A Citizen's Guide to Indiana

Masson's Blog

Enshrining Bigotry into the Constitution

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According to the Indianapolis Star, the wingnuts are making another run at the Constitution with respect to gay marriage. Reps Eric Turner and David Cheatham are introducing legislation to put a gay marriage ban into the Indiana Constitution. Such an effort was defeated in 2007 and 2008, but apparently extremism in defense of bigotry is no vice. So, they will try again.

The single best thing about that article was that the Indianapolis Star put “pro-family” in scare quotes.

In one sense, I guess, this ongoing discussion about gay marriage has been productive. When I first began considering it, I was luke warm in favor of civil unions, but mostly apathetic to the whole cause. Now, I am to the point where I suspect that depriving gay couples of the right to marry will some day be viewed in the same light as forcing black people to drink out of separate water fountains.

So, now, I’ll go one step further. Not only should the legislature refrain from enshrining such bigotry into the Constitution. They should go ahead and repeal the “defense” of marriage act. It defends nothing. The health of my marriage is not affected one whit if my gay neighbors get married. And history will view us more favorably the sooner we stop treating gays as second class citizens.

SB 261 – Jail Costs

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Senator Kruse has introduced SB 261 which would require costs of incarceration at county jails to be assessed against convicts who are imprisoned at the jails. Currently it’s optional with the counties as to whether they would like to adopt an ordinance providing for the collection of jail costs. (The fiscal impact statement (pdf) provides a nice explanation of how the bill changes the status quo.)

I have mixed feelings on this one. Theoretically, making wrongdoers pay for the cost of their wrongdoing, including costs of incarceration, is a good thing. But imposing another financial burden on folks who are already on the edge might push them over. Collection is another issue. Currently in Tippecanoe County, we are pursuing a huge number of unpaid Community Corrections fees (fees for being on probation, house arrest, etc.) You collect what you can, but often the money simply isn’t there. And while, technically it might be an option under their sentence, the reality is that throwing them back in jail for non-payment is rarely a cost-effective solution.

Reduction of Attorney’s Fees on Recovery of Medicaid Liens

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Under SB 85, Medicaid liens would not get recovered or Medicaid would not pay its fair share in the cost of recovery.

Currently, if a person covered by Medicaid is injured by a third party, the person’s medical bills are paid by Medicaid and Medicaid has a lien against any recovery made against the third party. Typically, such a case would be taken on a contingency fee basis by a personal injury attorney. (Medicaid recipients almost by definition would not have money to pay an hourly fee to an attorney.) A typical contingency fee is 1/3 of the recovery. That may seem steep until one considers that, if the case is unsuccessful, the attorney gets nothing — has worked for free. In effect, the successful cases subsidize the unsuccessful ones.

If the case against the third party is successful, typically money has to go toward satisfying the Medicaid lien before any money goes to the injured party. (There is a lien reduction statute that applies to regular insurance payments in some circumstances, I am not certain off hand of its applicability to Medicaid payments.) Medicaid has received a benefit from the attorney’s work, it is only fair that Medicaid pay its fair share of the attorney’s fees. Under current law, Medicaid is required to pay an attorney’s fee of 25% of the recovery prior to suit and 1/3 after suit is filed. SB 85 proposes to limit those amounts to 7.5% and 10% respectively.

So, let’s say you have a typical 1/3 contingency fee case. The injured party has $50,000 in medical bills paid by Medicaid and the third party has $100,000 auto insurance and not much in the way of assets beyond that. There is a $100,000 recovery after suit is filed. The total attorney’s fee is $33,333. Medicaid has recovered $50,000 and, therefore, pays $5,000 of the attorney’s fee. That leaves the injured party to pay the remaining $28,333. The injured party has paid 5 times the legal fees for the same gross $50,000 recovery and nets $21,667 to compensate him or her for lost wages, pain and suffering, and future out of pocket medical expenses.

I don’t do much in the way of personal injury work, but this still seems like a bad bill to me.

Voluntary Local Government Restructuring

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Deanna Martin, writing for the Associated Press, reports that Senator Long is indicating that the Governor’s local government restructuring plan would probably have to be voluntary to pass the Senate. Among other things, the restructuring plan calls for a unitary executive to replace the 3-person board of commissioners and calls for the county council to pick up a lot of the legislative duties currently performed by the board of commissioners.

Seems to me that the further one gets away from the capitol, the more important local government control becomes to people. As this debate progresses, I want people to pay attention to something — and I’ll pay attention myself. Let’s see how many people stomping up and down about how necessary and good mandatory local government restructuring is come from Indianapolis, and let’s see how many are from other places.

Indianapolis/Marion County already has county government a lot like that proposed under the restructuring and, perhaps just as importantly, state government sits in Indianapolis. So, when the State adopts legislation, it feels a lot less like mandates coming from a foreign power.

So, I want to see how many voices in favor of mandatory restructuring are coming from places not dominated by big cities, with functioning and influential boards of commissioners, and mostly out of the shadow of the Capitol City. My bias is that the Tippecanoe County Board of Commissioners has, in my opinion, been an excellent governing body since I moved out of Indianapolis to the Lafayette area. In that time, I recall one commissioner with whom I did not usually agree, but the other two balanced her out. I can’t imagine if that commissioner — or say a county level Blagojevich — took control of the unitary executive. For that matter, is the streamlined non-leadership of Mayor Ballard or the dysfunctional legislative body that is the City-County Council really being held up as a model of government for the rest of the counties? A mandatory model?

Let’s just say I have reservations at this point. I’ll need some convincing on the point of why I should prefer a mandate from the General Assembly for that model of government to replace what I have currently in Tippecanoe County. And voices outside of Indianapolis will probably be more convincing than those within.

HB 1122 – Gift Cards

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Representative Cherry has introduced HB 1122 which prohibits a person from issuing a gift card subject to expiration or subject to dormancy fees or the like.

I like getting gift cards even if, as my wife notes, I am not very prompt in using them. Still, I appreciate the quip, “Gift cards: almost as good as cash!” which suggests that what you are doing is spending your money to give a diminished form of money. One of my relatives does retail sales, and he suggested that when his outfit gives out gift cards, the non-redemption factor is pretty high; something like 15%. That’s some nice pure profit for a retailer. Rep. Cherry’s bill would diminish that profit somewhat with uncertainty about whether someone is going to walk in the door 15 years later to redeem it.

SB 124 – Declaratory Actions Against Insurers

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Senator Waltz has introduced SB 124 which provides that, in an action against an insurer, only a named insured or a person seeking status as an insured under the terms of the insurance contract may bring an action for declaration of coverage before judgment has been entered on the underlying claim.

I am guessing here, but I suppose this is designed to stop an injured party from suing a potential insurer of a tortfeasor, before obtaining a judgment against the tortfeasor, for a declaration that the tortfeasor has insurance.

As a purely legal matter, I think this makes a lot of sense. The victim has no direct rights with respect to the tortfeasor’s contract with his or her insurer. After the victim obtains judgment against the tortfeasor, the victim might acquire the tortfeasor’s contract rights against the insurer as an asset to be applied toward the judgment.

As a practical matter, I can see where a plaintiff’s attorney would like to be on solid ground with respect to available insurance dollars before spending a bunch of money on the case, trying to run up the judgment amount. If all you’re going to get is the tortfeasor’s $100,000 house, why pay a bunch of high priced experts to testify that your client has suffered millions of dollars in damages?

So You Want to Murder Your Fetus?

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“Greetings Ms. Roe. I’m Dr. Smith. I understand you are considering exercising your Constitutional right to control your reproductive organs for reasons having to do with your health or your ability to bear and raise a child or something. Now, sure, you could terminate your pregnancy.

But, before you make your decision, the State of Indiana, in its wisdom, requires me to tell you that if you go through with the abortion, your sweet, dear little baby will likely be SCREAMING IN AGONY throughout the procedure. And it’s all so needless, you dear, ignorant, promiscuous woman. Did you know they have something called “adoption” now? Yup, if you’re too cheap to raise your precious child yourself, other people will do it for you. But, wait, there’s more! If you get an abortion, YOU COULD DIE!

So, now that you have all the facts, what’s it going to be?”

It’s that time of year again. The legislature is in session, and, once again, Senator Miller has introduced a bill proposing to mandate what information a physician must give his or her patient before the woman is entitled to choose to have an abortion.

SB 90 requires a physician to tell the patient at least 18 hours before the procedure that there is differing medical evidence concerning when a fetus feels pain, that adoption alternatives are available, that there are physical risks to abortion, and “that an embryo formed by the fertilization of a human ovum by a human sperm immediately begins to divide and grow as human physical life.”

Once again, there is no concern about advising a woman about the dangers of pregnancy, just the dangers of abortion. It is an effort to put the government’s thumb on the scales of the woman’s decision making. And, once again, it’s fairly presumptuous of the General Assembly to purport to determine for the rest of us when human life begins. Is life possessed of humanity simply by virtue of having the right number of chromosomes? I think there is more to it than that; and, whether I’m right or wrong, I’d thank the good folks down in Indianapolis to step away from my philosophical prerogatives.

Senator Miller has also introduced SB 89 which requires a physician who performs an abortion to: (1) have admitting privileges at a hospital in the county or in a county adjacent to the county where the abortion is performed; and (2) notify the patient of the hospital location where the patient can receive follow-up care by the physician. I believe this is a statutory version of the ordinance adopted by Vanderburgh County when no one was looking.

SB 81 – School Year

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With Senate Bill 81, Senator Kruse proposes prohibiting a school corporation from beginning the school year prior to Labor Day. The school year could not extend past June 15 of the year.

I don’t know how the math works out, but personally I’d shoot for beginning on the last Monday in August and ending by the first Friday in June. I guess that’s about a week shift from what Sen. Kruse is proposing.

Right to Knife Bears

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Sen. Steele seeks to limit the right to bear arms, at least with respect to knives. This is a repeat of one he introduced last year. SB 46 would prohibit the manufacture, possession, or sale of a ballistic knife which means a knife with a detachable blade that may be expelled from the handle or frame of the knife.

However it decriminalizes using or manufacturing an automatic knife which is currently a Class B misdemeanor.