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COA Maintains That Belatedly Filed Records Result In Dismissal

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COA Maintains That Belatedly Filed Records Result In Dismissal

Olivia Covington for www.theindianalawyer.com

The Indiana Court of Appeals has reversed an Allen Superior Court decision after finding that the trial court erred when it did not dismiss a case despite the fact that the record was not filed in a timely manner.

The case of Allen County Plan Commission, et al. v. Olde Canal Place Association, et al., 02A03-1412-PL-441, began in June 2014, when MRK II LLC filed a petition to rezone a parcel of property from commercial to residential and an application for approval of a development plan for a multi-family residential complex on the property. The Allen County Plan Commission approved the applications that July.

The following month, the Olde Canal Place Association filed a petition for judicial review challenging the commission’s approval of the applications, then requested an extension of time to file the record. However, OCPA had not filed the record by Nov. 21, prompting MRK to file a motion to dismiss. OCPA subsequently filed the record a few days later and also filed the affidavit of its attorney, Robert Westfall, who claimed he “mistakenly thought that because the … commission would be preparing the record internally, it would also file same with the court.”

The Allen Superior Court granted MRK’s motion to dismiss in December, but OCPA asked for the dismissal to be set aside on the basis that its failure to timely file was the result of a mistake and that it had a meritorious claim because it believed the commission’s decision regarding MRK’s applications was arbitrary, capricious and not supported by substantial evidence.

The trial court granted the motion to set the dismissal aside, and MRK appealed, arguing that the trial court abused its discretion under Trial Rule 60(B) when it granted OCPA’s motion for relief from judgment. Further, MRK argued that OCPA was unable to establish a meritorious claim because it cannot belatedly file the record and because the absence of the record automatically dismisses its petition for judicial review.

A panel of the Indiana Court of Appeals agreed Tuesday, pointing to Indiana Supreme Court precedent and its own precedent that calls for the dismissal of a case if a record is not filed on time.

“Because OCPA is not permitted to belatedly file the record, the record is not, and it will never be, properly before the trial court,” the Court of Appeals wrote. “Without the record, OCPA’s petition cannot be considered.”

The appellate court reversed and remanded the case with instructions to vacate the trial court’s judgment setting aside its dismissal of OCPA’s petition for judicial review.

 

USI Looks To Find Right Track On The Road

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USI Looks To Find Right Track On The Road

The University of Southern Indiana women’s soccer team returns to the road this weekend looking to get back on track in the Great Lakes Valley Conference. USI (7-6-0, 4-6-0 GLVC), which starts the week ninth in the GLVC, travels to Drury University (4-7-1, 2-7-1 GLVC) Friday at 5 p.m. and to Missouri University of Science & Technology (2-8-0, 2-7-0 GLVC) Sunday at noon.

Live coverage of USI’s two-match road weekend, including live statistics for both matches and a video link for Friday’s match, can be found on GoUSIEagles.com.

Week 7 Eagle Notes:

Last weekend: The Eagles stumbled at home last weekend, losing a heartbreaker to William Jewell College in double-overtime, 1-0, and a rough match to Rockhurst University, 4-0. The losses dropped the Eagles out of the top eight in the GLVC.

Redemption weekend: With five matches left in the regular season, USI needs to have a good road trip to keep its chances for a berth in the GLVC Tournament alive. The Eagles start the week percentage points away behind eighth-place University of Illinois Springfield and a half-game behind seventh-place Lewis University.

Leading scorers: The Eagles have scored 23 goals through 11 matches this fall, flying by the 19 scored during entirety of the 2015 campaign. Senior forward Gabriella Korte (St. Louis, Missouri) tops the USI scoring leaders with 11 points on a team-high four goals and three assists, while sophomore defenderOlivia Wilde (Racine, Wisconsin) follows with 10 points on four goals and two assists.

Game winners: Sophomore forward Ryley Hancock (Evansville, Indiana) took over the team lead in game-winning goals with her third in the victory over Saint Joseph’s. Hancock’s three game-winning goals are followed by senior forward Gabriella Korte’s two.

This week’s opponents in the GLVC: While the Eagles were picked to finish 13th in the GLVC this fall, Drury was forecast to finish sixth and Missouri S&T was voted 15th by the league’s head coaches.

USI searching to get on track against Drury: The Eagles have lost the last three to the Panthers and trail in the all-time series, 8-3-0. The last USI win over Drury was in 2012 on the road in Springfield, Missouri.

USI looks to stay on track versus Missouri S&T: USI looks to stay on track against Missouri S&T, winning six of the last seven match ups and leading the all-time series, 9-4-0. The Eagles took last season’s match, 2-0, at Strassweg Field and have won two of the last three meetings in Rolla, Missouri.

COUNCIL APPROVES BUDGET BY PASSING $10 MILLION WORTH OF HEALTHCARE BILLS TO 2017

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COUNCIL APPROVES BUDGET BY PASSING $10 MILLION WORTH OF HEALTHCARE BILLS TO 2017 

AFTER THEY TRANSFERRED $10 MILLION IN HEALTHCARE LIABILITIES THEY DECLARED THAT THE 2017 BUDGET IS BALANCED 

On Monday, October 10th The Evansville City Council passed the $336 million 2017 budget proposed by the Winnecke Administration with much opposition from the public. Room 301 of the Civic Center was once again packed beyond fire code, with several members of the public pushed out into the hallway and into the overflow room where they could watch and listen to the meeting.

The nearly 5-hour meeting exhibited a gross display of bureaucrats vs. pee-ons. The public voiced their opinions loudly over the course of the entire budget process, but the agenda of the elite rolled right over the people despite their best effort.

Non-profit groups such as CAJE (Congregations Acting for Justice and Empowerment), along with the Evansville Police Department and the Evansville Fire Department filled the building in disapproval of the proposed budget which would cut non-profit funding by 50% and increase insurance payments for the EPD and EFD by an guesstimated range of 100% to 300%.

Michael Sides. President of the FOP requested that the vote be delayed as they had just gotten their information a couple of hours before the meeting, and had not yet had a chance to meet on the topic. Dan McGinn said that no one was interested in delaying the vote. Council President Missy Mosby defended the Council in a statement claiming, “We worked our tail-ends off on this. We got these family plan numbers down as much as they are. It’s almost a 50% deduction from first proposal.” But the crowd murmured in disappointment as someone cried out that it is still an increase in payments.

Adam Bigge stated that it was still at least a 160% for him. He went on to say that the first responders are at greater health risk in this city than nearly anyone else. He said that he had a 68% chance of developing cancer due to his job. He went on to explain about a fellow firefighter, Brian Webber, who had a ceiling fell in on him in a fire and now has a device in his spine that helps him manage the pain. He said, “What happened to him could have happened to anyone in this room, well these guys (as he pointed to the crowd behind him), but not you (addressing the Council). You do have an option… say No to this insurance proposal. We will continue to do our jobs. If u don’t do your jobs, you’re going to start losing a lot of people.”

James Cohen II of the EFD stated, “I came on with three other guys, and I’m the only one left. They all left for jobs with better benefits and you’re trying to decrease our benefits even more. The people leaving these jobs are leaving from the top. These are the best and most experienced, but we are having to hire the least experienced people to take their spots.”

Stanley Michael Ford, retired EPD, said that he was on the force for 33 years and that his deductible, with the new plan, has increased by 100%. He stated that his annual out of pocket expense is now increased by 400%. He also said “George Fithian is not telling you the whole story.” To that the crowd erupted. He also spoke out saying, that they didn’t receive their letters from Fithian until October 5th while the first meeting was scheduled for October 6th. He stated that there was no date stamp on the letter, and that Fithian was simply “trying to pull a fast one on us.”

Several other first responders voiced their concerns at the podium, but all seemed to fall on deaf ears as the Council voted in opposition to the wishes of their constituents.

The city, trying to cover its own financial issues, was trying to find ways to pay for the astronomical healthcare costs of 2016 that ranges more than $24 million with an expected $10 million more in claims by the end of the year. With all of these budget cuts, it was the people that took the brunt of poor money management by the current administration.

Dan McGinn said, “We are just going to have to make some tough decisions. According to my calculations we would have to fire about four people in order to cover the debt. Do we fire four people? Do we fire four police officers or firemen? (He motioned toward the Council members) Or four of these people who are here for every meeting? I don’t want to do it. I don’t want to be the one to make that call.” A shout from the public rang out, “I pick the Mayor!” Another eruption of agreement come from the crowd.
In the midst of the budget cuts Computer Services expenses were determined to be paid by the Riverboat Fund, transferring $2.8 million in an attempt to whittle down the massive debt. The Council continued to make numerous cuts in various departments to make up for the huge loss.

But somehow, the Evansville City Council was still able to fund a $5 million project with Mesker Zoo. The penguin exhibit was approved with a 5-4 vote. The city would be responsible for half of the project at around $2.5 million and an initial investment of $660,000. While the zoo had no money to match the initial investment, the city was happy to oblige by picking up the tab.

Nevertheless, the city just couldn’t seem to find enough funding to lower the health insurance payments of the first responders who left absolutely disgusted by the votes of the Council. One officer groaned as he threw his hands up in the air, and walked out of the room, shaking his head in disbelief. Bottom line: The Council voted for the penguins, but against public safety.

The Homestead Tax Credit was attacked last. Homeowners received tax breaks from between 6% to 8% in years past, and Dan McGinn stated that he wants to do away with the Tax Credit. Connie Robinson stood up for the impoverished, but it seemed that most of the rest of the Council was completely out of touch with the struggles of the lowest tax bracket as Michelle Mercer stated that if the people can’t afford this small of an increase, then they can’t afford the homes they live in. Robinson about fell out of her chair.

No one seemed to factor in that the sewer costs are going up. Water costs are going up. Water hook-up costs are going up. Utility costs are going up. Insurance payments for the city employees are going up. Pay increases are virtually non-existent. And now homeowners are losing their tax break on top of it all. Ultimately, the tax-payers are getting the worst end of this deal, and most of the bureaucrats are either out of touch, or they simply do not care about their constituents.

At the end of the nearly 5-hour meeting, the budget was approved with a 6-3 vote, opposed only by Justin Elspers, Connie Robinson, and Dan Adams.

Dan McGinn and Missy Mosby both stated that we can’t just keep pushing this debt down the road into the next year, but that is exactly what they both voted in favor of doing… to the tune of $10 million in debt to start the 2017 year.

OCTOBER 11, 2016 “READERS FORUM”

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WHATS ON YOUR MIND TODAY?

Todays READERS POLL question is: WHO DO YOU FEEL IS THE MOST EFFECTIVE MEMBER OF EVANSVILLE CITY COUNCIL?

Please take time and read our newest feature articles entitled “BIRTHDAYS, HOT JOBS” and “LOCAL SPORTS” posted in our sections.

If you would like to advertise in the CCO please contact us City-County Observer@live.com.

City County Observer has been serving our community for 15 years.

Copyright 2015 City County Observer. All rights reserved. This material may not be published, broadcast, rewritten or redistribute.

CHANNEL 44 NEWS

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Mesker Park Zoo Gets 900K for Maintenance Needs

 The future of Mesker Park Zoo is a little more certain after discussion at Monday night’s Evansville city council meeting.

During the budget debate, two amendments were voted on regarding the funding of the penguin exhibit design project. The first amendment proposed would have completely defunded the design part of the project on the part of the city cutting $660,000 from the bottom line. The amendment failed.

Another amendment would have cut the same project by fifty percent. It also failed.

Mesker Park Zoo is at risk of losing its accreditation if maintenance projects are not completed. This would also mean the zoo would lose animals.

The council voted to give $900,000 to fund those maintenance needs.

City Council Cuts Non-Profit Funding by 50 Percent

 The Evansville budget debate put non-profit funding back on the chopping block.

There was concern on the part of local non-profit leadership more cuts would be coming their way. That fear was realized Monday night.

The city council voted 5 to 4 in favor of reducing funding to non-profits by fifty percent. That totals $121,000.

The amendment does not include two non-profits. Bridgelink is the lobbying group for the I-69 bridge. It will still get $11,000. The United Neighborhoods of Evansville will also not see cuts.

The Winnecke administration is not in favor of the cuts.

Many board members made it clear that in the future they do not want the city giving any funds to non-profits

Tri-State Nursing Home to be Assessed for Possible Violations

 More than a dozen nursing homes are hit with violations after Illinois state officials discover conditions that may have resulted in deaths. One of those in the Tri-State.

Those violations came down from the Illinois Department of Public Health.

The Way-Fair Nursing and Rehabilitation Center in Fairfield has been assessed a Double-A violation of the Nursing Home Care Act.

That means there was a condition or occurrence that may have caused a resident’s death.

In this case, the violation resulted in a $50,000 fine against the facility.

The Department of Public Health says the facility did not report a change in condition for two residents who were tube-fed.

A pre-hearing is set for November 2nd.

IVY TECH-Evansville IU Medical School Project Wasn’t Included In Funding Request

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IVY TECH-Evansville IU Medical School Project Wasn’t Included In Funding Request

IT’S TIME FOR THE COMMUNITY RALLY AROUND IVY TECH-EVANSVILLE

Last week one of our contacts within Indiana Commission for Higher Education gave us an update on the status of the funding request by Ivy Tech-Evansville to be part of the IU Medical School-Evansville capital project.

We were told that the President of Ivy Tech Dr. Sue Ellsperman’s formal capital budget request did not include a funding request for Ivy Tech locating medical classes on the campus of the new IU Medical facility in Evansville for the upcoming Biennium. (2 years). The Commission for Higher Education will vote to support the funding of the following Ivy Tech priority list of capital projects statewide during the next Biennium (2 years. They are the following: Kokomo, Gary, Columbus, Ft. Wayne and Sellersburg.

Ivy Tech Community College Capital Projects in Gary

Indiana University Northwest and Ivy Tech Community College in Gary held symbolic groundbreaking ceremonies Thursday for a new classroom facility, although local officials said the benefits will extend far beyond the college campuses.

Ivy Tech Community College’s Capital Projects In Kokomo

Campus upgrades welcomed local college students to the spring semester as Indiana University Kokomo continues renovations on its main building and Ivy Tech Community College’s Kokomo campus unveiled a new library.

The second phase of a $14 million renovation of IU Kokomo’s main building is nearly complete, with 11 new classrooms, labs and tutoring space already open for students to use. Other new features include gathering spaces with chairs, sofas and tables; a video production room; math resource center; and nutrition lab, with five fully-stocked kitchens and a computer screen so students can watch an instructor prepare food. Ivy Tech seeks $17.4 million for upgrade plan to create student services mall on campus.

Ivy Tech Community College Capital Project For Fort Wayne

Ivy Tech officials Monday unveiled plans for a $17.4 million building renovation that would create what amounts to a student services mall on its north campus in Fort Wayne.

Harshen Hall, built in 1965 as a children’s hospital on the grounds of the Fort Wayne State Developmental Center, would get the upgrades – if the Indiana Commission for Higher Education votes to send the project on to funding from the legislature, officials said before board members and guests toured the facility, described to them as mazelike and outdated. Ivy Tech’s chancellor for the Northeast Region, Jerrilee Mosier, said the project is fourth on the funding priority list submitted to the commission by Ivy Tech campuses statewide. Campus officials said they’ve been working on getting on that list for five or six years, but this is the first time they’ve been successful.

Ivy Tech Community College Capital Project For Columbus Campus

A $20.4 million renovation and addition on the Columbus campus ranks just ahead of Fort Wayne’s project

Ivy Tech Community College Capital Project For Sellerburg Campus

$14.8 million health-care building on the Sellersburg campus came in at No. 5.

Ivy Tech-Evansville request to build A medical educational classroom wing on the campus of the New I U Medical complex was not included.

FOOTNOTE: There is a report that only these top 5 projects will be approved by the Indiana Commission for Higher Learning and recommended to the legislature for funding. After recommendations are made, a final budget bill will be prepared by the legislature for the 2017 budget year discussions and adoption.

We urge our readers and supporters of Ivy Tech to immediately contact members of the Evansville City Council, the Mayors office, members of our local Legislative delegation and Governor’s office to urge them to contact the powers that be to include Ivy Tech-Evansville funding request to build a medical classroom at the new I U Medical School complex located in Downtown Evansville.

When Mayor Winnecke, I U Board President Pat Shoulders, members of City Council, members our local State Legislature, Chamber of Commence, CEO”S at our local Hospitals, local Trade Unions, main stream media, average citizens, leaders at U of E, Ivy Tech and USI pushed to have the I U Medical School complex approved by the State, they told us that Ivy Tech Medical students will be the key to the success of the new I U Medical School complex because they will bring around 1,500 medical students to the educational complex.

The above organizations, individuals, elected officials and community leaders also told us by including Ivy Tech students in this project it would be a big economic boost to downtown housing, entertainment and dinning demands because of the projected influx of 1,500 Ivy Tech students.

This an obvious developing story and we look forward to see how the movers and shakers of this community will come together and correct this insulting budget oversight. Its time that we take an active and aggressive stand so that we can insure that the outstanding Ivy Tech students enrolled in the Medical program will be included in the plan to located in a new educational wing at the IU Medical School Complex.

Bottom line, students at Ivy Tech are not second class citizens but highly motived and focus individuals and deserve to be taught at a first class facility located on the new campus at the I U Medical School complex Downtown Evansville!

City of Elkhart, Martinsville Police Facing Lawsuits After Deleting Facebook Posts

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City of Elkhart, Martinsville Police Facing Lawsuits After Deleting Facebook Posts

Olivia Covington for www.theindianalawyer.com

After preventing local residents from commenting on their official Facebook pages, the city of Elkhart and the Martinsville Police Department are being sued for alleged violations of citizens’ First Amendment rights.

The ACLU of Indiana filed lawsuits against the two municipal entities Friday on behalf of Richard Wolf, Elkhart, and Carole Bare, formerly of Martinsville, after they were blocked from the Elkhart city and Martinsville police Facebook pages last year.

Wolf, who the ACLU described Friday as an advocate for people with disabilities, was blocked from the city of Elkhart’s Facebook page in 2015 after he posted concerns on the page about perceived violations of the American with Disabilities Act at the Lerner Theatre in Elkhart. Specifically, Wolf accused the theater of not having enough accessible parking for disabled customers. According to a Friday release from the ACLU, Wolf’s comments were removed and he was blocked from posting on the Facebook page.

Similarly, Bare, who now lives in Sullivan, posted criticism of the Martinsville Police Department on the department’s Facebook page last fall and was subsequently blocked from posting additional comments on the page. Her original post was also removed, according to the ACLU.

In the suits, which were filed in U.S. District Court for the Northern District of Indiana, South Bend division against Elkhart and in the Southern District of Indiana, Indianapolis division against the city of Martinsville, Wolf and Bare contend that blocking them from posting on government-run social media is censorship and is in violation of their First Amendment rights to free speech.

“When a government entity opens up a space for public comment, it cannot regulate those comments based upon someone’s viewpoint,” Jan Mensz, ACLU of Indiana staff attorney said in a Friday statement. “A citizen’s right to criticize their government is at the heart of what the First Amendment is meant to protect, and the municipalities, in these cases, violated that right.”

The ACLU previously filed a similar lawsuit on behalf of Kymberly Quick and Deborah Mays-Miller, two Beech Grove residents whose Facebook posts that were critical of Beech Grove and its police department were taken down. The city eventually settled that suit, with each of the plaintiffs receiving nearly $7,500 each in costs and attorney fees.

Vlado Vranjes, corporation counsel for the city of Elkhart, said Monday that he was aware of the filing, but that the city had not yet been served with the suit. Once Vranjes is able to review the suit, the city will file a response, he said.

Martinsville Police Chief Matt Long, who was sworn in as chief in late September, said he was not aware of the suit. Long said he was familiar with Bare, but had not heard anything about the 2015 Facebook incident involving her since he became chief. Martinsville city attorney Dale Coffey also said he had not seen the suit as of noon Monday.

The cases are Richard Wolf v. City of Elkhart, Indiana, 3:16-cv-00690, and Carol Bare v. City of Martinsville, Indiana, 1:16-cv-2683.

This Isn’t Funny Anymore By Andrew Horning

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Freedom, IN – We’ve always joked about dead people voting; even when my own campaign team actually proved election fraud in 2004 (several media outlets outside Indiana picked up the story – the Wall Street Journal and Chicago Tribune, for example). Maybe there was some sick humor in that CIA-backed forces and less-covert USA-backed forces are fighting each other in Syria; or that we’re taking opposite sides in all conflicts in Turkey, Syria, and Iraq. Maybe it was dark irony that TE Lawrence warned us about backing the Saudis and fighting everybody else at once.

But now that China passed anti-terrorism legislation that may involve them with Russians against us in Syria, let’s please stop and think.

A dozen US Presidents, starting with our very first, warned us about the entrenchment of crony factions. Several warned us about what Eisenhower called “The Military Industrial Complex” and it’s central banking enablers. General Smedley Butler called it a “racket” a hundred years ago…before the militarization had reached our own streets here at home.

We have no excuses.

WWIII is entirely possible because the corrupt, fear-aggression-syndrome crime ring we call government has flown totally off the rails of law, morality, economics and sanity. And that has been by our own choice. We cannot blame the politicians that we reelect for their service to evil after their first reelection. And over 90% do get reelected, when the lot of them should be fired.

That’s the whole point of Election Day, you know. It’s not to hire people. It’s to fire them..

I’ve sent out dozens of press releases on serious subjects proposing radical changes to reverse our flight off the cliff, and toward peace, prosperity, security and freedom. Only three media outlets have printed or in any way covered my proposals.

I’ve run for office many times; but this is my first candidacy for any office for which there is no debate, no discussion of important topics, no serious job interviews, and the status quo is so obviously promoted by most mainstream media without so much as a tinge of skepticism or curiosity.
I’m disgusted and appalled at our obvious incurious, numb inertia, and tacit approval of destructive corruption, theft and violence up to the edge of catastrophe – societal, economic and military.

Shame, shame shame.

 

Liberty …or Bust

Andrew Horning

SUFFERING FROM ELECTION STRESS DISORDER

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SUFFERING FROM ELECTION STRESS DISORDER

By Tom Purcell

“Five more weeks before the election. I’m not sure I can survive that long.”
“Ah, yes, you speak of an interesting phenomenon this election cycle, ‘election stress disorder,’ as some therapists refer to it. According to several news reports, our cantankerous election is causing increased irritability, heart palpitations and an inability to sleep in more than a quarter of American adults.”
“You got that right. Trump has been saying nasty things for months. He says Hillary is a corrupt politician and should be in the slammer. Meanwhile, Hillary has accused Trump of being a racist, a sexist and unfit for the presidency.”
“

To be sure, this election has not been for the faint of heart. But its nastiness is being exacerbated by 24-hour news channels and social media. The vitriol among ‘friends’ on Facebook has reached a fever pitch. Strangers are arguing at restaurants and coffee shops. But Yahoo News offers some tips to deal with the problem.”
“Go to the liquor store and stock up on hooch?”
“

Actually, the first obvious step is to do what you can to limit your exposure to the noise. One therapist suggests that you turn off cable news and stop checking what your friends are posting on Facebook and Twitter. Go out and do some volunteer work.”

“I’ve been doing volunteer work, all right. Me and the boys from the local pub have been removing unpleasant political signs from our neighbors’ front yards.”
“

That’s a bad idea. The right idea, according to the Anxiety and Depression Association of America, is to exercise. It will release endorphins, which are chemicals in the brain that act as natural painkillers and will help you sleep better. You need to get to the gym and do some cardio.”

“I tried doing cardio at the gym, but some jerk on the treadmill next to me changed the TV to a news channel that spewed a bunch of lies about my political party. We were exchanging a few choice words until another jerk called the cops.”

“You need to chill, my friend. The therapist said that adjusting one’s tone of voice is something we all could work on. If we must debate the election, we need to be more positive and less judgmental. We shouldn’t carry on like emotional adolescents but as reasonable, thoughtful adults.”
“I don’t argue like an immature teen, you dirty rotten moron!”
“

The therapist suggests that we be more introspective. If we become angry and emotional about something a candidate says, is it his or her politics that are setting us off or is it something deeper down that is really bothering us? Maybe the source of our anger is that our job isn’t going as well as we’d like or that we’re experiencing some other unpleasant issue in our lives. By chilling out and thinking things through, maybe this political season isn’t bothering us as much as we think it is.”
“

My job isn’t going well because my boss is voting for a moron for president!”
“Here’s another tip from the therapist. We’d be better off focusing on the areas in which we and others agree, rather than the areas where we disagree. And we ought to stop taking politics so personally when a friend or neighbor does disagree. The fact is we’re not likely to change anyone’s mind and he or she is not likely to change ours. So chill.”

“I’ll try. But I sure can’t wait until the next five weeks pass and this lousy election is finally over.”