A Citizen's Guide to Indiana

Sen. Delph has introduced SB 35 concerning straight ticket voting. It would remove a voter’s option for voting, all at once, for candidates of a particular political party. Presidential electors are exempt from this prohibition.

The rationale, I suppose, is that one should consider each race individually and should not simply vote for a political party. I don’t disagree with that necessarily. I’ve never voted a straight ticket. However, if we are going to promote voter consideration of particular races and particular candidates; I would suggest that we should go a bit further and remove party affiliation from the ballot.

But, that would not happen, I suspect; because, in reality, this is not about promoting consideration of individual races by voters educated on the particular candidates. Rather, I imagine someone has crunched the numbers and found that voters exercise the straight ticket option to vote for Democrats more frequently than they exercise the option to vote for Republicans. It’s an effort to pick up a few percentage points at the polls.

Sen. Kruse has introduced SB 100 purporting to protect the “liberty” of parents in the upbringing, education, and care of their child.

This piece of legislation is long on rhetoric and light on substance. It declares that “the liberty of a parent to direct the upbringing, education, and care of the parent’s child is a fundamental right.” I gather that right is in a penumbra somewhere.

It then declares that “A governmental entity may not infringe on the right [to direct the upbringing, education, and are of the parent’s child] without demonstrating that the governmental entity’s governmental interest as applied to the person is of the highest order and not otherwise served.”

Legislators draft an ambiguous piece of mush like this and then complain when “activist” judges don’t interpret the legislation in the manner the legislators would have liked. One reason for the ambiguity is that, once you get into details and concrete examples, the prospect of passage goes off the rails almost immediately.

I’ll just go ahead and assume this is about sex. Because somehow it almost always is. Or, I guess it could be about, for example, curfews. By imposing a curfew on minors, the government is interfering with my desire to raise nocturnal children. Or, maybe it’s about child labor laws. I figure putting my kid in a factory for 70 hours a week would instill a good work ethic; not to mention provide me a little extra beer money. But, if I had to bet on what’s motivating this legislation; I’d go with sex of some kind.

Sen. Greg Walker has introduced SB 67 which would prohibit use of condemnation powers for the purpose of constructing trails for non-motorized transportation. Specifically, it says that the power of eminent domain can’t be used to take the property of a private person if the proposed use is for bicycling, hiking, running, walking, riding on an animal or engage in “any other purely recreational activity.”

Being against eminent domain generally is one thing. I think it’s simplistic and shortsighted to be against the government taking an individual’s property – but it’s a principled and understandable position. This bill seems like something else again. Eminent domain for more highways, railroads, and utilities is apparently agreeable. But try to improve the community’s quality of life and maybe make it easier for your citizens to be active and, well, no – can’t have that.

Seems to reflect a very narrow view of what constitutes the public good.

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.