A Citizen's Guide to Indiana

Sen. Stoops has introduced SB 400 concerning “ranked voting.” It’s a long piece of legislation, and the election code — Title 3 – is somewhat bewildering, so, full disclosure: I haven’t read it all. But, very generally, it allows cities, towns, and counties to provide for ranked voting in filling their offices.

The way ranked voting would work is that voters could rank some or all of the candidates, first choice, second choice, third choice, etc. The first time through, you give all the candidates their first choice votes. If a candidate gets a majority of the votes, that candidate wins and the counting stops. If no candidate gets a majority, you go to step 2. You eliminate the candidate with the fewest votes and then, for the ballots that selected that candidate as the first choice, you go to the second choice on those ballots and assign them to the remaining candidates. If no candidate has a majority at that point, you rinse and repeat until you get a majority.

The motive behind SB 155 concerning deceased voters is not a bad one, but with a subject like “deceased voters,” you’re going to invite people to make fun of it. I clearly couldn’t resist. Sen. Walker’s bill provides that, if a person casts an absentee ballot and then subsequently dies (making the vote very absentee), the person’s votes are valid and should be counted, notwithstanding the death.

Wanting to honor the wishes of the dead is laudable but, in my mind, I guess the point of an election is to determine the will of the governed. When someone has passed away, they are beyond the laws of man. And, so, to me, it seems reasonable to count the votes of only the living who will be subjected to the laws and governance of the person put in office. That said, I can’t imagine that this amounts to very many votes. And, death is the ultimate non-partisan issue. So, even though I lean against the legislation, I’m not going to get any heartburn if it passes.

The bill passed out of the Senate Elections Committee and will head to the floor of the Senate.

Sen. Raatz has introduced SB 172 mandating that high schools include computer science in their curriculum and creating a state computer science grant program and associated fund. I’m generally against state mandates for local school curriculum. But, if the state is going to impose requirements, computer science sounds like a good one.

It’s not cursive, but I guess the kids might need to know about computers, too.

The grant program would provide for the State to give money to universities and other institutions capable of training teachers to teach computer science. A grant fund is created but, at least in this bill, no money is placed in that fund. I don’t know if that would be in separate legislation or wait until the budget bill.

Current law states that sciences are a required part of any school corporation’s curriculum. The bill amends that provision to say that “sciences” includes (after June 30, 2021) “computer science.” It also states that:

(a) After June 30, 2021, each public school, including a charter school, shall offer at least one (1) computer science course as a one (1) semester elective in the public school’s curriculum at least once each school year for high school students. (b) After June 30, 2021, each charter school shall include computer science in the charter school’s science curriculum for students in kindergarten through grade 12.

The fiscal note suggests that this curriculum requirement could be satisfied by routing students to the Indiana Online Academy at a cost of $295 per student which the schools could either pay themselves or require students to pay. If the school has to hire teachers, the fiscal note estimates the cost of hiring each teacher as about $59,000.

Sen. Koch has introduced SB 270 which, among other things, requires that local government get the consent of the State to settle certain kinds of local litigation. (“Unit” refers to a unit of local government).

Sec. 8.7. A unit does not have the power to compromise or settle a claim by agreeing, in whole or in part, to:

(1) adopt, refuse to adopt, or refuse to enforce an ordinance; or

(2) the terms of an injunction, restraining order, or consent decree;

without the consent of the attorney general

The legislation imposes similar restrictions on school corporations (except that — weirdly to my eyes — charter schools are specifically carved out of this restriction). “[A school corporation does not have the] power to compromise or settle a claim by agreeing, in whole or in part, to: (A) adopt, refuse to adopt, or refuse to enforce a policy; or (B) the terms of an injunction, restraining order, or consent decree; without the consent of the attorney general.”

Not only does this legislation call for the Attorney General to second guess school corporations, local units of government, and their legal counsel who are going to be far more familiar about the facts on the ground with respect to the pending litigation. This legislation would also let the State gamble with other people’s money. If the proposed settlement has an injunction with respect to a policy or ordinance, a lot of times the litigation is going to be associated with some kind of civil rights action that results in the defendant paying the plaintiff’s attorneys fees if the plaintiff wins. Those expenses can add up fast. If the Attorney General vetoes a proposed settlement and the school or local government loses, this legislation does not have the State offering to pick up the tab. Under local expenditures the fiscal note states that “the bill could potentially cause a unit or school corporation to incur additional expenses due to delayed settlements, injunctions, restraining orders,or consent decrees.” It should add “potentially catastrophic legal fees” if some local township or small, rural school corporation has to pay an Indianapolis civil rights attorney his or her rate of $400 or $500 per hour because the Attorney General had a philosophical difference of opinion about a bathroom case or something.

Update: I think I’ve stumbled across the “ripped from the headlines” issue that led to this legislative proposal. Olivia Covington, reporting for the Indiana Lawyer, has a story about Attorney General Curtis Hill’s effort to intervene to protest a consent decree entered into between Marion County and Antonio Lopez-Aguilar concerning Lopez-Aguilar’s lawsuit claiming that he was illegally detained by Marion County in cooperation with the Immigration & Customs Enforcement (“ICE”). The result of the lawsuit was that Marion County entered into a consent decree. The prohibiting “the Marion County Sheriff’s Office from detaining illegal immigrants on behalf of U.S. Immigration and Customs Enforcement unless ICE can produce a signed warrant or other probable cause.”

I haven’t read the underlying facts for this case, but I am familiar with the general framework of what’s often at issue. Someone suspected of being an illegal immigrant will be arrested for a non-immigration related crime. The person will be serving a sentence or awaiting trial or whatever. ICE will ask the jailer to let ICE know when the person’s sentence is up and then hold them until ICE can come pick them up. I believe case law is still percolating a bit, but courts have been holding that the jailer doesn’t have the authority to honor the hold request unless there is a warrant or some particularized basis giving them probable cause to believe there is a basis for detaining the individual. In 2016, a District Court in Illinois issued an opinion in Moreno v. Napolitano, 213 F.Supp. 3d 1999 (N.D. Ill. 2016) holding that detaining an individual on an ICE hold (after the basis for imprisoning the person under state or local law has passed) was basically the same as a warrantless arrest and that ICE was permitted to “dispense with a warrant only when one cannot be obtained before the subject will likely escape.” 

The Attorney General is correct that IC 5-2-18.2 requires local law enforcement to cooperate with the federal government’s immigration efforts. But, if the local law enforcement agency cooperates in a way that violates the 4th Amendment, that will expose the local government to liability for that constitutional violation. Because my bias is in favor of local control, I’m obviously not a fan of this legislation. But, if the General Assembly proceeds with this legislation, I would definitely urge a provision that requires the State to reimburse the local school or governmental unit for any expenses added by the State’s decision.

Judgment or game of cat and mouse? Why not both?

Rep. Hamm has introduced HB 1086 concerning garnishment orders. There are two broad categories of tools given to judgment creditors in order to collect debts that have been reduced to judgment: attachment and garnishment. Attachment refers to an order that a judgment debtor turn over property in his or her possession while garnishment refers to an order that a third party in possession of the debtor’s property turn that property over to the judgment creditor instead of to the debtor. Most of the time, if a person is in a situation where the debt has gone all the way to court and a judgment has been entered, it’s because they don’t have the money on hand. And, if they do, they’re more likely to conceal what they have and use it on more immediate needs or wants.

So, the creditor goes looking for third parties. Usually this is an employer who will get an order to withhold a certain amount or percentage of the paycheck and remit it to the Clerk of the court who will, in turn, send it to the creditor.

This bill gives a little to creditors and potentially takes away a lot. If the creditor gets a court order, the creditor  would be permitted to access certain wage information provided to the Department of Workforce Development concerning the judgment debtor. Usually access to this information requires the prior written consent of the judgment debtor/employee.

What the bill takes away from creditors, however, is the fact that – under current law – if a garnishment order is entered, it remains in place even if the debtor/employee leaves his job and then comes back. When he comes back, the garnishment continues on. And, garnishment orders apply even where the judgment debtor is characterized as an “independent contractor” rather than an “employee.” The key is, basically, whether the judgment debtor receives periodic payments from the business.

Under the proposed legislation, if an employee left employment (and the employer notifies the court of that fact), the garnishment stops. If the employee returned to employment (and the judgment creditor is lucky enough to discover that fact), the judgment creditor would be required to go back to court and obtain  a new garnishment order before any wages were withheld and applied to the judgment. Obtaining a garnishment is a somewhat cumbersome process generally requiring that you get a hearing date from the court, serve the judgment debtor and employer with notice, and get an order from the court. It takes some time. This encourages game playing. Garnishments are a hassle for the employer and obviously they’re no picnic for the employee. But, if we’re going to take seriously the idea that judgments should be paid, they are a necessary tool.

Employment these days is often a seasonal or sporadic affair in any case. So, why not have the employee take a couple of weeks off to get the garnishment off the books then have him come back and work for a month or two before a new garnishment can be secured? And, of course, this legislation potentially creates confusion with the independent contractor who is receiving periodic payments. Strictly interpreted, because the legislation uses the terms “employer” and “employee,” it wouldn’t apply to the independent contractor scenario. But, in practice, courts, businesses, and judgment debtors would claim that it does — which creates another level of complexity.

Idea: Be nice until it’s time to not be nice.

Rep. Hatfield has introduced HB 1093 concerning protective orders for bullying. “Bullying” is defined as “overt, unwanted, repeated acts or gestures . . . that are committed by a person or group of persons against another person or group of persons with the intent to harass, ridicule, humiliate, intimidate, or harm the targeted person or persons.” It gives verbal, written, and electronic communications, physical acts, and aggression as examples of “acts or gestures.”

It permits a person who has been a victim of bullying to seek a protective order in the same manner currently available to a victim of domestic violence. The orders can, among other things, enjoin the bully from threatening or committing future acts of bullying; enjoin the bully from communicating directly or indirectly with the victim; and order the bully to reimburse the victim for expenses related to the bullying – including medical expenses, counseling, and repair or replacement of damaged property; and prohibit the bully from using or possessing a firearm.

The structure of the legislation is perhaps a little kludgy at times because bullying has been shoe-horned into statutes designed for domestic violence. So, in the case of a bullying protective order, the court has the authority to order that the victim “has the exclusive possession, care, custody, or control of any animal owned, possessed, kept, or cared for by the [victim], [bully], minor child of either the [victim or bully], or any other family or household member.”

I don’t work with them a lot, so I’d defer to those with more experience, but I’m skeptical of the general effectiveness of protective orders. I don’t oppose them by any means, but I think probably they often do too much or too little. The legal system is an unsubtle piece of machinery not well designed to respond to nuanced human interactions. It’s a cleaver where sometimes a scalpel is necessary.

Bullying itself is an interesting question. People will complain — with some justification — that it’s too hard to define. Any definition you care to come up with will be both over and under-inclusive. And some of that is meant in good faith. But there are people who, when you get down to it, believe that bullying is good or, at least, that protecting kids from bullying is bad. Curbing bullying behavior in boys is emasculating. The pecking order is a natural and ultimately beneficial aspect of human society. Dealing with bullies make you a stronger person.

I disagree. I think tolerating bullying behavior is maladaptive for modern society where more people are placed in closer proximity with one another and required to work together and rely on one another for society to thrive. I’m an adherent (as should we all be) of the Road House rule as given to us by the best cooler in the business, Dalton (who’s not as big as you might think): “be nice until it’s time to not be nice.” Bullying, pretty much by definition, is someone not being nice when it’s still time to be nice. We shouldn’t tolerate that. (Though, like I suggested, I’m on the fence about whether a protective order is the proper tool for this particular job.)

Keep 3 feet away. Or, if you prefer, 1 yard, 0.944 meters, 91.44 centimeters, or .0045 furlongs.

Sen. Sandlin has introduced SB 72 concerning bicycle safety. Specifically, it would require that,  “when a vehicle passes a bicycle that is proceeding in the same direction as the vehicle, the driver of the vehicle must maintain a safe distance of at least three (3) feet between the vehicle and the bicycle during the entire time that the vehicle is passing the bicycle.”

Makes sense to me. I might alter the bit about “during the entire time the vehicle is passing” to reflect that it’s also a bad idea for the motor vehicle to be closer than 3 feet when the motor vehicle is tailing the bike with no intent to pass. To the extent we haven’t been, we probably also need to keep non-motor vehicles when we design our travel infrastructure.

Because this is a short one, I’ll digress by sharing an article I read awhile back about how the invention of jaywalking was associated with a “massive shaming campaign” by the auto industry.

In his 2007 paper, “Street Rivals: Jaywalking and the Invention of the Motor Age Street,” Peter D. Norton describes how ridicule was recognized early on as the best socializing force to control pedestrian behavior—behavior that would have to change with the times.

. . .

As Norton explains, “before the city street could be physically reconstructed to accommodate motor vehicles, it had first to be socially reconstructed as a modern thoroughfare.” And that social reconstruction meant redefining who belonged on the street, by poking fun at those who were seen as unwanted. This ridicule would show up in newspaper editorials, in verbal confrontations between motorists and pedestrians on the street, in American classrooms, and through public shaming by police officers and other authority figures.

The term “jaywalking” apparently comes from the term “jay” being used to refer to a rural idiot or rube. If they were walking in the middle of the street instead of crossing at intersections in order to accommodate the new motor vehicles, that must mean they are hicks from the sticks who are too simple to know how to properly walk in the city.

Viewed through a long historical lens, this attempt to reclaim a place for non-motorized vehicles on our streets is something of a pendulum swinging back somewhat to the days before motor vehicles.