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Wednesday, April 30, 2008

Ind. Law - Is ACLU-Indiana on a losing streak?

Ken Kusmer of the AP uses the ACLU-Indiana loss Tuesday before the SCOTUS in the voter ID case to explore the question -- is the local ACLU on a losing streak? Some quotes:

The U.S. Supreme Court ruling that upheld the state's voter-ID law marked the latest in a series of high-profile setbacks for the American Civil Liberties Union of Indiana, but observers say that the trend speaks mostly to the conservative bent of the federal judiciary.
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Monday's 6-3 ruling, in which the court said states can require voters to produce photo IDs came on the heels of failed ACLU-Indiana challenges this month of Indiana's "In God We Trust" license plates and of a Bureau of Motor Vehicles policy to revoke driver's licenses if information doesn't match Social Security records.

It also followed a 7th U.S. Circuit Court of Appeals ruling in October tossing out an ACLU-brought lawsuit challenging sectarian prayer in the Indiana House because a group of taxpayers who sued over the practice did not have legal standing to do so.

Whether one supports the mission of the ACLU or opposes it, experts said, the losing streak underscores the conservative shift of the federal courts, especially since the confirmations of Chief Justice John Roberts and Associate Justice Samuel Alito more than two years ago.

"There is a losing streak of sorts in some of these high-profile cases," said Daniel Conkle, a First Amendment and constitutional law expert at Indiana University School of Law-Bloomington. However, that doesn't diminish the ACLU's role, he said.

"A group like the ACLU plays an important function in society in bringing cases that might be controversial," he said.

What does Kevin Falk have to say? Kusmer's story continues:
Ken Falk, ACLU-Indiana's legal director, rejected the notion that he was on a losing streak. He noted he and his two colleagues at ACLU-Indiana win many cases that go unnoticed by the media.

For instance, Falk said a case brought by inmates over conditions at the Elkhart County Jail resulted in the construction of a new $97.3 million lockup there in a case resolved earlier this month. Also, Franklin Community High School cleared a student's record and withdrew threats to punish him for refusing to stand during the Pledge of Allegiance after the ACLU threatened a lawsuit.

The very fact that the ACLU wins some of those cases underscores an important quality about U.S. law.

"We do nothing but take umbrage at what the government does," Falk said. "The fact that we are as successful as we are speaks to the strength of the American legal system."

He was philosophical about Monday's ruling. It was clearly a loss for the ACLU, he said, but the court left open the possibility it will reconsider such laws if attorneys can show they place an unreasonable burden on voters. "The law that's been established allows for future challenges. I think everybody would agree with that," Falk said.

More from the story:
Sheila Kennedy was ACLU-Indiana's executive director from 1992 to 1998 before becoming an assistant professor of law and public policy at IU's School of Public and Environmental Affairs in Indianapolis. She noted that in the House prayer case, Falk won in U.S. District Court before the appeals court ruled that the group of taxpayers he represented did not have the legal standing to sue the government.

"And that's scary: There is an entire category of plaintiffs that are not going to get their day in court," said Kennedy, a former Republican candidate for Congress. "This is a Supreme Court that favors government over individuals, and I find that very troubling."

When it comes to ACLU fundraising, Kennedy said, donors to the nonprofit pay little attention to big-case losses because they support the broader mission of the group to challenge government intrusions on individual rights.

Federal courts are less protective of civil rights than in years past, but civil-liberties groups still need to litigate good-faith claims to test laws, said Ivan Bodensteiner, a constitutional law expert at the Valparaiso University School of Law. If lawyers want only to win cases, they won't bring many.

Posted by Marcia Oddi on April 30, 2008 08:32 AM
Posted to Indiana Law