A Citizen's Guide to Indiana

Masson's Blog

SB 121 – Increase in Minimum Wage

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Money is the root of all evil and doesn’t buy happiness. But it has been known to help with the acquisition of food and shelter.

Sen. Mrvan introduced SB 121 which would raise the minimum wage in Indiana. This legislation will presumably not go anywhere. Indiana’s minimum wage is currently pinned to the federal minimum wage of $7.25 per hour. This legislation would increase the rate to $10 per hour from July 1, 2019 through June 30, 2020. Between July 1, 2020 and June 30, 2021, it would increase to $13 per hour. And, after July 1, 2021, it would increase to $15 per hour.

The federal minimum wage was last raised in 2007 and set at $7.25 per hour. According to the CPI inflation calculator,  if that had kept up with inflation, we’d be at $8.59 per hour. So, this proposal would be a boost from the 2007 floor. On the other hand, the first jump would not quite be on par with the minimum wage as set in 1968. When it was raised to $1.60, that would be equivalent to about $11.31 in today’s dollars.

There is always a debate about how much good minimum wages are. Opponents will contend that it’s unjust for the government to dictate business practices, that they will price low skilled workers out of the market and employers will shift to automation, they make it harder for teens to get jobs, and it will just result in higher prices so purchasing power will not be any better.

I wonder if a Universal Basic Income would allow us to do away with minimum wage laws. In our current system, it seems that the market price of labor is distorted by a laborer’s non-discretionary need for necessities such as food and shelter. It’s not exactly an arm’s length transaction. The laborer generally doesn’t have the same sort of discretion to sit on the sidelines until the market for his services improve (or while he learns a new skill set) in the way capital can wait for investment opportunities to improve. At least that’s the way it looks to me. Maybe you could argue the existence of food stamps and homeless shelters negate this argument.

In any case, I predict that Indiana will stick with the federal minimum wage.

SB 129: Shifting Responsibility for Indigent Decedents from Township Trustee to Coroner

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Death and taxes.

Sen. Buck has introduced SB 129 concerning the death of people who are indigent. Currently, if someone dies without financial resources and without family members willing to step up and take financial responsibility for disposing of the remains, the responsibility falls to the township trustee. This is consistent with the trustee’s role in administering poor relief and cemeteries.

Under this legislation, that responsibility would be shifted to the Coroner. The Coroner (like the township trustee presently) would, in the case of a person who dies without assets, be required to provide a person to superintend and authorize burial or cremation. Expenses of a funeral, burial or cremation, and a burial plot would be paid from the County general fund. Family members have veto power over the Coroner choosing cremation.

The fiscal note estimates that the average cost per indigent death is about $1,000. The number of indigent funerals, burials, and cremations increased about 7% in 2016 versus 2013-2015. The note says overall expenses will remain the same, but it kind of hides the ball about what I assume is the fact that these expenses will shift from township to county. I don’t see that townships lose tax revenue or counties get increased revenue to compensate for this shift. So, Vanderburgh County – for example, would have an additional $188,000 in expense while its various townships would have that money to spend on other things.

The fiscal note also indicates that, in counties with more than 400,000 people (which would mean Marion and Lake but I don’t think Allen), the Coroner already serves this function. But, overall, this shift strikes me as not being terribly consistent with the Coroner’s function. Sure, coroners and dead bodies are very much related in the public mind. But, quick history lesson — the word “coroner” comes from the Angl0-Norman French word for “crown.” The Coroner was the agent of the crown who kind of made sure things out in the sticks were running properly. That’s why the Coroner has duties with respect to arresting the Sheriff (the shire-reeve) when that becomes necessary. And, it’s why the coroner has the responsibility for investigating the cause and manner of deaths. These positions evolve over time, and, of course, the General Assembly can redefine roles of government officials. But, it’s not as natural a fit as it might seem at first glance. Most of the time, when a poor person dies, it’s not suspicious. The government is just involved because the fact of the person’s indigency. And, historically, the township trustee has had a major role in providing assistance to indigent members of the community.

SB 158 – Scleral Tattooing

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The spice must flow.

Sen. Ruckelshaus has introduced SB 158 concerning “scleral tattooing.” I’m a big fan of Frank Herbert’s Dune. I even quoted him in my first law review article:

A beginning is the time for taking the most delicate care that the balances are correct.

Masson, Douglas J. (1996) “Fixation on Fixation: Why Imposing Old Copyright Law on New Technology Will Not Work,” Indiana Law Journal: Vol. 71 : Iss. 4 , Article 10 at p. 1050 (citing Frank Herbert, Dune (1964) at p.3).

But what’s that herniated citation in support of a 16 word quote have to do with scleral tattooing. Also, what the hell is scleral tattooing? Glad you asked. According to the Wikipedia page, scleral tattooing is the process of tattooing the white part of the eye. One of the pioneers of the process was a big fan of Dune. In the books, the Fremen – a people native to the planet of Arrakis with a diet heavy with the spice known as melange – have eyes that are entirely blue with no whites. He got the idea that, by injecting blue ink between the sclera and the conjunctiva, he could look like the Fremen.

Giving Senator Ruckelshaust the benefit of the doubt that he’s not secretly an enthusiast of House Harkonnen, my guess is that this bill is prompted by health concerns related to the practice. Also, it’s new and weird. Anyway, finally to the point. The bill would outlaw scleral tattooing unless performed by a health care professional within the scope of their licensure. Unlawfully performing the procedure would be subject to a fine up to $10,000, enforced by the attorney general’s office.

SB 169 – Proof of Identification for Voting

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Sen. Niezgodski introduced SB 169 expanding the list of acceptable documents for proof of identification allowing a person to exercise their right to vote. In addition to a federal or state ID, this legislation would allow a photo ID issued by a state educational institution or an approved postsecondary institution as acceptable proof of identity for a citizen who wants to exercise his or her right to vote.

This will never go anywhere because it satisfies only the stated reason for the underlying Voter ID law. The stated reason for the Voter ID law is that it’s necessary to combat voter fraud. IDs issued by state educational institutions should be satisfactory to provide the necessary security. After all, the instances of people posing as someone else to cast an in-person ballot are rare at best.

But, it doesn’t address the unstated reasons for Voter ID laws. They tend to depress voter turnout among demographics more likely to vote for Democrats. This provision does not further that unstated policy goal and, therefore, I predict it will not pass.

SB 101 – Public Records: Ripped from the Headlines Edition

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Bill would help where newspaper failed to publish notice

Why, there oughtta be a law!

Sen. Delph has introduced SB 101 amending the Access to Public Records Act (APRA) with respect to public employee personnel records.  First a note on APRA. This is Indiana’s public records statute. It’s a pet peeve of mine that this is not “FOIA” which is the federal “Freedom of Information Act.” FOIA applies only to federal agencies and institutions.  If you make a FOIA request for local government information, the technical response would be that it’s not a federal agency, so no responsive documents will be forthcoming. Now, most public servants aren’t pedantic jerks, so they quietly assume your request is being made under APRA and either provide or deny the documents accordingly. But, I twitch a little bit every time I see something about a FOIA request for state or local documents. And, this is my blog, so I’ll be pedantic if I want to

Second, this seems to be another example of “ripped-from-the-headlines” legislation. In this case, I’d guess it has to do with what looks like a cat-and-mouse game between the media and Hamilton Southeastern suspension of a Fishers high school football coach. I’m not one to get too worked up about media bias, but I always take media reporting about records they aren’t getting with a grain of salt. You know how when one political party makes one assertion about a law and the other political party makes a contrary assertion? Often, the story will then be reported in a “he said, she said” manner in the name of objectivity. This tends not to happen when it comes to records they aren’t getting. You can always tell who they think the good guys and the bad guys are with respect to these stories.

In any case, the underlying issue is IC 5-14-3-4(b)(8)(C). The way APRA is set up, the starting presumption is that the public is entitled to inspect or copy any documents the government has. The government isn’t required to create documents it doesn’t have, but unless there is a mandatory or discretionary exemption, it has to provide what it does have. IC 5-14-3-4(a) lists categories of documents that government is forbidden to provide to the public (e.g. patient medical records). Subsection (b) lists categories of documents the government has the discretion to withhold (e.g. police investigatory files). Subsection (b)(8) pertains to employee personnel files which a governmental entity has the discretion to withhold from public access except for:

(A) the name, compensation, job title, business address, business telephone number, job description, education and training background, previous work experience, or dates of first and last employment of present or former officers or employees of the agency;

(B) information relating to the status of any formal charges against the employee; and

(C) the factual basis for a disciplinary action in which final action has been taken and that resulted in the employee being suspended, demoted, or discharged.

The distinction between types of information versus types of documents creates a problem here. The current statute’s exception describes types of information rather than types of documents. But, APRA says the government has to provide documents. It does not, particularly, have to provide information. In other words, if you don’t have a document stating “the factual basis for a disciplinary action,” there’s nothing to provide under APRA. APRA generally doesn’t require you to create new documents.

Under SB 101, a governmental entity would be required to either provide documentation containing the information described in (A)-(C) above or, in the alternative, create a document containing that information. In addition, it would be required to state the specific “statute, ordinance, rule, or policy” that was the basis for a suspension, demotion, or discharge. This is problematic inasmuch as it seems to create a requirement that a governmental employee violate a specific policy before he or she is demoted or discharged. What if they aren’t violating any policies but just don’t happen to be very good at their jobs? If you want government to be more efficient, it’s probably not a good idea to force a government to wait until the employee violates a policy before you’re allowed to part ways or demote the employee to a position that might be more suitable to their talents. And, even if this was good policy, the public records law is not a good place to impose that requirement.

The proposed requirement that a statement of factual basis for disciplinary action reference a specific policy presumably is in response to the complain that Hamilton Southeastern’s factual basis, that the coach was suspended “due to not implementing instructions for classroom management strategies” was too vague. The problem with legislating based on one specific problem is that unintended consequences are easier to miss. You’re so focused on the tree that you forget the forest. Still, it’s probably not a bad idea to clean up that subdivision so that it refers to particular documents rather than particular information. If the legislature wants government to create particular documents, it should say so. Maybe even create a form and specify civil immunity for providing the information required by the form.

 

SB 69 – Special Protection for Indianapolis against Toll Roads

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Home of the special people.

Sen. Delph has introduced SB 69 which would grant Marion County and surrounding areas a special exemption against having toll roads imposed on interstates in their areas. Specifically, it says that “tolls may not be imposed on vehicles for use of any interstate highway within a 15 mile radius of Monument Circle[.]” The privileged area is depicted in the image to the right.

Now, don’t get me wrong. I don’t like toll roads any where. I think roads are infrastructure that have very general benefits and, as such, should be paid for out of public funds. Even if you aren’t driving on those roads, you are buying stuff that was transported on those roads. When I wrote my bicentennial series back in 2016, I was impressed by how much of the early history of the State was dominated by efforts to claw transportation infrastructure out of the frontier. I don’t like the idea of mucking up our existing system with a bunch of tolls. When Gov. Daniels sold off the Indiana Toll Road in northern Indiana, it struck me as a particularly bad idea since the money was being spent all over the state while the tolls were being paid only by the motorists in northern Indiana.

That said, the idea of declaring the people of Indianapolis off limits to tolling while everyone else in Indiana is fair game is galling. Every toll booth stop would start to feel like tribute to the Capitol. Just declare tolls off limits generally, and lets pay for our roads with a system of general taxation.

SB 73 – Anti-Antifa Sentence Enhancement

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She could get 2.5 years in jail if she makes too much noise.

Sen. Sandlin has introduced SB 73 which adds additional jail time if a person commits a public order offense while wearing a mask. A “public order offense” is defined as criminal mischief (IC 35-43-1-2), disorderly conduct (IC 35-45-1-3), or rioting (IC 35-45-1-2). Criminal mischief has to do with knowingly or intentionally damaging or defacing someone else’s property. Disorderly conduct has to do with fighting or engaging in “tumultous conduct,” making too much noise after being asked to stop, or disrupting a lawful assembly. Rioting is being a member of an unlawful assembly, and recklessly, knowingly, or intentionally engaging in tumultuous conduct.

Under current law, these are all generally misdemeanors, though they can be enhanced to felonies under certain circumstances. If someone commits one of these offenses, the legislation permits the prosecutor to seek an additional fixed term of imprisonment if the State can prove that the person knowingly or intentionally concealed the person’s identity by wearing a mask or face covering while committing the offense. The additional term of incarceration must be at least 6 months but not more than 2.5 years. I don’t do any criminal law, so I don’t know the significance of choosing to make this a sentence enhancement rather than to increase a misdemeanor to a felony.

I wonder how hard it would be to prove that the person wore the mask for the purpose of concealing his or her identity. It seems plausible that the person could say he or she wore the mask for the purpose of enhancing the impact of his or her message by making themselves scarier or more intimidating. (Or, less plausibly, just as a matter of personal fashion choice.)

In any case, given the ripped-from-the-headlines instincts of many legislators, I have to think that this is an anti-“Antifa” (does that make it pro-fa?) measure.  Antifa, is a ten foot tall beastman who showers in vodka and got a Wikipedia page on August 7, 2017. But, people who claim to be part of the movement wear masks at protests and were the Enemy of the Day in certain circles sometime after ACORN met its demise and during a period of George Soros fatigue. The fear of Antifa strikes me as being about as justified as the fear of imposition of Sharia law in America which also seems to get more than its fair share of attention from Indiana legislators.

On its face, I’m not sure I even object to this legislation. Can we make it applicable to committing any crime while wearing a mask? But if, as I suspect, it’s motivated by Antifa panic, then I’m skeptical of how it will be applied.

SB 33 – Take your gun to school. But only if there is a church in your school.

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“[H]is mother cried as he walked out, ‘don’t take your guns to town, son. Leave your guns at home. . . unless you’re going to that school church. In which case, you should lock and load.'”

Sen. Sandlin has introduced SB 33 concerning firearms. It amends IC 35-47-9 which is the part of the Criminal Code which generally makes it a felony to possess a firearm on school property. There are exceptions to application of this law in IC 35-47-9-1. For example, it’s legal for law enforcement officers or individuals specifically authorized by the school board to have a firearm on school property.

Sen. Sandlin would add to the list of people authorized to have a firearm on school property. They have to be otherwise legally entitled to possess a firearm and possesses the firearm on school property in connection with “attending a worship service or religious ceremony conducted at a house of worship located on the school property.”

I know bad things can happen anywhere, but I don’t think going to church is so inherently dangerous that it justifies its own special exemption.

SB 18 – Notice to Parents of Right to Skip Student Immunizations for Religious Reasons

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Indiana General Assembly needle exchange program

Needles are scary.

Sen. Jim Tomes has introduced SB 18 which requires schools to send every student’s parent, every year, a notice of the student’s right to not to receive immunizations or related testing if the parent objects on religious grounds or if a physician certifies that such immunizations might be detrimental to the student’s health.

This one is a twofer: an additional burden on schools and a sop to the antivaxxers. The administrative burden is unnecessary. If skipping vaccinations is such a core tenet of your religious belief that you’re willing to put the rest of the community at additional risk to honor those beliefs, you won’t need reminding of your options by the public school system.

At the heart of my complaint is my skepticism about whether we should allow exemptions to vaccinations based on religious objections. There is some risk to the individual from any vaccination. But that risk is outweighed by the benefit to the community and the individual him or herself. However, the calculation potentially changes if everyone else in the community gets vaccinated. If everyone else in the community is vaccinated, the individual can skip the risk to him or herself by not getting vaccinated without a lot of risk of getting sick because everyone else has been vaccinated and won’t be a vector for that particular illness. The individual is protected by the herd immunity of the community. That’s a free-rider problem. It’s not a big deal if there are only a few free riders.

There are cases where a person’s particular medical condition makes their personal risk from vaccination unacceptably high and letting them ride for free on the rest of the community’s immunity is the sensible approach. If there are only a few outliers who are claiming a religious exemption, you can skip them too in order to avoid the emotional turmoil of offending their religious sensibilities. But that only works if their numbers are small. Sen. Tomes is choosing a policy that will inevitably increase those numbers. In addition to hurting the community, this policy will ultimately harm those with the most deeply held religious beliefs on the issue. Because, as more people get sick, the less tenable a religious exemption will be. Once you hit an inflection point, you just say public health concerns don’t permit a religious exemption of any kind. You’d do away with the people using religious concerns as a pretext to enjoy the benefits of a free rider, but you’d also sweep up the very devout few who we’re able to accommodate under the present system.

 

 

SB 24: Wear Sunscreen

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SB 24, introduced by Senator Liz Brown, takes to heart the “Wear Sunscreen” speech. It requires students to do one thing every day that scares them, to be kind to their knees, to live in New York City once but leave before it makes them hard, and to live in California once but to leave before it makes them soft.

Well, not really. But, with respect to the sunscreen, it says that students may possess sunscreen at school and that schools may assist students with application of sunscreen provided they have the parents’ permission. It also gives schools civil immunity for actions they take complying with this legislation.

Personal note: If I ever win a case with a sunscreen immunity defense, I’ll consider it my best day as a lawyer.