WISH-TV has an article entitled Creationism clears Ind. committee. By a vote of 8-2, the Senate Education committee has endorsed SB 89 which allows schools to teach creationism as science.

Teach creationism as an unscientific religious idea? Fine. Turtles all the way down, if you like. But, science? No.

Once again, scientific theory does not mean “wild-ass guess.”

A scientific theory is a set of principles that explain and predict phenomena. Scientists create scientific theories with the scientific method, when they are originally proposed as hypotheses and tested for accuracy through observations and experiments. Once a hypothesis is verified, it becomes a theory.

Evolution meets this definition. Creationism, arising mostly from stories written down by our bronze age ancestors, does not.

Reps. Steuerwald and Noe have introduced HB 1373 which would provide a mechanism to have a financing statement reviewed by a court where the financing statement is filed by someone unconnected to the transaction, without the consent of the secured party (in the case of an amendment or termination), or for the purpose of harassment.

A financing statement is typically a document filed with the Secretary of State indicating that a creditor has a security interest in a certain category of property belonging to the debtor. It puts other potential creditors or purchasers of that type of property on notice that they might have to deal with the first creditor to secure their own loan or acquire certain kinds of property free of a lien by the named creditor. They aren’t hard to file, and certain individuals and groups like to engage in what has been dubbed “Redemption Song” blog post.

I don’t know if this sort of activity is the major impetus for HB 1373, but in any event, it allows someone who believes a financing statement is bogus to go to court. If the judge agrees, the judge is to declare the financing statement ineffective, have the filing agency strike the record, and award attorneys fees and collection costs. It also makes such a filing a Class A misdemeanor, elevated to a Class D felony.

I like the sentiment. As a practical matter, however, the additional litigation on the entirely bogus ones will help clog the courts which is a stated goal of the “paper terrorists” and, will add another level of risk and complexity to those commercial cases involving a legitimate dispute between creditor and debtor where the debtor is trying to get leverage in the litigation against the creditor.

Senators Schneider and Head have authored SB 415
which seeks to limit liability to schools for injuries sustained by physical fitness participants in school physical fitness activities, defined as an activity where the general public is invited to use school property, school equipment, or a school facility to participate in a physical fitness activity, including participation in sports, weightlifting, running, swimming, diving, bicycling, or any other similar activity, whether or not the member of the public pays to participate in the activity.

The bill has certain signage requirements, warning of the inherent risks of physical fitness activity. However, it doesn’t limit liability where a school knows or should know of a dangerous physical condition of the property (presumably where the dangerous condition causes the injury, though, I’m not sure the legislation states that specifically). It also doesn’t limit liability against an allegation that the school failed to properly train an employee on how to conduct the physical fitness activity.

With the exemptions concerning failure to train and negligence standard on the physical conditions, I’m not sure the limitation on liability will do much. Every injury from a physical fitness activity will magically be caused by failure to train or negligence about the physical conditions when it comes time for litigation. The appellate courts will say, “send it to the jury to figure out.” The juries either won’t understand the fine distinctions or won’t care when presented with a sympathetic plaintiff. Or, at least, this will be the fear of defendants who will go ahead and settle the cases without wanting to take a chance that the jury will understand and accurately apply this kind of law.

Dave Bangert, writing for the Lafayette Journal and Courier has an excellent column entitled A hedge fund buck to be made on school reform. I call it “excellent,” not because it notes some cautionary concerns about rushing to school privatization — though those are certainly concerns I have; but more because it connects some dots of which I was unaware.

He mentions:

#Retiring Lafayette School Corp. Superintendent, Ed Eiler’s warnings:

I’ve heard Lafayette School Corp. Superintendent Ed Eiler drop the following line twice now in the past few months. It’s part of his presentation, an hour-plus, critical of state and national attacks that he’s sure are intended more to tilt things in favor of commercial interests and the privatization of public schools than they are to improve the education of today’s third-grader.

“It’s like having a cut on your finger and you’re in the ocean, and the sharks are circling,” Eiler said Wednesday night. “If they’re circling your business, they’re not there to help you.”

#A Bloomberg Businessweek article entitled “Property Investors Bet on Rising Demand for U.S. Charter Schools.”

Entertainment Properties Trust and Inland Public Properties Development Inc. also are among companies that are investing in buildings for charter schools as demand for campuses grows. More than 500 of the schools opened last year, bringing the U.S. total to about 5,600, according to the National Alliance for Public Charter Schools, a Washington-based advocacy group. The investors buy or develop properties and get income from renting to companies that operate the schools.

#Karen Francisco’s column for the Fort Wayne Journal Gazette about David Brain – CEO of the aforementioned Entertainment Properties Trust – and his interest in Fort Wayne charter schools. They’re apparently making out like bandits on the charter school rent. (Bangert’s column notes that it is a little hard for Lafayette area people to relate immediately because our prime example of a local charter school is “he ground-up, parent-built New Community School.”)

#A provision that requires public schools to sell their unused property for the use of charter schools for a buck. (I note that SB 413 blocks sale of unused property at fair market value to another entity if a Charter School is interested and penalizes superintendents who fail to place unused property on the Dept. of Education’s listing of properties available to charter schools.

Bangert concludes:

Public schools are in deep when they try to fend off groups that are not only for choice — advocates laugh: Who in their right mind is against that? — but also are pouring millions of their own dollars into a game Eiler calls “venture philanthropy,” enterprises willing to put their riches and good intentions into best teaching methods as long as there’s some sort of return.

But take note, there really are sharks in the pool. And you, with the cut finger, are paying to feed them, whether you want to or not.

Well worth a read.

Rep. Eberhart’s HB 1208 is scheduled for a hearing in the Legislative Rules Committee this morning. Usually the Rules committee is where the Speaker assigns bills he wants to die a quiet death. But, this one is probably a good fit for the committee since it concerns how the body functions.

It would require legislative committee chairs to swear witnesses in before they provide testimony to the committee. The form of the oath required would be:

> “I, (insert the name of the witness), affirm under the penalties for perjury that the testimony that I am about to give or have given to (insert the name of the committee) is the truth to the best of my knowledge and belief.”.

If a committee chair believes a witness has violated the oath, the chair can then refer the matter to the legislative council. If the legislative council agrees, it may refer the matter to a prosecutor. A prosecutor would be prohibited from taking up one of these cases without prior referral from the legislative council.

This is not legal advice, and I’m not saying I have done any thorough research on this issue. That said, I can see a plausible route whereby the $1,000 per day imposed on the Indiana House Democrats could lead to them netting $2,000 per day (plus attorneys fees). This only works if the State withholds the money from their paychecks. If the Dems get paid in full, then the State or House sues the representatives for the fine amount, they’re probably S.O.L. But, if the fine is simply withheld from their paycheck, consider IC 22-2-5.

In particular, consider section 2 of that chapter which provides:

Sec. 2. Every such person, firm, corporation, limited liability company, or association who shall fail to make payment of wages to any such employee as provided in section 1 of this chapter shall, as liquidated damages for such failure, pay to such employee for each day that the amount due to him remains unpaid ten percent (10%) of the amount due to him in addition thereto, not exceeding double the amount of wages due, and said damages may be recovered in any court having jurisdiction of a suit to recover the amount due to such employee, and in any suit so brought to recover said wages or the liquidated damages for nonpayment thereof, or both, the court shall tax and assess as costs in said case a reasonable fee for the plaintiff’s attorney or attorneys.

(emphasis added). Section 1 tells the time frames for paying an employee. If you’re short, you not only have to pay the shortfall, but you also get tagged 10% per day as a penalty, up to 200%. So, if the fines are withheld and not reimbursed for 20 days, then the penalty on the improper $1,000 withholding would be an additional $2,000.

I’m going to presume that the penalties are valid. (Article 4, section 11 provides that “Two-thirds of each House shall constitute a quorum to do business; but a smaller number may meet, adjourn from day to day, and compel the attendance of absent members.” Presumably, if the present House members were really serious, they could just have the absent members arrested and dragged bodily into the House chambers. The PR fallout of that could be interesting.) Anyway, assuming the penalties are valid, IC 22-2-8-1 declares that “it is unlawful for any employer to assess a fine on any pretext against any employee and retain the same or any part thereof from his wages.”

There are some questions. For example, are the House Democrats “employees” within the meaning of the statute? On the one hand, it’s not the traditional employer/employee relationship. On the other hand, one of the big distinctions between an employee and independent contractor is that the latter is not generally answerable as to the method and details of performing his task, but rather is answerable only as to the results of that task. Here, the quality of the legislators performance is a matter of supreme indifference to those imposing the fine. The skill with which they communicate the concerns of their constituents or the quality of the legislation they introduce is of absolutely no importance in this dispute. Rather, the only concern is their physical presence at the time and place dictated by those imposing the fine. From that perspective, anyway, they look more like employees than independent contractors.

If I were advising an employer, I’d advise him or her to err on the side of caution with something like this. Make the payment, then go and collect the fine independently. Better that than costing the taxpayers of Indiana something like $70,000 per day through improper withholdings.

This story, written by Seth Slabaugh, for the Muncie Star Press entitled Barbers, cosmetologists opposing deregulation is a good illustration of why once the legislature licenses an occupation, the process is unlikely ever to be reversed.

Rep. Wolkins, the person who describes himself as the “small-government” person, is pretty openly throwing his arms up and isn’t going to push for his HB 1006 which would deregulate barbers, cosmetologists, hearing aid dealers, and security guards. The act of licensure creates a self-preserving constituency, and the counter-interest in the general public is much more diffuse. So, when the deregulation bill comes up; you have a very motivated group fighting. The general public who might experience lower costs (perhaps significant in the aggregate but not to any given individual) and potential practitioners who might enter into the occupation if the barriers were reduced are spread out and have an interest that is more abstract.

I expect Rep. Wolkins is getting lobbyist bending his ear, creating the specter of streets filled with madmen posing as professionals, splashing caustic chemicals all about and plying the population with disease. That’s sort of been the tone on my previous blog post. Though, as one commenter from Great Britain noted, they seem to be working through the horrors without a similar licensure scheme.

Don’t get me wrong. I’m one of the members of the general public with nothing but an abstract interest in the case. I have little hair and get it cut at home by my wife with a set of clippers. I’m not even sure it’s good policy to de-regulate these professions. But, the dynamics of the response leave me convinced that good policy has little to do with the outcome. The outcome is determined because those with a vested interest are organized and those with a more indirect interest are not. The people who sell the requisite educational credit hours and the people who benefit from restricted competition will line up to persuade the legislator; and the legislator will gain little to nothing but grief by opposing them in favor of those who are disorganized. That’s not just an issue in licensure situations, by the way.

One of the life principles on which my kids have found me particularly insistent is that “a deal is a deal.” From time to time, you’ll see my son or daughter indignantly throwing that line in the face of the other one when they feel like someone has gone back on their end of the deal. My embrace of that principle is one of the reasons that I am very happy to practice law in a place like Lafayette. Because it’s relatively small, you learn very quickly the identities of those few attorneys whose agreements have to be in writing because you can’t trust their memory on what was agreed to.

I wasn’t there, so I don’t know what Speaker Bosma and Minority Leader Bauer agreed to. But, from all of the media reports, I got the sense that Bosma would hold up the freight train on Right to Work briefly, and that Bauer and the House Democrats would get to offer their amendments on Tuesday; but, in return for that brief respite, the House Democrats would not break the quorum by absenting themselves from the House.

In fact, the Democrats were not in the House yesterday, and Speaker Bosma has indicated his indignation on Bauer breaking his word and has indicated an intent to levy fines on the House Democrats. Mary Beth Schneider has a lot of the details in an article entitled ‘Right to work’ fight fuels rancor, rhetoric.

Bauer’s explanation for this change of course seems to be that he only recently learned of potential challenges to the constitutionality of deciding the RTW issue by a statewide referendum and claims the House Democrats need time to research the Constitutionality of the referendum. The Indiana Law Blog has a good post discussing the issue of whether such referendums are Constitutional. The main hitch is Article 1, section 25 of the Indiana Constitution which reads, “Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.” (Completely digressive side note: I was pleased that the Indiana Law Blog noted excerpts from two Bill Drafting Manuals – one that I co-authored, and one that she co-authored.)

But, depending, of course, on what the precise promises were between Reps. Bauer and Bosma, the constitutionality angle seems like pretty weak sauce from Bauer. He would have known before hand that Republicans were going to offer any number of arguments as to why the Democratic amendments shouldn’t be adopted – questions about Constitutionality is just a subset of such objections. I do not favor Right to Work as a policy, but if Rep. Bauer promised that the House Democrats would come in to vote if Rep. Bosma delayed it for a little time, then this seems to fall into “a deal is a deal” territory. If he intended to continue with the quorum busting strategy, he never should have made the deal in the first place.

The Fort Wayne Journal Gazette and the Lafayette Journal & Courier both have editorials today that raise questions about whether RTW is good policy, deserves the emphasis put on it by the state Republicans, or is well understood by the public; but both agree that a referendum is not the right way to decide this issue. If we have a referendum on RTW, why not any other policy choice the General Assembly makes?

(The Indy Star has an editorial on the subject, but it’s low grade work compared to the Journal & Courier and Journal Gazette — engaging in a “both sides suck” type equivalency (only the Democrats suck more and are stupid for caring so much about RTW))).

Much as I’d like to see RTW fail, I don’t think a referendum is the way to go. About the best the Democrats can do this year is to fight it as best they can, make the public pay attention to who stood where, and hang this around the necks of RTW supporters every election until wages improve.

Rep. Wolkins has introduced HB 1006 which would deregulate certain professional occupations; professional occupations at least in the sense that they’re regulated under IC 25 — I recognize that in common parlance there is a debate over what constitutes a “profession” as opposed to a job.

It gives optometrists more authority with respect to prescribing drugs. The optometry board is already charged with creating a formulary of legend drugs that can be prescribed by an optometrist. This legislation would allow that list to include controlled substances.

More dramatically, however, the legislation would repeal the statutes that regulate cosmetologists, barbers, dietitians, hearing aid dealers, private investigator firms, and security guards. It also does away with their respective licensing boards.

These are tough ones for me. I certainly understand the concern that you want to go to a barber and not have your hair butchered, not get scammed by a hearing aid dealer, or robbed by a security guard. An incompetent dietitian, if trusted, could cause you serious health problems. But, I also understand the notion that we take risks with the people we hire every day. Mostly we rely on things like reputation and word of mouth, coupled with the laws that prohibit outright crime and dangerous conduct and civil suits that provide for reimbursement for damage caused by negligent conduct. Where to draw the line between what ought to be a regulated profession and what ought not be one isn’t very clear for me. Medical doctors I certainly want regulated. I’m too close to the legal profession to make a judgment on that — there is an interest in making sure you’re being advised and represented by someone who knows what they are doing, but my compensation is no doubt enhanced by the barriers to entering the profession (unless, I suppose, you consider that there are legal but unethical ways to profit yourself at the expense of your client that will get you suspended or disbarred because the profession is regulated.)

When I was at Legislative Services, I got the feeling that a lot of the professional regulation was driven, not so much by pressing safety concerns, as by people who would stand to profit by selling education services, initial or continuing, to the regulated profession. One “tell” that safety wasn’t necessarily an immediate concern is that when a lot of these professions would head into the regulated column, existing practitioners would be “grandfathered” in — i.e. they hadn’t gotten the now necessary education but would be allowed to keep on serving the public into the future.

So, I’m not a knee-jerk deregulator, but I’m certainly open to listening to arguments either way on whether these professions pose special risks to the public such that government ought to keep a closer eye and be more directly involved in assuring the public that practitioners have some minimum level of competence.