A Citizen's Guide to Indiana

Rep. Pryor has introduced HB 1036 concerning “shared mobility devices.” Such a device is defined as one that: (1) has at least two (2) wheels in contact with the ground with a floorboard for the user to stand on when using the device; and (2) is propelled by a motor at not more than twenty (20) miles per hour. I assume this is primarily a response to the recent infestation of motorized Bird scooters. Vendors of such shared mobility devices are those who make the devices available to the public for consideration. Vendors would be liable “for the total cost of property damage or
bodily injury suffered by a person in connection with the use or presence of the vendor’s shared mobility device.” They would also be required to maintain liability insurance to cover the loss and publicize phone numbers for making claims.

I don’t see this going anywhere, but I definitely see where the concern comes from. Emergency room people are, at least anecdotally, reporting a lot of visits from people who get injured riding the scooters. They are being thrown in water ways, blocking streets and sidewalks. I know a fair number of people like them, and they are being championed as a more environmentally friendly way of covering “the last mile.” But, at the same time, the companies’ business model seems to be externalizing a lot of costs onto the general public. Legislation such as this bill seeks to internalize those costs — make the company bear the cost of operations so that the cost of the scooters can be reflected in the price and the market will have better information for evaluating the costs and benefits of this kind of transportation.

In any legislation governing these scooters, I’d recommend something negating any click wrap arbitration requirements in their terms of service and permitting disputes to be litigated in the courts of any county where damage or injury occurs.

Sen. Ford has introduced SB 348 concerning covenants not to compete. It prohibits an employer from requiring an employee or prospective employee from entering into a covenant not to compete if the employee’s earnings don’t exceed $15 per hour. A covenant not to compete is one that restricts the employee from working for another employer for a specified time and/or in a similar field or from working in a particular geographic area. It declares such contractual provisions as void and against public policy.

I think this is a good concept. Courts are generally pretty skeptical of covenants not to compete as it is — restricting a person’s ability to work is not something they’re very comfortable with. There are some legitimate business reasons for a covenant not to compete – the employer has given the employee valuable training or contacts or information and the employee should not be able to profit off of those inputs at the employer’s expense. But, if the training or information or other inputs with which the employer has entrusted the employee are so valuable, it stands to reason that the employer would be compensating the employee accordingly. If the employee is making less than $15 per hour, it stands to reason that a covenant not to compete isn’t protecting the employer’s legitimate business interests so much as it’s being used as a tool to gain additional leverage over the employee.

The General Assembly might, however, look at tightening up the “earning $15 per hour” language. Compensation models that involve commissions or tips or irregular bonuses could complicate things somewhat. Courts could probably figure it out, but some additional attention might make it harder for employers to find work-arounds.

 

Rep. Steuerwald has introduced HB 1150 providing that an exonerated prisoner is entitled to $50,000 for each year that the individual was incarcerated in the Department of Correction for a conviction that was vacated. The person has to otherwise waive their claims against the State and can’t have pending or previous wrongful conviction claims against the State. If there is not enough money in the exoneration fund to pay claims at the $50,000 per year rate, the compensation may be pro rated by the Attorney General (who is to administer the exoneration program). And, according to the fiscal note, there’s might be a lot of pro-rating. The legislation appropriates $200,000 to the fund. The note estimates at least thirty-four eligible people with 369 total years of incarceration, resulting in potential demands on the fund of $18,450,000. If my math is correct, pro-rated, that amounts to a cool $542 per year for wrongful incarceration.

This is maybe a little obscure, but the $542 reminds me of the old skit by The State where Barry & LeVon brag about getting $240 worth of pudding.

“We had the $240. We had to have the pudding.”

“Now, we could’ve bought $100 worth of pudding — and that would have been a *lot* of pudding — but we had to go all the way, baby.”

“See this here, it says first you cook, then you chill. And that’s what I do every night! First I cook, and then I chill! Aw yeah.”

 

 

Rep. Bacon has introduced HB 1016 which increases the penalty for battery from a Class B misdemeanor to a Level 6 felony if it’s committed against a utility worker in the course of the worker’s duties.

I have nothing against utility workers and can see how they are at an increased risk — going onto strangers’ properties and so forth — but I am wondering how this sort of thing squares with the arguments we often see against hate crime legislation. Critics complain that hate crime legislation creates a hierarchy of victims — some victims are treated as being more important than others. In fact, the current law on battery already offers additional penalties to certain victims: law enforcement officers, firefighters, and the like. This isn’t uncommon and there are good policy justifications for the enhanced penalties.

While I’m at it, I’m also confused by hate crime detractor’s “thought crime” line of opposition to such legislation. They claim to object to the idea of courts or juries weighing the thought, belief, or emotional affect behind an act. But the fact of the matter is that courts and juries are asked to make a determination of the mental state of the accused in almost every crime. The mens rea of the accused is an element of most crimes.  That’s what that whole business about “knowingly or intentionally” is about. (I think one of my favorites is the “malice aforethought” that used to describe an element of murder.)

But anyway, this was about battery against a utility worker.

Rep. Saunders has introduced HB 1028 concerning mental health care for released inmates. It directs the Indiana Department of Correction to assist inmates with obtaining an appointment with a physician or psychiatrist for evaluation within 30 days of the inmate’s release date. It also requires the DOC to provide the offender with enough of the offender’s medication to last until the evaluation. (Presumably the evaluation and the medications are related to the inmate’s mental health condition, but the legislation isn’t necessarily specific on that point.)

It’s maybe a drop in the bucket, but it’s a move in the right direction. Continuity of care is a big problem with inmates, particularly with respect to mental health. Jails and prisons become the mental health providers of last resort (or maybe first resort — our mental health infrastructure isn’t exactly robust). As the mental health condition deteriorates, the person will often do something that transgresses lawful behavior and find themselves in the justice system. Jails and prisons don’t provide the best mental health care, but often what they provide is better than what the person gets on the outside. Being released with no plan for maintaining the person’s mental health increases the likelihood that the person’s mental health is going to decline and, consequently, they’ll end up back in jail.

Rep. Frye has introduced HB 1017 concerning immunity and indemnity for a civilian who helps a law enforcement officer. Specifically, it provides that a civilian who acts to prevent serious bodily injury to or commission of a forcible felony against a law enforcement officer is immune from criminal or civil liability with regard to such actions. It further provides that the unit of government that employs the officer is required to foot the legal bills for the civilian arising out of such actions.

I can see some policy reasons for encouraging citizens to help law enforcement officers. But, the way I see this playing out is that a citizen sees a tense situation and then, without any training or a lot of good sense, opens fire on a suspect (or what the citizen believes to be a suspect.) They’ve acted in good faith but negligently and, as a result, maybe killed a guy. Now, maybe a town who employed the town marshal the citizen was trying to protect has to foot the legal bill to defend the wrongful death lawsuit. There’s this immunity law that helps the defense, but probably you don’t have some of the other advantages that government has in these cases: no notice of tort claim requirement; it’s a comparative fault rather than contributory negligence situation; there’s no law enforcement immunity.

I can respect the sentiment here, but let’s say I have some concerns.

Rep. Leonard has introduced HB 1061 which would mandate that courts award attorney’s fees to the prevailing party in all civil litigation. Current law permits courts to award attorney’s fees to the prevailing party in cases where the claim or defense was frivolous from the outset or the litigant became aware that the claim or defense was frivolous but continued litigating it anyway. There are also certain cases where attorney’s fees to the prevailing party are mandated statutorily. (E.g. civil rights cases, wage claims). But, in general, civil litigation follows “the American Rule” where each party bears their own fees.

This seems like a bad idea. It’ll probably make cases harder to settle and, once the fees get beyond a certain level in a case, make parties fight to the bitter end because the fees have already become unbearable. Wealthy litigants can simply bully middle-class litigants out of court. Sure, they’ll get tagged for attorney’s fees themselves sometimes, but they can add it to the cost of doing business whereas they will be litigating against people for whom a hefty fee judgment would be life-ruining. (Folks with no particular wealth to lose might not care so much.)

So, now we get to the period of the legislative session where my blogging on bills is essentially random. A flood of bills was just made public. I don’t have anything like the time to read and write about them all. So, I browse and I pick a couple that seem interesting. Anyway, Sen. Doriot has introduced SB 246 that would require local public questions to appear on the ballot only in general elections or during municipal general elections where the impact of the question is entirely within the municipality.

One type of local public question near and dear to my heart is the school tax rate referendum. In May 2017, we held one for the West Lafayette School District on the date for the primary that year. With the caveat that this bill is 29 pages long and I’m convinced the election laws are designed to be almost unreadable — they give me a headache whenever I have to read Title 3 — I think we would have had to wait until November 2018 to put the question on the ballot. That’s a long time to wait, and I think our tax rate may have expired as a consequence.

But, there’s a larger philosophical question: is a local question more legitimate in a general election because there are more voters at the polls? Or does the result become diluted because there are more voters who don’t really understand the question? I can see the referendum question going differently if it’s being answered by a bunch of people who show up to the polls because they hate Hillary, don’t know much about local government, and “oh, hey, question about public schools. Not sure what this is about, but there’s something about taxes, so no.”

The title is a cynical quote about politics from Frank Herbert’s Dune that came to mind as I read  Senate Resolution 9, introduced by Sen. Koch. It urges the legislative council to assign to a study committee the study of virtual currencies and the Uniform Regulation of Currencies Business Act.  (PDF link to the text of the act). There is an organization known as the Uniform Law Commission that proposes various types of legislation that either isn’t appropriate for federal legislation or on which the federal government is unwilling or unable to act. The organization drafts uniform acts and then states that are so inclined adopt the legislation in more or less the form proposed.

The resolution cites as one of the reasons for studying virtual currencies and the uniform act that “individuals and businesses that buy, sell, and store virtual currencies are largely unregulated, raising concerns about security, insolvency, theft, and hacking.” I’ve read enough cyberpunk books over the years to know that this lack of regulation is seen in some circles as more of a feature than a bug. Ultimately, I tend to think that successful, reliable unregulated currency is more the stuff of anti-government, libertarian fantasies than a realistic probability. So, studying potential regulations makes sense. I have no real idea what’s in that Uniform Act, so I couldn’t comment on whether it’s a good idea or not.

Sen. Tomes has introduced SB 119 which, as far as I can tell, is more clean up than anything else. Current law prohibits transfer of an “assault weapon” to a minor. However, the Indiana Code doesn’t seem to define “assault weapon” anywhere. If it once did, I can’t find the old definition. This bill creates a definition for “machine gun” (generally – something that can fire more than one shot without reloading with a single function of the trigger.) It deletes the prohibition on transferring an assault weapon to a minor and replaces it with a prohibition on transferring a machine gun to a minor. This arguably permits transfer of semi-automatic weapons to minors where such transfer was prohibited before; but I’m not so sure. Criminal law requires a level of precision in definitions that aren’t necessarily required elsewhere. (As a policy matter, we want to make sure citizens know what’s prohibited before we throw them in jail for doing it.)