A Citizen's Guide to Indiana

Sen. Buck has introduced SJR 2 and Sen. Young has introduced SJR 10, both urging constitutional conventions under Article 5 of the United States Constitution. In relevant part, Article 5 provides, “The Congress … on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” SJR 2 wants a convention for the purpose of making a nine justice Supreme Court a constitutional requirement while SJR 10 wants a convention for the purpose of considering term limits for members of the U.S. House and Senate.

The text of SJR 10 purports to limit its application to the consideration of term limits and for no other purpose. The text of SJR 2 proposes specific language for a Constitutional amendment. As I said back in 2014 when they were proposing a convention to address the national debt (because the national debt is a matter vital concern during Democratic Presidential administrations), this is opening a can of worms.  Nothing in the text of Article 5 suggests that there are limitations on the amendments that may be proposed by a Convention once convened. “Revolutions often get away from their bourgeois instigators. Once a Constitutional Convention was opened up, I would anticipate radical factions taking over.”

The Supreme Court amendment is an effort to make the number of Supreme Court Justices a constitutional matter rather than a statutory concern as the Founders originally envisioned. Changes to the number of Justices were not uncommon during the country’s first century. Congress initially set the number at seven Justices where it remained from 1789 – 1807. (In 1801, the number was reduced to 5 but in 1802 that change was negated before it ever took effect.) In 1807, the number was increased to seven members. In 1837, the number was increased to nine. In 1863, the number was increased to 10. In 1866, the number was reduced to seven contingent on vacancies but in 1869, the number was set at nine before all of the vacancies took effect. Since then, there have been the nine justices, although there was a move toward expansion under FDR when ideologues on the court resisted Congressional New Deal efforts. The “switch in time that saved nine” was the quip about how the Supreme Court was able to stay at nine justices when their jurisprudence became more accommodating toward New Deal initiatives.

The term limit amendment does not specify a particular limit for the number of terms that a member of Congress may serve. I generally regard term limits as a specious solution to perceived governmental dysfunction. After all, plenty of the newer members are as bad or worse than older members — many of whom honestly seem to want to be responsive to their constituents. It’s an easy and superficial way to be mad at government generally without having to get into specific policy details which will often bore the ordinary citizens and might prompt them to realize that “Hey! I don’t hate *that* part of government!” Ultimately, short term limits would give more power to lobbyists and bureaucrats who have had time to understand the twists and turns in the government structure. New arrivals would be at a disadvantage and the lobbyists could generally just wait out any difficult members who got elected. That said, I could probably get on board with a term limit that was long enough. McConnell’s been in the Senate for 35 years, Leahy for 45 years. Pelosi has been in the House for 33 years, Don Young has been there for 47 years, and three House members you’ve mostly never heard of have been there for 40 years. A twenty-five year term limit wouldn’t give me any serious heartburn, I don’t think. That’d be about 7% of each chamber: ~30 of the 435 House members and seven of the 100 Senate members. Not sure that’s worth the bother of a Constitutional Convention.

Rep. Frye has introduced HB 1068 which would create local justice advisory councils in each county. It would also add to the duties of the state’s “justice reinvestment advisory council” to include providing guidance to the local councils as well as reviewing state and local sentencing for disproportionality. The local council would consist of the chief public defender, the prosecutor, the sheriff, the head of the local community mental health center, the head of community corrections, the chief probation officer, a member of the board of commissioners, a member of the county council, and one of the local judges. (A couple of those positions don’t necessarily exist in every county so there might be some modifications.) The purpose of the local councils is to advocate for what I’ll glibly characterize as a kinder, gentler, criminal justice system.

Just because I’m being glib, doesn’t mean I’m not in favor of such things. It calls for the councils to promote “evidence based” approaches to sentencing and making greater use of things like community corrections, problem solving courts, mental health & addiction treatment, pre-trial diversion, and other rehabilitation alternatives. I’m a utilitarian at heart, so if we can get offenders on the straight and narrow, making them happier, healthier, productive members of society; I don’t mind at all if we lose out on a little punishment along the way. The bill also calls for the local councils to review and study stuff and make recommendations.  They’ll also submit annual reports to the state council.

I guess I’m skeptical about how much of an impact these local councils will ultimately have. But the goals seem laudable, at any rate.

Sen. Kruse has introduced SB 74 which would require employers to employ someone who refuses immunization if the employee claims to have a religious objection or a medical condition that makes the immunization problematic. The bill provides that workplace immunization requirements can’t be applied to a person “if the immunization is medically contraindicated for the employee or prospective employee, or if receiving the immunization is against the employee’s or prospective employee’s religious beliefs or conscience.”

It authorizes a civil suit with damages that would include actual damages, punitive damages, court costs, and attorney fees.

Empowering anti-vaxxers and discouraging widespread vaccination is a bad idea. Exempting legitimate medical conditions from having to get immunized makes sense, but you’d want some kind of process for making sure it was a legitimate concern — not a made up medical condition or a quack doctor.

Sen. Kruse has introduced SB 12 which sets up a process for a person to get a notation on their driver’s license indicating that the person uses a service animal. It doesn’t have a process for verifying that the person is disabled or the dog has any training – so it appears to be the honor system.

These state level service animal laws concern me mainly because they don’t seem to track the federal Americans with Disabilities Act laws. For example, there is no requirement that service animals have any particular credentials. The training requirements are very loose, “service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities.” A person can train their own animal, and I don’t believe there is any requirement that the training be competent or effective.

In any case, if a business owner saw that there was a service animal notation for Indiana driver’s licenses and decided to ask a person to show their driver’s license as a condition of admitting a service animal, the business would likely be in violation of the ADA.

SB 1, introduced by Sen. Messmer, provides civil immunity to people, businesses, and organizations who negligently expose others to COVID-19. This means that, if a person or individual doesn’t take ordinary and reasonable care to prevent the spread of COVID and causes injuries and death to someone else, the person they’ve harmed can’t recover money from the person who caused the  harm. The legislation doesn’t immunize gross recklessness or willful or wanton conduct. So, you probably won’t be liable if you infect someone while refusing to do something reasonable like wearing a mask, but if you go up and lick them or intentionally sneeze in their face, you might have some exposure – so to speak.

To be candid, I don’t know what the line is under current law between going out into public with a cold or the flu or breeding plague ridden fleas. But I have misgivings about this legislation because it encourages people to externalize the risks of their activity onto innocent bystanders.