A Citizen's Guide to Indiana

Looks like I will have to hold my righteous anger in check when I’m coaching soccer. For a misdemeanor, maybe it would be worth challenging another blown pushing call by knowingly or intentionally touching the ref “in a rude, insolent, or angry manner.” (I don’t think I’d go the bodily waste route for battery — see IC 35-42-2-1(b)(2)). But, if it means a felony rap, my team is just going to have to get shoved around for 40 minutes.

Sen. Randolph has introduced SB 8 which gives athletic officials the same enhanced protection against battery as that provided to “public safety officials” such as police officers, correctional officers, and firefighters.

An “athletic official” is a person serving as a referee, umpire, or other official at an athletic event if the person has been certified as such by a national certification program.

Sen. Lanane has introduced SB 42 concerning unemployment insurance overpayments made by mistake of the Department of Workforce Development. “Overpayment” refers to an unemployment payment the former employee receives that he or she should not have. For example, sometimes an overpayment results from the individual claiming that they were not terminated for just cause while the employer claims that the termination was for just cause. During the pendency of the litigation over the question, the individual might be receiving unemployment benefits. If the person is ultimately deemed ineligible to receive those benefits; the payments that were made incorrectly are deemed to be “overpayments” and the individual is required to pay that money back.

Under current law, the department is permitted (but not required) to waive repayment if the benefits were received by the individual without fault of that individual; were paid during the pendency of an appeal to an ALJ or the Review Board or due to an error by the employer or department; and repayment would cause economic hardship to the individual. This waiver does not apply in the cases of individuals who worked for an employer who “makes payments in lieu of contributions.”

This “payments in lieu of contributions” business requires some explanation. The default system is that employers make “contributions” to the unemployment system. It’s not dollar-for-dollar. It’s according to a formula and it’s more like an insurance policy. Some employers are eligible to elect to make “payments in lieu of contributions.” This is a dollar-for-dollar payment plan. The Department of Workforce Development just acts like a pass-through. The employer puts the money into an account. The Department takes the money from that account and gives it to the former employee.

Sen. Lanane’s bill would (in the case of errors by the Department) make waiver of repayment by the former employee receiving a windfall mandatory instead of discretionary and would apply in the case of both employers making contributions and employers making payments in lieu of contributions. This sounds like an awful deal for employers making payments in lieu of contributions – the department makes a mistake, takes your money and gives it to a former employee who wasn’t entitled to benefits, and now you can’t get your money back.

Senator Steele has introduced SB 40 concerning allocation of fault in a civil case when a nonparty is immune from liability. It says that a defendant may not assert a nonparty defense if an Indiana statute grants the nonparty immunity from liability.

First, a bit of background. Indiana is a modified comparative fault state. In the bad old days of tort law, if the plaintiff was even a little bit at fault for the accident, his or her recovery from the defendant was barred. People came to see this as a little bit harsh, and so we moved to a system where damages would be paid in proportion to one’s fault for the accident. So, if a plaintiff was injured in the amount of $100,000, and the Plaintiff was 40% at fault for the accident, while the Defendant was 60% at fault, then the Defendant should pay for $60,000 of the loss. (60% * $100,000). It’s “modified” because our system provides that if the plaintiff is more than 50% at fault, he or she can’t recover. So, if the Plaintiff is 51% at fault and the Defendant is 49% at fault, the Plaintiff gets nothing.

But, sometimes, you have more than two people involved in an accident. And, maybe the Plaintiff doesn’t sue the third or fourth or fifth person responsible for the accident. Maybe the Plaintiff doesn’t want to: consider a case where the Plaintiff is 10% at fault, Mr. Moneybags is 15% at fault, and Joe Poverty is 75% at fault. If the case is simply Plaintiff v. Moneybags, then maybe Plaintiff gets an award for 60% (the ratio of fault as between 10% and 15%) of his or her damages. But, if you throw Joe Poverty into the mix, Plaintiff gets a judgment for 90% of his or her damages, but only the 15% allocated to Moneybags is actually collectible. Poverty has no income or assets to apply to the judgment. So, it’s a better deal for Plaintiff if you can keep the indigent tortfeasor out of the mix.

Of course, if Moneybags gets sued, he is going to rightfully be indignant about having to pick up most of the tab when someone else was much more at fault. So, the law gives him the opportunity to plead a “nonparty” defense. It basically says, “the Plaintiff doesn’t have to sue this person, but the jury should allocate fault to this person.” Plaintiff, at that point, has the opportunity to add the nonparty to the suit or not.

Sen. Steele’s bill addresses the issue of when the nonparty has immunity. There are a variety of immunities granted to various people; in effect saying, “even if you negligently cause damage, you will not be liable for paying for that damage.” (See IC 34-40 for examples of immunities). That does create a bit of a conundrum. It would do Plaintiff no good to add the immune person as a party because if the jury allocates fault to that person, the plaintiff can’t collect. On the other hand, it is arguably unfair to ask the other defendant(s) to pay in excess of their share of the fault because the other party happened to be immune. (But, perhaps not any more unfair than it already is to the plaintiff to bear the cost of that immunity).

A significant problem with this bill, however, is that it says that a defendant cannot assert the nonparty defense where a statute is granted immunity. At times, it is very difficult to determine whether immunity applies. That can be the subject of extensive litigation; and sometimes courts don’t rule on that immunity until the litigants are deep into the process. Sometimes the applicability of immunity is going to hinge on the creativeness of the plaintiff in fighting that immunity.

It’s one of those ideas that sounds fairly simple but which probably has any number of unintended consequences.

Sen. Arnold has introduced SB 6 concerning animal fighting contests. Essentially, it elevates the penalty for attending such a contest to the same level (Level 6 felony) as having an animal in the contest. Under current law, it’s a lesser penalty (Class A misdemeanor, “cruelty to animals.”)

Sen. Alting has introduced SB 5 which would “allow a small brewer to sell the brewer’s beer to consumers for carryout at a farmers’ market that is operated on a nonprofit basis, in a quantity of not more than 576 ounces [roughly 2 cases or 9 growlers] per consumer at any one time” so long as the beer is placed in the bottle or container at the brewer’s permit premises.

As this would likely result in People’s Brew being sold under a mile from my house at the West Lafayette farmer’s market; I have to hope for passage of this bill.

Sen. Steele has introduced SB 4 which would allow “the manager of a public use airport, or the manager’s designee, to chase or take at any time, without a hunting license, a wild animal that is located on the airport’s property that contains the runway or apron.”

(Title reference is to South Park.)

This permission for unlicensed hunting joins the privilege already in place for owners and lessors of farm land to take the wild animals on the farm land as well as for kids under 13 without a firearm or bow. (Now I’m envisioning unlicensed minor/bear knife fights).

Senator Steele has introduced SB 3 which gives additional powers and protections to judges with respect to the use of force. It would add judicial officers as a class of individuals entitled to additional protection from battery. That protection comes in the form of a more severe penalty where a judge is assaulted instead of an ordinary citizen. In this respect, judges would join law enforcement officers, probation officers, community corrections workers, members of the department of correction and the like.

It also limits the ability of local government to prohibit these judicial officers (technically state officials) from carrying firearms in public buildings. Judicial officers would have the same authority to carry firearms as law enforcement officers (except that, of course, those law enforcement officers are regulated by their superiors — judges would not, presumably, have that chain of command.) Additionally:

A judicial officer who possesses a firearm as described in section 1 of this chapter has the same civil and criminal immunities and defenses concerning possession and use of the firearm that a law enforcement officer has when the law enforcement officer:
(1) possesses and uses a firearm; and
(2) is engaged in the execution of the law enforcement officer’s official duties

Something interesting about the construction of that paragraph, and I don’t know whether it’s intentional. Judicial officers are entitled to the same immunities and defenses as law enforcement officers who possesses and uses a firearm while engaged in the law enforcement officer’s official duties. The judicial officer’s immunities do not appear to be conditioned on the judicial officer being engaged in his or her official duties. Rather, engaged in official duties or not, the judicial officer gets the same immunities as law enforcement that is engaged in his or her official duties.

Senator Steele has introduced SB 2 which would exempt Indiana and U.S. Flags from the state gross retail tax, along with items that are already exempt, like food and medicine (and, to be fair, a number of other privileged classes of goods).

If one’s fervor for displays of patriotism can be quenched by $1.50 in sales tax, however, one has to wonder about the level of commitment to the cause.