A Citizen's Guide to Indiana

Rep. Miller has introduced HB 1031 which would have the effect of reducing public ownership of the Lake Michigan shoreline. I believe this legislation is in response to the 2018 Indiana Supreme Court case of Gunderson v. State. The Court stated:

A century ago, our Court of Appeals recognized that, among those rights acquired upon admission to the Union, the State owns and holds “in trust” the lands under navigable waters within its borders, “including the shores or space between ordinary high and low water marks, for the benefit of the people of the state.”

. . .

[W]e hold that the boundary separating public trust land from privately-owned riparian land along the shores of Lake Michigan is the common-law ordinary high water mark and that, absent an authorized legislative conveyance, the State retains exclusive title up to that boundary.

The Court described the basic controversy as being “whether the State holds exclusive title to the exposed shore of Lake Michigan up to the [ordinary high water mark], or whether the Gundersons, as riparian property owners, hold title to the water’s edge, thus excluding public use of the beach. The landowners argued that the boundary was wherever the water met the land at a given moment while the State argued that it was further landward, including the exposed shore. Ultimately, the Supreme Court sided with the State that it holds land in public trust to include the exposed shores as the water periodically recedes. The fact that there is a beach demonstrates that the water covers the area more than occasionally.

There was also an issue where the Department of Natural Resources created an administrative boundary at 581.5 feet above sea level for certain purposes as the ordinary high water mark. The Court determined that, whatever the other uses for that administrative boundary, DNR wouldn’t have the power to relinquish the State’s ownership interest in the land without a clear legislative directive.  Absent statutory guidance, the Court held that the public has a common law right at least to walk below the natural OHWM along the shores of Lake Michigan is a protected public use in Indiana. (Landowner’s wanted to say that the public had no particular rights beyond the water’s edge and the State and some public interest intervenors wanted the court to declare that other recreational uses were permitted. The Court demurred beyond saying that the public could walk on the beach, leaving the rest of the public’s rights up to the General Assembly to define.)

HB 1031 seems to relinquish some of the land that the Court declared was held in public trust: It states that the boundary of “private property is determined according to the legal description of the private property in the most recent deed to the property that is recorded in the county recorder’s office” and “to the extent that this section recognizes the existence of private property extending closer to Lake Michigan than the natural ordinary high water mark of Lake Michigan, the state of Indiana relinquishes its ownership of the shore of Lake Michigan.”

However, with respect to the land the public retains, the legislation says that the public can do more than just walk on it. They can also jog or run or engage in other activities in which the participant occupies a space on the beach only temporarily. However, the permitted activities specifically do not include “lying on the beach, playing volleyball, picnicking, or other non-transient activities.”

I’m not going to delve as deeply into this, but the legislation also gives DNR the exclusive authority to determine whether someone can install a seawall. This looks like it’s probably an end-run around Osborne v. the Town of Long Beach (also see a related federal court action) which involves a question about whether an owner’s desire to construct a seawall is subject to the Town’s zoning rules.

 

Sen. Holdman has introduced SB 189 which would allow golf carts to operate on non-Interstate highways. It has to be operated in a manner that does not impede traffic or endanger life or property. In most cases, it has to be operated “(i) in the right hand lane available for traffic or (ii) as close as practicable to the right hand curb or edge of the highway.” As drafted, I’m not really sure where item (ii) would be a limiting factor. Unless you’re driving the wrong way on a one-way isn’t there always going to be a right hand lane available for traffic such that this doesn’t obligate you to crowd the curb? Or maybe item (ii) is only applicable on one-lane one ways (since there is no right hand lane)? Neither items (i) or (ii) are applicable if the golf cart is passing another vehicle or is preparing for a left turn.

Maybe I just don’t live in the right places, but how necessary is this legislation? I guess you’re not supposed to think this way when writing laws, but seems like if the golf cart isn’t causing problems, local law enforcement is probably going to look the other way.

This is a very slightly modified reprint of a post from 2010, providing some small insight into the process of how Indiana’s Legislative Services Agency converts a bunch of legislators’ ideas into a stack of bill drafts they can consider and vote on during the legislative session.

Maureen Hayden, writing for CNHI, had written an article (in 2011) on bill requests being made by legislators and being drafted by employees at Indiana’s Legislative Services Agency (LSA). At that time, there had been about 900 bill requests (in the December heading into a long session.) We’re heading into a short session this year, so that number is likely to be less. However, the General Assembly is pretty erratic about what they make available to the public prior to the session. So, for example, the House of Representatives has posted only 5 bills. That number will surely explode tomorrow when the legislature comes back into session. Anyway, the drafting process:

I used to work for LSA back in ’96 – ’99. Ms. Hayden reported in 2010 that LSA consisted of “about 80 lawyers, fiscal analysts and support staff.” Most of the bill requests are drafted by the lawyers in the section of LSA called the Office of Bill Drafting and Research (OBDAR). There were 18 of us when I was in that office. The lawyers had fiscal analyst counterparts in the Office of Fiscal Management and Analysis (OFMA). The fiscal analyst provides a report on the fiscal impact of a given piece of legislation. A third branch of LSA is the Office of Code Revision. After my stint at OBDAR, I became a deputy director at OCR. Our job, during session, was to edit the bill drafts submitted by the OBDAR attorneys.

The way it worked was, a legislator would come in and meet with the director of OBDAR and tell him what he or she wanted, generally, in terms of legislation. The director summarized the request and assigned it to a bill drafting attorney. (I don’t know how, exactly, the OFMA analysts got assigned, but there was a corresponding assignment to a fiscal analyst.) The drafting attorney would, in a lot of cases, just draft the bill without having to do a lot of extra research. A good chunk of these bills are simply repeats of requests from prior years. A fair number of others are pretty basic — e.g., change the speed limit from 65 to 70 mph. But, there are still plenty of requests that are complicated.

For the complicated ones, you work out the questions that need to be answered, and try to get in touch with the requesting legislator. This can be a challenge – these folks are very busy. Then, you have to get the legislator to slow down enough to pay attention to the, usually boring, details of the issues you need to work through. A lot of legislators are frenetic, big picture types — not generally inclined to put everything on hold to really bear down on niggling details.

A lot of times, lobbyists are involved – either the legislator is carrying water for a particular group or that group is a trusted source of information and policy advice for the legislator. So, you’ll have to talk with those folks. Not uncommonly, you’ll get a draft piece of legislation that has originated with the lobbying group. Often, these drafts are horrible messes that don’t really pin down who gets to do what to whom and under what circumstances. They require an extra step. Before you can get to work, you have to discern what these drafts are actually trying to accomplish. Only then can get to work on drafting language that actually accomplishes the goal.

Because of the legislative calendar, the bulk of bill drafting season coincides with the holiday season. Elections take place in early November. Legislators get organized through early November. Bill requests really get going in the latter half of November. What’s really fun is when a legislator pops into LSA on his way to the airport in Indy to drop off a pile of bill requests before he or she flies off to a Christmas vacation some place warm with the family. Anyway, you end up with long days and nights of drafting through the end of November all of December and into January before the General Assembly kicks into gear the first or second week of the new year.

The good folks at LSA are a little like legislative elves, slaving away in Santa’s sweatshop, churning out bills for good little representatives and senators to introduce at the beginning of the session.

As for the number of bills produced, from talking with folks who have been at LSA for a long time, it seems that the number is essentially a function of the technological ability to produce the documents. It used to be that setting the type and producing the paper was more of a barrier to creating bills. With word processing and reproduction getting easier and easier, that has allowed the number of bills to increase over the years.

Sen. Leising has introduced SB 182 which basically requires a health care practitioner to disclose the nature of his or her licensure in any advertising and to wear a badge while providing direct health care that states their name and licensure. This applies to a “practitioner” which is defined as someone who holds a license, certificate, or permit regulated by a variety of regulatory boards (e.g. chiropractic, nursing, dentistry, medical licensing, optometry, podiatrist, pharmacy, psychiatry, psychology, physical therapy, audiology, athletic trainer).

It requires that, when advertising for health care services (not defined, I don’t believe), the practitioner must prominently identify in the advertisement the type of license held by the practitioner. It also provides that, with certain exceptions, when providing direct patient care, the practitioner must wear an identification badge. “Direct patient care” is defined as “health care that provides for the physical, diagnostic, emotional, or rehabilitation needs of a patient, or health care that involves examination, treatment, or preparation for diagnostic tests or procedures.” The badge must state the practitioner’s first and last name, the type of licensure using the name of the relevant profession, and – if applicable – the practitioner’s status as a student, intern, trainee, or resident. Exceptions to the badge requirements are permitted if it’s not clinically feasible (e.g. during surgery), where there is some concern for the practitioner’s safety (not stated – but I’m thinking having the last name on the badge while providing care to a violent criminal?), the relevant information is already posted on the door to the office, or if the practitioner has the information posted on the wall of their office.

Health care already feels like such an inscrutable maze, I guess I’m not optimistic that these additional bits of information will really make a dent in the challenges we face as health care consumers. It feels like drops of water in the ocean. Meanwhile this adds just a bit more bureaucracy to the system.

Sen. Koch has introduced SB 196 imposing duties on prison superintendents and jail commanders to assist the federal government in enforcing immigration laws. It requires the person in charge of a jail, prison, correctional facility or other place of detention to “attempt to determine” a person’s residency status by asking the prisoner or by examining “relevant documents.” (Relevant documents are undefined.) If the person in charge of the detention facility is unable to make a determination, he or she is to check with  Immigration and Customs Enforcement  (ICE) and report the person’s presence to the Department of Homeland Security (DHS). (Oddly, this requirement is triggered only if the person in charge is unable to make a determination. I’m not sure if there is a reason why it’s not drafted to also require notification where the person in charge determines that the inmate is not here legally.)

If DHS requests a custodial interview, the detention facility is required to accommodate the request within 24 hours. If DHS notifies the detention facility that the inmate is the subject of a detainer, the person in charge of the detention facility (not DHS or ICE) is required to go to the local court and ask for a hearing concerning the detainer and, if the court determines that the inmate is the person who is the subject of a detainer, order the person held for an additional 48 hours.

The fiscal note does not address as potential local expenditures the costs of legal fees required to go to court with one of these petitions or the costs of Fourth Amendment lawsuits if it turns out that the federal detainers were not supported by probable cause. And often times they aren’t:

Federal courts agree that holding someone on a detainer after they have concluded their local or state custody constitutes a new arrest that must meet Fourth Amendment requirements. As discussed further below, most holds pursuant to ICE detainers do not satisfy the Fourth Amendment.

. . .

The Northern District of Illinois has ruled that detainers issued out of the Chicago Field Office (covering at least six states and sometimes more) because they exceed ICE’s own statutory arrest authority, although a request for a stay of the order revoking all the detainers has been filed, pending an appeal.  This holding so far only applies to the Chicago Field Office, but its analysis is national, so any jail holding people on ICE detainers is risking liability for that detention.

Local jails and sheriffs have been held liable for unlawful detention and violation of the detainee’s Fourth Amendment rights because of unlawful detention based on ICE holds. 8 Moreover, many jails have been held liable or forced to settle with U.S. citizens that they unlawfully held on immigration detainers.

(The memo I’m quoting here is a couple of years old and isn’t from a neutral source, so you can quibble with whether or how much it’s overstating the case, but the issues it raises and the cases it cites are real.)

I don’t want to get into the ways in which federal immigration law is problematic, and state law already requires that local government not interfere with federal enforcement of immigration law. That’s a legitimate policy choice. This, however, puts local jails in a bad spot if the federal government isn’t doing its job. Like I said, if the detainers are not based on probable cause, the local government might be on the hook for holding the inmate without legal authority to do so. A jail might defend on the basis that the state court issued a 48 hour holding order — but I’m not sure if that would be sufficient. The proposed legislation does not contemplate a court making a determination on the legal sufficiency of the detainer — just whether the inmate’s identity is correct. And there are going to be legal expenses associated with preparing a petition, going to court, and explaining the law to the judge. These expenses are imposed entirely on the person in charge of the correctional facility.

Seems to me that the better way to accommodate the federal government while not burdening local government is to notify the federal government of the inmate’s presence and leave it up to the feds to go to court to get the hold order. They’ll presumably have much better access than state or local government to the information supporting a probable cause determination.

Update: It occurred to me that, because the inmate’s liberty is at stake, in all likelihood, the County will also have to pay for the inmate to have a public defender if the inmate is unable to afford one — and that’s probably going to be a substantial percentage of the inmates in this situation.

Sen. Koch has introduced SB 197 which concerns “prohibited technology purchases.” It defines a “prohibited person” as “a person that has been designated as posing a national security threat to the integrity of communications networks or the 10 communications supply chain under 47 CFR 54.9 (as in effect on 11 January 1, 2020).” According to the fiscal note, the two companies that meet this criteria are Huawei Technologies and ZTE Corporation. Both are Chinese technology companies. The bill prohibits the purchase of any services or equipment from these companies, effective upon passage. It does not make any provision for contracts already in place. The fiscal note says that the bill will affect only “projects which do not receive federal funding, as federally-funded projects are currently being addressed by the 2019 National Defense Authorization Act.”

Both Huawei and ZTE are accused of allowing surveillance by the Chinese government through their products.