Rep. Jeff Ellington has introduced HB 1531 which renews his efforts to limit local control on mining. Readers of this blog might remember his efforts last year to pass legislation which likely would have had an impact on the efforts of our folks here in Tippecanoe County — particularly near the town of Americus — to resist efforts of Rogers Group to place a mine near their homes. The language in his current HB 1531 isn’t so broad as last year but would likely have the same effect. Of particular interest to Americus is the following effort to amend IC 36-7-4-1103(c):

(c) ADVISORY—AREA. This chapter does not authorize an ordinance or action of a: (1) plan commission; or (2) board of zoning appeals; that would prevent, outside of urban areas, including flood plains, the complete use and alienation of any mineral resources or forests by the owner or alienee of them.

The key addition here is, “including flood plains.” This legislation seeks to overturn the Indiana Court of Appeals decision in Irving Materials v. Johnson County which held, “when the General Assembly empowered counties to regulate land use in flood plains, it created an exception to the rule that prohibits a county from regulating mineral extraction in non-urban areas.” When Rogers Group challenged the need to request a special exception from the Tippecanoe County Board of Zoning Appeals, the Indiana Court of Appeals held that “because Section 1103(c) continues to be subject to a flood plain exception, we affirm the trial court’s ruling that Rogers Group must obtain a special exception from the Area BZA if it wishes to mine in a Flood Plain zone.”

If the statute were to pass, it would likely eliminate the ability of Tippecanoe County to require that a mining operation in a flood plain obtain a special exception demonstrating that its operations wouldn’t, among other things, negatively impact the flood plain. In Irving Materials, the court reasoned, “Our goal in Indiana is to prevent the loss of lives and property caused by floods and to limit the effects of floods on the life, health and convenience of the people. ?Ind.Code §?14-28-1-1. ? Whether a flood plain lies in an urban or non-urban area, the interests of the community as a whole outweigh the interests of an owner or alienee of mineral resources.” Rep. Ellington’s bill would change that balancing of interests such that the interests of the owner of mineral resources would outweigh the interests of the community as a whole.

Rep. Wolkins has introduced HB 1411 amending the level of compensation for what the statute calls “non-public” uses. I put that term in quotes since, if it was truly “non-public” then the use of eminent domain wouldn’t be possible. The 5th Amendment provides, “nor shall private property be taken for public use, without just compensation.” Back when the blog was young, I covered the case of Kelo v. City of New London wherein the Supreme Court held that an economic development plan by the City to revitalize a blighted part of the town was a Constitutionally permissible taking where the City would ultimately transfer some of the taken land to private developers. The breathless opposition to the case at the time proclaimed that the concept of private property was at an end! Turns out, not so much. In any case, shortly thereafter, the General Assembly passed IC 32-24-4.5 at the time which governed governmental taking of the kind contemplated by Kelo.

The statute defined “public use” as being where the government actually retained ownership for things like highways, airports, and parks; leasing public property to a private entity (e.g. the Toll Road); and utilities (even if those were privately owned). So, some transfers to private entities were specifically o.k., but the statute specifically excluded from the term “public use” ” the public benefit of economic development, including an increase in a tax base, tax revenues, employment, or general economic health.” This was the kind of “public use” that’s constitutionally permissible under Kelo. And, it remained permissible under Indiana law if the real estate was, in some sense (defined in the statute), blighted and the acquisition would do more than just improve the property increase the property tax base of the governmental entity. The entity condemning the property would also have to pay more for it: 125% of market value for agricultural property; 150% of market value for owner-occupied residential property; and 100% for any other real property.

That’s a long wind up for what Rep. Wolkin’s legislation would do: make the 150% apply to all residential property whether owner-occupied or not. However, it defines “residential property” as a single-family dwelling that’s not owned for the purpose of resale, rental, or leasing in the ordinary course of business. So, I’m not sure if the intent is to protect land owned by trusts but occupied by the beneficiary of the trusts or to protect land where, say, mom and dad own the property but let family members live there or what. My guess is that there is a specific story behind this particular piece of legislation.

Sheila Kennedy has a good post on legislation to be introduced by Rep. Forestal (I can’t currently find the bill listed under the list of bills he’s involved with.) The legislation has to do with preventing discrimination by private schools that operate with public money — particularly having in mind the Roncalli situation where the school fired an otherwise qualified guidance counselor because she’s married to a woman. The school says this violates their religious beliefs.

Pro-voucher legislators say that they want to improve kids’ educations by giving them a choice. They want to improve schools by unleashing market forces and competition. They want to help poor kids access alternative to the failing public schools they are in. That was more persuasive before the voucher policy was actually put in place. Now we know that a lot of the money goes to kids who never went to public school in the first place — let alone were stuck in a failing school. Voucher don’t improve educational outcomes. If anything, they harm those outcomes. What’s really going on is that pro-voucher legislators want to: a) hurt the teacher’s unions; b) re-direct education money to friends and well-wishers; and c) subsidize religious education. Forestal’s bill, as described, would target item “c.”

Sheila writes:

The bill that Representative Forestal proposes to introduce addresses another glaring defect of the voucher program: the lack of standards imposed on participating schools.

A colleague and I recently surveyed voucher programs operating around the U.S., in order to see whether any of those programs required participating schools to teach civics. You will probably not be surprised to learn that none did. I’m relatively confident that if we conducted a follow-up survey, we would be equally unable to find programs imposing non-discrimination requirements. Any nondiscrimination requirements, not just those protective of LGBTQ students and faculty.

There is something very disturbing about taking money away from our public schools and sending it to religious schools without attaching any meaningful conditions. Taxpayers may well be funding schools that teach creationism, that refuse to teach evolution, and that discriminate against students and faculty members who violate tenets of their theologies. (In Louisiana, schools participating in that state’s voucher program were found to be doing all of these things.)

I hope such legislation moves forward, but doubt it will. Pro-voucher legislators likely view permitting such discrimination as more of a feature than a bug. One of the main purposes of voucher legislation was to subsidize this kind of thing.

Dave Bangert, writing for the Lafayette Journal & Courier, has an article about introduced bills that might address the situation at Purdue where a guy had sex with a woman after climbing into her boyfriend’s bed where she was sleeping, causing her to believe it was her boyfriend. (I wrote about a Buzzfeed article on the subject a month or so ago.)

The first is HB 1489 introduced by Rep. Errington concerning rape and sexual battery. The main thrust of this bill is to define “consent” and add the concept of lack of consent to the rape and sexual battery laws. Currently, rape requires sexual intercourse where the person is compelled by force or is mentally incapable (e.g. unconscious or significant mental disability) of consent (which is undefined under current law). Under the new law, intercourse without consent would be rape and touching for one’s own sexual gratification without consent would be sexual battery. The legislation defines consent as follows:

Sec. 57.7. “Consent” means a free, voluntary, knowing, and mutual agreement to engage in a specific sexual act or contact, including positive and affirmative cooperation in words, act, or attitude pursuant to the exercise of free will. Consent may be withdrawn at any time, and any expression of lack of consent, by words, act, or attitude, means that consent does not exist or has been withdrawn. The: (1) existence of a current or previous dating, social, sexual, or marital relationship by itself; or (2) manner of a person’s dress; does not constitute consent. Submission under the influence of fear, deception, coercion, or surprise does not constitute consent.

I’d defer to the prosecutors and the defense attorneys as to how this would actually play out in criminal prosecutions, but I agree with the general concept. Defining “consent” in the context of the criminal law such that it survives a vagueness challenge strikes me as tricky. (Courts tend to review the language of criminal statutes more closely because it involves the power of the government to take away the liberty of its citizens.) As such, I’m not sure I’d include “free” in there because I don’t know that it carries any freight not already covered by “voluntary.” I’m also not sure I’d include “mutual” because, do you really care if the offender is part of the agreement? It’s the agreement of the person on the receiving end of the action that you’re worried about.

I’m also a little concerned by the change of words in the middle. Up top, it says “consent means agreement.” But then, at the end, you say “submission under the influence of fear, deception, coercion, or surprise does not constitute consent.” So, you’ve switched from talking about agreement to submission. I’m not sure whether as a practical matter that switch in terminology would cause mischief, but that’s the kind of thing I worry about when I’m drafting legislation. And, of course, there are the line drawing problems that detractors of consent legislation have raised. Some is kicking up dust because they don’t want things to change, but some is worth discussion — e.g. if he says “I love you” but he really doesn’t, does that constitute deception which turns the act into criminal behavior? Should it?

The other is bill is HB 1584 which seems aimed more directly at the Purdue incident. It adds to the crimes of rape and sexual battery intercourse or sexual touching where “the person knows or reasonably should have known that the other person believes that the person is the other person’s spouse or significant other. “Significant other” means “a person with whom someone has a dating relationship or an ongoing personal relationship. The term ‘ongoing personal relationship’ does not include a family
relationship.” I guess my problem with this is confining the crime to spouses or significant others. It seems to imply that rape by deception is more or less o.k. if you’re impersonating someone the victim didn’t know very well.

However this plays out, I did like Rep. Campbell’s comment at the end of the Bangert article:

“I don’t know if this bill or any other like it will be heard in committee,” Campbell said. “If it doesn’t, this is something we’ll keep pushing for. No one should have to go through what (Finney) went through. It’s a crime. Indiana should say so.”

Sen. Doriot has introduced SB 605 creating the Indiana-Michigan Boundary Commission. The members will be five professional surveyors, one of whom must be from one of the boundary counties of Elkhart, LaGrange, LaPorte, St. Joseph, or Steuben County. The commission is to oversee the resurvey and placement of new boundary monuments for the Indiana-Michigan border. In particular, the survey is required to install “relatively permanent monumentation at the mile post positions and other positions at or near lakes or large rivers as established by the original government survey of October 1827.” However, they aren’t allowed to replace lost monuments unless the State of Michigan participates in the project.

This one appealed to my sense of history. Also, for some reason, it brought to mind the Lou Riccetti character in Joel Rosenberg’s “Guardian of the Flame” series. The conceit of the series was that a bunch of college students who played something like Dungeons & Dragons got transported into the fantasy world. One of the students was a civil engineer who was excited because, in our world, all of the great projects (e.g. Hoover Dam, the Interstate System) had been done and now civil engineers were confined to small bore projects. I’d imagine this project would be kind of fun for a professional surveyor. Who gets to survey something like a state boundary now?

 

Rep. GiaQuinta introduced HB 1522 which would require overnight camps to be licensed and require criminal background checks for employees and volunteers of the camps.  An “overnight camp” means “any area or tract of land established, operated, or maintained to provide more than seventy-two (72) continuous hours of outdoor group living experiences away from established residences for: (1) educational; (2) recreational; (3) sectarian; or  (4) health purposes to ten (10) or more children who are less than eighteen (18) years of age and not accompanied by a parent or guardian.” The state division of family resources is directed to create rules for the licensing and inspection of such camp. The main thrust of the provision is to require that the people running those camps and employees and volunteers who have direct contact with the kids are required to pass a national criminal history background check.

Makes sense to me. But, I’m biased in that I was once involved on the periphery of a lawsuit having to do with a kid who was sexually abused by a volunteer at a camp.

Rep. Nisly has introduced HB 1430 which contains this startling language on abortion:

Sec. 4. Indiana’s interest in protecting innocent human physical life from the moment of conception shall be enforced by Indiana government officials and agencies, regardless of any court decision to the contrary.

(Emphasis added). The bill generally abolishes abortion rights in Indiana and includes some hand waving about the 9th and 10th Amendments, natural rights, and the Declaration of Independence attempting to ignore federal law on the matter and the Supremacy Clause. It also directs state officials to refuse to cooperate with the federal government (making Indiana something of a sanctuary state on the subject of abortion).

Mandating defiance of federal court orders is pretty radical and didn’t go so well when Arkansas tried to defy a court order to desegregate the schools in Little Rock. President Eisenhower sent in the 101st Airborne to enforce the court order.

Rep. Nisly has also introduced HB 1469 which would create a “Don’t Tread on Me” license plate.

Sen. Merritt has introduced SB 463 which would mandate that a minor wear a helmet while riding a bicycle, skateboard, skates, or scooter on public property. Public property isn’t defined, but I assume that would include sidewalks, streets, cul-de-sacs, and what have you in addition to parks and other governmental real estate holdings. It would be an infraction, penalized by a $50 fine and potential impoundment of the bicycle, skateboard, skates, or scooter. The impoundment would last until the kid’s parent came to the office and provides “assurance that the violation will not be repeated.” It would also be a violation for a parent to permit a violation by the kid.

My gut reaction is that this is a little micro-managey, but then I know that others have the same reaction to seat belt laws which I think are a great idea that have prevented all kinds of pain and suffering, outweighing the relatively minor government intrusion. So, for me, it’s a line drawing issue rather than a black and white ideological issue.