and appreciate the importance of ACLU's mission to uphold civil liberties.
"The role of our Constitution is about the role of law, which is so centrally important to our society. But it's also about individuals' lives and the quality of those lives," Henegar said. "So when they support us they support that."
A WORD FROM OPPOSING COUNSEL
Few attorneys in the state are as familiar with the work of the ACLU of Indiana as Attorney General Greg Zoeller, who holds the responsibility of defending the state when it faces legal challenges.
"In lawsuits where the state has been on the opposite side of a case from ACLU of Indiana, the cordial and professional working relationship we have with Ken Falk has served the court and the taxpayers well, by minimizing time-consuming disputes over discovery and depositions, so that both sides can focus instead on the real substance of the case: the legal arguments over whether a law is constitutional or not," Zoeller said via email.
He noted he does not begrudge the group's efforts.
"I never complain about individuals or various groups exercising their right to file legal challenges against state statutes they disagree with," Zoeller said. "As attorney general, I have an obligation to defend our state from plaintiffs' challenges, just as I challenge the federal government when it intrudes upon the authority of state government.
"Legal challenges are an important safeguard built in to the system to protect against all levels of government exceeding their bounds."
Zoeller's sentiments underscore a position that the ACLU's Henegar has advanced since her college days when she wrote a thesis about how McCarthyism undermined the fundamental philosophic tenants upon which the country was based.
"If we are going to have the legal system that we have there has to someone who plays the role of defending the minority against the majority," she said.
"The constitution has stayed, not exactly the same for over 200 years, but it's the same document with additions and amendments and different interpretations. But it's essentially this same group of laws and aspirations that have guided our government. But what changes constantly are the individuals who are empowered to implement it ... Someone always needs to be there to say, 'Are you doing it right?'
"As long as all those implementers are changing there will always be a role for us."
Marion County Prosecutor Terry Curry identified some of the ways that role has been of service locally.
"We appreciate that the ACLU of Indiana is committed to its
mission to protect civil liberties and helps maintain fairness and balance in
our criminal justice system," Curry said in an email. "Its challenges
in such matters as jail overcrowding and Indiana's immigration law are just two
examples of the ACLU's positive contribution to the criminal justice system."