A Citizen's Guide to Indiana

Sen. Kruse has introduced SB 195 concerning student immunization. Because it’s Senator Kruse and because the HPV virus has been something of a flashpoint among social conservatives, that was the provision that most caught my eye. Currently, IC 20-34-4-3(b) provides:

A school that enrolls grade 6 female students shall provide each parent of a female student who is entering grade 6 with information prescribed by the state department of health under subsection (c) concerning the link between cervical cancer and the human papillomavirus (HPV) infection and that an immunization against the human papillomavirus (HPV) infection is available.

Advance Indiana had a good blog post about the debate in 2007 when that provision was being debated. One of the accusations being thrown around at the time was that advocacy for HPV immunization was all about enriching pharmaceutical companies. The fact is that some parents and students might want a relatively low risk, low cost way of reducing the risk of cervical cancer. On the other hand, various social conservatives have tried to make the case that HPV immunization will encourage promiscuity. (HPV being a sexually transmitted infection.) The logic would seem to be that cancer is an appropriate penalty for sinful behavior.

This new bill, SB 195 would eliminate the requirement that a school provide the female students with that information.

Additionally, the bill would generally disassociate schools from the enforcement of immunization requirements and has the immunization provider reporting to a state registry.

SB 408 introduced by Senators Becker and Miller addresses “neonatal abstinence syndrome” which is defined as “the various adverse effects that occur in a newborn infant who was exposed to addictive illegal or prescription drugs while in the mother’s womb. It would require the issuance of rules imposing various reporting requirements for hospitals to report neonatal abstinence syndrome data to the Department of Health. The rules would eventually include an appropriate definition of a neonatal abstinence syndrome diagnosis, methodology for testing newborn infants, and practices for detecting drug abuse by pregnant women.

The legislation would prohibit disclosure of data gathered under this law to law enforcement agencies for criminal prosecution and disclosure to the department of child services for purposes of terminating parental rights or declaring the infant a child in need of services.

This legislation flirts with the fine line of attempting to promote infant health on the one side and, on the other, viewing women as untrustworthy but necessary vessels for carrying infants. Maybe what bothers me most is the narrow focus on addictive drugs. I suppose I would have a better feel for this legislation if there was a broader approach of figuring out how to improve the health of pregnant women (e.g. the best sorts of prenatal care to subsidize).

Rep. Lehe’s HB 1200 looks like a whole lot of nothing. Or, at least I can’t tell what it is supposed to accomplish. First it makes a big declaration that the General Assembly wants to conserve, protect, and encourage agriculture and that the Indiaa Code should be construed to protect the rights of farmers, including their right to to choose among agricultural and livestock practices “including the use of continuously changing technology.”

Then it declares that nothing in Title 15-17 concerning animals and animal health or animal products should be construed to prohibit or impair traditional or modern farming and livestock production practices.

My guess is that this bill generally stands for the proposition that other concerns addressed by the Indiana Code and, in particular, addressed by Title 15 should not get in the way of confined feeding operations. And, further, that the authors recognize that if they advance this proposition in any but the most general terms, support for the measure will be much more difficult. It’s one thing to make sweeping generalizations. It’s quite another to offer detailed legislation that specifies who gets to do what to whom and under what circumstances. That’s when the trade-offs of a policy come into sharp focus.

Niki Kelly, writing for the Fort Wayne Journal Gazette, reports that, after taking testimony, the House Judiciary Committee postponed a vote on HJR 3 (formerly known as HJR 6) as well as its “companion” bill HB 1153. (See my prior “Nix Six” post for details.) The speculation is that this means there is at least uncertainty about whether they have the votes for passage. The members of the committee are, Republican Reps. Steuerwald, Washburne, Cox, Koch, Leonard, Mayfield, McMillin, McNamara, and Torr and Democratic Reps. Bauer, Delaney, Dvorak, and Smith.

Ms. Kelly reports that all four Democrats will vote against the proposal (although, I know that at least Rep. Bauer voted in favor of it last time through). That means if there are three Republicans who also oppose the measure, the proposal will not pass. While the proponents of HJR 3 are primarily Republicans, there are a growing number of Republican opponents as well. Even, I suspect, on the House Judiciary committee. Just how many opponents remain to be seen.

Senators Wyss and Arnold have introduced SB 134 which, I believe, is attempting to address the problem of “paper terrorism.” (Not their term) This is where people will file liens and whatnot just to mess with you. The paperwork is relatively easy to file and occasionally causes headaches, particularly where a lender or other third party would simply rather not bother dealing with you because of the frivolous paperwork. Such paper terrorism is a tactic among anti-government groups such as “sovereign citizens.” (Also, related, see my old post “Redemption Song” and this one about HB 1054 from 2013).

SB 134 would allow the victim of a frivolous lien to file a motion with the court to review the lien or encumbrance and, if the court determines the filing is fraudulent, award costs and attorney’s fees, determine that the filing is void, and instruct the office where the matter is filed to purge the record.

The bill would also make false filing a felony.

The main problem with the bill is that many times, parties have a legitimate difference of opinion about a debt or obligation that involves a security interest. With this legislation in place, I would expect a lot of litigation over these honest differences of opinion to turn into a sideshow about whether the lien was filed fraudulently.

Rep Ober has introduced HB 1126 concerning claims for unpaid wages, in particular the penalties available to employees making those claims. The procedures can get a little technical, but as a general proposition, if an employer hasn’t paid all of the wages to which an employee is due, the employee can sue the employer for the unpaid wages, plus a 200% penalty, plus attorney’s fees. If it’s a former employee, the Department of Labor is supposed to screen the claim before it can move forward. (A safeguard intended to counteract the baser impulses of a disgruntled employee who might be inclined to make stuff up.) In my experience, in recent years, the Department of Labor has been less than diligent in that screening function.

In any case, Rep. Ober’s bill would restrict those penalties. Rather than being more or less automatic, the 200% penalty and attorney’s fees would be discretionary with a judge and would be contingent on the employer having failed to make the payment in bad faith. The total penalty plus the attorney’s fee awarded could not exceed 200% of the unpaid wages.

This is maybe more restrictive than need be. But, I do think in these wage claim and wage payment cases the attorney fee tail is all too often wagging the dog of unpaid wages. You’ll see case reports that make it appear that a plaintiff’s attorney was pushing his client into pursuing a very marginal wage claim in hopes of getting lucky and getting a jackpot attorney’s fee award.

There is also language in this bill that would expand the permissible items eligible for wage withholding with the agreement of the employee, including equipment reimbursement, education reimbursement, and advance payroll or vacation pay.

I kind of sensationalized the title of this post, but Rep. Karickhoff has introduced HB 1143 which would allow motorcycles, scooters, and bicycles to proceed through red lights under certain circumstances. Specifically, those vehicles would be allowed to proceed through a steady red light if:

1) They stop for at least two minutes; and
2) They exercise caution, treat the red light as a stop sign, and determine that it is safe for them to proceed.

I know with my bike, sometimes the bike just doesn’t have the weight or the metal content or whatever it is that triggers automated lights at certain intersections. I don’t know whether motorcycles suffer from similar problems. In any event, I’m not sure why it wouldn’t be safe and fair to treat cars in the same fashion. If you’re sitting at a red light for two minutes or more and there is no oncoming traffic, I don’t see why it would be less safe for a car to proceed through an intersection than a motorcycle or bike.

Representative Turner has introduced the HB 1153 lipstick to put on the HJR 6/3 pig. One irritant to me about HB 1153 is proponents describing the bill as (and news media dutifully repeating) a “clarification” of the proposed Constitutional amendment.

When I was a legislative drafter, one of my jobs was to write the digests that summarized the effect of the bill. In those digests, I was always very careful not to claim that the bill “clarified” the law. Legislation specifies the law. Legislators and lobbyists like to downplay what they are doing by claiming that “this is already the law. We’re just clarifying it.” Thing is, if the law is unclear, then the possibility is that the actual law is something different. You are creating law by foreclosing that alternate possibility. That’s entirely proper for the legislature to do, but call it what it is — a specification of the law.

So, that’s the course of ordinary legislation. Here, however, you have something different. The General Assembly is attempting to specify what the law would be. Problem is, in this instance, they do not have the power to specify the law in this fashion. The Constitution trumps legislation. If the Constitutional language means something different, then the legislative specification has no more impact than me “specifying” or “clarifying” the law on my blog. In that situation, they are just words on a page.

Rep. Eric Turner has introduced HJR 3 which is this session’s iteration of HJR 6; the proposed Constitutional amendment precluding marriage equality. It would amend the Indiana constitution to provide:

Only a marriage 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 shall not be valid or recognized.

I am not sure if any decision has been made on the timing for hearing this bill. There was some talk that it would either be heard immediately; in an effort to rip the bandage off quickly or, alternatively, after the February 7, 2014, deadline for primary challengers to file as candidates. (Edited to add: Guess they are going to do the former — House Judiciary Hearing on Monday, January 13).

Update The Indiana Law Blog pointed out that HB 1153, also introduced by Rep. Turner, is intended as sort of a companion to the Constitutional Amendment. It purports to establish legislative intent for the amendment and purports to establish interpretations for the amendment, such as:

[T]he marriage amendment does not prohibit or restrict in any way:

(1) the extension of employment benefits by private sector employers, political subdivisions of the state, or state educational institutions to any beneficiary designated by an employed individual;
(2) the adoption and enforcement of local ordinances granting to any category or class of persons equal opportunities for education, employment, access to public conveniences, access to accommodations, or acquisition of property or to rent property;
(3) an individual from entering into or enforcing terms of a power of attorney, a will, a trust, or another similar lawful agreement or instrument (regardless of name) established for the benefit of another person;
(4) an individual from giving or enforcing a lawful consent or other instrument (regardless of name) that grants powers, rights, or privileges to, imposes obligations on, or provides for the use by or transfer of property to another person;
(5) the protections provided under Indiana’s domestic violence laws or who may qualify for protection from domestic violence; or
(6) action by the general assembly to protect or provide for the property, health, or safety of unmarried persons by appropriate legislation.

This is just backward. The General Assembly does not get to say what the Constitution does or does not do. The Constitution gets to say what the General Assembly can or cannot do. Furthermore, the General Assembly’s intent is not the only relevant consideration. A Constitutional Amendment is also passed by the voters. Perhaps their intent is different than that of the General Assembly? If the intent of the voters is different than that of the General Assembly’s, whose intent governs? Also worth keeping in mind, the next General Assembly could just come along and repeal this law while the Constitution would continue to contain the language of HJR 6/3.

If proponents of the resolution want all of this clarification; I think they need to put the relevant language into the proposed amendment. And, really, if you need that level of particularity to achieve your desired goals; the policy is probably better suited for a statute than the Constitution.