Jon Easter at the Indy Democrat has a post about the kick off for “Freedom Indiana,” a coalition opposed to passage of HJR 6, the Constitutional Amendment that would double down on Indiana’s prohibition on marriage equality for same sex couples and would also preclude the General Assembly from conferring upon unmarried people a legal status “substantially similar” to marriage. Easter calls the coalition eclectic and notes, in particular, the participation of Megan Robertson, an insider in state Republican circles.

While I imagine the opposition to this Constitutional Amendment will be somewhat along party lines, there seems to be a fair amount of cross over. Notoriously, former Democratic speaker, Pat Bauer voted for this amendment. And now we see some business interests, probably more comfortable in the Republican Party, agitating for the right to provide benefits to its employees who are parts of same sex couples along with someone like Ms. Robertson. Conservative media personality Abdul Hakim-Shabazz has been less than thrilled with HJR 6. Opinions on same sex marriage has been noted as a generational thing with younger people more indifferent than older people who might be more likely to be opposed.

If I had to put money on it, my natural pessimism would be to say that HJR 6 passes the General Assembly this year and in a close vote, narrowly passes as a public question in November. However, there is a chance that the question forces the organization of a coalition that could not only defeat the Constitutional Amendment but provide the impetus for repeal of Indiana’s existing “defense of marriage” act.

Some of my friends who are paying particular attention to the marriage equality issue have asked for my opinion on recent concerns about whether recent legislation has made it a criminal act for same sex couples to apply for a marriage license.

While, I certainly would not call the General Assembly a friendly place for marriage equality, I don’t think there was a plan in this case to single the issue out for special, negative treatment.

As I understand it, the concern is with the penalties in IC 31-11-11. Those penalties were part of the massive criminal law reform bill, HB 1006, that (for the most part) goes into effect on July 1, 2014.

In particular:

SECTION 307. IC 31-11-11-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a Class D Level 6 felony.

SECTION 308. IC 31-11-11-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 2. A person who knowingly furnishes false information in a verified written consent under IC 31-11-2 commits a Class D Level 6 felony.

This raises concerns because, when coupled with forms with specific gender designations on marriage applications, it might be regarded as a felony if two males are applying for a marriage license and one of their names is placed in a field labeled “female.” (Those designations facilitate execution of IC 31-11-1-1 requiring that marriage is limited to heterosexual couples.)

My thoughts are these:

First, this is not a new concern. The law regarding false information has been in place for years. The redesignation from “Class D” felony to “Level 6” felony isn’t some new enhancement for this particular crime; rather it is part of the larger overhaul of the criminal law. I don’t know the particulars, but it appears as if a great many Class D felonies are being redesignated as Level 6 felonies.

Second, when individuals are using paper forms, they could almost certainly take themselves out of risk of this particular crime by simply crossing out the incorrect gender designation and replacing it with the correct ones.

Third, when it comes to electronic forms where one cannot strike through incorrect information, things get trickier, but I have a hard time concluding that a prosecutor would prosecute, a jury would convict, and a reviewing court would uphold a conviction where, for example, in the field with the incorrect gender designation, the applicant put the correct gender in the name field. (For example “JOHN SMITH (MALE – NOT FEMALE)”). The burden is on the state to show beyond a reasonable doubt that the applicant was knowingly furnishing false information. I’m not sure how anyone could say the burden was met in such a situation.

SB 53 amending the law on the crime of child seduction was passed by the Indiana General Assembly. Child seduction generally involves sexual activity between an individual who is 16 or 17 years old and an individual who is 18 years or older and in a position of trust or authority with respect to the 16 or 17 year old.

This bill defined “professional relationship” as being one where a person has a license issued by the state or political subdivision based on training or experience in the person’s occupation; or where the person’s position is one where counseling, supervising, instructing, or recruiting children forms a significant part of the employment; and the person has a relationship with the child based on such licensure or position.

An 18 year old or older person commits child seduction when they have sexual activity with the 16 or 17 year old where the older person:

(1) has or had a professional relationship with the younger person;
(2) may exert undue influence on the younger person because of the professional relationship; and
(3) uses or exerts the person’s professional relationship to engage in the sexual activity.

I don’t have a problem with the concept here. If you have authority, you shouldn’t be using it to have sex with teenagers. But, it did highlight to me the difficulty of drafting legislation in this area. Strictly read, I think the crime would apply to an 18 year old life guard hooking up with a 17 year old who goes to the pool regularly.

The lifeguard is employed in a position where supervising children is a significant part of the employment. The lifeguard may well have developed a relationship with the 17 year old because of his position. The lifeguard’s influence and attractiveness to the 17 year old could well be enhanced by the lifeguard’s status as (relative to ordinary pool patrons) a person of authority and interest. And, obviously, an 18 year old lifeguard is not going to be above leveraging the position to enhance romantic prospects.

Now, even if I’m right on the strict construction; I wouldn’t think any self-respecting prosecutor would pursue such a case. But, where possible, you really don’t want the good will of fallible humans to determine whether execution of your law is a good thing or bad thing.

The General Assembly passed SB 5 concerning hospital and ambulance liens. If I’m reading it right, it adds a Medicare or Medicaid patient as a person against whom a hospital cannot hold a lien against the person’s personal injury claim. The lien has to be reduced to reflect write offs and adjustments to which the patient is entitled under the patient’s insurance policy. (Can’t jack up the price or balance bill the chargemaster rate just because the person ultimately footing the bill is going to be, say, an auto insurance company instead of the person’s Anthem policy.)

The hospital is also apparently barred from compromising its lien claim with the tortfeasor without also waiving, as to the patient, the remainder of the hospital fee balance secured by that lien. 

I also find this sentence troublesome, “A hospital lienholder is barred from enforcing the collection of charges covered by this chapter until the cause of action, suit, or claim accruing to the patient has been resolved by compromise, settlement, or judgment.” Now, I think what this means is that, if the hospital asserts a lien against the personal injury claim, it can’t, at the same time, try to collect the debt from the patient who received the services until the cause of action asserted by the patient against the tortfeasor has terminated. But, I can see a personal injury attorney trying to help out a client, saying that, even if the hospital hasn’t secured a lien against the judgment that, the hospital bill is still a “charge covered by this chapter” and making the hospital wait to collect — no matter how tenuous the personal injury claim might be and no matter how lackadaisical the patient/plaintiff is in pursuing the claim against the tortfeasor. You could get out of paying a bill for years by paying $150 to file suit against a marginal defendant with no money to hire a lawyer; then just kick that claim down the road as long and as often as a court will let it sit on the docket; stymying collection efforts by the hospital. 

The hospital has to assert its lien within 90 days and not later than the date of a settlement. The legislation also repeals the law concerning ambulance liens but makes it clear that existing liens are still valid and that an ambulance company is still entitled to charge and collect for its services even if it’s not entitled to secure its interest by asserting a lien. 

Sophia Voravong, writing for the Lafayette Journal & Courier had an article on the passage of HB 1054 which allows the Secretary of State to reject certain filings if the Secretary of State has probable cause to believe the filing is materially false or fraudulent. These include, financing statements where 1) the same name is listed as both debtor and secured party; 2) the debtor is identified as a “transmitting utility”; 3) the statement appears to be for the purpose of harassment; or 4) the instrument is forged.

The measure specifies that Secretary of State does not have a duty to investigate the legitimacy of any particular finding — thereby presumably helping it avoid lawsuits by people who are unhappy that the office has the discretion to reject filings but did not do so in a particular case. Individuals who believe that a filing was fraudulent are given the opportunity for judicial review of a filing with an award of attorney’s fees if they are successful. (I wonder if this might inhibit filing by legitimately secured parties for fear of lawsuits or counterclaims if/when the transaction goes bad.)

I do not see anything that gives a filer who has a filing rejected any explicit appeal options. But, maybe that’s elsewhere in the statute or can be accomplished by a suit for injunctive relief.

The Journal & Courier story points out that the goal of the legislation is to curtail nonsense and abusive filings by “sovereign citizens.” (See, e.g. my Redemption Song post from three years ago with discussion of one flavor of these nutjobs and their misguided attempts at using legal word salad because they don’t like complying with their obligations.)

Sophia Voravong, writing for the Lafayette Journal & Courier had an article on the passage of HB 1054 which allows the Secretary of State to reject certain filings if the Secretary of State has probable cause to believe the filing is materially false or fraudulent. These include, financing statements where 1) the same name is listed as both debtor and secured party; 2) the debtor is identified as a “transmitting utility”; 3) the statement appears to be for the purpose of harassment; or 4) the instrument is forged.

The measure specifies that Secretary of State does not have a duty to investigate the legitimacy of any particular finding — thereby presumably helping it avoid lawsuits by people who are unhappy that the office has the discretion to reject filings but did not do so in a particular case. Individuals who believe that a filing was fraudulent are given the opportunity for judicial review of a filing with an award of attorney’s fees if they are successful. (I wonder if this might inhibit filing by legitimately secured parties for fear of lawsuits or counterclaims if/when the transaction goes bad.)

I do not see anything that gives a filer who has a filing rejected any explicit appeal options. But, maybe that’s elsewhere in the statute or can be accomplished by a suit for injunctive relief.

The Journal & Courier story points out that the goal of the legislation is to curtail nonsense and abusive filings by “sovereign citizens.” (See, e.g. my Redemption Song post from three years ago with discussion of one flavor of these nutjobs and their misguided attempts at using legal word salad because they don’t like complying with their obligations.)

https://www.masson.us/blog/9330/

Eric Bradner, writing for the Evansville Courier Press has an article entitled After Rockport bill’s passage, developers say project will die. It’s another one of Bradner’s impressive series of articles on the Rockport project. The project started moving a couple of years ago when the Indiana Finance Authority entered into a contract (with Leucadia / Indiana Gasification, I think) that would provide financial incentives for the development of a coal gasification plant and lock ratepayers into a paying a particular price for the resulting gas. If prices go above that locked in rate, then the ratepayers win. If not, they lose. The shale boom has people thinking that, in all likelihood, the deal would have ratepayers overpaying for their gas for the next 30 years. In addition, there are environmental concerns about using coal. The contract is the subject of an ongoing legal dispute.

The General Assembly just passed SB 494 which requires the IURC to review the contract unless the Indiana Supreme Court affirms the IURC’s order of November 22, 2011 in its entirety. Under the new review, the IURC would have to take into consideration the synthetic natural gas market and whether the contract is likely to save ratepayers money and whether risk from price volatility is adequately allocated between the producer and the ratepayers.

According to Bradner’s article, the developers say that the new regulations mean the project is dead. The battle is one of those odd bedfellows kind of deals – developers, coal interests, and unions on one hand versus Vectren, business, consumer, and environmental groups on the other.

Maureen Hayden has a column entitled Criminal Code reform legislation will need funding to work. She notes that there is a major piece missing from the criminal code reform bill still pending before the General Assembly: money to make it work.

One of the bill’s original goals was to divert low-level, non-violent offenders out of state prisons, where the worst offenders belong, and into community-based programs proven to reduce recidivism.

But with just days to go before the session’s end, nowhere in the legislation or the $30 billion budget bill are the dollars for local jails and community correction facilities to run the drug rehabilitation programs that criminal justice experts say are needed to make a real dent in crime.

One of my critiques of the State’s budget balancing is that it has been done on the backs of local governments – cutting or freezing local funding while continuing to mandate certain services. This has the look of more of the same. You can’t have state legislation that has state court judges sentencing offenders to local programs without also providing funding for those programs.

I wanted to give credit to the AP for introducing its readers to the legislative notion of a Christmas tree. It’s a bill with a strong central legislative goal from which legislators can hang lesser pieces of legislation that were unable to stand on their own. The article cites the budget bill as the prime example. (But, then, it goes on to repeat that old chestnut about how the budget is the one bill they “must pass.” Yeah, there would be hell to pay if they didn’t pass the state budget; but, contrary to popular belief, there is no constitutional provision that makes passage mandatory before sine die.)

The article mentions “ornaments” from years past — the Planned Parenthood defunding, a mobile home tax credit, tax increases to pay for Lucas Oil Statdium. This year, potential candidates include financial consideration for the Indianapolis Motor Speedway, gambling expansion, state voucher expansion, Common Core education standards, and review of the Rockport gas contract.

The advantage of the “Christmas Tree” approach is that, if you can manage to get your pet project tacked on to the budget or other major legislation; it’s less likely that other legislators will vote against it even if they don’t much care for the substance. (And they have a lot more cover and plausible deniability if they’re simply embarrassed to vote for the substance.)