A Citizen's Guide to Indiana

Masson's Blog

HB 1010 – Eminent domain

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HB 1010, the eminent domain bill passed as a reaction to Kelo took an awfully long time to pass, but they finally got it done. I didn’t read it especially closely, but it looks to be a bit watered down from the original language. It imposes more burdensome procedures but allows eminent domain to be exercised by government entities and private persons if they are utilities. It also allows the department of transportation to seize private property for the benefit of a private entity so long as the benefit is in the term of lease (no time limits on the lease). It also allows seizure of private property for the benefit of another private entity if the property seized is run down and the seizure serves a public purpose beyond increasing the tax base. The government is required to give a windfall to the owner of the run down property in the amount of 125% of the market value in the case of agricultural land and 150% of the market value in the case of owner-occupied residences. Attorneys fees are permitted up to $25,000 for the property owner if they get a judgment above what the condemnor offered for the property.

This was a pretty casual review, so you’d probably want to take a look at the statute if you have any serious interest in the bill.

Pi Day

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Today, 3-14, is Pi Day. I have missed the preferred time of celebration of the “mathematical mystery” – 1:59.

For Hoosiers, there is no better way to celebrate pi than to consider what might have been. In 1897, the House passed HB 246-1897:

A Bill for an act introducing a new mathematical truth and offered as a contribution to education to be used only by the State of Indiana free of cost by paying any royalties whatever on the same, provided it is accepted and adopted by the official action of the Legislature of 1897.

Basically, the House of Representatives was seeking to legislate the value of pi. Among other things, the bill specified that “the ratio of the diameter and circumference is as five-fourths to four” which is to say “5/4 divided by 4”, which is to say “3.2.” After the House passed the bill 67 to 0, it was referred to the Senate Committee on Temperance which reported it favorably to the full Senate. Fortunately, Purdue mathematics professor Clarence Abiathar Waldo was in town lobbying the the legislature and was able to explain the bill to members of the Senate and that it was incorrect. Like all truly fun bills, this one died in the Senate when Senator Hubbell moved to postpone consideration of the bill indefinitely. Senator Hubbell was quoted as saying, “the Senate might as well try to legislate water to run up hill as to establish mathematical truth by law.”

Of course, we should not laugh too much at the benighted souls of the 19th century. We have our own band of unreflective legislators and constituents who would seek to legislate medical truths (also see here) by law.

But I digress. For more information on Indiana’s Pi legislation, check out this page, from everybody’s favorite economist, Larry DeBoer.

Justice O’Connor: Independent judiciary as bulwark against dictatorship

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I’m not going to suggest Justice O’Connor takes her talking points from Masson’s blog, but apparently we see eye-to-eye on a couple of things. Take my April 9, 2005 post entitled “Judicial Tyranny:”

I’m getting sick of ignorant, arrogant nutjobs, some of whom unfortunately seem to be in national GOP leadership positions, trying to erode the rule of law. In case they haven’t noticed, an independent judiciary and the depth of the common law is the soil in which our Democracy grows. Or maybe that’s the point, I don’t know. You’ve got Senator Cornyn (R-Texas) suggesting that maybe that rapist in Atlanta who shot his way out of a court room was doing it because of “activist judges”. You’ve got Tom DeLay and Rick Santorum lying about the Schiavo law they passed; wrongheaded as it was, it wasn’t as far reaching as they seemed to suggest, and talking about “judicial tyranny” when the Florida District Court judge followed the law and applied the accepted rules for issuing a preliminary injunction.

That post also had some quotes from a conference entitled “Confronting the Judicial War on Faith” featuring conservative luminary, Phyllis Schlafly and lawyer-author Edwin Viera who attacked Justice Kennedy and recommended his impeachment. Viera went so far as to quote approvingly from Joseph Stalin who said, “no man, no problem,” the full quote being “Death solves all problems: no man, no problem.”

A couple of days ago, Justice O’Connor gave a blistering speech at Georgetown University that criticized the actions of DeLay and Cornyn without naming them specifically. The link above is to Raw Story’s transcript of a Nina Totenberg NPR report.

The nation’s founders wrote repeatedly, she said, that without an independent judiciary to protect individual rights from the other branches of government those rights and privileges would amount to nothing. But, said O’Connor, as the founding fathers knew statutes and constitutions don’t protect judicial independence, people do.

And then she took aim at former House GOP leader Tom DeLay. She didn’t name him, but she quoted his attacks on the courts at a meeting of the conservative Christian group Justice Sunday last year when DeLay took out after the courts for rulings on abortions, prayer and the Terri Schiavo case. This, said O’Connor, was after the federal courts had applied Congress’ onetime only statute about Schiavo as it was written. Not, said O’Connor, as the congressman might have wished it were written. This response to this flagrant display of judicial restraint, said O’Connor, her voice dripping with sarcasm, was that the congressman blasted the courts.

It gets worse, she said, noting that death threats against judges are increasing. It doesn’t help, she said, when a high-profile senator suggests there may be a connection between violence against judges and decisions that the senator disagrees with. She didn’t name him, but it was Texas senator John Cornyn who made that statement, after a Georgia judge was murdered in the courtroom and the family of a federal judge in Illinois murdered in the judge’s home. O’Connor observed that there have been a lot of suggestions lately for so-called judicial reforms, recommendations for the massive impeachment of judges, stripping the courts of jurisdiction and cutting judicial budgets to punish offending judges. Any of these might be debatable, she said, as long as they are not retaliation for decisions that political leaders disagree with.

“I,” said O’Connor, “am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings.”

Obviously we have a recent homegrown version of this kind of hostility to judicial independence. As I mentioned in a February 21, 2006 post, Rep. Sodrel introduced H.R. 4776 toward the end of February which would strip federal courts of jurisdiction to remedy Constitutional violations committed by state governments through government speech. Sodrel’s co-authors on his bill include Indiana Republican Representatives Burton, Buyer, Hostettler, Souder, and Pence (but not, apparently, Rep. Chocola). The bill was introduced in retaliation (called a legislative temper tantrum by the Fort Wayne Journal Gazette) for a federal judge’s decision that state sponsored sectarian Christian prayer violated the First Amendment as it has been interpreted by the United States Supreme Court.

Justice O’Connor is reminding us that our legislators are tampering with the foundations of the Republic when they seek short-term policy gain by undermining the independence of our judiciary.

PORK!

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Niki Kelly, writing for the Fort Wayne Journal Gazette, has a story reporting that key House and Senate Republicans have crafted a compromise on the Indiana Toll Road privatization bill they believe can win final approval in both chambers. The key seems to be giving everybody what they want and pork, lots of it.

The reported compromise commits $4.23 billion of the $3.85 billion payout. State budget director Chuck Schalliol says we’ll make up the difference through interest. He figures we can still cover the first 8 or 9 years of the state’s 10 year road plan, maybe all ten if we stretch.

Northern Indiana counties get a pile of money. The state picks up the tab on a toll freeze until the electronic tolling is enabled. After that motorists can get an electronic toll road pass that provides a 40% discount on tolls. On I-69, the Governor would have to get legislative approval only if he wanted to route I-69 through Perry Township in Marion County and if he wanted to impose tolls north of Martinsville. If the interstate routes around Perry Township and imposes tolls only between Evansville and Martinsville, he can sell a toll road concession without further approval.

So everybody wins. Except, of course, for the motorists of northern Indiana. And their Senators and Representatives in northern Indiana  if they defy the will of their constituents and pass this unpopular bill at the insistence of the Governor who is basically radioactive in northern Indiana. And, pretty much all Hoosiers who live here for the last 65 years of the 75 year lease. So, almost everybody.

More on Pulaski time wars

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WSBT is reporting that Pulaski will continue with its plans to go renegade and observe Eastern Time despite placement by the USDOT in Central time. I’m paraphrasing of course. The WSBT story is short, so I’ll post it below:

Pulaski County says it will continue with its plans to make Eastern
Time the official time in the county. The federal government says it is
reviewing the county’s request to be put on Eastern time, not Central.

But
it says the county’s plans would be a violation of federal law. The
county says the intent wasn’t to defy the federal government, but to
make things easier for citizens.

County leaders do say federal
offices, such as the post office, will have to run on Central Time in April and the May Primary Election in the county will be run on Central
Time.

Hey, if Governor Daniels can break the law by opposing St. Joseph County’s petition to be on Central Time when the State was required to support such a petition, I guess Pulaski County can follow his scofflaw example.

EHB 1158: Service of process fee

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EHB 1158 does several things, but the only one I am concerned with at the moment is the amendment to IC 33-37-5-15. It states:

The sheriff shall collect a service of process fee of thirteen dollars ($13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.


The first thing this is going to do is to cost courts a lot more in the form of certified mail costs. IC 33-37-3-6 provides:

Court costs fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.

So, as a plaintiff’s attorney, it is in my client’s best interest for me to serve by certified mail anything that is able to be served that way.

The next thing it is going to do is raise the question of whether a plaintiff is the “requesting party” when a court finds a defendant in contempt of court for failing to appear for a hearing by virtue of the fact that it was the plaintiff that requested the defendant’s appearance. My guess is that the answer is “yes” and, consequently, there will be fewer consequences for failing to obey a court’s order to appear because it will be too expensive for plaintiffs requesting a defendant’s appearance.

Obesity

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The General Assembly has a lot on its plate this session with respect to obesity.

  • HB 1113 concerning liability connected with consumptionof food and beverages has been passed by the House and Senate. It grants immunity to pretty much everyone in the food and beverage industry from civil suits from a claim concerning “generally known conditions allegedly caused by or likely to result from the long term consumption of food or beverages.” It also provides immunity for claims concerning weight gain, obesity, or a health condition associated with weight gain or obesity.

    Immunity does not apply if the claim alleges adulteration or misbranding of food or beverage if the adulteration or misbranding relates to a labeling or purity requirement under state or federal law.

    Personally, I would have also made an exception to the immunity if the defendant knowingly or intentionally made misrepresentations concerning the health effects of the food or beverage. If everybody knows the food is junk and the manufacturer or restaurant is either saying that it’s junk or saying nothing at all, then I can pretty much agree that you make your own decisions and ought to live with them. But if the manufacturer or restaurant is touting the food or beverage as healthy, then there ought to be consequences if it is not.

    Also, I think I would have been inclined to condition immunity for foods or beverages that have been “spiked” with extra salt or sugar or the like to make them more habit forming. I would have conditioned the immunity on the manufacturer or seller labeling the product as having the extra ingredient added with a warning that the ingredient may make the product more habit forming.

    Holding consumers responsible for their consumption is entirely appropriate, but only if they are being given accurate information and, probably more importantly, the immune party is not permitted to put out disinformation. Otherwise, I figure you let a jury sort it out.

  • SB 266 concerns bariatric surgery. The bill absolves a physician of his or her duty to monitor a bariatric surgery patient for five years if the physician is unable to locate the patient after a reasonable effort. Prior to performing the surgery, the physician must discuss with the patient the requirements to qualify for the surgery, the details of the surgery, and the possible complications and side effects of the surgery, including lifestyle changes and dietary protocols. The bill also requires six months of supervised nonsurgical treatment before health insurance or a health maintenance organization must cover surgical treatment for morbid obesity.
  • SB 111 Student nutrition and safety. It requires a school board to set up an advisory committee to make recommendations on a local “wellness policy” for the school corporation. The school board is supposed to take the recommendations into account when it develops a policy on child nutrition and physical activity. Sounds like a lot of bureaucratic hoo-ha to me, but maybe it’s a start. No regulations are placed on sale of junk food after school hours or as part of a school lunch or breakfast program unless it is sold as part of an a la carte line, not part of a federal program. Junk food and beverages are permitted to be sold during school hours but they can only make up 50% of the available choices. The remaining choices must qualify as “better choice foods.” Basically fruit juices, water, milk, and isotonic sports drinks qualify for the beverages and foods with less than 30% of calories from fat and less than 35% of weight from artificial sugars. No vending machines of food or beverages are permitted at elementary schools.

    • Indy Star on Open Records and Predatory Lending

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    The Indy Star has a good editorial today that traces the case of one businessman’s campaign contributions to show the value of the open records law. Specifically, it traces the $17,000 spread out among key Republicans and Democrats over a three month period by Rod Aycox, whose business is Loan Max which engages in “a segment of the consumer finance sector called title lending, often described as predatory lending by consumer activists.”

    The editorial traces SB 383 which would have been of great benefit to Loan Max and its defeat, for this session, 24 to 25 in the Senate.

    IBJ on difficulties preparing for DST

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    The Indiana Business Journal has a story on the problems Indiana businesses are having with switching their computers so they all are prepared for Indiana observing Daylight Saving Time.

    Appointment calendars in some of these popular applications are programmed to automatically reschedule appointments set prior to April 2 for an hour later after the time changes. So for example, a 9 a.m. appointment you schedule this month for April 18 will show up on the Outlook calendar as 10 a.m. when the big day rolls around.

    Business deals dashed. Careers ruined. Expect a run on job applications at Wal-Mart.

    “There’s going to be a lot of companies hurting on April 2,” said Marc Cornejo, the top tech at Indianapolis logistics firm Langham. “… It took five years to fix Y2K and for a lot of companies this is almost as bad.”

    And unlike the furor over possible computer glitches at the turn of the century, relatively few companies are aware of the computer issues that will surface only a few weeks from now.

    It’s not as if this was unforseen, however. As one universally beloved blogger said on April 12, 2005:

    [A] Star Editorial approving DST says that DST is an “important push” for Indiana’s economy. (Though I haven’t yet heard an explanation of why these big businesses can keep track of time in Japan –which doesn’t follow DST– but not Indiana. Also I haven’t heard why out of state businesses simply can’t relocate here because of the burden of changing their business systems whereas thousands of Hoosier businesses can change their business systems in 2 months, no problem. As I’ve said before, it’s primarily a sign of disrespect from those in other states — they simply don’t care enough to remember Indiana’s time and a sign of low self-esteem on the part of proponents in that they see Hoosier uniqueness as badges of inferiority rather than simply as differences or sources of pride.)

    Or on April 17, 2005:

    Proponents have loudly proclaimed the economic and business advantages of being on DST. But, despite the proclamations, there doesn’t seem to be a lot data supporting this proposition. For the most part from what I’ve heard, it seems like business leaders get teased by their colleagues in other states, and that has as much to do with it as the cost of revamping business systems. (After all, if this passes, thousands of Indiana businesses will have to revamp their systems, and the legislature doesn’t seem to be giving that expense, which they would be mandating, a second thought.)