Beer, glorious beer. So frosty* and delicious. Except on Sundays. (*Note: frostiness void where prohibited.)

Dave Bangert, writing for the Lafayette Journal & Courier, has a good column on the Rickers’ end-run around the state’s liquor laws. Rickers convenience stores found a loophole that let it sell cold beer at its locations. (Apparently selling just enough food to get a restaurant permit to allowed cold carry out.) After the exploit came to light, the House sprang into action to stop others from taking advantage — tacking a Rickers provision onto a Senate Bill. The House committee report is here. The committee report contains an “intent of the General Assembly” provision. That’s always a red-flag in Indiana legislation. The substantive provisions of the law should speak for themselves. If there is an “intent” provision, that’s an indication that the substance is weak. (The Indiana Law Blog notes that use of preambles is discouraged by Indiana’s legislative drafting manual.)

Bangert writes:

Consider Sunday sales of retail alcohol. Getting rid of Indiana’s Prohibition-throwback vestige of blue laws really should be the low-hanging piece of Indiana’s weird setup.

But there is no such thing as easy when it comes to the marriage of convenience and the sense of Indiana’s carry-out alcohol regulations. Sunday sales is a frequent fight at the Statehouse, ultimately gummed up with sympathy for true liquor stores none too keen on allowing the sales of beer, wine and whiskey a seventh day – especially when that extra day is one of the biggest for weekly grocery shopping.

. . .

Meanwhile, the General Assembly resigns itself to scolding state agencies that grant a taste of cold beer sales, no matter how closely a place such as Ricker’s followed the letter of the law to get it done. Lawmakers are left trying to explain their intent – in this case that “a restaurant within a grocery store, convenience store, specialty or gourmet food store, or drug store should not be given the privilege of selling cold beer or liquor for carryout” – while admitting they’re barely solving anything at all.

He offers a hint of optimism though, observing that – as with any struggle with alcohol – “the first step is admitting that you have a problem.”

I know it’s something of a tradition for people offering their opinions to get perspective from cab drivers. But, I haven’t been in a cab for awhile, so the best I can offer is “dudes I talked to while watching a high school baseball game.” They were generally amused and supportive of Rickers and didn’t think much of the General Assembly’s effort to tackle the situation.  I think liquor laws are so jacked up, we have a celebration of the anti-hero situation going on here. I’m not sure if it’s Robin Hood or Billy the Kid or what, but ultimately we have laws that don’t make sense and, so, aren’t respected. When that happens, there tends to be admiration for someone like Rickers who gets around the arbitrary intent of the law while complying with the letter.

Still, in the scheme of things, the liquor laws are more of a low-level irritant. I don’t know that there will be a big push to make the General Assembly change things in the face of some pretty entrenched interests. As with the fable of the Hound and the Hare, the public is only running for its dinner while the liquor stores are running for their lives.  I’m skeptical Indiana’s liquor law structure will change much. Probably it will just serve to be a drag on the General Assembly’s reputation (a phrase which, I recognize, makes for some easy jokes.)

I was going to use a picture of an animated doll and make a joke about how I was referring to a different kind of adverse possession. But that seemed creepy, so I didn’t. You’re welcome.

Sen. Koch has introduced SB 121 regarding adverse possession. Adverse possession is a somewhat odd but venerable concept in real estate law that essentially says that if you use someone else’s real estate long enough and they let you, it becomes yours.  One can imagine, in days of yore, an absentee landowner with vast tracts of land who was so inattentive that someone else farmed it for a decade or two without noticing. In that case, maybe it’s best that someone doing something productive with the land becomes the owner. I don’t know if that’s exactly how the concept became enshrined in our law, but I think it’s probably pretty close.

In any case, there is now a formula of elements that have to be present before land can be adversely possessed. The elements are sometimes framed in different ways, but they include the fact that the possession must be open, actual, continuous for ten years or more, and adverse to the person who holds title to the land.  There is another requirement that the legislature added to the common law element in the 1920s: a person claiming possession has to pay taxes on the land for that period. Often this element gets fudged a bit — in that, a fair amount of adverse possession takes place around the edges: say, you put up a fence that goes over your property line into the neighbor’s real estate. You don’t pay any more for the extra land, but you (and the government) think you’re paying what you owe. In that case, the taxation element will be satisfied. But, if you squat on a random tract of land, don’t get kicked off but don’t pay taxes, you won’t acquire the land.

There is an exception to the taxation element currently in place for governmental entities – presumably on the assumption that they wouldn’t normally have to pay real estate taxes in any case, so it shouldn’t be an element of adverse possession for those entities. SB 121 extends that logic to “501” entities who wouldn’t be required to pay taxes to enjoy adverse possession. (The number “501” comes from section 501 of the Internal Revenue Code where you’ll find various types of tax-exempt organizations, such as the 501(c)(3) charitable organizations.)

This certainly isn’t my area of expertise, but I think this goes a little too far. I understand the logic, but I think the 501 entities still generally have to pay taxes on real estate if it isn’t being used for an exempt purpose. (Maybe a generally charitable organization has property that it’s using for straight up profiteering. Maybe a church opens a gym and makes money off of membership fees.) So, I’d be inclined to recommend an exempt purpose requirement to get the 501 entity out from under the tax payment requirements.

The bill title sounds like it could make a good movie or book title for some reason. But I digress. The

Look kids: Big Ben! Parliament!

Senate is considering Rep. Torr’s HB 1039 on second reading. It’s part of the Carmelization of our roadways and governs the right of way in roundabouts. (I see that the legislation does away with the term “rotary traffic island.”)

I had a little trouble visualizing what was going on from the language. But, it sounds like if you’re dealing with two or more lanes in the roundabout, cars have to yield to long or wide trucks (40 feet long and/or 10 feet wide) and if there are two long trucks in the roundabout, the one on the right has to slow down and yield to the one on the left.

Like I said, I might have this wrong, but it sounds like a situation where the long truck might not be keeping to its lane very well. The duty to yield doesn’t apply when the truck is entering the roundabout from the side. If it’s only one lane wide, then I don’t see where yielding within the roundabout would come up. And, if it’s separate lanes, ordinarily there wouldn’t be any yielding because you each have your own lane. But, if you have a long truck and a tight circle, staying in your lane might be a little tough.

Still, if there is a collision, I wonder how the negligence issue shakes out — the truck is going to say that the car had a duty to yield while the car is going to say that the truck had a duty to stay in its lane.

A few of our state legislators were on Twitter touting Indiana’s ranking for “small business climate” reported in Inside Indiana Business (your number one source for people saying “Inside Indiana Business.”) The rankings came from the “Small Business & Entrepreneurship Council” which appears to be a conservative advocacy group. The group’s rankings are based on a “state’s policy climate for small business and entrepreneurship based on criteria including taxes, regulation and government spending.” Based on its criteria, it ranks Indiana 7th.  First on the list was Nevada. Last on the list are California, New Jersey, New York, Minnesota, Vermont, and Hawaii.

A favorable business climate is useful insofar as it makes citizens happier, healthier, and more prosperous.

Let’s not lose sight of the goal. At the end of the day, things like taxes and regulations (or lack thereof) are tools to improve the lives of citizens. The lists that we want Indiana to be on top of are the ones about how prosperous, happy, and healthy our lives are.

In this list on healthiness, Indiana ranked 41st (Hawaii 1st, Vermont 2nd, Minnesota 6th). In terms of prosperity, here is a chart showing average disposable income by state (adjusting for cost of living). Indiana ranks toward the bottom. Minnesota and New Jersey still fare pretty well on that list. In terms of the happiest states, Indiana is in the bottom 40%.  Hawaii, California, Minnesota, and Vermont are all well above us. New York is comparable.

Sure, I don’t know much at all about the lists I linked to or the people who prepared them. But I also don’t know much about the Inside Indiana Business linked list. Still, eye on the prize, please lawmakers. If the pro-business policies are leading to improved quality of life for citizens, keep them. If they aren’t, then adjust them. Don’t mistake the means for the ends.

Rep. Bartlett (800-382-9842) has introduced HB 1024 which has a number of provisions concerning treatment of religion in public schools. The provision I’m concerned about mandates creation of a limited public forum at school events where students speak. I’ll get to that in a second. Some of the stuff that I like or am indifferent to are:

1. It requires high schools to offer comparative religion as an elective. Subject to my caveat that I pretty much universally dislike the General Assembly dictating school curriculum, this is a class that I enthusiastically support. Students should understand the wide range of religious beliefs, how they differ, how they are similar, how religion shapes history, and how history shapes religion. Such knowledge is vital to understanding the world.
2. It says that students can’t be discriminated against for offering a religious viewpoint. Among other things, “Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the public school. Students may not be penalized or rewarded on account of the religious content of their work.” As I read this, you can mark the student wrong if they claim the earth is 6,000 years old in science class. But, if they proclaim love of the messages of Jesus or Muhammad or the Buddha as part of their work in their Spanish journal, the religious content can’t be a basis for marking them up or down. I think there is probably a feeling in certain circles that kids are being persecuted for their religious expression. I am skeptical of whether this is true — my guess is that it’s either mostly not happening or the reports are disingenuous about the real reason for whatever penalty was received by the student. In any event, if there are schools penalizing or rewarding kids for religious viewpoints (outside of ordinary academic standards), they should stop.
3. Allows kids to pray on their own — before, during, and after school — to the same extent they can engage in nonreligious expression on their own. Generally, I’m o.k. with this. Though I can see it being a source of litigation. If little Jimmy gets disciplined for telling his classmate her family is going to hell for being an unbeliever in the same way little Johnny gets disciplined for telling his classmate her family is going to jail for being criminals,  that seems like it should be legal under this bill. But, of course, little Jimmy might forget a few details on his way home, and little Jimmy’s family lawyer may massage a few details before the matter gets to court. That sort of problem isn’t unique to this legislation. Again, I’m not sure how much this is an actual problem in the real world. I usually hear about how prayer isn’t allowed in school from people whose real complaint is that schools themselves, as an arm of the government, aren’t allowed to encourage or facilitate prayer. They either can’t understand or don’t understand the difference between government speech and private speech.
4. Similar to item #3, religious groups are to be able to access school facilities on the same basis as other noncurricular groups and shouldn’t be denied facilities simply based on their religious viewpoints. Again, I’m generally supportive of this. Things get a little tricky when you’re talking about their ability to promote their meetings using school communications. In theory, that’s fine, but it’s not tough to imagine a situation where captive students get the message, which they perceive to be endorsed by an authority figure, that it would really be in their best interest if they voluntarily went to this religious group’s event. That’s not a great dynamic no matter the event, but given my historical knowledge from my comparative religion class (see item #1), I know that the interaction between government & religion can be particularly problematic.

But, then we have this business about mandating limited public forums. It requires a school to adopt a policy “which must include the establishment of a limited public forum for student speakers at all school events at which a  student is to publicly speak.”  The policy regarding the limited public forum must also require the school corporation to:  “provide the forum in a manner that does not discriminate  against a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject; and  provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies.” It directs the Department of Education to consult with religious liberty advocates to develop a model policy.

So, what’s this business about a “limited public forum?” The Supreme Court has, primarily in the last 50 years or so, developed a “forum” framework to try to ascertain whether — when allowing or disallowing speech on public property —  the government is violating the Free Expression Clause of private individuals. Because government speech is also potentially involved, the Establishment Clause is also implicated. When the government owns property, it has the right to control that property; but the Court has given the government more leeway in some places than others. You can probably picket at the park. You probably aren’t allowed to burst into the mayor’s office to picket around his desk. So, the Supreme Court has reasoned that there are “traditional public forums.” These are parks, streets, and sidewalks. The government can regulate expressive activity with reasonable time, place, and manner restrictions, but it has to have great reasons to restrict your expressive activity and the restrictions have to be viewpoint neutral. There are “designated public forums” which are not “traditional,” but which the government has opened up to public expression (maybe a plaza of some sort). Unlike “traditional public forums,” a government can “undesignate” them so to speak, but until that happens, the same broad protections in favor of expressive activity apply.

There are also “nonpublic forums” — these are places the government has not opened up to expressive activity. The mayor’s office or a military installation, for example. Government has broad discretion to restrict expressive activity in these situations; simply limiting activity to the government function the space was meant to serve.  Mixed in with these three broad categories, the courts have dabbled with others — one of which is the “limited public forum” which is where the government has opened up the forum for certain groups or for the discussion of certain topics. For example, if the government rents out a theater it owns, it can exclude picketers, but it can’t exclude a play from performing there simply because it dislikes the play’s viewpoint.

Things get trickier when the question of government speech is involved. Government itself is allowed to have a viewpoint and advance that viewpoint. Furthermore, when the government is a speaker, the Establishment Clause gets involved. A minister preaching the gospel in a public park doesn’t run afoul of the Establishment Clause. A teacher preaching the gospel to students in school does. The question of when the government switches from mere forum provider to speaker isn’t always so easy. If a private organization puts up a cross in a public space where other organizations are free to put up their own religious or secular displays probably isn’t an Establishment Clause Problem. If a private organization puts up a cross on a prominent tree in the town square that the town never opens up to other religions or speakers, then the religious expression is probably imputed to the government. The government is more likely to be viewed as the speaker when the forum is not public.

And, so, we come back to HB 1024. The goal is, I assume, to open up functions like graduation speeches to religious expression and maybe even proselytization by student speakers. Where the forum is not public, the school controls access to the podium, and attendance is in some sense coerced, there is a significant risk that the courts are going to impute that religious speech to the school. This bill is trying to turn the government from speaker into mere forum provider by requiring schools to have a policy of some sort that declares the existence of a limited public forum. The legislation urges that accommodations be made for people who don’t want to hear the religious speech — put it at the beginning or end or excuse those who don’t like it. It also urges that selection of speakers be based on “neutral criteria.” But, it doesn’t say “neutral” as to what. “Neutral criteria” is an oxymoron.

I don’t think this is going to work. During a government function, some incidental praise for the higher power revered by the speaker isn’t going to hurt anyone. But this seems like an effort to allow religion to be more central to a public function, and the benefits of these legal contortions don’t seem to justify the likely expense. If the forum isn’t generally open to the public like a traditional or designated public forum and the government is controlling access to the podium, it seems highly likely that speech is going to be imputed to the government, regardless of what you call it.

Julie McClure, writing for the Columbus Republic, has an article on how Rep. Milo Smith (317-232-9620) blocked HB 1014, introduced by Rep. Jerry Torr and prepared by the interim special study committee on redistricting. The bill  establishes a redistricting commission “to create, hold hearings on, take public comment about, and recommend plans to redraw general assembly districts and congressional districts.”  It requires LSA to provide staff and administrative services, establishes standards to govern the commission and the agency in the creation of redistricting plans, and provides that the general assembly must meet and enact redistricting plans before October 1 of a redistricting year. Additionally, it authorizes the general assembly to convene in a session to act on redistricting bills at times other than the times the general assembly is currently authorized to meet. Generally, the idea is to make redistricting more of a non-partisan effort and reduce the temptation to gerrymander districts for particular results.

Smith is the chair of the House Elections and Apportionment Committee which gives him the power to call or not call a vote on legislation. He permitted a hearing on the bill but then blocked a vote. In the Republic article, he cites a number of potential concerns about the legislation. In particular, he questions a process whereby the General Assembly would come back at an irregular time to approve the maps and, whether the bill is specific enough about the existing process kicking in if the General Assembly does not approve the redistricting commission’s maps.

But, the salient point is that he did not propose amendments to address his concerns. And it’s not like Rep. Torr just sprang it on him. This was legislation recommended by the Interim Study Committee on Redistricting. If Rep. Smith had concerns while the committee was studying the issue, he presumably could have communicated those to the Committee this summer or fall. Additionally, it’s pretty routine for legislators to allow legislation to proceed with promises by other legislators to work on fixes as the session progresses. So, Rep. Smith’s refusal to hold a vote, ostensibly because of imperfections in the bill, comes off as disingenuous.