A Citizen's Guide to Indiana

Masson's Blog

In the name of compromise, lawmakers recklessly allow the continued threat of self-service liquor displays

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The other day, I proposed a compromise to my wife.* (*Fiction: may not have happened). “Oh?” she says.

“I’ll unload the dishwasher 50% of the time,” I offer magnanimously.

“You should be doing that anyway,” she observes.

“And, in return,” I continue, unfazed, “every day you’ll drive to Delphi and back.”

“Why would you want me to drive to Delphi and back?” she asks, perplexed.

“Compromise!” says I.

In unrelated news, the Sunday liquor sales bill died without passing the House. Rep. Dermody declined to call down HB 1624. This was the bill that would have allowed Sunday alcohol sales. However, the package liquor store interests were successful in inserting a poison pill amendment that invented (for stores other than package liquor stores) a concept known as “self-service displays” which simply means “liquor on a shelf a customer can get to without going through a sales clerk.”

For no good reason, regular stores would have to pull the liquor from shelves where they are now, put them behind a counter, inconvenience customers, and add extra duties for sales clerks. I’m not sure advocates pretended to have any noble policy goals for this measure — if they did, I expect it was “for the children” or somesuch. But, it was pretty transparently a power play designed to stall Sunday sales against public pressure and throw in a fig leaf of “we tried and negotiated in good faith – really we did – but the big box stores wouldn’t compromise.”

See, for example, this disingenuous column from a lobbyist for the package liquor industry: “Serving and protecting consumers should have been at the center of this debate.” Sure. Protecting and serving are what this debate was about, but it’s the package liquor store that is being protected.

Give Sunday sales an up or down vote. If lawmakers actually think consumers need additional protections from the scourge of demon alcohol, use a separate bill to do that. If lawmakers honestly think Hoosiers need to be protected, shouldn’t they be doing that anyway? Are they needlessly endangering Hoosiers by permitting the ongoing threat of “self-service displays?” Seems pretty reckless of them. Unless, of course, that rationale was just a pretext.

A Corporation is a shield except when it’s not

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Initial disclaimer: two different courts, a different legal scenario, and I think the Indiana Court of Appeals probably got it right here. In Meridian North Investments v. Sondhi, decided today, Meridian North was the landlord and Sondhi-Biggs Orthodonics was the tenant. Dr. Sondhi, owner of Sondhi-Biggs, signed the lease on behalf of Sondhi-Biggs. Later, he slipped on some ice and fell, allegedly because Meridian North was negligent in maintaining the premises. The lease contained exculpatory clauses where the tenant said it wouldn’t hold the landlord liable for negligently maintaining the premises. The Court of Appeals said that those clauses didn’t bind Dr. Sondhi because Sondhi-Biggs, and not Dr. Sondhi, was the signatory on the lease. As an agent, he waived liability asserted by Sondhi-Biggs but not himself.

And, yet, under Burwell v. Hobby Lobby, Sondhi-Biggs could assert rights and exemptions from general regulations under the Religious Freedom Restoration Act (and perhaps Indiana’s pending state version) based on Dr. Sondhi’s religious beliefs.

I suppose I’m just taking another opportunity to vent about the inconsistency in how and when we recognize the corporate form. It’s a government created legal fiction designed to limit personal responsibility. It has it’s uses, but that form should be recognized or not consistently.

SB 101: “Religious Freedom Restoration”

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Senator Kruse’s SB 101 passed out of committee and is now eligible for second reading. It has been designated “religious freedom restoration.” It seems to track the federal law with the same name but generally, as the synopsis says, it:

Prohibits a governmental entity from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest.

“Substantial burden” is not defined, nor, for that matter, is “religion.” However, “exercise of religion” is defined as “any exercise of religion,whether or not compelled by, or central to, a system of religious belief.”

First of all, this kind of broad and ill-defined language is a huge headache for government. A person doesn’t want to follow the law and says it substantially burdens his religion. Now what? You might just have to take his word for it — his religious belief, as the statute points out, doesn’t have to be part of any kind of organized system — nor does the objectionable regulation have to be central to the person’s religion.

I’m not religious but I’m not going to sneer at those who are. I recognize that plenty of good, thoughtful people have sincere religious beliefs. I will, however, observe that this legislation gives religious beliefs a preferred status above other sorts of beliefs that are just as sincerely held. If I object to an ordinance for sincere but secular reasons, those are just the breaks of being a citizen. I don’t see the compelling policy reasons for the General Assembly to make this distinction.

SB 95 – Retroactively Killing 15 Year Old Lawsuit

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Sen. Tomes is carrying SB 95 which has an effective date retroactive to August 26, 1999. (h/t Indiana Law Blog). That’s so long ago that I was employed by the General Assembly at the time. And I haven’t worked there for a long, long time. The intent is to kill a specific lawsuit that has been around for all those years.

The background is that the City of Gary filed suit in September 1999 against various gun manufacturers on various theories. The suit has been allowed to proceed under the theory that, if the allegations were proven as true, they “are sufficient to allege an unreasonable chain of distribution of handguns sufficient to give rise to a public nuisance generated by all defendants.” See, Smith & Wesson v. City of Gary 875 N.E. 2d 422 (Ind. Ct. App. 2007) and City of Gary v. Smith & Wesson, 801 N.E.2d 1222 (Ind. 2003). State and federal legislation subsequently passed that immunizes gun manufacturers from such activity has not been sufficient to get the case dismissed.

Regardless of what you think about the lawsuit itself, this is horrible public policy. Reaching back in time to shield particular, well-connected, well-funded defendants and change the rules in their favor to the detriment of a particular plaintiff undermines the credibility of our legal system. The bill passed out of committee on a 7-1 vote and went through second reading without amendment. It is now eligible for third reading to be passed out of the Senate.

SJR 2: Constitutional Right to Harvest Wildlife

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SJR 2 has passed the Senate on a vote of 42-7. The popularity of this constitutional amendment baffles me a little. I can’t really figure out what it’s doing, and I doubt legislators can either. Why they want to muck up our founding document with this is beyond me. I guess no one wants to be the legislator who votes against hunting and fishing.

Section 39. (a) The right to hunt, fish, and harvest wildlife:
(1) is a valued part of Indiana’s heritage; and
(2) shall be forever preserved for the public good
(b) The people have a right, which includes the right to use traditional methods,to hunt,fish, and harvest wildlife,subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:
(1) promote wildlife conservation and management; and
(2) preserve the future of hunting and fishing.
(c) Hunting and fishing shall be a preferred means of managing and controlling wildlife.
(d) This section shall not be construed to limit the application of any provision of law relating to trespass or property rights.

A few questions:

1. What does it mean to say “The right to harvest wildlife shall be forever preserved for the public good”?

2. What are “traditional methods?” Whose traditions. At what point in time? Can we develop new traditions? Can old traditions become non-traditional in some fashion?

3. If hunting and fishing are the preferred means of managing wildlife, can non-preferred methods be used where they are more effective or more desirable in some fashion? If so, what’s the point of this provision?

4. If the section is not construed to limit trespass or property rights, what laws or rights are limited?

When I was drafting legislation, I liked to try to make it clear – when I was given the latitude to do so – as to who got to do what to whom under what circumstances. Here, I have no idea.

At best, it does nothing. The middle option is that it opens up a can of unintended consequences. The worst is that there is something nefarious I don’t see.

SB 394 – Reporting Government Malfeasance

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Rep. Charbbonneau’s SB 394 allows anonymous reporting of malfeasance by a public official. It also creates a private right of action by employees of non-state entities if they are retaliated against by their employer for making such a report of malfeasance (either because they didn’t report anonymously or they were found out, I guess.) Damages may include, among other things double the back wages. For some reason, pursuant to a committee amendment, state employees are excluded from this protection.

The intent of these anti-retaliation provisions is obviously good, a lot of retaliation allegations (in various contexts) get made by crappy employees who were fired because they weren’t good at their jobs. For example, if you’re a bad employee who catches wind of a termination coming, why not file a report with the State Board of Accounts talking trash about your boss? It’s a two-fer: you might get the SBOA to hassle your boss, and you might set yourself up for a lawsuit.

I’d recommend two additional amendments: first require that the allegations of malfeasance be well founded as a prerequisite to the retaliation claim, and second, provide for attorneys fees to the defendant where the allegations of retaliation are not made in good faith.

Education Fight: One Million Kids, Eight Billion Reasons

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Indiana’s appropriations for K-12 education is closing in on $8 billion, representing something like 50% of the state budget. Higher ed is another $1.8 billion. That’s a lot of money. For years, educational policy has been in flux due to the work of advocates who use the rhetoric of “choice.” It’s all about the children. But policy makers support kids’ education in much the same way parents often support kids’ sports: loudly, counterproductively, and, quite often, sincerely. And, just as it’s hard to ignore the suspicion that the parent is projecting some childhood dreams of glory on the young athletes, so too is it hard to ignore that big pot of money the policies of choice advocates will redirect to friends, well-wishers, and, quite often, themselves.

From the comfort of my couch, I see three basic fronts for this installment of the education struggle. As an immediate concern, we have the spectacle of ISTEP tests which will test endurance as much as intellect. Short term, we have legislation that will remove the Superintendent of Public Instruction from, what I am told, is a 100 year tenure as chair of the Indiana State Board of Education. Longer term is an effort to make the Superintendent of Public Instruction an appointed position instead of an elected position.

ISTEP Endurance Testing

The ISTEP endurance testing seems to be a product of the requirements of the federal “No Child Left Behind” combined with the recent dithering over Common Core. As you may recall, Indiana abandoned Common Core for reasons that remain unclear to me — other than there was a Tea Party notion that it was a federal imposition and therefore Obama and therefore bad. What the substantive problems with Common Core were, I still don’t know. Indeed, there were complaints from Common Core detractors that the new Indiana standards were too much like Common Core. (From the first link):

When Indiana stopped using Common Core standards last year and wrote its own, we were still required under No Child Left Behind to test our students on whatever standards we used. So the ISTEP+ had to change to reflect the change in standards. Educators have known since last summer that the test would be different, but the shock this week came when schools saw the amount of time the ISTEP+ would take.

And the difference is significant. Last year, a third grader spent a total of five hours and nine minutes doing ISTEP+ testing. This year, that amount jumps to 12 hours and 30 minutes. These increases are for every grade that takes the ISTEP+, not counting stress tests if a school has their students sit to complete those.

The fruits of this slap dash effort to appease Common Core detractors will now be realized by Indiana’s students who have to give the test for these Indiana Standards its shakedown cruise — piloting a lot of the questions. Gov. Pence has attempted to mitigate the political fallout from this through a last minute executive order. Certainly, the headlines he received were favorable — saying in most cases that he was taking action to shorten the test. (See, e.g., “Pence signs executive order to shorten ISTEP”) In reality, his executive order calls for the Office of Management and Budget to hire a consultant which it has done at an expense of $22,000. The first phase, at an expense of $11,000 will be for recommendations on Spring 2015 — though, turning the ISTEP battleship on a dime seems unlikely. (I’m full of mixed nautical metaphors today). The recommendations will come just as the testing is supposed to start. The second half of the consultant’s contract will be for Spring 2016.

Chair of the Indiana State Board of Education

The only slightly less immediate issue is HB 1609 which seeks to remove the Superintendent of Public Instruction as chair of the Indiana State Board of Education (SBOE). The Superintendent is a Constitutional Office provided for in Art. 8, Section 8 of the Indiana Constitution. However, the duties of the Superintendent and the manner of selection for the Superintendent are left up to the General Assembly. The Superintendent’s role as chair of the SBOE is specified by IC 20-19-2-2. The Superintendent is the only member of the SBOE not appointed by the governor. As chair of the SBOE, the elected superintendent has something of a check on education policy over a body otherwise dominated by governor’s appointees. When former Superintendent Tony Bennett turned a largely ignored office into something that riled up the voters, they threw him out in favor of the current Superintendent, Glenda Ritz.

With new blood in the Superintendent’s office potentially upsetting the apple cart, the SBOE suddenly couldn’t get along with its chair. Note: this isn’t necessarily a party thing. The Republican Superintendent always seemed to be able to work with the Democratic Governors, and – though Governor appointees, IC 20-19-2-2 specifies that not more than 6 of the 10 appointees can be from the same political party (although the controls on who is in or out of a political party are a little sketchy). There are Democrats who also stand to profit off of the privatization of education. So, I would say this has more to do with conflicting visions of our educational future than with pure party politics. Advocates of traditional public education tend to favor Democrats and advocates of a more privatized vision tend to favor Republicans, but it’s not a 1:1 correlation.

Rep. McMillin’s HB 1609 recently passed by a vote of 58-40. It leaves the State Superintendent as the 11th member of the board but directs the SBOE to elect a chair from its membership in the July meeting. This effectively transfers control of the SBOE to the Governor entirely. The House rejected, by a vote of 69-26, a proposed amendment that would have had the Department of Education submit nominees from a process involving school districts in the area served by the vacant board seat and one that would have provided for direct election of SBOE members. (Another bill, SB 1, alters the composition of the SBOE to include fewer governor appointees and to include four appointees from the House and Senate that would likely consist of two Republicans and two Democrats) as well as stating that the Superintendent is not the automatic chair.)

The cursory explanation for the power grab is that having the Superintendent as the chair of the SBOE is just too dysfunctional. But I think that’s kind of the point of the current structure. Democratic systems of checks and balances are messy. Sometimes they don’t make the trains run on time. If you’re just going to put all of the power into the hands of the Governor and his people anyway, why let the citizens of Indiana have a direct vote on a position having to do with educational policy at all? Which brings us to:

Appointment of Superintendent of Education

Longer term, there is a proposal that would eliminate the Superintendent as an elected office and make it an appointed position. SB 24 would make that effective in the year 2021. (SB 500 has so much jammed into it, that there could be something about the Superintendent in there for all I know.)

Seems to me that, to the extent Republicans pass legislation that concentrates education authority in the hands of the Governor, they are being a little short sighted. Democrats don’t have much luck in statewide elections in Indiana. They have somewhat more luck in Governors races than in down-ticket races. I’m not one to put too much stock in the “messages” being sent by voters — the ballot box is not a very precise tool for communication. But, the fact that Tony Bennett was rejected as Superintendent of Education was probably as close as we get. His position was very specific to education. His tenure was very much about privatizing Indiana’s educational system and otherwise diverting money away from traditional schools. Despite being in a very favorable position (down-ticket, statewide race) in a very favorable year, Tony Bennett lost, receiving 48% of the vote to Ritz’s 52% – the first Republican to lose that race in 40 years. I have nothing against Superintendent Ritz, but I don’t believe the result of this race was so much about embracing her as it was about rejecting Bennett and his policies. Nevertheless, proponents of the policies championed by Bennett will not be dissuaded. They are just that passionate about the children, you see.

The hell of all of this is that it’s not doing the kids any good. I know my kids are going to be trading education time for time taking a standardized test. They’ll do fine, but they’d be better off if their teachers were talking to them about history or current events or triangles or just about anything. Heck, they’d be better off running around outside kicking a ball around. And, generally speaking, there isn’t a lot of evidence showing that kids are doing any better in the non-traditional schools parents theoretically get to choose after all is said and done. The 20 years or so of data we have show that voucher schools don’t perform notably better and often perform worse than traditional schools.

There are about a million kids in Indiana’s schools, but more like eight billion reasons for this education fight.

Wealth and Marriage

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There is a New York Times article about how married couples are better off financially than their single counterparts.

But, while it did a good job of describing the wealth gap between married and single, it didn’t do a good job of describing the reasons behind it – looking at whether, for example, the relationship was causative (and in which direction) or merely correlated. I imagine there’s a little of everything going on.

People who have money are more likely to get married. People who get married are more likely to save money. And the sorts of habits and abilities that make people able to make money also make them able to enter into and sustain a marriage. I don’t think it’s simply a matter of telling poor people to get married and they’ll wind up wealthier. (See, e.g. the proposal for an “Office of Marriage Promotion”) A lot of the dysfunctions that make people poor would also make their marriages a disaster (and still leave them poor) even assuming they were able to find a willing partner.

ISTEP+: 243% more wasted instructional time thanks to Common Core Opponents

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So, because people had an emotional opposition to Common Core and we have a slavish devotion to standardized tests that don’t do much to educate our kids, the State of Indiana is going to use my kids and their instructional time to vet its new test questions. Super.

Claire McInerny at State Impact Indiana explains that the increased duration of the testing has to do with Indiana’s decision to drop Common Core:

Last year, a third grader spent a total of five hours and nine minutes doing ISTEP+ testing. This year, that amount jumps to 12 hours and 30 minutes. These increases are for every grade that takes the ISTEP+, not counting stress tests if a school has their students sit to complete those.
. . .
A reason for the increased testing lengths is that since the test questions are new, and this test will be used in the future, a lot of the questions have to be piloted.

These tests don’t do a thing to educate my kids, and now they will spend more time doing them. I suspect their time would be better spent playing Minecraft.