David Hoppe has an article on Judge Hamilton in Nuvo entitled “Deciding Controversy.” Hoppe discusses Judge Hamilton’s decision in Bosma v. Hinrichs which enjoined the Indiana House of Representatives from conducting sectarian prayer as official business of the state. However, he did not discuss the matter with Judge Hamilton. Instead, Judge Hamilton mainly discusses his experiences as a judge and his approach to the law generally.

I liked this opening:

The federal courthouse is serious as a fist.

It’s worth a read.

I came across a WNDU story from March 3 entitled “Strong opposition lingers against proposed toll road lease.”

The figures come from constituent surveys taken by state Senators. In one Democrat State Senate District in South Bend, 93% were against a toll road lease. In a Republican Senate District in and around Bremen, 85% were against a toll road lease.

The polls are not scientific and contain data over several months, but presumably they are accurate enough that the Senators feel they are worth doing.  Unpopularity notwithstanding, 85% of Republican state senators voted for the toll road privatization.

In a phone interview with Republican Senator Dennis Kruse of Auburn, he said, “I think part of it is, they haven’t had a Republican governor for 16 years. So there’s a tendency to think we should support whatever our Republican governor proposes.”

Senator Kruse was one of five Republican Senators going against the governor’s wishes, by voting no.

“Now, we’re trying to take an asset of the state of Indiana, which is part of our infrastructure, and trying to make that into a money making machine. I don’t think that’s what the intent of our road system is for,” said Kruse.

Friday, Representative Tim Neese of Elkhart, spoke to school students who would be in their 80’s by the time the lease matured.

“It’s not automatic, that because you voted for it once, that you will vote for it again,” said Neese on Friday.

Citizens in northern Indiana should be opposed to this bill. The taxes they pay in the form of tolls (taxes not paid by residents in other parts of Indiana) will be increased significantly in large part so that road construction can take place in other parts of the state. Also keep in mind that part of the deal is that US 20 cannot be improved so that it provides an alternative to the Toll Road.  I think legislators from northern Indiana should think long and hard about whether they think their constituents should be used as piggy banks for the rest of the state.

In my mind, Indiana roads should be funded by taxes assessed generally against all of the citizens of the state, not by taxes paid almost exclusively by residents of one region of the state and certainly not where the roads will be constructed somewhere other than the taxed region.

The Senate concurred in the House amendments to SB 40 which addresses relocation issues in family law. Basically it requires a custodial parent or a parent who has parenting time with a child to file notice before the parent relocate’s the parent’s principal residence. The notice has to be provided at least 90 days before relocation. The nonrelocating parent may then request an evidentiary hearing within 60 days of the notice. If no hearing is requested, relocation is permitted. If a hearing is requested, the relocating parent has the burden of proving that the proposed relocation is made in good faith and for a legitimate reason. If that burden is met, the burden then shifts to the nonrelocating parent to show that the proposed relocation is not in the best interest of the child.

This seems pretty reasonable for long distance moves. For short moves it seems potentially burdensome. But I deliberately keep away from family law, so maybe I’m wrong.

Charlie Averill, the “go to” source for the union perspective, has a post entitled “A Sneak Attack in The Dark of Night” in which he discusses Rep. Cindy Noe’s last minute introduction of an amendment that would have made Indiana a “right to work” state.

Charlie suspects that this legislation was destined to fail from the beginning but that it’s introduction was intended to attract campaign donations from large, out-of-state, anti-union corporations for the 2006 election cycle.

So far only one bill is listed as having been enrolled which is the status of bills when they have passed both houses of the legislature, regardless of whether they have been signed by the Governor. The Legislative Services Agency maintains  a list of the 2006 Enrolled Acts.

 SEA 5 is the only enrolled act listed so far as an enrolled act. That is the law enhancing the penalty for committing the crimes of disorderly conduct or intimidation if the crimes are committed at or near a funeral service.

This week, the legislature will be devoted to conference committees. When a bill passes the second chamber in a form different than it passed the first chamber, a conference committee is appointed to hash out the differences. The committees are each made up of a House Republican, a House Democrat, a Senate Republican, and a Senate Democrat. They prepare a report that contains the bill in its final proposed version. That proposed version is then sent to the House and Senate for floor votes. I do not recall whether it is necessary for each member of the conference committee to sign off on a report for the report to go to a floor vote.

HB 1008 which provides for the privatization of Interstate 80/90 passed the Senate in a form significantly different than it passed the House. In the House, it seemed that one of the critical provisions that allowed passage was one that froze the level of tolls for citizens in toll road counties for 10 years. That provision was removed in the Senate and replaced with a tax credit of up to $300 for tolls paid by Indiana residents.

My guess is that the tax credit will not provide the same level of comfort to legislators in the toll road counties. Citizens will have to pay the increased tolls up front every day they drive the toll road. The added expense will be real to them. The tax credit will be more abstract and not remembered nearly as vividly by voters, if they successfully navigate the tax return process and actually receive the credit.

I’m awfully late on this one, but I just thought I’d add my two cents about the recent tough talk about the toll road from our Napoleonic Governor.

Speaking of HB 1008 which transfers control of Interstate 80/90 to a private company for the next 3 to 4 generations, the Governor says:

“This is the test. This is the time. There is no other way,” Daniels said. “You’re either for this bill, or you’re against our future.”

He just can’t help himself I guess. Back in March of 2005, he referred to Democrats as “car bombers” for blocking legislation he wanted. Governor Daniels is unable or unwilling to engage in reasoned debate on an issue without disparaging the motives of those who oppose him.

If you’re against House Bill 1008, then you are “against the future,” he says. If you have concerns about relinquishing control over the major east-west transportation artery in the northern party of the state for the rest of most of our lives, you are “against the future.” If you think the legislature ought to get an independent assessment of the transaction, you are “against the future.” If you have reservations about using taxes from motorists in the northern part of the state to fund road projects throughout the state, you are “against the future.” If you’re interested in pinpointing how this private company can front $3.8 billion and still turn a profit off of Indiana’s road whereas Governor Daniels with his vaunted business expertise can’t even propose a plan for the road to break even, you are “against the future.” If you are concerned that the deal contains no legislative oversight if the private company wants to sell the road to a third party (United Arab Emirates, anybody?), you are “against the future.”

I’m just a guy with a computer, I can refer to our diminutive Governor as “Napoleon.” From our leaders, we should demand better.  The Governor’s inability or unwillingness to address the concerns of more reflective lawmakers highlights why we need to study this deal more thoroughly. If his public statements are any indication of the Governor’s deliberative abilities, we are in big trouble if we trust his judgment on this deal and, perhaps more importantly, future sales of Indiana’s infrastructure.

A colleague recently brought to my attention an Indiana Code provision that might be a pitfall for creditors who are sent payments on behalf of debtors by credit counseling services and the like. IC 28-1-29-8 deals with the rights and duties of “Budget Service Companies.” A “budget service company” is a person doing business as a budget counseling, credit counseling, debt management, or debt pooling service. The code provision details what must be in a budget service company’s contract with the debtor, how much of a fee it can charge, and under what circumstances.

Subdivision (2) of the section states that:

A [budget service company] . . . may take no fee unless a debt program, or finance program, or both agreed upon by the licensee and the contract debtor has been arranged. All creditors must be notified of the debtor’s and licensee’s relationship. Acceptance of a program payment constitutes agreement by the creditor.

My experience with these debt management services has been where I represent creditors who hold judgments against the debtor. A letter from the debt management service will show up with a check and a contract for me to sign on behalf of my client agreeing to take payments at this level and perhaps requesting that my client agree to allow the debt management service to keep a portion of future payments as a “fair share fee.” (On that last part, not only “no” but “Hell No.”)

My practice has been to not sign any such agreement, to apply the check to the account, and to send a letter responding that my client agreed to accept payments at the proposed rate for a period of time but reserved the right to conduct proceedings supplemental to the judgment and drag the debtor back to court to determine whether higher payments were possible.

I have been informed that at least one small claims judge has interpreted that code section as prohibiting creditors from seeking higher payments on the debt if they have accepted payment from the debt management service. So, if a guy owes me $5,000 but I get $25 on the guy’s behalf from a debt management service proposing to pay me $25/month until hell freezes over, accompanied by a sob story and a listing of $1 million in other debts, my natural inclination would be to take the money for awhile and give the guy some time making small payments until his situation got better. With jurisprudence suggesting I would thereby be stuck with $25/month payments even if the guy hit the lottery, I’m going to simply send the payment back and keep dragging the guy to court.

As a policy matter, that is not a good result. You do not want to tie the hands of creditors who would otherwise be inclined to be reasonable. And, as a legal matter, I am not sure that is a correct reading of the statute. The context of the statute is determining under what conditions it is acceptable for the debt manager to take a fee from the debtor. I can see deeming the creditor’s action in taking the check as “acceptance” for the purposes of letting the manager take his fee. But that seems like an awfully odd and casual way for the legislature to go about locking a creditor into small payments for the foreseeable future.

Just keeping tabs on the Congressional delegation through Plogress.

Rep. Visclosky is a sponsor of H.R. 4823: To establish a United States-Poland parliamentary youth exchange program and a co-sponsor of H.R. 4682: To provide more rigorous requirements with respect to ethics and lobbying disclosure and enforcement.

Rep. Souder is a co-sponsor of H.R. 4829 directing the Secretary of Health and Human Services to regulate prescription drug packaging by mandating the incorporation of counterfeit-resistant technologies. Rep. Dan Burton is the sponsor of this bill. Rep. Souder is also a co-sponsor of H.R. 4807 requiring an investigation of the President’s proposed deal allowing the United Arab Emirates state-owned company to operate several of America’s major ports. Rep. Pence is also a co-sponsor.

Rep. Pence is a co-sponsor of H.Res 701 which would amend the Rules of the House of Representatives to prohibit the consideration of conference reports on omnibus appropriation bills. Rep. Chocola is also a co-sponsor of this bill.

Rep. Sodrel is a co-sponsor of H.Res 690 which would amend the Rules of the House to “curtail the growth of Government programs.” Specifically, it prevents the House from considering legislation that establishes a new program or adds functions to an existing program unless the legislation eliminates one or more existing programs of equal or greater cost. This sounds good, but first of all, what took so long? Fiscal restraint was supposed to be a strength of Republicans, but they’ve controlled Congress for 12 years and the White House for 5 years, and the more control they get, the higher the deficit grows. Correlation does not necessarily equal causation in all cases, but in this case, I think it does. Second, it does not apply to defense spending or Homeland Security spending, which constitutes huge chunks of the budget. Presumably they won’t default on our interest obligations on the National Debt. And I have a hard time believing they will do anything significant to cut Medicare or Social Security entitlements. With what is left over, this legislation is basically just rearranging the deck chairs on the Titanic.

Rep. Hostettler and Rep. Burton are co-sponsors of H.R. 4867 “to provide for a federally sanctioned self-determination process for the people of Puerto Rico.

The 7th Circuit Court of Appeals issued an opinion denying Speaker Bosma’s request for a stay of the trial court’s order enjoining him from allowing sectarian prayer as official business of the Indiana House of Representatives.

When weighing such a request, the Court engages in the sort of analysis a trial court engages in when determining whether to issue a preliminary injunction. Basically, it weighs the likelihood of the moving party’s success on the merits along with the degree of harm likely to be suffered by each party if the stay is granted or not granted. The short answer is that the 3 judge panel decided that Speaker Bosma did not have a very good chance of winning on the merits. While the 7th Circuit has not decided this sort of issue directly, the Court noted that other Circuits’ decisions and the Supreme Court’s decisions suggested that Judge Hamilton properly followed the law when crafting his opinion and order. Two of the three judges also found the harm to the House of Representatives to be minimal if the injunction is left in place:

Mr. Bosma contends that such harm would stem from the fact that Indiana’s long tradition of offering invocations would be broken absent a stay because no prayer at all can continue in the face of the district court’s injunction. However, as the district court took pains to point out, this harm to the House of Representatives’ legislative tradition need not occur under the terms of the injunction. The injunction permits prayer so long as it is of an nondenominational nature and does not “use Christ’s name or title or any other denominational appeal.”
. . .
The House’s current practice is to ask clergy to “strive for an ecumenical prayer.” It is the simply the toleration of the
failure to follow this practice that has produced this litigation and required the action of the federal court. In reply to the injunction, the Speaker chose to cut off all prayer and, it would appear, has sacrificed the core aspect of the tradition–beginning the session with an invocation for divine guidance–in order to continue a deviation from the House’s articulated desire that the prayer not be identified with any particular denomination.

The third judge did not primarily disagree with the majority on the likelihood (or lack thereof) of Rep. Bosma’s success on the merits, but with their analysis of the relative harm if the trial court’s order was stayed pending appeal. The third judge thought that, because the potential harm of unconstitutional government prayer was not so much to the Plaintiffs particularly as to the public generally, the harm would not be significant in the time it would take the Court of Appeals to decide the case.

Several of Indiana’s bloggers have already provided some excellent coverage of the decision, most notably to me The Indiana Law Blog, Advance Indiana, and Cerulean Blue.

The Indy Star has an article here. The Fort Wayne Journal Gazette has an article here. The Louisville Courier-Journal has an article here. Rep. Bosma is saying that he has always figured relief, if any, would come from the Supreme Court. I think that is right, because I think the Supreme Court’s prior case law mandates Judge Hamilton’s order, and the only court that can overrule a Supreme Court decision is the Supreme Court. But, that means any criticisms of Judge Hamilton and his ruling are misplaced. He is bound to follow precedent. Otherwise, he would be one of those dreaded “activist judges” we hear so much about. Ken Falk, attorney for the Indiana Civil Liberties Union, says he is pleased by the ruling but hesitates to read too much into it in terms of what the ultimate outcome might be.

Here are some of the bills that passed 3rd reading in the House today:

SB 5 – Disorderly conduct at funerals and intimidation. This is basically an enhancement of penalties for existing crimes. Disorderly conduct becomes a Class D felony when committed within 500 feet of a funeral, burial, memorial service, funeral procession or viewing and has an adverse affect on the event. This is the bill inspired by Fred Phelps who pickets funerals of soldiers, saying that the soldiers’ deaths are punishment for U.S. tolerance of gays. It’s not clear to me that this bill would actually do anything to Phelps or his Westboro Baptist Church. Their speech, while reprehensible in content, does not seem to meet the criteria for disorderly conduct.

SB 6 – Lifetime parole for child molesters. Puts child molesters on lifetime parole after they have served their time. If they have their parole “revoked” two or more times after serving their time, they have committed a Class “D” felony, Class “C” if it’s their second parole violation conviction. Certain offenders have to participate in counseling, avoid contact with persons less than 16 years of age, and be tagged with a GPS monitoring device. Certainly no one is going to lose votes by being tough on child molesters. But I wonder if it is even theoretically possible through this kind of statute or any other for a court to find Indiana’s General Assembly to be in violation of Article 1, Section 18 of the Indiana Constitution which provides, “The penal code shall be founded on the principles of
reformation, and not of vindictive justice.”

SB 33 – Volunteer advocates for incapacitated adults. I am not familiar with it, but there appears to be a program in place for providing volunteer advocates for seniors. This bill creates a similar program for incapacitated adults. The advocate represents and protects the interest of the incapacitated adult and requires the advocate to report to the court and make recommendations.

SB 36 – Reestablishes the Commission on Mental Health until June 30, 2011 to study the delivery of mental health services in Indiana. The Commission had originally been established by what is known as a Noncode provision that expired January 1, 2006. (Noncode provisions are used for legislative acts that are limited in duration. The idea is that you do not want the Indiana Code cluttered up with a bunch of expired provisions. I think the general rule of thumb was that if an act was not going to be in effect for more than 4 years, you tried to put it into a Noncode provision.)

SB 39 – Legal settlement in a school corporation. The parent granted physical custody of a child can elect either parents’ place of residence as the child’s legal settlement for purposes of determining which school corporation the child will go to. The election may be made only once per year.

Lots of other bills I don’t have time to get to:
SB 47 – criminal background checks.
SB 54 – handgun licensing. (Prior commentary on this one here.)
SB 56 – pension relief fund distributions
SB 73 – Indemnity agreements in motor carrier contracts
SB 81 – bungee jump facility inspection
SB 83 – resisting law enforcement
SB 94 – Lakes management work group
SB 111 – student nutrition and physical activity. (Prior commentary on this one here and here.)