The AP has a story on Rep. Cindy Ziemke (R-Batesville), her sons’ struggles with heroin, and what the struggles bring to her legislative outlook. Both of her sons have addictions to heroin. Among other things, one ended up in prison and another in a hospital as well as in and out of rehab.

She is proud of what her sons have accomplished though she acknowledges her expectations have changed over the years.

“I used to think they were going to be doctors or lawyers,” she said. “You want to know my proudest moment lately? Sean got a new car. He’s got a clean driving record, a 750 credit score, and he can afford a car payment. That was my proudest moment lately.”

I have to say that this is a scenario that plays out in my nightmares. I have a couple of kids who are delightful and seem to be very much on the right track. And, so, I wonder — how much randomness is there in addiction derailments of otherwise promising lives?

From a policy perspective, this has emphasized to Rep. Ziemke the need for better treatment options in Indiana.

Unlike Indiana, Southern California boasts a wide range of treatment options and, as a result, a much larger sober living community. There is a wider array of housing options for those in recovery, and employers are more open to hiring recovering addicts, she said. There are 12-step meetings available any night of the week.

It’s a stark contrast to Indiana, with its limited treatment options. Fostering a stronger recovery environment in Indiana will take time, she said, but it begins with recognizing the need. And that means spreading the truth that heroin abuse can affect anyone.

To that end, she’s sharing her experiences more frequently. She mentioned Sean’s struggle during the last legislative session when she sponsored a bill expanding the availability of naloxone, the overdose antidote that helped save her son’s life.

And just last month, she spoke to about 500 people at Mental Health America of Indiana’s annual gala.

“It’s hard to do,” she said. “But it gets easier.”

The Interim Committee on Local Government has been charged with seeking out and destroying obsolete statutes. In that capacity, John Stieff, director of the Legislative Service’s Agency’s Office of Code Revision (and officiant at my wedding), wrote a memorandum to the Committee (which mentioned nothing about my wedding).

It’s not uncommon to hear people complain that we have too many laws. You look at the Indiana Code and see 36 titles (really 33 – Titles 17, 18, and 19, have been repealed). It seems like too many. Really, we should get by with less is the sense. And, there is some cruft. We’ve been a state for just shy of 200 years. Some residue builds up over the years. So, you get charges like this one to identify statutes that are obsolete, superseded, or no longer apply (“obsolete” statutes).

The memorandum described a prior approach to seeking out “obsolete” statutes when John and deputy director, Craig Mortell, undertook a similar effort in 1988:

The standard we applied in determining whether a particular statute was appropriate for inclusion in the obsolete statutes bill was that we had to be convinced that the statute had no further viability. Since we were faced with the impossibility of proving the negative that a statute could never be applied in the future, we took the stand that a statute would be removed from the bill if anyone disagreed with our conclusion that the statute was obsolete. If a court case declared a statute unconstitutional or a federal law pre-empted a statute, that fact alone did not require the statute’s inclusion in the obsolete statutes bill. The thought was that the court or the Congress could change its mind at any time, thus making the statute viable.

Of necessity, this is a very conservative standard. When labeling legislation “technical” in nature, the Legislative Services Agency tries very hard to avoid including anything with a policy impact. Policy decisions are up to legislators. The example John gives, and I can just imagine how much fun he was having when he wrote this, is the curious case of “Rat Day.”

[I]n 1949, the General Assembly enacted a statute that was recodified at IC 16-41-34-1. The statute authorized the Governor to designate by proclamation a day in the spring as “Rat Day”, a day to be observed throughout Indiana as a day for destroying rats in homes, public buildings, and other places. It is not clear that any Governor ever officially proclaimed a day as “Rat Day”.When the Code Revision Commission considered the obsolescence of this statute in 1988, the determination was made to leave the statute on the books, since the next Governor might take the opportunity to make such a proclamation.

He goes on to say that a legislator authored P.L. 142-1995 which apparently stripped the Governor of his authority to declare Rat Day. So, no whacking day for Hoosiers. The memorandum goes on to suggest that the committee might want to use a more aggressive approach to identifying obsolete statutes. But, that is going to be a legislative decision, not one that LSA is going to assign to itself.

The Associated Press is reporting that Indiana is planning on building its first state park inn since 1939 at Potato Creek State Park up near South Bend. The building plans are apparently 15 years old, dating from a prior initiative where the inn failed to get funding. This year the General Assembly approved $24 million in funding for the project. In the interim, the State apparently tried and failed to enlist a private partner for the job.

But, fear not, private use of public resources will be used to fund the construction:

Gov. Mike Pence has said the lodge will be paid for solely by the leasing of . . . more than 300 cell towers on DNR land.

Katie Heinz and Matt McKinney, writing for the Indy Channel, report that the trial court judge has dismissed the public records lawsuit brought against the Indiana House Republican Caucus. I had a post back in March about the underlying request and the trip to the Public Access Counselor.

The request was for, essentially, correspondence from Sept. 1, 2014 to the present between Rep. Eric Koch and various players in the energy policy world (e.g. Duke Energy, NIPSCO, Vectren, etc.)

In resisting the request, the House is claiming that it is exempt under the Access to Public Records Act (APRA) and that, as a matter of policy, they need to be exempt:

House Speaker Brian Bosma told RTV6 in March that complying with public records requests could dissuade constituents from contacting their legislators.

“You’d truly be surprised at the things people share with their legislators,” Bosma said. “Many times we’re the point of last resort when family tragedy occurs.”

As an initial matter, I am not sure that the language of APRA really contains such a broad exemption for communications to the Indiana General Assembly. But, assuming for the sake of argument that they are, the exemption would be horribly underinclusive if the rationale was truly to protect communications between constituents and elected officials. Why just the General Assembly? It’s not like they’re the priesthood of the republic to whom citizens confess their sins and impure thoughts. Constituents communicate all sorts of concerns to all sorts of lawmakers and elected officials. There is not one principled reason for carving out an exception specifically applicable to the General Assembly on this basis. Either ditch the exemption for the General Assembly or make it applicable to all of the State’s elected officials.

I’ll be interested to get a look at the trial court’s rationale. But, to a certain degree, the rationale is going to be incidental. This is the sort of thing the Court of Appeals or, if they’re interested – the Supreme Court, will have to sort out.

Update The trial court order (copy obtained by the Indiana Law Blog) is not a wealth of information. It simply says that the court finds the Masariu case to be applicable and therefore grants the motion to dismiss for lack of justiciability. That case is State ex rel Masariu v. Marion Superior Court No. 1, 621 N.E.2d 1097 (Ind. 1993) which, itself, is not a tour de force of reasoning and research.

Betty Masariu was the Clerk of the Indiana House of Representatives and, in that capacity, a lawsuit was brought seeking to compel her to produce certain voting records of the House. (The decision itself does not reveal anything else about the voting records requested.) The Indiana Supreme Court cited Article 3, Sec. 1 of the Indiana Constitution which provides:

“The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.”

Under that section, according to the Masariu decision, the Supreme Court was prohibited from determining that disclosure of the voting records was required under the Access to Public Records Act. To do so, the Court declared, would “amount to constitutionally impermissible judicial interference with the internal operations of the legislative branch.” Assuming that the APRA requires production of such records (which is the required assumption at this stage of the litigation), it’s unclear how requiring such production constitutes interference with the House’s internal operations — in as much as, if APRA requires it, the General Assembly imposed the requirement on itself (along with other governmental entities).

The Masariu decision is opaque, but the case it cites, Roeschlein v. Thomas, 258 Ind. 16, 280 N.E.2d 581 (1972) and the manner in which it is cited hints at a distinction: (“Courts cannot be authorized to undermine the exclusive constitutional authority of the presiding officers of each house to authenticate all legislation.”) It might be (and I’m only speculating) that this request for voting records was part of an effort to say that some piece of legislation was not passed correctly and was, therefore, invalid. Roeschlein was an effort to invalidate Article 7 of the Indiana Constitution concerning the judiciary, revised in 1970. Part of the complaint was that the Joint Resolution containing the constitutional amendment was not properly passed by the Indiana General Assembly. The Indiana Supreme Court said that it was enough that the joint resolution was authenticated as having been properly passed by the Speaker of the House and the President pro tem of the Senate. The Court was not going to get into the internal business of either chamber to investigate the underlying mechanics of how the legislation was passed.

Roeschlein seems like an entirely appropriate invocation of separation of powers. Masariu looks like a sketchy but plausible invocation if the underlying voting records were sought as part of an effort to invalidate legislation certified as passed by the Speaker. The present case does not seem to raise such concerns at all. The General Assembly passed a law that applies to all government records, including its own. (Or, again — if these records are exempt under APRA, that’s a separate argument.) While a court should hesitate to impose such a requirement on the General Assembly on the court’s own, where the General Assembly has imposed the requirement upon itself as a matter of state law, the courts should feel free to compel individual Representatives to comply with the law in the same manner it compels members of the executive branch to comply with APRA. Does this mean that the Governor is exempt from complying with APRA under Article 3, section 1? If not, why not? And, because Article 3, section 1 doesn’t just mention the governor along with the legislative branch, it specifies “the Executive including the Administrative,” under this rationale, all of the executive branch agencies would seem to be justified in invoking interference with their “internal operations” as a reason not to produce records.

That’s my initial take, anyway. If and when the Court of Appeals and/or the Indiana Supreme Court takes this up, I am hoping for a more extensive discussion than the one paragraph ruling of the trial court or even the six paragraph decision of the Masariu case. If separation of powers is the rationale, I would also welcome some explanation about why the same rationale would or would not apply to APRA requests directed to the executive branch.

Kris Turner, writing a story that appeared at the Lafayette Journal & Courier, reports that the State has released details about a loan program for charter schools.

The program gives charters access to $50 million in state-funded loans and comes on the heels of the state’s forgiveness of $90 million in charter school loans in 2013.

$140 million here, $140 million there, and pretty soon we’re talking about real money. Let’s invest in our public schools.

The loans carry a 1% interest rate and will theoretically be paid back within 10 years. The loans are further secured by the facilities that are built with the loan proceeds. However, I’m not sure what the re-sale proceeds are on a defunct school building if you foreclose on them.

And, there is still the possibility that, like the $90 million loan that came before, this new $50 million loan will be forgiven by the State:

In 2013, the state forgave and paid off more than $90 million in charter school loans. The move drew protests from traditional public schools whose loans were not forgiven and consequently charter schools were no longer given access to the loan money.

Kenley said Pence and House Speaker Brian Bosma plan to do the same thing again with the new loan program — an assertion that neither denied outright.
. . .
[T]he new loan program . . . gives charter schools access to up to $50 million in loans from the state’s common school fund.

The fund has about $170 million available — money that would normally be reserved for traditional public school loans for construction and technology purchases. Now, charter schools can access nearly a third of the funds at an interest rate of just 1 percent.
. . .
Overall, 43 of the state’s 79 charter schools already have outstanding obligations, for a collective debt of about $120 million.

Traditional public school districts carry much larger debt loads, but those loans are typically backed by property tax levies, making them relatively safe bets. Of the 655 outstanding common school fund loans to traditional public schools, none are behind on payments, according to the state treasurer’s office. Nor have any traditional public school loans been forgiven.

Charter schools, on the other hand, are less predictable. Several of the charter schools whose loans were forgiven in 2013 ceased operations shortly thereafter.

Niki Kelly, writing for the Fort Wayne Journal Gazette, has an article entitled “Young Drivers Hit with Cell Ban: Even lawmakers taken by surprise”.

The bill was HB 1394-2015 authored by Rep. Soliday and sponsored by Sen. Crider. At issue is a provision that prevents drivers under 21 from using a cell phone at all — even for GPS, texting, or music. The digest (written by LSA as a tool for lawmakers, but not actually part of the legislation) reads:

Supervision of probationary drivers. Amends existing supervised driving requirements to receive a learner’s permit or an operator’s license. Provides that an individual with a disability who satisfies certain requirements is eligible to receive an operator’s license. Repeals a superseded provision concerning probationary operator’s licenses. Provides that an operator’s license issued to an individual who is less than 21 years of age is a probationary license. (Under current law, the age limit for a probationary license is 18 years of age.) Requires the bureau of motor vehicles to adopt rules to establish minimum hours of instruction for approved driver education courses.

(emphasis added)

The story reports that some lawmakers were caught flat-footed, unaware of the expansion. The probationary license is the mechanism creating the expansive prohibition of cell phones. From the text of the legislation, it appears that was already in place for individuals under 18.

On page 6 of the legislation, it says, “(4) The individual may not operate a motor vehicle while using a telecommunications device until the individual becomes eighteen (18) twenty-one (21) years of age unless the telecommunications device is being used to make a 911 emergency call.”

The language is pretty clear if you’re reading it. But I can see where this is something you’d gloss right over when scanning. The definition of “telecommunications device” is not changed by this legislation but is defined in IC 9-13-2-177.3 as meaning “an electronic or digital telecommunications device. The term includes a: (1) wireless telephone; (2) personal digital assistant; (3) pager; or (4) text messaging device.”

I suppose one could very legitimately take issue with the interpretation that this prohibits using your iPhone in its capacity as a music player or in its capacity as a GPS system. Yes, it’s a “telecommunications device” but it’s also many other things. Are you “using a telecommunications device” when you check the time on a machine with both clock and telecommunications functions? I’m skeptical.

Another potentially interesting angle: does this open the State up to a class action for taking without due process and without compensation by those people between 18 and 21 who had a full operator’s license prior to July 1, 2015, but now have a license of diminished value? I have not done any research on this — so take it with a huge grain of salt, but the theory would go that an individual has a property interest in a license issued by the State and the State can not just arbitrarily take that away from you or limit the scope of your license. For example, see some language in the 1971 case of Bell v. Burson:

Once licenses are issued, as in petitioner’s case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.

Seems like a case where a grandfather clause would have saved everyone a lot of trouble.

A provision in HB 1305 concerning an obligation not to hang out in the left lanes has received some attention lately. I’m not sure how much coverage the actual text of the statute has received, so here it is:

SECTION 69. IC 9-21-5-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2015]: Sec. 9. (a) A vehicle that travels at a speed less than the established maximum shall travel in the right lanes to provide for better flow of traffic on the interstate highways.
(b) This subsection applies to the operation of a vehicle:
     (1) on a roadway that has two (2) or more lanes of traffic in each direction; and
     (2) in the left most lane, other than a lane designated for high occupancy vehicles.
Except as provided in subsection (c), a person who knows, or should reasonably know, that another vehicle is overtaking from
the rear the vehicle that the person is operating may not continue to operate the vehicle in the left most lane.
(c) Subsection (b) does not apply:
     (1) when traffic conditions or congestion make it necessary to operate a vehicle in the left most lane;
     (2) when inclement weather, obstructions, or hazards make it necessary to operate a vehicle in the left most lane;
     (3) when compliance with a law, a regulation, an ordinance, or a traffic control device makes it necessary to operate a vehicle in the left most lane;
     (4) when exiting a roadway or turning to the left;
     (5) when paying a toll or user fee at a toll collection facility;
     (6) to an authorized emergency vehicle operated in the course of duty; or
     (7) to vehicles operated or used in the course of highway maintenance or construction.
(d) A person who violates this section commits a Class C infraction.

Less remarked upon is the existing provision in IC 9-21-5-7, amended somewhat by current legislation which reads:

Sec. 7. (a) A person may not drive a motor vehicle at a slow speed that impedes or blocks the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with the law. A person who is driving:
     (1) on a roadway that has not more than one (1) lane of traffic in each direction; and
     (2) at a slow speed so that three (3) or more other vehicles are blocked and cannot pass on the left around the vehicle;
shall give right-of-way to the other vehicles by pulling off to the right
of the right lane at the earliest reasonable opportunity and allowing the
blocked vehicles to pass.
(b) A person who fails to give right-of-way as required by subsection (a) commits a Class C infraction.

People are having fun with the tacit accommodation of the fact that people speed, and I suppose that’s fair. But the concepts at play here aren’t that tough. Motorists aren’t responsible for enforcing speed limits. If you want to go the same speed as a motorist in the right lane, do it behind that motorist and not to their left. If you want to get in front of the person ahead of you, do it quickly.

Generally there seem to be two or three things that lead to people hanging out in the left lane – 1) Not trusting other motorists to also play by the rules, resulting in you getting trapped in the right lane; 2) Not being comfortable with your ability to use passenger’s side rear view (I speculate due to the inordinate number of mini-vans hanging out in the left lane); and maybe 3) being an oblivious jerk. This law would seem to be an attempt to address items #1 and 3 to some extent.

Also, when was the last time you saw someone pull over to the side when they had three or more cars behind them?

The “fix” is in. (I say “fix” because I believe that for many supporters of SB 101, it was less an issue of unintended consequences and more an issue of getting their hands caught in the cookie jar.) SB 50 is apparently being gutted and replaced with language that will amend the newly created IC 34-13-9. Here is my first impression.

As you may recall, SB 101 created IC 34-13-9 and stated that government could not substantially burden a person’s exercise of religion. Exercise of religion was defined fairly broadly and the burden did not have to be central to the person’s religion. If a person demonstrated a substantial burden, the governmental action could continue with respect to that person only if the government demonstrated a compelling interest and that the governmental action was the “least restrictive means” of advancing that interest. My sense was that the political point of the exercise (giving the timing and the identity of the strongest advocates) was to give social conservatives a win against the GLBT community. But, legally, the impact on the rights of gay citizens would not be hugely significant because there aren’t a lot of government protections based on sexual orientation in the first place. Where there might have been a practical impact was in the case of human relations ordinances in various municipalities that did offer protections based on sexual orientation. State law would have trumped those.

The amendment adds two new sections: IC 34-13-9-0.7 and IC 34-13-9-7.5:

Sec. 0.7. This chapter does not:
(1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;
(2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or
(3) negate any rights available under the Constitution of the State of Indiana.

. . .

Sec. 7.5. As used in this chapter, “provider” means one (1) or more individuals, partnerships, associations, organizations, limited liability companies, corporations, and other organized groups of persons. The term does not include:
(1) A church or other nonprofit religious organization or society, including an affiliated school, that is exempt from federal income taxation under 26 U.S.C. 501(a), as amended (excluding any activity that generates unrelated business taxable income (as defined in 26 U.S.C. 512, as amended)).
(2) A rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.

So, let’s break this down. It does not authorize (or establish a legal defense) where a “provider” refuses services, facilities, use of public accommodations, goods, employment, or housing. This is pretty broad. But I’d just flag the legal maxim expressio unius est exlusio alterius (the expression of one thing is the exclusion of the other.) I can’t think of a context for objectionable discrimination that falls outside of services, facilities, public accommodations, goods, employment, and/or housing, but they could exist and if they do, this language probably somewhat strengthens the ability to discriminate in those non-articulated contexts. Specifically, there is no authorization or legal defense for these refusals where they are based on “race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” Again, pretty broad. But if there are non-articulated groups, they might be fair game because they’re not in this laundry list.

Now, what’s a “provider”? Because that language above suggests that non-providers might be able to discriminate on those bases (to the extent otherwise legal). “Providers” are pretty much anyone except for churches and other organizations “exempt from federal income taxation under 26 U.S.C. 501(a)” — but excluding activity generating unrelated business income. (I’m not quite sure how that will play out functionally, they have excluded particular persons based on status as a particular kind of organization but, in a sense re-included the organizations based on activity (as opposed to organizational status). The tax code might provide guidance for this kind of partial carving out of an organization.) Also excluded from the definition of “provider” are “a rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.”

The upshot is that they have defined as non-providers religious people and organizations to the extent they are fairly tightly engaged in religious pursuits. The rest of the world is pretty much prohibited from using RFRA as a justification for pernicious discrimination. As a legal matter, I think this pretty well removes the impact from the human rights ordinances I know about. As a political matter, this has to sting the most ardent advocates of the local RFRA.