A Citizen's Guide to Indiana

Masson's Blog

SB 88 – Loser Pays Legal Fees

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Sen. Delph has introduced SB 88 which would amend the statute permitting a court to award legal fees to the prevailing party for frivolous law suits or those litigated in bad faith and replace it with language that would require the award of attorney fees to the prevailing party in all cases.

So, this isn’t about frivolous law suits, those are addressed in the current law – this is about a penalty imposed against a party with a meritorious argument that just doesn’t happen to carry the day. I suppose England makes it work, so it’s not an unheard of system; but it is a substantial departure from current practice.

The new language would say “In all civil actions, the court shall award attorney’s fees as part of the cost to the prevailing party.”

So often in these fee shifting cases, you’ll see the tail wagging the dog. The amounts at stake in the underlying claim are fairly trivial or the issues resolvable, but to get to that point, large legal fees are incurred, making compromise impossible and, perversely, generating additional fees as both parties fight like grim death, not because of the substantive issues, but to avoid paying the other guy’s fees.

I can also see it encouraging more litigation in a dynamic where lawyers will be more willing to take on cases for judgment proof clients because they don’t care if they lose — they don’t have any money anyway, but if they win, they can pocket all those sweet, sweet legal fees from the big guy they’re suing. (I see prisoner litigation as a ripe place for this — if you can get a technical victory in 1 out of every 3 lawsuits, you can probably make it profitable.)

The middle class folks would lose biggest from this – people who have just enough to feel it if they lose (maybe some equity in a house) but not enough to withstand the blow if they have to pay $100k in some corporation’s ginned up legal fees because they were paying a partner and two associates to sit in on every deposition. The disincentive for people of modest means to pursue their rights would be significant.

Update There is a bit of a controversy about whether or not this bill being carried by Sen. Delph is part of Governor Pence’s legislative initiatives. It wasn’t on the Governor’s Roadmap during the election! As if that means a thing. The Roadmap was a political document full of unobjectionable pablum designed to convince a disengaged but vaguely supportive electorate not to pay much attention to the race. Stuff Gov. Pence supports and would like to see pass but which would have been controversial and drawn attention to the race would not have found its way onto the Roadmap. That doesn’t mean he isn’t going to push for it.

That said, I don’t pretend to have any insight on whether Pence is pushing it or if Sen. Delph got the wrong idea from a Pence staffer about Pence’s personal enthusiasm for this piece of legislation.

HB 1175 – Public Record Search Fees

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Reps. Friend, Richardson, and Saunders have introduced HB 1175 which would essentially allow a government agency to charge for a public records request search if the search took more than two hours. The first two hours searching for responsive documents would be free, but after that the political subdivision could charge by the hour at a rate equal to whatever the employee is paid or twenty dollars an hour, whichever is less.

This strikes me as reasonable; but I don’t see anything magical about the two hours or $20. I imagine those terms are negotiable. But, I’ve seen enough kitchen sink public record requests to know that it can put a healthy burden on the government agency. To some extent, that’s just the cost of responsive government; but beyond a certain level, it becomes unfair to other taxpayers who are, in effect, subsidizing sometimes frivolous or unnecessarily burdensome public records requests.

HB 1122 – Casket Country of Origin

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I know Indiana has long been protective of its funeral industry, but I wonder what the back story is to this. Rep. Hamm has introduced HB 1122 which would make it a deceptive consumer act for a seller or supplier to remove, cover, alter, or make unreadable a country of origin marking on the casket or mark the casket as originating from a country other than the true country of origin of the casket. If no country of origin is marked on the casket, the supplier or seller of the casket is required to mark the casket with the English name of the country of origin. Interestingly, if I’m parsing the legislation correctly, it appears that if the casket is already marked with the country of origin in a foreign language, the supplier is not then required to mark it with the English name of the country.

SB 280 – Personal Right of Action of Member of General Assembly to Enforce Legislation

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Sen. Delph has introduced SB 280 which would confer standing on individual members of the General Assembly when, in their sole discretion, they don’t believe a challenge to that legislation is being adequately defended. In particular, it gives this discretion to the “first author” on a bill and then the “second author.” If the first and second authors are no longer members of the general assembly when the challenge is happening, then no one has this standing. If one of these individuals has intervened and then stops being a member, then the Speaker or the President pro tem gets to appoint a member to substitute in the litigation.

This legislation disregards the fact that legislation is the will of the body – not of any particular person. A member of the general assembly is just a citizen, no more no less. It’s only the body, acting as a group, that has additional power. This law would be a little more palatable if it conferred upon the General Assembly, acting as a body, the power to vote to defend its legislation on its own in the courts.

But in any event that would disregard separation of powers where it is the job of the executive, not the legislature, to execute the laws. So many of these proposals look like power grabs – “I might not like the way the attorney general defends a law; give me the power!” // “I might not like a law adopted by Congress; nullify!” // “I might not like a federal regulation; make it a felony to enforce!” // “I might not like the way local government conducts itself; add another exception to home rule!”

Anti-U.S. Sentiment in the Indiana General Assembly

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Sen. Kruse has introduced SB 127 which, aside from some limited exceptions, purports to forbid federal employees from making arrests without the consent of the local sheriff. One of the exceptions refers to arrests made on a federal “enclave.” It’s as if Sen. Kruse regards the United States government as a foreign power. This appears to come out of a movement that regards the Sheriff’s authority as paramount under the 10th Amendment. Check the case reports for cases in which I’ve been involved, and you’ll find that I’m wildly pro-Sheriff. But I’m pretty sure President & General Washington decided this question fairly decisively when he rode at the head of 13,000 soldiers to put down the Whiskey Rebellion.

My understanding is that this movement has as something of an underpinning, the case of Printz v. United States which restricted the ability of Congress to commandeer local law enforcement officers to enforce federal law. This legislation stands that principle on its head to some degree; prohibiting the federal government from enforcing its own laws without permission from local officials.

I’m a citizen of Indiana and of the United States. And, while I’m happy to be a Hoosier, I find Sen. Kruse’s hostility to the United States and enforcement of its duly enacted laws not a little troubling.

In a similar vein, we have Sen. Boots SB 230 which purports to have the General Assembly give itself the authority to nullify federal law. Like President Washington put down the Whiskey Rebellion and answered the question about whether the federal government could enforce its laws; President Lincoln answered the question of nullification when he put down the southerners who were committing treason in defense of slavery.

Sen. Boots dresses up his legislation as applying generally to federal laws the general assembly deems unconstitutional, but singles out Obamacare for nullification and then does not include in his legislation any process by which the General Assembly is expected to find any other federal regulation unconstitutional.

Treason in defense of slavery was evil, but at least the rationale was somewhat understandable. Doing it in defense of keeping the crappy health care insurance system we have now is just weird.

What is Money?

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Joe Weisenthal, writing for Business Insider has a column entitled Why The ‘Mint The Coin’ Debate Could Be The Most Important Fiscal Policy Debate You’ll Ever See In Your Life. And the reason he says it’s important is because it gets to a central economic question that’s almost never discussed: “What Is Money?”

The background is the idea floating around to have the President circumvent the artificial debt ceiling crisis with the artificial creation of a trillion dollar platinum coin. The rejoinder from opponents is mostly some variation of “that’s silly,” but they can’t quite explain the particulars of why its silly because that requires them to explain their underlying notion of the essence of money; a notion that is most likely vague and quite possibly incorrect.

Money is a symbol of value, not inherently valuable itself. It’s possible that the things we use to symbolize value have inherent value of their own; but, to the extent you’re exchanging goods and services relying on the inherent value of the thing you receive (a gold coin perhaps), you are not getting paid with money so much as you’re bartering for goods.

Weisenthal says that “money is the creation of the state.” In recent history it has been, and that might be the most practical way of creating money; but I don’t think money has to be a creation of the state. Rather, it has to be regulated in some fashion so that the money supply is proportional to the value created by the economy. If that ratio is maintained, then the money retains its ability to store the value of the goods and services you exchange for that money.

I would have liked to see more in the article about the nature of money, but much of the discussion is the process of how governments create it. But, there is a good quote at the bottom:

Remember, money is a fiction. Real wealth is capital assets, our infrastructure, our cars, our houses, and most importantly the potential human ingenuity and cooperation. Money is just something that the government creates to facilitate the trade in all of those things.

In the case of money, it’s easy to mistake the symbol for the thing being represented. Money is a representation of value, a proxy for value, not the value itself. The economic doctrine of bullionist form of mercantilism was premised on this misconception.

Karen Francisco on Education Legislation

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Karen Francisco, writing for the Fort Wayne Journal Gazette has an article entitled Back in session: Indiana’s education brain trust. You know which way she’s going to run with this when she says:

Lawmakers are education experts, of course – they all went to school and know precisely how schools should be run.

This is maybe a corollary of Parkinson’s Law of Triviality which states, that the volume of discussion on a subject goes up as the technical difficulty goes down. The technical difficulty of good education policy is likely fairly high. But, everyone has an opinion on the classes they sat through as a kid.

Ms. Francisco highlights SB 184 which would continue to erode limits for voucher demands on public money. It provides that “a sibling of a student who is receiving a choice scholarship is eligible to receive a choice scholarship without first attending two semesters in a public school or receiving a scholarship from a scholarship granting organization.”

The ostensible reason for these vouchers is to create choices for people stuck in public schools. But, this continues the trend of providing a subsidy to those who weren’t stuck in public schools but, rather, simply want a subsidy for a choice they could already afford (and were already affording.)

The column also highlights SB 193 which would exempt Indiana from the Common Core State Standards, SB 189 which would exempt high performing districts from certain requirements – measures designed to undermine urban schools are apparently having some unintended spill over into wealthier, suburban schools.

HB 1078 – Toylike Lighters

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Rep. Randy Frye has introduced HB 1078 which would ban the retail sale of “toylike” lighters.

“toylike lighter” means a mechanical or electrical device typically used for lighting cigarettes, cigars, or pipes that is designed to resemble a cartoon character, toy, gun, watch, musical instrument, vehicle, animal, food, beverage, or similar article, or that plays musical notes, has flashing lights for entertainment, or has other entertaining features. A toylike lighter may operate on any fuel, including butane, isobutane, or liquid fuel.

If you outlaw toylike lighters, only outlaws will have toylike lighters.

I assume this is intended to reduce the number of kids playing with fire. (Or perhaps the toylike lighter is seen as a gateway to smoking?) In any event, within the last month or so it occurred to me how relatively rare lighters and firemaking devices are now than they were when I was a kid. Lots more people were smokers, so lighters were frequently laying around; and lots of business establishments had baskets full of matchbooks. I think my kids could easily get their hands on our grill lighter, but beyond that, I think they’d have trouble getting fire starting implements. When I was a kid, I had a lot more options if I wanted to make an impromptu flamethrower out of an aerosol can.

HB 1088 – University Compensation to Legislators

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Rep. Davis has introduced HB 1088 concerning university payments to members of the General Assembly. It would prohibit universities from paying members of the general assembly unless the contract with the member preceded their becoming a member or unless the payment is for lecturing or teaching at an educational institution, whether on a full-time, a part-time, or an occasional basis.

Over the years, it has appeared that Ivy Tech has had a number of members of the General Assembly, though I’m not sure in what capacity exactly. I imagine this bill is intended to curtail that sort of thing.

HB 1075 – Wild Hogs

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Rep. Ober has introduced HB 1075
which voids 312 IAC 9-3-18.6(a)(4) and requires its deletion from the Indiana Administrative Code.

Hence forth, an animal shall not be deemed a “wild hog” solely because it

Has skeletal characteristics indicative of a wild or Eurasian origin including:
(A) skull characteristics of an elongated snout or sloping appearance with little or no stop at the eye line;
(B) a shoulder structure with a steep or razorback (predominate ridge along the back) appearance;
(C) hindquarters proportionally smaller than the forequarters lacking natural muscling found in commercial species;
or
(D) visible tusks.

The section goes on to restrict the possession and sale of wild hogs as well as their importation into Indiana.