A Citizen's Guide to Indiana

The twittersphere is exploding with the news that, by a vote of 52 – 43, the House has amended HJR 3 to remove the second sentence that prohibits recognition of a legal status similar to marriage for unmarried people.

This would seem to mean that the measure won’t be on the 2014 ballot. Under the Indiana Constitution, the same proposed amendment has to be passed by consecutive General Assemblies. There is a marginal argument to be made that, because the first sentence was approved by two General Assemblies, that piece can go on the ballot. But it’s tough to argue that it’s the same amendment. There is a substantial difference between the two. The impact of the second resolution is different from the impact of the first. We can’t just retroactively declare that the current version, with only the first sentence, would have passed the previous General Assembly. (Update Rep. Truitt’s amendment was the one that was offered, and its language specifically refers the amendment to the next General Assembly.)

The House still has to pass the amended version on Third Reading and then it goes over to the Senate. The Senate could amend it again to put the second sentence back in and the House could concur in those changes — then it could get on the 2014 ballot.

This is significant. Apart from the apparent trend of greater and greater acceptance of marriage equality, the demographics in a Presidential election year are quite different from those in a midterm year.

Overshadowed by HJR 3 concerning marriage equality, I had not noticed SJR 3 filed by Sen. James Smith which would rescind Indiana’s ratification of the 17th Amendment. The Seventeenth Amendment is the one that provides for direct election of United States Senators by the citizens. It used to be that state legislatures decided who would be Senator. The text of the Seventeenth is as follows:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

I’m pretty sure ratification is a “no take backs” situation. Rather, the way to repeal an amendment to the United States Constitution is by means of another amendment to the United States Constitution. Article Five of the U.S. Constitution sets forth that process, and this isn’t it. The Seventeenth Amendment was adopted because of a widespread perception that most state legislatures were corrupt in the way they appointed senators. I don’t think we should return to those days.

Rep. Speedy has introduced HB 1384 which would prohibit law enforcement from downloading from a telecommunications device for a violation of the law against texting and driving. There are exceptions if the owner consents, if there is a warrant, or if the phone is otherwise searchable by law. So, as I read the bill, this is just saying that an officer can’t download information solely because of a texting and driving violation. The phone might be fair game if there are other factors involved.

The bill is being heard in the House Committee on Courts and Criminal Code tomorrow (Jan. 27, 2014).

Rep. Koch has introduced HB 1009 which is on the Courts and Criminal Code committee schedule for Monday.

Prohibits the use of unmanned aerial vehicles and tracking devices to conduct warrantless searches, with exceptions for exigent circumstances and “substantial likelihood” of a terrorist attack. It also prohibits the placement of cameras or electronic surveillance equipment on private property to conduct warrantless searches. The warrant application has to describe where it’s going to be placed and who owns the object being tracked. The warrant application also has to include material facts that show probable cause that using the tracking device will lead to admissible evidence in enforcing the law.

Provides that, except for a law enforcement officer acting under a warrant and certain other persons under certain circumstances, a person who uses a tracking device without the consent of the person who is the object of the use commits a Class A misdemeanor. One of the exceptions includes use of the tracking device to track your own property. I expect if this law is passed, we’ll see divorce cases where a significant issue is how the car being used by the cheating spouse is titled when it is tracked by the other spouse.

Because HJR 6 /3 is very much on many peoples’ minds, I thought it might be helpful to provide a citation to the constitutional basis for amending the Indiana Constitution. It’s found in Article 16, section 1 of the Indiana Constitution and states:

(a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.

(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.

(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution.

The question has arisen, what if the language of HJR 3 is amended so that it keeps the first sentence but eliminates the second. In other words:

Only a marriage 9 between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals 12 shall not be valid or recognized.

I did a quick Westlaw search for Art. 16, sec. 1 and could not see that this question had been addressed. But, I would say that if HJR 3 is amended to omit the second sentence, then it becomes something different than the HJR 6 that was passed by the previous General Assembly. The Constitution speaks of “an amendment” and “If the amendment.” The amendment with both sentences is something substantially different than the amendment with just the first sentence. We can’t retroactively decide that the amendment would have passed the first General Assembly if only half of it were included.

I think it’s a fair assumption that if HJR 3 passes this General Assembly without the second sentence, then we have a new proposed Constitutional amendment and it would then need to pass another General Assembly in that form.

Representative Thompson has introduced HB 1123 restricting the ability of insurance companies to write policies that provide coverage for abortion services. It was passed out of committee and has gone through second reading and is now ready for a floor vote. A policy of accident and sickness insurance may not provide coverage for abortion except if the woman became pregnant through rape or incest or if an abortion is necessary to avert the woman’s death or “a substantial and irreversible impairment of a major bodily function.” So, substantial impairment of a major bodily function is apparently acceptable if, some day, it can be reversed. Abortion coverage can be offered through a rider or an endorsement.

What is the rational basis for this policy? Abortions are o.k. if you pay for them with cash or through coverage that’s tacked on to the end of a policy with a rider but they are not o.k. if they are paid for as part of basic coverage?

Representative Pierce has introduced HB 1179 concerning Yellowwood and Morgan-Monroe state forests. The bill specifies about 2,700 acres in Yellowwood/Morgan-Monroe State Forests, 2,500 acres in Jackson-Washington State Forest, and 2,000 acres in Clark State Forest and recites a legislative finding that they contain notable natural physical features, that pristine forest areas provide unique recreational and ecological benefits, and that these areas should be preserved for the future.

The bill then prohibits development in these areas in a manner that would permit motorized access, sale of timber, or commercial activity. The bill has been assigned to the House Committee on Natural Resources but has not yet, apparently, received a hearing.

Other sources have reported this at greater length, but for posterity on this blog, I’ll just note that HJR 3 / 6 and its “splainin” companion bill passed 9 – 3. The committee heard a great deal of testimony, but apparently the proponents who ultimately voted in favor of the measure did not ask many questions. As Mary Beth Schneider, formerly of the Star, pointed out, when proponents don’t ask questions, they know they have the votes.

And, of course, it should be no surprise that the votes were secure before the hearing. Forced with a choice between the schoolyard maxims of playing by the rules and “if at first you don’t succeed,” Speaker Bosma went with the latter, demonstrating that getting a prohibition on same sex marriages, civil unions, and other legal statuses substantially similar to marriage into the state constitution is of a high priority. After the black eye of not being able to get the votes in the House Judiciary Committee, he took the very unusual, but not unprecedented step of moving a bill amending the Constitution into the Elections committee. Which, in a sense, is appropriate. This legislation is a political act, not a sound legal approach to governing.

HB 1147 is a bill I am sure is going nowhere and probably raises separation of powers issues. But it would be generally favorable to most of my clients. The bill would make orders on summary judgment and motions to dismiss appealable orders if the amount in controversy is over $100,000. The court of appeals would have discretion to review such orders in matters involving less than $100,000.

Currently the way it works is that if you file a motion to dismiss or a motion for summary judgment and the judge rules against you, you usually can’t appeal that ruling until the entire trial is over. So, for example, I recently had a case involving a personal trainer who had his client sign a liability waiver. The client got hurt while lifting weights and sued the trainer. I filed for summary judgment based on the liability waiver. The judge denied the motion without explanation, but presumably because he did not believe the language of the waiver was effective. I believe the judge was incorrect in that determination and think I could have gotten the Court of Appeals to see things my way. But I couldn’t go directly to the Court of Appeals. I had to go to a jury trial. Fortunately, we prevailed with the jury finding that the trainer wasn’t negligent anyway. We, therefore, never had to go to the Court of Appeals on the waiver question.

From the Court of Appeals’ perspective, that’s how things should work. They were spared a case, and we got a judgment for the defendant. But, my client had to spend a lot of money on litigation. The client and the insurance company had to put up with a lot of pressure to settle the case before we got to trial. And my client was entirely deprived of the value of that waiver.

On the other hand, plaintiffs with legitimate cases don’t want to have to jump through yet another hoop before they can get paid. The Court of Appeals certainly can’t be excited about the potential for all of those extra cases.

I like the idea of this bill, but I don’t see it going anywhere.

Rep. Jim Lucas has introduced HB 1018 which would prohibit state agencies, including state supported colleges and universities, from restricting the possession or transportation of firearms on state owned land or buildings. A person “adversely affected” by such a regulation can bring suit for triple damages and attorney’s fees.

This is similar to a measure passed with respect to political subdivisions a few years back, restricting their ability to regulate the possession of firearms on local government property.