A Citizen's Guide to Indiana

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.

Sen. Charbonneau has introduced SB 106 requiring the Department of Local Government Finance to develop criteria for evaluating the fiscal health of a political subdivision. Suggested indicators are: cash balance, debt to revenue ratio, assessed value, per capita tax revenue, per capita operating revenue, tax revenue trends, and whether there is a structural deficit or surplus.

The DLGF is then instructed to spoon feed the data to the public – or, at least, the legislation requires that the information be conveniently and easily accessible from a single website, and “must be presented in a manner that is commonly known as an Internet dashboard.”

Although I’ve spent more than my fair share of time on the Internet, I was not immediately familiar with the term “Internet dashboard.” I did find this definition:

An easy to read, often single page, real-time user interface, showing a graphical presentation of the current status (snapshot) and historical trends of an organization’s key performance indicators (KPIs) to enable instantaneous and informed decisions to be made at a glance.

Rep. Neese introduced HB 1024 concerning government impact on real property rights. Again, the text of the bill is not currently available, and I am going off of the digest.

[I]f an action of a state or local governmental entity taken after June 30, 2014, to enforce or otherwise apply a law or other regulation: (1) creates an inordinate burden on, restriction on, or limitation of real property rights on an existing use of private real property or a vested right to a specific use of private real property; and (2) the action does not constitute a taking of private real property under the Constitution of the State of Indiana or the Constitution of the United States; the property owner is entitled to relief, including compensation for the actual loss to the fair market value of the real property[.]

So, how much money are lawyers in the state going to make arguing over what constitutes “inordinate”? (Not that there’s anything wrong with that.) So, I think what is going on, as a practical matter, is that Rep. Neese is attempting to lower the bar on what constitutes a taking in an inverse condemnation case. In a direct condemnation case, there will always be a “taking” so the person is entitled to compensation. Inverse condemnation has to do with a government action that deprives the individual of the use of their property. It’s been awhile so I had one of these, so my recollection is a little rusty – but, generally, if the government impact is specific to the property in question, there is a taking for which the property owner is entitled to compensation. If it’s a general thing, then the owner is not.

For example, if the government makes a change to the road that deprives the owner of all ingress and egress from the property; then it’s a taking. If, however, the government changes the highway a half block away and eliminates access to the cross-street on which a business is located; it’s not a taking, even though it might have a significant impact on the value of the property. A gas station, for example, being more valuable when a highway is a half block away than it is if the person has to make a round trip of several blocks to get there.

Under this bill — at least if I’m reading the digest correctly; the gas station, and everyone else near the highway route change might be entitled to taxpayer dollars if they can successfully argue that the impact to their property is “inordinate.”

Rep. Arnold has introduced HB 1049 concerning public safety fees imposed on convicted offenders. At the moment, the text of the bill is unavailable; and I’m going on the text of the bill.

It would allow a county to adopt an ordinance imposing a “public safety fee.” In such a county, the court in which a criminal defendant was convicted would impose the fee as, I imagine, part of the sentence. The fee would be between $50 and $200 and would be based on the defendant’s ability to pay.

Specifies that county public safety funds may be used only to provide funding for certain public safety programs and activities, including law enforcement systems, firefighting systems, emergency medical services systems, probation departments, community corrections programs, detention facilities, and medical and health expenses for jail inmates.

Unfortunately, criminal offenders typically consume a lot more public resources than they have available individually. It is a bit of a trick bag. The fees are justifiable. But, many times, it’s just another fee the criminal defendant can’t or won’t pay. These are typically people who weren’t that great at handling life in the first place. Add a conviction and a bunch of fees and other debts onto the pile, and, like as not, they’ll just give up even if they are inclined to straighten up. On top of that; or perhaps because of that, there are state court judges who are not terribly interested in enforcing payment of such fees. So, the fees can often be notional, rather than something that’s practically collectible.

Sen. Breaux introduced SB 46 which attempts to clarify when an individual is entitled to use self-defense and when the individual is not. Or, it may be more accurate to say, it attempts to define situations that are not “self-defense” and, therefore, not situations where use of force is sanctioned under the law.

Generally speaking, government enjoys a monopoly on the use of force and only authorizes individuals to use force against others in very limited circumstances. “Self-defense” is one of those situations. But the line between self-defense and vigilantism can be a fine one.

It makes sense that we would not consider use of force to be “self-defense” if the user of force was the initial aggressor. Current law, however, permits the aggressor to, nevertheless, use force if the aggressor communicates an intent to withdraw (and does so) but the victim of the aggression continues to pursue. This bill would withdraw that exception — the policy apparently being that we don’t want to sanction aggression in the first place.

The bill also prohibits a person from using force against someone who is retreating and no longer presents an imminent threat. You also can’t withdraw, reach a place of safety, then return to the place of the attack and use force — unless the place of the attack is your house or if you are using force to protect a third person.