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One Treasury, Multiple Elected Officials – Things Get Murky

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Marilyn Odendahl, writing for the Indiana Lawyer, has an article on the latest maneuverings in the Curtis Hill sexual harassment case. The Indiana House of Representatives and Senate have fi

Let’s you and him fight.

led motions to use their own counsel and to intervene in the lawsuit. The Plaintiffs have sued the State of Indiana and the Attorney General to answer for their acts and omissions with respect to Hill’s alleged groping and the response by the various parts of state government. The Plaintiffs have sued the state as a whole which makes some sense but which also puts the House and Senate in a bind. They may or may not have done enough, but their culpability seems to be a lot less obvious than Hill’s based on what we know at the moment, and while there are some checks and balances, the General Assembly does not have the ability to directly alter the Attorney General’s behavior in an employment context. With a normal corporation, if one employee is mistreating another employee, there is going to be a Board of Directors or some ultimate authority who can take corrective action. With a governmental entity, you have multiple elected officials connected by one treasury but no ultimate authority to oversee them.

Additionally, the fact that the Attorney General is responsible for defending them under normal circumstances creates an obvious conflict in this case. Because Hill is personally involved, it could create a situation where short-changing the legislature’s defense strengthens his own. From the Indiana Lawyer article:

The briefs supporting the House’s motion and Senate’s motion argue that as the employers of [the plaintiffs, the legislative]  chambers are the proper defendants in the Title VII claims. . . . Also, in a footnote, the House and Senate claim they have Article III standing. They assert if the plaintiffs are awarded monetary and injunctive relief on their Title VII claims, they would suffer injury-in-fact because they would be responsible for the compensatory damages.

Relatedly, the House and Senate argue they have a sufficient interest and should be allowed to intervene since they could be liable under Title VII. However, both chambers seek to distance themselves from Hill’s alleged misconduct by maintaining they are liable only if they were negligent in responding to the harassment. Also, they assert they have no control over the Attorney General because he is an elected official of the executive branch and not an employee of the Legislature.

Having one defendant pointing fingers at another defendant can often be useful for a plaintiff. It’ll be interesting to see how much the legislative chambers’ motions to intervene are contested and how the court sorts it out.

SB 348: Covenants Not to Compete

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Sen. Ford has introduced SB 348 concerning covenants not to compete. It prohibits an employer from requiring an employee or prospective employee from entering into a covenant not to compete if the employee’s earnings don’t exceed $15 per hour. A covenant not to compete is one that restricts the employee from working for another employer for a specified time and/or in a similar field or from working in a particular geographic area. It declares such contractual provisions as void and against public policy.

I think this is a good concept. Courts are generally pretty skeptical of covenants not to compete as it is — restricting a person’s ability to work is not something they’re very comfortable with. There are some legitimate business reasons for a covenant not to compete – the employer has given the employee valuable training or contacts or information and the employee should not be able to profit off of those inputs at the employer’s expense. But, if the training or information or other inputs with which the employer has entrusted the employee are so valuable, it stands to reason that the employer would be compensating the employee accordingly. If the employee is making less than $15 per hour, it stands to reason that a covenant not to compete isn’t protecting the employer’s legitimate business interests so much as it’s being used as a tool to gain additional leverage over the employee.

The General Assembly might, however, look at tightening up the “earning $15 per hour” language. Compensation models that involve commissions or tips or irregular bonuses could complicate things somewhat. Courts could probably figure it out, but some additional attention might make it harder for employers to find work-arounds.

 

More on the “Balanced Budget” Amendment: Do Unused Appropriations or Money Saved from Prior Years Count Toward Balanced Budget?

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This post is a little technical and is based on questions raised in the comments of my previous post. So, to recap, the Indiana ballot this year will feature a “balanced budget” question which, I assume, will pass because “hey, balanced budget, sounds great!” is about as deeply as the average voter will think about this. We already have a “no debt” requirement in the Indiana Constitution. But, there seems to be a legitimate question as to whether this will disrupt the way Indiana currently runs its budget, even though the current budgetary procedure has steered us clear of debts for a long time now.

The current Article 10, section 5 of the Indiana Constitution says, “No law shall authorize any debt to be contracted, on behalf of the State, except in the following cases: to meet casual deficits in the revenue; to pay the interest on the State Debt; to repel invasion, suppress insurrection, or, if hostilities be threatened, provide for the public defense.” The proposed amendment (pdf) would add language, in part that reads: “The total amount of expense appropriations enacted by the General Assembly for a biennial budget may not exceed the estimated revenue of the State in the biennial budget period.”

The current practice is to account for cash on hand (which is not revenue) and the near certainty that 100% of money appropriated won’t be spent. The budget balances at the end even though estimated revenue is less than appropriations. But, here (as I read it) it says that at the time of enactment, anticipated revenues have to meet or exceed appropriations at the time money is appropriated. So, saving money doesn’t do you any good, and you have to pretend that every dime you appropriate will be spent which is not the case — I think usually there seems to be something on the order of 3-5% of appropriations that aren’t spent and revert to the general fund.

As written, it appears at least arguable that when adopting a budget, the General Assembly can’t account for money saved from prior years or money it can reasonably anticipate not being spent from appropriations.

Amending the Indiana Constitution: What Would You Say . . . Ya Do Here?

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Justin Mack, writing for the Indianapolis Star, has an article on the ballot question to amend the Indiana Constitution this year. The question has to do with requiring a balanced budget, but it’s not at all clear what functional impact, if any, this proposed change would have on the State government. The following is the text of the proposed amendment to Article 10, Section 5 of the Indiana Constitution, the bold text added.

Section 5. (a) No law shall authorize any debt to be contracted, on behalf of the State, except in the following cases: to meet casual deficits in the revenue; to pay the interest on the State Debt; to repel invasion, suppress insurrection, or, if hostilities be threatened, provide for the public defense.

(b) The following definitions apply to this section only for purposes of the limits on the State budget under this section:

(1) “Revenue” means all income received by the state general fund and all other state funds, excluding the proceeds of bonds or other loans.
(2) “Expense” means the ordinary operating costs of State government, including any debt service payments made during the biennial budget period.

(c) The total amount of expense appropriations enacted by the General Assembly for a biennial budget may not exceed the estimated revenue of the State in the biennial budget period.

(d) A State budget enacted by the General Assembly must appropriate money for the State’s prefunded pension funds in the amount necessary to actuarially fund the accrued liability of all such pension funds during the budget period.

(e) If expenses exceed actual revenue received by the State when reconciled at the close of a biennial budget period, the subsequent biennial budget must subtract any shortfall from the projected revenue available for that subsequent biennial budget.

(f) The requirements under subsections (c) and (d) may be suspended if at least two-thirds of the members of the House of Representatives and at least two-thirds of the members of the Senate vote to suspend the requirement.

(g) A court that orders a remedy pursuant to any case or controversy arising under this section may not order any remedies other than a declaratory judgment or such other remedies that are specifically authorized by the General Assembly in a law implementing this section.

The original text in subsection (a) above, I believe, was adopted as part of the 1851 Constitution. The debt provisions would have been important because the fallout from the Indiana Mammoth Internal Improvement Act and the Panic of 1837 was still relatively fresh in peoples’ minds.

By 1840, the disastrous financial consequences of the Panic of 1837 and the Internal Improvement financing was being fully felt in Indiana. The Whigs decided not to nominate Wallace, their sitting governor, and instead nominated Samuel Bigger who had no connection to the Mammoth Internal Improvement Act. The Democratic nominee, Tilghman Howard, had been in the General Assembly at the time of the Act and had voted for it. Bigger claimed to never have supported the Internal Improvement Act. (Given its general popularity at the time, this seems at least somewhat dubious.) Bigger was also aided by the fact that William Henry Harrison was on the ballot as the Whig Presidential candidate. Harrison’s reputation in the state had improved with the rose-colored glasses of hindsight, and he had become something of a folk hero. Despite the state’s financial struggles, the Whigs retained majorities in the legislature, and Bigger defeated Tilghman.

Bigger’s honeymoon didn’t last long. the State’s payment on its debt was double its revenues. The state soon defaulted on payments and, in an effort to come to grips with the situation, the State imposed a massive tax increase (apparently up to a 300% increase in some places). Efforts were made to complete the improvements, the Wabash & Erie in particular, in order to capture revenues from the improvements. However, those efforts did not make a sufficient dent in the debt.

The struggles with that debt continued through the 1840s:

Whitcomb’s first term was devoted to addressing the State’s financial situation. Measures taken during Bigger’s tenure, a somewhat improving economy, and Whitcomb’s cuts to state employee compensation helped improve the state government’s financial outlook. During his term, he advocated for the creation of the Indiana School for the Deaf and a state mental asylum. Both initiatives were successful, but funding would have to wait until further recovery of the state’s financial prospects.

The State had made some recovery on its finances at the time of Whitcomb’s re-election bid, and he defeated Whig Joseph Marshall and Liberty candidate Stephen Stevens. However, despite the improvement on the debt situation, discussions were underway with Charles Butler, a representative of eastern and foreign bondholders to whom Indiana remained indebted. Butler had successfully negotiated a restructuring in Michigan which had similar internal improvement financial problems — also exacerbated by the Panic of 1837 and also involving the sketchy Morris Canal and Banking Company. In 1845, Butler began negotiations. Prior to the legislative session in December of 1845, Morris gave a speech in Terre Haute where he proposed that a tax should be imposed dedicated to partial repayment of the bonds. The bondholders, in turn, would take the Wabash & Erie’s revenues for the other half. He persuaded Governor Whitcomb of his plan and, together, they lobbied local and legislative leaders.

For his part, Butler attempted to scold Indiana for paying local contractors before paying bondholders and cast the State’s debt repayment obligations in moral terms, making much of the “widows and orphans who held Indiana bonds and depended on regular interest payments.” After some rough and tumble debate (one Senator called Butler’s style of writing and thought as “frothy and bombastic”) the legislature passed a bill in early 1847 that provided for payment of half of the bond obligation and traded control and revenues of the Wabash & Erie for the remainder. The debt still consumed about half of the State’s revenues, but it was becoming more manageable.

When Indiana was drafting its Constitution of 1851, it had been wrestling with a disastrous debt situation for more than a decade. The current structure of our Constitution has been sufficient to keep us more or less out of similar disasters for 160+ years. So, what’s the need for this new language? Does it do something that hasn’t been getting done? I don’t know that I even oppose this as a policy matter, but I’m always against mucking around with our Constitution where we don’t have a good handle on the need or the consequences.

This will obviously pass because “balanced budget? Sounds good!” will likely be the general take by voters considering the question. But, for what it’s worth, I think the current language has served us well enough over the years and so I’ll vote “no.”

(Update): When I initially posted this, I had meant to mention that a rule of statutory construction could lead to consequences where maybe none was intended. Let’s say that lawmakers advocating for this provision don’t really want anything to change – they just want to be seen as fiscally conservative.

A basic principle of statutory interpretation is that courts should “give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.” The modern variant is that statutes should be construed “so as to avoid rendering superfluous” any statutory language: “A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant….” A related principle applies to statutory amendments: there is a “general presumption” that, “when Congress alters the words of a statute, it must intend to change the statute’s meaning.”

So, it’s entirely possible that a court interpreting this new language could feel compelled to read this amendment as requiring change of some sort even if legislators didn’t really intent this amendment to have much of a substantive impact on State operations.

Stuff Flows Downhill: Inmate Population Edition

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Big hitter, the Lama. Long.

This is a family-friendly blog, so I’ll not say “shit flows downhill” in the headline. Also, I’m a little skittish about using the phrase here at all since it’d be pretty callous to refer to inmates as “shit.” That’s not my intent — rather, I’m referring to the costs of incarceration. Back in 2014, the General Assembly changed the rules so that low level felons would be incarcerated locally, generally in county jails, rather than in state prisons.

According to an AP article:

The state pays jails $35 daily for each of those inmates to cover food and staffing, but the money doesn’t pay for additional jail space. Dozens of Indiana’s 92 counties are studying, actively pursuing or developing expansion plans or are in the midst of building new facilities.

There was also supposedly a plan for the Department of Corrections to evaluate the savings it realized from not having to house these low level felons and the savings would be passed along to the counties to help them pay for the additional burden. But, last I heard (early 2016), the DOC hadn’t identified any savings, despite a 17% reduction in Department of Corrections sentences, amounting to 5,000 fewer inmates. I don’t know if there have been any developments on that front. But, per the AP article, “lawmakers passed a new law earlier this year that tries to address the jail crowding issue, which local officials say has grown since the state sentencing changes took effect in 2014. Counties can now direct a portion of the local income tax rate to go toward correctional and rehabilitation facilities. The legislation requires counties that are building or renovating jails to conduct a feasibility study to examine possible alternatives.”

Reminds me of Caddyshack:

Hey, Lama! Hey, how about a little something, you know, for the effort, you know?”
And he says, “Oh, uh, there won’t be any money, but when you die, on your deathbed, you will receive total consciousness.”
So I got that goin’ for me, which is nice.

So, there won’t be any money, but the General Assembly has given local officials the opportunity to take the heat for passing a tax increase to fund the DOC’s inmate reduction. Not exactly total consciousness, but I suppose it’s something.

Without Elaboration on Underlying Facts, AG Hill Attacks Groping Allegations and Process

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Dan Carden, writing for NWI.com, has a new story about the Attorney General Curtis Hill groping scandal that Tony Cook, Ryan Martin, and Kaitlin Lange initially broke for the Indy Star. The story is that Hill came into AJ’s Bar after sine die where legislative types were having an end-of-session celebration. According to the memo prepared by a law firm that investigated the complaint for the General Assembly, Hill was described as “very intoxicated.” While there, Rep. Mara Candelaria Reardon says that Hill groped her. Specifically, she says:

He greeted me and the staffer that was with me. While I do not know him personally, we had met before. As we were exchanging pleasantries, Curtis Hill leaned toward me as if he could not hear me and placed his hand on my back and slid his hand down to my buttocks and grabbed it. I said “back off,” and walked away, as the staffer with me stood shocked.

Later in the evening, I was standing with a group of people, and he approached the group. Hill came up behind me and put his hand on my back again and said, “That skin. That back.” I recoiled away before he could touch my buttocks again.

Hill has not said what, if any, part of Rep. Reardon’s account is false.

Niki DaSilva is a staffer for the Indiana Republican Senate Caucus. She says that Hill groped her and told her she had to show a little skin to get service at the bar. Specifically, she says:

Attorney General Hill seemed rather gregarious that night and asked us what we were doing standing at the bar.

We answered that we were waiting to order a drink and Attorney General Hill, without hesitation, remarked, “Ah, come on ladies! You haven’t figured out how to get a drink yet? You’ve got to show a little skin!”

. . .

[A]ttorney General Hill put his hand on my back. I was taken aback by this gesture as we had never held a conversation before that night. I felt his hand start to slide slowly down my back.

I didn’t want to bring attention to his actions, so I tried to push his hand away inconspicuously using my free hand.

When our hands met, instead of taking this nudge as a cue to remove his hand from my lower back, he grabbed my hand and moved both of our hands over my butt, lingering there before releasing me.

Hill has not said what, if any, part of DaSilva’s account is false.

Gabrielle McLemore is the Communications Director for the Indiana Senate Democrats. She says Hill cornered her and rubbed her back. Specifically, she says:

“Do you know who I am?”

That’s what he said when he pulled a stool up next to me and forced me to move uncomfortably closer to the bar’s ledge on my right with people both in front and behind me. I was cornered by Indiana’s attorney general, who I had never previously met, and he began rubbing my back.

McLemore appears to be “Legislative Employee B” from the investigative memo. According to the memo the back rubbing went on for about two minutes. Hill has not said what, if any, part of McLemore’s account is false.

The investigative memo talks about another staffer who alleges that Hill hugged her at the bar in an inappropriate fashion and a couple of others who witnessed him talking about how they should show some skin to get faster service at the bar.

Hill’s initial response was:

“I have never been contacted by any investigator,” he said. “I have not been informed of who made these allegations nor have I been provided any due process with regard to these vicious allegations.”

Generally, he seems to be saying that the claims are false, that he was never given an opportunity to present his side of the story, and he has not been afforded due process. However, since the story broke, Hill has not — at least so far as I’ve been able to tell — explained his side of the story. And there doesn’t seem to be any process which he regards as satisfactory. Per the most recent Carden story, Hill’s lawyers are challenging the efforts of the Marion County prosecutor to have a special prosecutor appointed. Previously, Hill had demanded that Marion County Prosecutor, Terry Curry, spearhead an independent investigation. Curry demurred because his office is represented in ongoing litigation by the Attorney General’s office. But, he did request the special prosecutor. Hill’s lawyers are also challenging the propriety of an investigation by the Inspector General. They cite some statutory scope of authority concerns, but Hill’s initial objection to the IG’s investigation was that Gov. Holcomb appoints the Inspector General and Holcomb has already called for Hill’s resignation. [Side note: It might be amusing for a lawmaker to request an Attorney General’s opinion on what sort of legal process is appropriate for a hypothetical situation that looks a lot like this one.]

If this is all just a big set up and all of these women are lying, then Hill’s response would be appropriate. If Hill went to the bar, was mostly sober, kept his hands to himself, and then left, he would have every right to be pissed off about this whole thing. But, he hasn’t said that’s what happened, and I’m not particularly inclined to believe that all these women are lying. I’m no political adviser, but it seems to me that had he said, “I drank too much, acted inappropriately, and I apologize” — maybe followed by seeking treatment through JLAP (Judges and Lawyers Assistance Program) or some other substance abuse treatment provider — I think he could weather this particular storm. Instead, he has opted for a Trumpian attack strategy. And, I guess it’s paying off in some circles. Cook, Lange, Martin, and Shari Rudavsky, writing for the Indy Star, say that the pastor at Hill’s Church in Elkhart, Indiana is attempting to rally the congregation in support of Hill — drawing parallels between Hill and Christian martyrs, particularly the arrest of Peter and the martyrdom of Stephen. “Satan is at work and there’s a real war going on. He’s trying to discourage our brother Curtis,” says pastor Phil Byers. (Herod arrested Peter for being a member of the Christian church, and  Stephen was martyred in connection with an internecine dispute about whether Stephen’s message about Christianity was contrary to Mosaic law. Neither, to my knowledge, was accused of being drunk and handsy in a bar.) This strategy could work, of course. Inciting tribal passions is a good way to get people to overlook misbehavior that they would not otherwise excuse.

Curtis Hill Under Fire (updated)

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Lindsey Erdody, reporting for the IBJ, writes that Gov. Holcomb, Rep. Bosma, and Sen. Long are all calling for state Attorney General Curtis Hill to resign. This follows a story broken by Tony Cook, Ryan Martin, and Kaitlin Lange, writing for the Indianapolis Star. They obtained a legal memo written as part of an investigation commissioned by legislative leaders concerning alleged sexual harassment by Hill.

The events in question apparently took place on March 15 at a bar near the State House following adjournment of the General Assembly sine die (Folks may remember that the adjournment was a bit of a shit show with bills turning into pumpkins as the clock struck midnight, requiring a special session.) According to the memo obtained by the Star, Hill grabbed a female lawmaker’s butt under her clothes, she told him to back off, he walked away, then he came and grabbed her again. (Update: Dan Carden, writing for NWI.com, reports that legislator in question was Mara Candelaria-Reardon.) Hill groped a legislative employee in a similar fashion, resisting her efforts to move his hand. He grabbed a second legislative employee around the waist and hugged her toward him. And, he rubbed the back of a third legislative employee for an extended period of time until she fled to the ladies room. And, he told women at the bar they needed to show skin or leg to get served at the bar.

Hill has apparently decided to defend with the Shaggy “wasn’t me” defense. Technically, his response was, “At no time was my behavior inappropriate nor did I touch anyone in an inappropriate manner.” In court — should the matter lead to criminal charges — Hill is entitled to a presumption of innocence. In the court of public opinion, the power of the State to deprive an individual of liberty is not at issue, so the burden of proof is not so steep. Right now, it looks like there is at least a prima facie case against Hill. The idea that this many people would so wildly misconstrue innocent interactions with Hill at the same time or conspire against him in a way that pulls the wool over the eyes of Bosma, Long, and Holcomb, seems implausible. Hill could theoretically come forth with information to rebut these charges, but the ball is in his court, and “nuh-uh” isn’t going to cut it.

This should go without saying, but women should be able to go to a bar without people pawing at them. (Anyone should, but in the vast majority of these situations, it’s men making unwelcome advances on women.) I went to a couple of post-sine die back when I worked at LSA. All I wanted to do at the end of session is have a few beers, enjoy the feeling of being finished, and then go sleep for about a million hours. And nobody got in my way or made it weird. That’s a privilege I took for granted. If the #MeToo movement has done nothing else, it’s made clear to a generally oblivious guy such as myself that the problem is far more pervasive than I would have guessed.

Fight Should’ve Been Stopped . . . Man could’ve been killed: Muncie Schools Edition

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Steve Hinnefeld has a good post on HB 1315 which allowed, among other things, Ball State to take over the Muncie Community Schools. (The citizens of Gary also lose their ability to govern their school corporation.)  Yesterday, I had tweeted some of the arbitrary, but mostly incidental exemptions the General Assembly decided to give Muncie Schools. For example, while they are still required to fly the flag, Muncie Schools are no longer required to sing the national anthem or offer a moment of silence for prayer like other public schools are required to do. Steve’s post gets into some more substantive exemptions:

The state law that calls for schools to receive A-to-F grades on the basis of student test scores and other measures? Muncie schools will be exempt. The law requiring state intervention and potential takeover for schools that consistently get low grades? Exempt from that too.

The post also says, “Behning said drastic measures were called for after the Muncie and Gary school districts dug themselves in deep financial holes.” The conceit that Gary and Muncie simply did this to themselves reminds me of a post-fight interview I watched a long time ago. “Merciless” Ray Mercer had knocked out Tommy “Machine Gun” Morrison. As Wikipedia put it, “With Morrison backed up into the corner, Mercer was able to land a 15–punch combination. Clearly hurt from the exchange, Morrison slumped against the ropes, but the referee allowed Mercer to land several more punishing blows to a now defenseless Morrison before finally ending the fight.” After the fight, Mercer was asked about it. He replied, “fight should’ve been stopped. Man could’ve been killed.” The phrasing stuck with me. As if he had no responsibility for the punishment inflicted on Morrison.

I’m sure Gary and Muncie could have done better, but as the post points out: “Both districts have lost considerable state revenue, in part because of changes in the school funding formula and in part because of the growth of charter schools, vouchers and inter-district public school transfers. Both had their local tax revenue cut dramatically by Indiana’s property tax caps.” Those have to be analogous to a good 9 or 10 of these punches:

Special Session Coming

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The Governor announced that he will call a special session after the General Assembly ended sine die with the clock having run out on some of his priorities. Indiana law provides that, for a short session, “The second regular session of each term of the general assembly shall adjourn sine die not later than March 14 in any even-numbered year.” (IC 2-2.1-1-3). The finish to the short session has been described as “chaotic” as time ran out, the clock struck midnight on March 14, and the session ended by law. This article in the Indy Star by Tony Cook, Kaitlin Lange, and Arika Herron has a great timeline.

In the murky days of yore, there are stories of the General Assembly literally stopping the clock in the chambers and continuing their work. This time, there was an aborted attempt of dubious legal affect to have the Governor sign an order keeping the session going. (As a former employee at the Legislative Services Agency, I cringed at the motion with “adjournment” misspelled and Sen. Long’s name crossed out and replaced with Governor Holcomb’s. I know that someone was ordered to produce that document in extreme haste. We had an unofficial saying, “if you want the document bad, that’s how we’ll give it to you!”)

Tim Swarens has what strikes me as an overly glib column on the supposed incompetency of the General Assembly. The Senate didn’t stay in session long enough! They knocked off early and spent too much time honoring themselves with resolutions! I think this probably ignores the underlying mechanics of the negotiations with respect to the legislation that didn’t get passed. As an initial matter, let me say that I have absolutely no inside knowledge of what happened. I’m just going on the news reports and some experience with negotiations generally. There was plenty of time to get everything done. But, there are some people who simply won’t negotiate in good faith until there is time pressure. They think they’ll get a better deal if they are stubborn and use the ticking clock. It sounds to me like someone miscalculated. Rep. Soliday was singled out for special mention by Sen. Long. Whether it was him particularly or not, it sounds to me like someone in the House was playing games and the early adjournment and lengthy resolution process was the Senate’s way of pushing back. To me, the moral of the story seems to be that you ought to (if at all possible) square away your negotiations earlier in the day, even if it means compromising a little more, and get your legislation locked down before the mad rush at the end.

The Governor’s priorities for the special session are reported to be “a funding boost for school safety, providing Muncie Community School Corporation with a one-time $12 million loan and matching the state’s tax code with the federal tax reform changes.” Those aren’t bad priorities, but our courts have held that the power of the General Assembly to legislate on any subject when convened in special session is not limited by the Constitution. The Governor says he’ll call the special session in mid-May. Per IC 2-2.1-1-4, a special session “shall continue for not more than thirty (30) session days nor more than forty (40) calendar days following the day upon which it is commenced.” It will be up to the General Assembly itself to determine whether to limit itself to the topics suggested by the Governor. I wouldn’t be surprised if the good folks in Americus have to spend the next month or two watching out for Rep. Ellington to see if he tries to slip any more language eviscerating local control over mining into whatever bill might be handy.

 

Beer on Sundays: Emergency Legislation!

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Indiana's liquor laws will drive you to drink

B double-E double-R U-N: beer run. B double-E double-R U-N beer run. All we need is a ten and fiver; a car and key and a sober driver. B double-E double-R U-N: beer run! (But not until noon on Sunday).

At long last, the people of Indiana can buy alcohol for carry out on Sundays. It’s a little amusing that, though the law prohibiting Sunday sales has been an anachronism for decades, the enacting legislation says “an emergency is declared for this act.”

The “emergency” language sounds funny under the circumstances, and so I’m not above poking a little fun. The explanation for the “emergency” language is that this is a bit of boilerplate that’s added when the General Assembly wants legislation to go into effect immediately upon passage. Without that language, it’s standard for legislation to go into effect on July 1 of the year in which it’s passed. (I guess I’m not certain whether there is a date prior to July 1 that wouldn’t require the “emergency” declaration.)

For some time, it’s been legal for restaurants and bars to sell alcohol on-site on Sundays. More recently, they passed legislation that lets craft breweries sell beer for carryout on Sundays. (And, as I now have three quality breweries within 4 miles of my house, this has been my go-to solution if I’ve felt like buying beer on Sundays.) The prohibition on retail sales has, therefore, been arbitrary for a long time.

It’s easy to carp about how long it took Indiana to make this move, but we should probably take victories where we find them. Still, at least one arbitrary prohibition remains: while retail sales of alcohol are permitted on Monday through Saturday from 7 a.m. to 3 a.m., on Sundays such sales are legal only from noon – 8 p.m. What’s the explanation for this? It looks like a church thing, but maybe there is something else about Sunday mornings that cries out for special treatment. (If it is a church thing, that raises some First Amendment questions. And, as a practical matter, it’s a fairly small percentage of the American population that goes to church on Sunday mornings. Many are members of faiths that have services at other times and other days. Many more just don’t go to any kind of service.) If the differential treatment of Sundays is not a matter of religious preference, the law still has to meet a rational basis test. This is a pretty low bar for laws to clear; but, even so, it’s not immediately clear to me what the rational basis might be for mandating reduced hours on Sundays but not on other days.

That said, this is positive legislation. Cheers!