A Citizen's Guide to Indiana

Masson's Blog

HJR 9 – Election of Supreme Court Justices

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Rep. Fry has introduced House Joint Resolution 9 which provides for direct election of state Supreme Court Justices. Of the five, three would be from particular geographic districts and two would be elected at-large. To be eligible, the candidate would have to have been admitted to the practice of law for 10 years or a trial court judge for 5 years.

I’m not a fan. Direct election of the Supreme Court seems like it would politicize the office in a way I don’t think I would like. That said, the current retention system we have seems like something of a farce. I don’t know that any judge has ever lost a retention vote.

Legislative Control Over Economic Stimulus Funds

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HB 1656 introduced by Rep. Austin is the subject of an article by Bill Ruthart. The bill specifies that federal economic stimulus dollars cannot be spent except pursuant to legislation adopted by the General Assembly after January 1, 2008 for the purposes specified in the federal economic stimulus package. In other words, the General Assembly does not want the governor spending the money on his own. Senator Kenley was interviewed for Ruthart’s article. He suggested that the Governor should be a partner in deciding how the federal stimulus money was spent. As I read the legislation, he would be — the same as he is in the adoption of any legislation. He can veto appropriations for purposes he does not like. As I read the legislation, however, he would not be able to unilaterally spend the money pursuant to prior appropriations made for other reasons.

The Governor on Property Tax Caps

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The Governor, via Tully:

The governor made a strong case for a ballot initiative aimed at determining whether to put recently passed property tax caps in the state constitution. “The only real question,” he said, “is do you trust the people of Indiana to weigh the evidence and make this decision, or don’t you?”

I don’t because:

a) The evidence –real world effects of the caps on local revenue and, therefore, services — is not all in; and won’t be all in for some time;
and
b) Once the evidence is all in, I do not think the average voter will take more than a superficial look at it. I suspect if you quizzed the average voter, most could not tell you in detail how local government functioned or how it was funded.

And that’s all right. That’s why we have a representative government. Because our citizens, while having a duty to keep informed to some degree, have more important things to do than get into the weeds of local government finance. That’s why legislating property tax caps is a better idea than engraving it into the Constitution based on popular, and possibly superficial, anti-tax sentiment. That’s also why the General Assembly has been given a significant gate-keeping function with respect to which public questions get put on the ballot.

So, I say to our legislators, don’t shirk your duties with a glib “let the voters decide” response. If you vote for a Constitutional property tax cap, do it because you feel you have deliberated with all of the necessary facts, and based on that deliberation can explain what effects this will have on local government, its finances, and the services it will provide and have decided that these caps are the best thing for Indiana, not just now, but for the next century.

HB 1317 – Abstinence Only Education

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Rep. Linda Lawson has introduced HB 1317 concerning notice to parents about abstinence only education. If a school decides to go the abstinence-only education route, it would have to send out the following notice:

“Your child is receiving abstinence-only human sexuality education.

Abstinence-only education does not teach students how to prevent pregnancy or sexually transmitted diseases other than by remaining abstinent.

Your child is not receiving the following:
(A) Information on methods, other than abstinence, for preventing pregnancy and sexually transmitted diseases, including HIV/AIDS.
(B) Medically accurate instruction on the risks and benefits, including safety and efficacy, of Food and Drug Administration (FDA) approved methods for:
(i) reducing the risk of contracting sexually transmitted diseases, including HIV/AIDS; and
(ii) preventing pregnancy.
(C) Medically accurate instruction regarding the correct use of FDA approved methods for:
(i) reducing the risk of contracting sexually transmitted diseases, including HIV/AIDS; and
(ii) preventing pregnancy.
(D) Instruction that provides lesbian, gay, bisexual, and transgender students with the necessary skills for making and implementing responsible decisions about relationships and sexuality, including the use of all effective methods to prevent sexually transmitted diseases, including HIV/AIDS.
(E) Instruction that provides sexually active students with the necessary skills for making and implementing responsible decisions about relationships and sexuality, including the use of all effective methods to prevent pregnancy and sexually transmitted diseases, including HIV/AIDS.
You have the right to review the abstinence-only curriculum in its entirety. Written and audiovisual educational materials used in abstinence-only education are available for inspection.

You have the right to excuse your child from all or parts of abstinence-only instruction.

You have the right to be involved in your child’s education.”.

Might as well require them to send out a notice saying, “Hi, we’re being criminally negligent with your child’s education. How soon would you like our resignation?” It would probably be better to skip sex education altogether than an abstinence-only curriculum that might give some parents the illusion that their children’s educational needs in these areas were being fulfilled.

HB 1421 – Death Penalty Moratorium

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Representative Vernon Smith has introduced HB 1421 which would impose a moratorium on the death penalty through July 1, 2012; and establish a 15 member commission to study the death penalty and make recommendations prior to January 1, 2012.

As an initial matter, I do not like the legislation because it has a “findings” section. I don’t like legislation that makes proclamations. I want nuts & bolts language that tells me who gets to do what to whom and under what circumstances.

But, I can get along with its premise well enough. Personally, I have no opposition to the general philosophy of the death penalty. Certain actions are bad enough that they should result in the forfeiture of one’s life. As implemented, however, I do have concerns. It seems like there is a non-trivial risk of convicting the wrong person of a capital crime. That needs to be fixed.

That said, I predict this legislation is going nowhere.

HB 1428 – Manufacturing Police Insignia

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Representatives Tincher and Duncan have introduced HB 1428 which criminalizes the manufacture of a replica of an official badge used by a law enforcement agency of the state or political subdivision. It’s a Class D felony with potential enhancements if the manufacturer knows the badge will be used to commit certain crimes (impersonation of a public servant raises it to a Class C felony and terrorism raises it to a Class B felony.)

It’s a defense that the replicas are too big or too small (less than 50% or more than 150%) to be confused with a regulation badge.

HB 1423 – Satellite Voting

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Rep. Vernon Smith introduced HB 1423 which would appear to legislate what ended up happening anyway in Lake County in the 2008 election.

The Democrats, over the objection of the Lake County Republicans, opened satellite voting offices in the cities of Gary, East Chicago, and Hammond. This effectively allowed citizens of Lake County to vote in those three other cities in the same way they could have if they had traveled to the clerk’s office in Crown Point.

SB 379 – Voluntary Restructuring of County Executive and Fiscal Bodies

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SB 379, introduced by Senator Boots, provides for a county to elect to transform its governing structure. To do this, the Board of County Commissioners must adopt an ordinance calling for the reorganization of county government such that a unitary executive will replace the three member board of commissioners and assume all of the executive powers of the county. In turn, the fiscal body will become the legislative body and assume all of the legislative authority previously exercised by the board of commissioners.

To become effective, the proposed reorganization must be approved by the voters at an election in an even-numbered year. If approved, two years later, the voters would vote on the first single-member executive.

SB 232 – Public Access

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Senator Gard is attempting to stiffen the public access laws with SB 232, primarily through the assessment of civil penalties of up to $1,000 for violations of the public access laws and through mandating that judges and the public access counselor review withheld or redacted records.

There is a section in here that highlights nicely the bind public officials are in with respect to public records.

Sec. 9.5. (a) In addition to any other civil or criminal penalty imposed, if an officer or employee of a public agency knowingly or intentionally:
(1) denies or interferes with a person’s request for inspection or copying of a public record if:
(A) the person’s request meets the requirements of this chapter; and
(B) the record is subject to disclosure by law;
(2) charges a copying fee that exceeds the amount permitted by this chapter; or
(3) discloses without authorization or fails to protect information classified as confidential by state statute;
a court may impose a civil penalty under subsection (b).

Got that? A public official faces a fine if he or she improperly denies a public records request but also faces a fine if he or she improperly discloses a confidential record. It is not always crystal clear which category a document falls under. And if a citizen makes a kitchen sink document request, asking for piles of documents, detecting the confidential record is going to be like detecting the needle in the haystack.

Another wrinkle is that if records are redacted, a judge is required to review public records “in camera” (usually, in his chambers, outside of the presence of the parties) if the records are redacted and a complaint is filed alleging that the records were redacted improperly. I am sure judges will appreciate mountains of paperwork to sift through, comparing the originals to the redacted versions to determine the propriety of the redaction.

Similarly, when a formal complaint is filed with the public access counselor, the public agency would be charged with turning the records over to the public access counselor for review to determine if the records were properly redacted or withheld. Along with the records, the public agency is charged with providing an inspection index that:

(i) gives the title or name of each document, or any part of the document, claimed to be exempt from disclosure;
(ii) provides a description of each document that is general enough to explain the exemptions without compromising the alleged reason for the exemption from disclosure;
(iii) lists the reasons that each document, or any part of the document, is alleged to be exempt from disclosure; and
(iv) fully explains why the alleged reason for exemption from disclosure applies to each document.

I am all for public access by citizens. It is an important part of democracy, but here is the problem. It is dead simple to write a public records request that calls for the disclosure of 15,000 pages of documents or more; requiring no real effort on the part of a citizen who maybe has an axe to grind with the public agency. In response, the public agency has to devote a non-trivial level of resources to finding the documents, sorting through them to determine which ones are required to be withheld, which ones are permitted to be withheld, and which ones are required to be disclosed. Now, the hypothetical axe grinding citizen is not going to be satisfied with any level of disclosure; so he or she spends an hour or two writing a formal complaint to the public access counselor. Now, the public agency is required to go through the thousands of pages of documents and create a privilege index for them. Next up, the aggrieved citizen cuts and pastes his or her complaint to the public access counselor and turns it into a complaint with the court.

Maybe it is just the nature of the beast. Democracy is wasteful and expensive at times. But it seems that, if we are devoted to the idea of streamlining local government and slashing budgets; perhaps a better mechanism is in order to preserve transparency while restraining the ability of a handful of disgruntled citizens to tie up significant taxpayer resources and increase burdens on local government.

I don’t suppose the State wants to fund a public access coordinator for each unit of government whose job it is to track down all the requested documents, redact it appropriately, and do all the indexing when the time comes? Didn’t think so.

SB 222 – Killing Domestic Animals

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SB 222 introduced by Senator Arnold makes it a Class D felony to kill a domestic owner animal without the consent of the owner, raised to a Class C felony under certain circumstances, such as if the animal is killed on the property of its owner.

Seems like there should be an exception if the animal is threatening you or your property in some way. Lets say someone’s dog is loose (again) and is now in your sheep pen. That is a problem you should be able to deal with without becoming a felon.

I say this as a devoted dog owner, incidentally. People should not kill animals gratuitously, and they should face penalties if they do. But, at the same time, dog owners (and other owners of domestic animals) bear some responsibility for keeping their animals supervised and under control.

Update My attention was directed to IC 35-46-3-5 which provides an exemption for, among other things, destruction of an animal that is endangering, harassing, or threatening livestock or a domestic animal; or destroying or damaging a person’s property.

Update 2 My attention has also been directed to some background on the proposed legislation.

Two rural Westville men have been arrested for shooting the Satoski family’s beloved 5-year-old Belgian draft horse, Ben.

The horse was shot between the eyes Nov. 16 outside their home at 3810 S. County Road 650 West.
. . .
Cicero, citing the probable cause affidavit, said Waldo and Skomac didn’t know the Satoski family and that shooting the horse was a spur of the moment decision after attempting to illegally poach deer that night. He said the men have confessed to the crime.
. . .
Boyd said the two men are charged with criminal mischief because there is no animal cruelty code in Indiana that fits the case. He said that, unfortunately, Ben is treated like property.