A Citizen's Guide to Indiana

Senator Young has introduced SB 436 which gives prosecutorial authority to the Attorney General where a county prosecutor “categorically refuses” to prosecute a criminal law. This is prompted, I presume, by the Marion County Prosecutor’s decision not to prosecute people for simple marijuana possession.

A “categorical refusal” occurs where the Prosecutor has announced that he or she is not enforcing a category of crime or where in the opinion of the Attorney General, the Prosecutor is not enforcing that category of crime. (As the law is written, there is a back and forth process where the Prosecutor can try to convince the AG that he or she is enforcing the particular law, but ultimately the AG makes the decision about whether there has been a categorical refusal.) There doesn’t seem to be a process for appealing the AG’s decision. However, if the AG provides notice of categorical refusal, the Prosecutor can deprive the AG of the ability to proceed (I think) if the Prosecutor files an information against someone within 30 days. So, it sucks to be the poor schmuck who is in the wrong place at the wrong time after the AG files one of these notices.

“The Attorney General’s jurisdiction extends only to the prosecution of those offenses that the prosecuting attorney is refusing to enforce.” Fortunately, criminals are pretty conscientious about committing only one type of crime at a time, so this shouldn’t cause any problems with overlapping jurisdiction. Because it would be pretty unwieldy for the Prosecutor to be in the courtroom trying to prosecute the accused for crimes that aren’t a waste of time and money while pissed off at the AG who is also in the courtroom being all “Indianapolis knows best” prosecuting the one crime the AG has jurisdiction over. Meanwhile, the defense has to juggle both issues. Or, maybe they bifurcate the trials, doubling the attorney fees, court time, and imposition on jurors.

And, as a county attorney, here is my favorite part: “The county in which the attorney general prosecutes a case under this section shall reimburse the attorney general for the expenses of prosecuting the case.” The guest that nobody invited and nobody wanted is going to send you a bill for his presence. The AG just sends the bill to the Auditor who is required to pay the bill out of the general fund within 30 days, without appropriation. Because, screw your budget. This is a great way to rile up people in the provinces.

[Updated to add – the fiscal note says that the Attorney General can bill the County for attorney time on the basis of the Prosecutor’s salary which works out to $544.95 per day based on the $151,137 annual salary. I’m pretty certain that the Deputy AG they’ll send out to the sticks to actually prosecute the case won’t be pulling down $150k from the State. So, the Attorney General could turn this into a profit center if he or she were so inclined.]

[Updated again to add – this passed out of committee by a vote of 6 – 3. Those in favor: Senators Glick, Bohacek, Busch, Freeman, Sandlin, and Young. Those opposed: Senators Tallian, Randolph, and Koch. The committee report makes changes that has the AG working through a special prosecutor rather than directly through his or her office.]

Rep. Hamilton has introduced HB 1415 which makes tweaks to Indiana’s drainage law. Long time readers may know that drainage law is near and dear to my heart. It’s an important part of what county government does, and if it’s working properly, there’s a great chance you haven’t given it a second thought. Proper functioning of the regulated drains is one of the things people who sneer at government rarely consider. It’s the sort of issue that, in my mind, seriously undermines libertarianism as a viable view of government. The fact is that water is something that doesn’t respect property rights and, therefore, has to be dealt with as a community. And, by and large, local government has dealt with it. As the climate changes, the reality is that here in Indiana, we’ll likely have to deal with a lot more water. Much of the drainage system we have in place is getting old and is breaking down.

In broad terms, here is how the regulated drain process works: a drain is usually a combination of tile and open drain that serves a watershed. The main channels that serve a number of properties will usually be regulated – under government control. (This is distinct from private drains – serving just one parcel; or mutual drains – serving two or more parcels but not under government control.) When making decisions about whether to construct, reconstruct, or maintain a regulated drain, the drainage board, with the assistance of the county surveyor, is to determine how much the project will cost and then determine whether the benefits outweigh the costs. (Costs include the labor and materials as well as damage to landowners from the project.) The drainage board is also charged with allocating the percentage of the total benefits enjoyed by each landowner based on a variety of criteria. The Drainage Code provides a non-exclusive list of benefits to be considered: the increase in value to the land, the number of acres served by the drain, the volume of water drained, soil type, elimination or reduction in floods, and how the land is situated in relation to the main trunk of the drain. Multiply the percentage by the cost, and that’s the drainage assessment imposed on the landowner.

There are three main types of assessments: construction, reconstruction, and maintenance. Construction is for the creation of new drains, reconstruction is for major repairs, and maintenance is for things like clearing and spraying an existing drain.

HB 1145 specifies that flood damage benefits and reduction in undesirable environmental effect such as soil erosion; transport of nutrients, pesticides and other chemicals; downstream flooding; and failure to store water where useful as factors to be considered when deciding whether to construct, reconstruct, or impose a maintenance rate on the drain. These are valid considerations, but I’m not sure I love how the legislation is structured. Rather than putting flood reduction and mitigation of environmental problems in the bucket of benefits a drainage board can consider, it seems to list them as separate considerations. And, instead of being part of the big picture consideration as to whether the costs of the project outweigh the benefits, the legislation would add a new concept of “reasonable cost.” I think this legislation will be confusing to drainage boards trying to figure out how flood control and environmental concerns are supposed to fit into the existing scheme.

One addition that I think is beneficial, however, is the provision that tells the Surveyor that when determining what method of construction, reconstruction, or maintenance is “best and cheapest” (the phrase in the code now), he or she can consider flood control, public health, and limiting undesirable environmental effects as part of what constitutes the “best” method. Without that sort of context, the emphasis may be on “cheapest” rather than “best.”

Rep. Miller’s HB 1060 has passed out of committee on an 8-5 vote. It says that local government cannot adopt or enforce a law that prohibits or limits the use of a building product, material, or aesthetic method or imposes a construction standard for a building product, material, or aesthetic method so long as the product, material, or method is otherwise permitted under the state building code. This bill would result in local government having no ability to enforce aesthetic methods, allowing developers to build without adhering to locally-set requirements. Some communities don’t particularly want to live in a place with the cheapest available cookie-cutter construction. These kinds of decisions should be made by people who are locally accountable.

Sen. Young has introduced SB 434 which legalizes the weekly poker game. If you want to play craps with your buddies, however, it’s still a crime. And cheating at either would be a new crime.

The legislation defines “private, low stakes card game” as being one played with physical cards, not open to the public, taking place at a particular residence not more than four times per month, and involving individual wagers that do not exceed twenty dollars. Current law provides that “a person who knowingly or intentionally engages in gambling commits unlawful gambling” which is generally a Class B misdemeanor. (Gambling is defined (partially) as “risking money or other property for gain, contingent in whole or in part upon lot, chance, or the operation of a gambling device but does not include participating in bona fide contests of skill, speed, strength, or endurance.”) With the new legislation, it would be a defense to a charge of gambling that the game was a private, low stakes card game.

There are probably any number of criticisms and potential tweaks for this legislation or our public policy approach to gambling generally, but making this defense only available to card games and not, say, dice games jumps out at me as arbitrary.

The bill also defines “cheating” as meaning “to alter the selection of criteria that determine (1) the result of gambling; or (2) the amount or frequency of payment in gambling.” It specifically includes the use of marked cards as cheating. The legislation would create the new crime of “cheating at gambling” which is a Class A misdemeanor. It would not be a defense to the crime that the game was a private, low stakes card game. Which makes some sense — if the game is rigged, it’s basically stealing.

Rep. Stutzman has introduced HB 1088 which forbids the Indiana High School Athletic Association from sanctioning a competition where a person born biologically male competes against an individual or individuals who were born biologically female. It imposes the same prohibition on public school intramural and athletic teams (and the private schools who play them) in grades 6 through 12. (There is an exception for “a person who is born with ‘a disorder of sexual development'” and gets a doctor’s note.)  On my first read through, I thought maybe this permitted girls to compete on boys’ teams and against boys, but the more I read it, the more I’m seeing it as just simply restricting entirely competitions involving both boys and girls. The relevant language says:

“[A] person born as a male may not participate in or compete:  (1) against an athletic team composed of persons born as females; or (2) in an individual sport against a person born as a female.”

Just filtering this through my own experience, we know a family with a daughter who routinely kicks ass in what is primarily a boy’s wrestling team. This language would say that a person born as a male may not compete against her. Why should she be prevented from wrestling against (and beating) these boys?

I suppose what they’re trying to get at is this fear that some big, athletic dude is going to dishonestly announce that he feels like his true gender is as a girl in order to win athletic competitions. Underpinning this is a belief that being transgender or non-binary isn’t a real thing. That it’s essentially made up. And, because we’re abandoning the tried and true genitalia-based definitions of male and female, we’re opening up loopholes that will be exploited for athletic glory and other nefarious purposes.

To the extent this is a real issue causing consternation in Indiana schools, let those schools try to deal with it. If a guy is declaring himself to be a girl as a sham to win competitions, the school can shut him down. If a biological male is a transgender female, won’t that give her biological advantages over biological females? Maybe. But there is already a wide physical variation within the biological male population and within the biological female population. I don’t know that this is so much different. As far as I can tell, this legislation isn’t so much an effort to address a real problem as it is simply a vehicle for expressing unhappiness that society is increasingly recognizing that gender identity is not perfectly correlated with biological sex.

Senator Buck has introduced SB 75 which requires parties to nominate their United States Senate candidates at state conventions rather than via a primary election. This would be consistent with the manner in which Indiana parties nominate their candidates for lieutenant governor, secretary of state, auditor of state, treasurer of state, and attorney general. Someone asked my thoughts on the matter. Upon reflection, my feelings about this aren’t as strong as I would have guessed. As an abstract matter, I don’t like it. Let the people decide! As a practical matter, I’m not sure it’s a bad thing to have nominees chosen at conventions. Certainly I’ve never felt deprived when my primary ballot didn’t include choices for Auditor and Treasurer of state. And, in my mind, having Richard Mourdock as a choice in the general election rather than Richard Lugar was not a positive development for voters. So, I guess I come down in favor of leaving the system for selecting U.S. Senate nominees as it is; but not by an overwhelming margin.

That said, I don’t agree at all with Sen. Buck’s own rationale for this, which seems to arise out of the notion that the 17th Amendment was a bad idea. “Sen. James Buck of Kokomo presented his plan to the Senate Elections Committee last week. He said a bloated federal bureaucracy grew from the movement toward voters — not state lawmakers — electing U.S. senators before adoption of the 17th Amendment in 1913.” The 17th Amendment provides for direct election of Senators. Prior to that, Senators were selected by state legislatures which led to all manner of corruption and shenanigans, including (without limitation) gun fire in the Indiana State House. (See: The Black Day of the Indiana General Assembly.)

The anti-17th Amendment sentiment is not unique to Senator Buck. It has expressed itself in various ways among Republicans in the last several years. In 2014, Sen. Smith introduced SJR 3 which would have purported to rescind Indiana’s ratification of the 17th Amendment. The argument is generally that, if the people elect the Senators, the Senator doesn’t truly represent the State as a sovereign which, in turn, makes the Senator more likely to go along with infringement of state sovereignty and a corresponding expansion of federal power. I think that argument is mostly specious. The fact that federal power expanded quickly after the 17th Amendment was ratified in 1913 is mostly a correlation-does-not-equal-causation situation. Industrialization and revolutions in communications and transportation were happening at the same time, we were in the midst of the Progressive Era, and World War I was on the horizon. All of those things were going to trigger an expansion of federal power no matter how Senators were selected. For my part, I’m on record as having the opinion that the selection of Senators by the General Assembly caused a lot more problems than we’ve experienced from direct election (what follows is from a 2014 blog post):

In 1854, the Indiana Democratic Party was led by a man named Jesse Bright, a man described as “hateful and extraordinarily ambitious.” He rose to power as a bully and apparently remained one thereafter. His pugnaciousness was no small part of the series of events that led to a two year period in which Indiana had only one U.S. Senator instead of the customary two. At the time, the General Assembly was responsible for choosing U.S. Senators. However, in 1854, a backlash rose against passage of the Kansas-Nebraska Act, an act that permitted slavery in states north of the Mason-Dixon line. Bright, himself a slave owner with holdings in Kentucky, pushed a state party platform that endorsed the Act. This was not popular with all Democrats, but Bright and his machinery punished those who opposed it, driving a wedge in the state Democratic party and giving rise to a confederation of former Whigs, Free Soilers, Know-Nothings, and dissident Democrats who joined into a fusion movement that swept the elections that year. They took control of the House of Representatives, but the Democrats narrowly hung on to the state Senate.

The first order of business for the new General Assembly was selecting a United States Senator. However, rather than permitting the choice of a Fusionist, the Democrats refused to caucus. As a consequence, from 1855-1857, Jesse Bright was Indiana’s lone Senator. In 1862, the United States Senate would go on to expel him from the Senate for acknowledging Jefferson Davis as President of the Confederate States of America and for facilitating the sale of arms to the Confederacy.

Dysfunction and machine politics were not unique to the Indiana Senate selection process. In 1906, Hoosier native and DePauw graduate, David Graham Phillips wrote a series of articles entitled “The Treason of the Senate” which played no small part in the eventual passage of the Seventeenth Amendment providing for the direct election, as opposed to legislative selection, of United States Senators. As the industrial might of the country grew in the post-Civil War era, those with major business interests came to understand that they could best exert their influence on the U.S. Senate by offering financial incentives to the state legislators who selected its members. Phillips documented some of these abuses, for example the close alignment between the Rockefellers and the political machine of Rhode Island’s Nelson Aldrich. Rhode Island’s legislature and, therefore, its two Senate seats could be had at very little expense.

Following popular anger at the dysfunction and abuse of the legislative selection system, the United States passed the Seventeenth Amendment, removing the selection process from frequently corruptible legislatures and providing for direct election of our Senators.

Now, however, Indiana officials, including state senator James Smith (R-Charlestown) and Indiana’s Attorney General, Gregory Zoeller have advocated repealing the Seventeenth Amendment. Earlier this year, Smith introduced legislation proposing to take the legally dubious step of rescinding Indiana’s ratification of that Amendment. Zoeller recently expressed his distaste for popular election of Senators at a meeting of the Federalist Society. The old way, he contends, was better because it made Senators instruments of the State rather than instruments of the people, thereby enhancing our federalist form of government with the States themselves being represented in Congress.

My high school history teacher told us that “today’s reforms are tomorrow’s corruption.” And our current U.S. Senate certainly is not a model organization. However, trading in today’s abuses for yesterday’s corruption is not the way to go about reform. If the state legislatures are at odds with the popular will, the solution is not to neuter the will of the People. More likely the solution is to change the composition of the legislature.