A Citizen's Guide to Indiana

Sen. Tomes has introduced SB 114 designed to increase the spread of COVID and to limit the ability of government to respond to the public health crisis. I’m not going to parse the legislation with any care because it clearly was not drafted with any care. Basically it prevents government from taking measures to preserve the public health that hinge on a person’s likelihood of being a vector of disease. The government can’t inquire about whether a person has been vaccinated or has immunity due to having been infected, can’t require face masks based on a person’s likelihood of having immunity, and – among other things – can’t create an incentive for its employees to get vaccinated. It would allow a court to award a $10,000 windfall on top of any actual damages to an individual claiming a violation of this legislation.

Sen. Freeman has introduced SB 124 which repeals the law requiring turn signals by motorists turning or changing lanes. I’m open to the idea that this repeals a section that is redundant in some way. Maybe there is another section requiring turn signals? But, it looks like Sen. Freeman is urging that motorists not be required to signal when turning or changing lanes. I’m just going to go on the record with my controversial opinion that signaling turns and lane changes is helpful.

The bill also addresses the location of a petition for specialized driving privileges by a person whose license is suspended. There are administrative suspensions (BMV) and court-ordered suspensions. Current law appears to let you petition for specialized driving privileges when there is an administrative suspension by asking any court in the county where you live. This modifies that somewhat by saying that if you have an administrative suspension *and* a court ordered suspension, you have to request relief from the administrative suspension in the same court where you have the court ordered suspension.

Sen. Doriot has introduced SB 90 which would limit the development planning powers of local government. In particular, it dictates that a unit of local government cannot require the donation of right-of-way to the unit as a condition of permitting subdivision of a parcel. Instead, if the unit wants the right of way, under this legislation, it needs to buy the right of way from the developer. Unless I’m missing something, this is a bad idea. Large parcels of agricultural land don’t make the same kind of demands on public infrastructure as land that is subdivided for (usually) residential purposes. So, it’s entirely appropriate for a local unit of government to regulate the subdivision process to require that the developer make certain concessions that will offset the demands and reduce the costs to the public.

In this case, the proposed legislation would likely encourage the development of subdivisions that open up onto narrow county roads that were adequate for agricultural uses but were never intended to serve more intensive uses. Alternately, the taxpayers of the unit of government would have to pay to acquire additional right-of-way in order to serve the development that the landowner probably just made a bundle off of carving up into residential lots.

(Edited: Thanks to Phil’s comment, I see I missed a good headline on my first draft. Should’ve called this one “DTF: The Bad Boys of Drainage!”)

Sen. Leising has introduced SB 85 establishing the “Drainage Task Force.” It calls for a task force of mainly state officials to review whether the state/local balance of authority over drainage matters is appropriate. And it asks vaguely loaded questions such as “whether the objective inherent in drainage law, that of simply draining agricultural land, is yielding to conservation and pollution control objectives.’ I’ll acknowledge that draining agricultural land was likely the primary objective of the original drainage laws, but I don’t think there is anything “inherent” about that. It’s tough to say that increasing agricultural output is a proper use of government powers while limiting damage to other people by regulating pollution is not.

The task force would consist of 12 legislators, 1 member of DNR, one member of a county drainage board, one member of a soil & water conservation district, a member of the “American Society of Farm Managers and Rural Appraisers,” and a member of a statewide farm organization. (I’d guess the latter would be the Indiana Farm Bureau, but maybe there are other options.) That feels like way too many legislators to be useful. I’d also suggest getting a variety of County Surveyors involved — probably at least one from a primarily rural county, one from a primarily urban county, and one from a county with a good mix of urban and rural.

Drainage is one of those topics that’s so important. But it’s one of those things that’s invisible until something goes wrong.

Sen. Kruse has introduced SB 12 which would establish a Semiquincentennial Commission to commemorate the 250th anniversary of the signing of the Declaration of Independence. I’d never heard the word “semiquincentennial” before, so at least this bill has taught me that. It designates required members of the commission: the governor, lieutenant governor, the adjutant general of the Indiana National Guard, director of the Indiana Dept. of Veteran’s Affairs, four legislators, and representatives from: Revolutionary War reenactment organization, Civil War reenactment organization, the VFW, the American Legion, executive director of Indiana War Memorials, Boy Scouts, Girl Scouts, Sons of the American Revolution, Daughters of the American Revolution, Fraternal Order of Eagles, and the Indiana Historical Society.

It’s at least mildly interesting to me that the statute requires the representative from the Sons of the American Revolution to be the chair and the representative from the Daughters of the American Revolution to be the vice-chair. I have a vague notion that some of these type organizations have problematic pedigrees — though, it’s entirely possible I’m thinking of the Daughters of the Confederacy and their Lost Cause, Klan-loving b.s.

Sen. Kruse has introduced SB 11 which is kind of a reverse of what you normally see with these religious display bills. Normally, the approach is to encourage government units to display religious items and mix them in with enough secular stuff that it might pass First Amendment, Establishment Clause challenges. This one says it’s o.k. for State agencies to display historical documents that aren’t primarily thought of as religious documents — specifically the Declaration of Independence, parts of the Northwest Ordinance, Washington’s Farewell Address, and the Mayflower Compact — but then requires that such displays be accompanied by a plaque talking about religion.

A display of [one of the listed documents] must be accompanied by a document entitled “Educational Documents for Acknowledging America’s Religious History” that reads as follows: “Many historical documents pivotal to American law, constitutionalism, and political theory have deep roots in religion. Examples include the Mayflower Compact, the Declaration of Independence, the Northwest Ordinance, and Washington’s Farewell Address, which collectively express5the American ideals of liberty, equality, personal responsibility, and the rule of law. The purpose of this display is to help the general public understand the role that religion has played in the legal history of the United States and Indiana.”

(Emphasis mine). Religion did have a huge impact on America’s development. Sometimes for the better. Sometimes for the worse. And, significantly, sometimes the impact had to do with the Founders understanding from relatively recent conflicts like the Thirty Years War how badly things could go when government and religion got too mixed up with one another. The decision to legislatively insist on a religious focus when the State displays the Declaration of Independence is misguided and probably unconstitutional.

Sen. Buck has introduced Senate Joint Resolution 3 which would have the State of Indiana directing Congress to call a Constitutional Convention for the purpose of amending the United States Constitution to fix the number of Supreme Court Justices at 9. First of all, I’m on record as saying that a Constitutional Convention is a terrible can of worms to open:

For his part, Long envisions a convention which is narrow in scope. But revolutions often get away from their bourgeois instigators. Once a Constitutional Convention was opened up, I would anticipate radical factions taking over.

Second, there is nothing magic about nine Supreme Court Justices other than that, by blocking President Obama’s nomination of Merrick Garland and ramming through Ruth Bader Ginsburg’s successor, Sen. Buck’s political party has managed to capture a majority of the seats on the Supreme Court. Article III of the Constitution says nothing about the size of the court. The Framers initially set the number at six Justices. In 1801, the number was reduced to five but, before the Court could shrink, in 1802, it was restored to six. As the country grew, so did the Court. It was expanded to seven in 1807, nine in 1837, ten in 1863. In 1866, Congress enacted a plan to reduce the Court back to seven through attrition, but it only got down to eight in 1867 and then was returned to nine in 1869.

As a political matter, I think it would be an extremely heavy lift to get the number of Justices changed. If the People desire a Constitutional amendment to fix the number of Justices, I’d suggest that it go the route of every other Constitutional amendment to date: two-thirds of each house of Congress proposing an amendment and having it ratified by 3/4 of the States.

Sen. Kruse has introduced SB 34 prohibiting medical services to minors related to gender identity. It contains some exceptions where “the minor has a medically verifiable genetic disorder of sex development, including having: (A) both ovarian and testicular tissue; or (B) external biological characteristics that are ambiguous3 resulting from having a 46,XX karyotype with virilization or 46,XY karyotype with undervirilization.” The other exception is for situations where “(2) The minor has an abnormal sex chromosome structure that has been diagnosed using genetic testing by a physician licensed under IC 25-22.5.” I don’t know what those technical terms mean. But, notably, there is no exception for situations where the minor, the minor’s parents, and the medical provider all agree that the medical services are in the best interest of the minor.

This bill would prohibit the following:

[A health care professional may not] attempt to change,14reinforce, or affirm a minor’s perception of the minor’s own sexual attraction or sexual behavior, or attempt to change, reinforce, or affirm a minor’s gender identity when the identity is inconsistent with the minor’s biological sex, by performing or causing to be performed any of the following procedures on the minor: (1) Castration. (2) Vasectomy. (3) Hysterectomy. (4) Oophorectomy. (5) Metoidioplasty. (6) Orchiectomy. (7) Penectomy. (8) Phalloplasty. (9) Urethroplasty. (10) Vaginoplasty. (11) Mastectomy. (12) Lobotomy. (13) A surgery to remove a healthy organ or body part.

The bill would also prohibit:

[A health care professional may not] attempt to change, reinforce, or affirm a minor’s perception of the minor’s own sexual attraction or sexual behavior, or attempt to change, reinforce, or affirm a minor’s gender identity when that identity is inconsistent with the minor’s biological sex, by engaging in any of the following activities: (1) Prescribing, administering, or furnishing to the minor a drug to stop or delay puberty. (2) Prescribing, administering, or furnishing to a female9minor testosterone or estrogen-suppressing drugs. (3) Prescribing, administering, or furnishing to a male minor estrogen or testosterone-suppressing drugs. (4) Subjecting a minor’s genitals to an electric current. (5) Penetrating the minor’s fingers with needles. (6) Restraining and placing ice on the minor’s hands. (7) Wrapping the minor’s hands in heat coils. (8) Subjecting the minor to an ice bath. (9) Injecting drugs into the minor to induce vomiting. (10) Restraining the minor with ties or harnesses. (11) Inflicting any physical pain or suffering.

Back in the old days, I would have joked about Sen. Kruse going to wilder parties than the ones I get invited to. But I don’t have the heart for it. Questions about gender identity and what to do about it when a person’s identity differs from their biological sex are difficult. I think they’re especially difficult because puberty can be a kind of ticking clock where the release of hormones is going to make the inconsistency more difficult for the person to navigate and also difficult because making the wrong decision — either by taking action or by not taking action — can have significant impacts for the rest of the person’s life. I do not think these questions are ones the General Assembly is well equipped to answer on behalf of these families.