A Citizen's Guide to Indiana

Masson's Blog

Bangert on Ricker’s End-Run Around Liquor Laws

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Indiana's liquor laws will drive you to drink

Beer, glorious beer. So frosty* and delicious. Except on Sundays. (*Note: frostiness void where prohibited.)

Dave Bangert, writing for the Lafayette Journal & Courier, has a good column on the Rickers’ end-run around the state’s liquor laws. Rickers convenience stores found a loophole that let it sell cold beer at its locations. (Apparently selling just enough food to get a restaurant permit to allowed cold carry out.) After the exploit came to light, the House sprang into action to stop others from taking advantage — tacking a Rickers provision onto a Senate Bill. The House committee report is here. The committee report contains an “intent of the General Assembly” provision. That’s always a red-flag in Indiana legislation. The substantive provisions of the law should speak for themselves. If there is an “intent” provision, that’s an indication that the substance is weak. (The Indiana Law Blog notes that use of preambles is discouraged by Indiana’s legislative drafting manual.)

Bangert writes:

Consider Sunday sales of retail alcohol. Getting rid of Indiana’s Prohibition-throwback vestige of blue laws really should be the low-hanging piece of Indiana’s weird setup.

But there is no such thing as easy when it comes to the marriage of convenience and the sense of Indiana’s carry-out alcohol regulations. Sunday sales is a frequent fight at the Statehouse, ultimately gummed up with sympathy for true liquor stores none too keen on allowing the sales of beer, wine and whiskey a seventh day – especially when that extra day is one of the biggest for weekly grocery shopping.

. . .

Meanwhile, the General Assembly resigns itself to scolding state agencies that grant a taste of cold beer sales, no matter how closely a place such as Ricker’s followed the letter of the law to get it done. Lawmakers are left trying to explain their intent – in this case that “a restaurant within a grocery store, convenience store, specialty or gourmet food store, or drug store should not be given the privilege of selling cold beer or liquor for carryout” – while admitting they’re barely solving anything at all.

He offers a hint of optimism though, observing that – as with any struggle with alcohol – “the first step is admitting that you have a problem.”

I know it’s something of a tradition for people offering their opinions to get perspective from cab drivers. But, I haven’t been in a cab for awhile, so the best I can offer is “dudes I talked to while watching a high school baseball game.” They were generally amused and supportive of Rickers and didn’t think much of the General Assembly’s effort to tackle the situation.  I think liquor laws are so jacked up, we have a celebration of the anti-hero situation going on here. I’m not sure if it’s Robin Hood or Billy the Kid or what, but ultimately we have laws that don’t make sense and, so, aren’t respected. When that happens, there tends to be admiration for someone like Rickers who gets around the arbitrary intent of the law while complying with the letter.

Still, in the scheme of things, the liquor laws are more of a low-level irritant. I don’t know that there will be a big push to make the General Assembly change things in the face of some pretty entrenched interests. As with the fable of the Hound and the Hare, the public is only running for its dinner while the liquor stores are running for their lives.  I’m skeptical Indiana’s liquor law structure will change much. Probably it will just serve to be a drag on the General Assembly’s reputation (a phrase which, I recognize, makes for some easy jokes.)

Sen. Donnelly and Judge Gorsuch

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Apparently Sen. Donnelly is going to vote to confirm Judge Gorsuch to the Supreme Court seat left open when Justice Scalia died. There have been a lot of takes: Donnelly is a genius, Donnelly is going to get crushed, Democrats are taking the high road and will surely be rewarded. Anyway, here’s mine:

Judge Gorsuch seems perfectly competent but right wing. If George W. Bush had nominated him or if Justice Scalia’s seat had opened up during a Republican administration, there would be no controversy. But, it’s hard to escape the feeling that Senate Republicans are being rewarded for bad behavior. Their refusal to act on the nomination of Merrick Garland is the elephant in the room here, so to speak. That’s what puts Donnelly in a lose-lose position.

If he stands with a filibuster of Gorsuch’s nomination, the Senate probably changes its rules and confirms him with 51 votes. The idea that Sen. Donnelly and the Democrats will successfully filibuster Gorsuch until Trump nominates someone more palatable seems unlikely. On the other hand, I think it’s pie-in-the-sky to think many people are going to reward Sen. Donnelly or the Senate Democrats for not being obstructionists.  On the conservative side, those voters who would be likely to vote against Sen. Donnelly based on filibustering Gorsuch aren’t likely to vote for him based on his favorable Gorsuch vote. Meanwhile, liberals are angry because the Senate Republicans obstructed President Obama’s nomination and because the Trump administration is just horrible overall. Even if Sen. Donnelly’s vote is only conceding the inevitable, they will see it as a sign that Sen. Donnelly isn’t really on their side.

Ultimately, Sen. Donnelly is a Democratic Senator in a red state. He’s making a political calculation on what will hurt him less. I think it was a coin toss for him.

Knocking on Doors

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This blog has not, for years, been on any kind of reliable publication schedule. Sometimes, it’s three times per day, then I go a week without anything. That probably explains the longevity — I’ve not put any kind of pressure on myself. It hasn’t done much for readership levels. If I wanted a lot of readers, I’d post 3-5x per day on Daylight Saving Time, class basketball, and why this or that politician is truly a monster.

Anyway, I’m going through one of my ebbs — which is coming at an inopportune time since this we’re getting toward the end of session when the General Assembly tends to get into most of whatever pernicious nonsense it decides to bring upon itself. So, I thought I’d mention what was occupying me instead of seeing what the General Assembly was getting into in terms of abortion, religion, following the “education choice” will-o-the-wisp, and whatever else.

Under the state’s funding formula, West Lafayette is in the bottom 2% of schools in terms of state funding. In fact, since 1993, the state’s school funding choices have worked against West Lafayette schools at almost every turn.  However, we’re a community that values its education. So, in 2010, the people of the community stepped up and passed a local school funding referendum. Partially as a result of this, we have one of the best (arguably the best) school districts in the state. Under the state’s school funding referendum model, a community has to keep passing these things every 7 years or so if it wants to keep the funding in place. So, I’m taking part in an effort to keep the local funding in place. One of the things this requires is knocking on a lot of doors. I’ve never actually done any canvassing before. Turns out, it’s pretty enjoyable. It helps a lot that I believe in the cause and most people in the community seem to be supportive. Getting out and talking to people is, for the most part, energizing. And, this morning, I brought my daughter along as my wingman. She seems to have an aptitude for it. (I warned you all this was coming when she was two.)

So, that’s eating up quite a bit of free time. Coaching the kids’ soccer teams starts up next week, so I wouldn’t be surprised if things are a little quiet around here in April. For those of you in the West Lafayette School District, I encourage you to vote “yes” to the school funding question on May 2. If you want to learn more, volunteer, and/or spruce up your lawn with a sign, head on over to SupportRDP.com.

Trump has no Subutai and is unlikely to get one

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On twitter the other day, I injected myself into a conversation:

I’m no scholar of Mongol history, but my understanding is that Subutai was a remarkable general who was with Genghis from very early on in his conquests. Genghis conquered a huge empire, and Subutai was one of his key leaders. Part of what made Genghis so effective was his willingness to promote competence wherever he found it.

Trump has no skill in that arena. His businesses are closely held, family affairs that he runs in a paranoid and insular way. Nothing in his early administration suggests that he rewards and appreciates competence. I see that he plans to appoint his son-in-law to try to “lead a SWAT team to fix government.” He’s trying to mount a difficult campaign without generals who know their way around the battle field, and he lacks the temperament and good judgment he would need to acquire competent help.

Seven Years Ago Today: Vote for Obamacare in the House

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Chronology of Obamacare

I’m never sure whether to use a stock photo of medical stuff or a stock photo of money when I write these health care posts.

My old health care posts are suddenly relevant again. Seven years ago, on March 21, 2010, the House passed Obamacare. I had a post on the subject which reflected  a number of my thoughts following the more or less year long debate that led up to the passage of that legislation. As I said at the time, I didn’t think Obamacare was well designed but I didn’t think a well-designed system could pass Congress. And the status quo was awful and getting worse.

We’ve, once again, been hearing about how everything would be cool with the health care system if only the free market was unshackled. Here is why I’m all but certain that won’t work:

To date, nobody has been able to direct my attention to an example of a successful market-based system of health care; leading me to be skeptical of whether such a thing can exist. One country that sometimes comes up in this context is Singapore. However, while its system makes use of private insurance, it also ensures affordability largely through compulsory savings and price controls.

Singapore’s system uses a combination of compulsory savings from payroll deductions (funded by both employers and workers) a nationalized catastrophic health insurance plan, and government subsidies, as well as “actively regulating the supply and prices of healthcare services in the country” to keep costs in check[.]

Markets are very good at allocating resources. However, to function properly, it seems to me that buyers need to have good information and the ability to walk away from a transaction. That’s a problem in health care negotiations. Health care decisions involve analysis of medical information that’s generally beyond the understanding of most people. And, even if you can rely on your doctor or otherwise master the medical end of the decision making process, medical pricing is often ridiculously opaque. Try calling up half a dozen hospitals and trying to get the actual price of a hip replacement. Even if they’re willing to tell you, there are likely to be an array of prices depending on who’s asking. And those will be qualified prices because any number of contingencies can affect the price, even in the middle of the surgery. Then you have the problem of getting an insurer to be clear, up front, about the terms of the insuring contract and then honoring those terms after the fact. The insurer operates from a position of strength, collecting premiums for years when there are no significant health issues, then being able to withhold a determination of whether it’s going to pay for a procedure until after the procedure is complete. Finally, any negotiating options you have in the ordinary situation pretty much go out the window once you’re in an emergency situation. It’s like negotiating with a gun to your head.

At the time, we were spending We were spending 16% of our considerable GDP on health care already. We were spending twice as much per person on health care as other countries. We were already paying for something like 45% of those costs from public funds. And costs were increasing. (And no, despite what you may have heard, medical malpractice lawsuits weren’t the prime or even substantial cause of these increases.) Despite spending half as much, those other countries had health care results that are comparable or, in some cases, superior to the U.S.

Can we do better? Sure, almost every other industrialized country is. But, for ideological and venal reasons, Congress is not looking to copy systems that are already working better than ours was in 2010 or in 2017.

Trumpcare Plan and CBO Score Released

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Healthcare in America feels like an eternal struggle, both in terms of settling on a policy goal and in terms of actually getting healthcare when you’re sick. I’m a small business owner and so, in terms of healthcare, not much better than being self-employed. My options prior to the ACA were not great. I’ve never been in love with the ACA as it came through, but it seemed better overall than the pre-Obamacare options. I was paying more and didn’t have great coverage. But, as a matter of broader policy, more people were covered and, I got the sense that, personally, if I or a member of my family got really sick, we’d have a lot stronger of a safety net with the ACA than without.

Detractors oppose Obamacare for a variety of reasons and with different levels of ferocity. There are free-market purists. There are those who get indignant when they see benefits going to the “undeserving poor.” And, there are folks who can’t see anything but the insurance mandate. I’m sure there are other reasons, but those are the three broad categories.

I think the market purists are misguided, primarily because health care isn’t a widget and doesn’t respond well to market forces. Procedures that are relatively straight forward and mostly optional are the exception — things like cosmetic surgery and lasik eye surgery are probably examples where the market works well. But, for a lot of health care, procedures aren’t optional — so, it’s not an arm’s length transaction where the customer can reasonably just go without if he or she doesn’t have the money. The necessity of various tests and procedures aren’t something a layman can reasonably evaluate without the help of a professional. And the pricing is beyond opaque. Try getting a price quote on a hip replacement, let alone a weird murmur that’s making you feel dizzy. The ability to walk away from a bad deal, knowledge of the value of the product to one’s self, and a good idea of the price are all pretty critical in creating efficient market transactions. On the subject of markets, I’ve said before that I don’t think the “selling across state lines” approach is going to generate competition and better value. Rather, it’s going to result in a regulatory race to the bottom where, like credit card companies, health insurers are all going to locate in whichever state will try to land those insurance company jobs by offering the most pro-industry, anti-consumer laws.

Not liking Obamacare is one thing, but the fact is that it was passed to address a problem. Health care was becoming more out of reach for more and more people by the year. Other countries with a socialized approach to providing care have (broadly speaking) been able to generate better health outcomes while spending less overall money. (I’m willing to concede that, for the very wealthy, the U.S. probably offers the best health care.) Now we have the Trumpcare “replacement” offered by the Republicans in Congress. (Trump apparently doesn’t want his name attached to this — which is remarkable given the number of substandard products to which he’s eager to attach his name.) The Congressional Budget Office score is out, and it’s not pretty.

The Congressional Budget Office on Monday projected that the House leadership’s American Health Care Act would result in 24 million Americans losing their health insurance while raising premiums for those covered on the individual market. Their bill would lower federal deficits by $337 billion over 10 years, largely as a result of cuts to Medicaid that would reduce its enrollment by 14 million, according to the estimate. Average premiums would rise by as much as 20 percent in 2018 and 2019 before falling in later years.

The premiums would generally fall for young, healthier people and rise for older people who tend to have more health problems.

Democrats have focused on the fact that the proposed legislation would result in a tax cut for those making more than $250,000 per year and a significant tax cut for the very wealthy. It repeals certain Obamacare taxes for “couples making more than $250,000, like a 3.8 percent surtax on investment income and a 0.9 percent surtax on wages. . . . Repealing them would cost about $275 billion over the next decade; which is to say, it would transfer $275 billion from public-health spending to the richest 1 or 2 percent.”

Other provisions, like health savings accounts, are nice if you have a lot of extra cash and don’t have significant health problems. But, for most Americans, those are going to do little or nothing in terms of paying your serious medical bills.

I know I’ve barely scratched the surface here, and — in any event — I’m not your best resource for health care policy discussions. (For that, I’d recommend The Incidental Economist.) But, I’ve noticed over the years that memories fade and hyperlinks rot. So, it’s been useful to hit the highlights on my own blog where I can generally find it again as the years pass.

 

SB 121: Adverse Possession for Non-Profits

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I was going to use a picture of an animated doll and make a joke about how I was referring to a different kind of adverse possession. But that seemed creepy, so I didn’t. You’re welcome.

Sen. Koch has introduced SB 121 regarding adverse possession. Adverse possession is a somewhat odd but venerable concept in real estate law that essentially says that if you use someone else’s real estate long enough and they let you, it becomes yours.  One can imagine, in days of yore, an absentee landowner with vast tracts of land who was so inattentive that someone else farmed it for a decade or two without noticing. In that case, maybe it’s best that someone doing something productive with the land becomes the owner. I don’t know if that’s exactly how the concept became enshrined in our law, but I think it’s probably pretty close.

In any case, there is now a formula of elements that have to be present before land can be adversely possessed. The elements are sometimes framed in different ways, but they include the fact that the possession must be open, actual, continuous for ten years or more, and adverse to the person who holds title to the land.  There is another requirement that the legislature added to the common law element in the 1920s: a person claiming possession has to pay taxes on the land for that period. Often this element gets fudged a bit — in that, a fair amount of adverse possession takes place around the edges: say, you put up a fence that goes over your property line into the neighbor’s real estate. You don’t pay any more for the extra land, but you (and the government) think you’re paying what you owe. In that case, the taxation element will be satisfied. But, if you squat on a random tract of land, don’t get kicked off but don’t pay taxes, you won’t acquire the land.

There is an exception to the taxation element currently in place for governmental entities – presumably on the assumption that they wouldn’t normally have to pay real estate taxes in any case, so it shouldn’t be an element of adverse possession for those entities. SB 121 extends that logic to “501” entities who wouldn’t be required to pay taxes to enjoy adverse possession. (The number “501” comes from section 501 of the Internal Revenue Code where you’ll find various types of tax-exempt organizations, such as the 501(c)(3) charitable organizations.)

This certainly isn’t my area of expertise, but I think this goes a little too far. I understand the logic, but I think the 501 entities still generally have to pay taxes on real estate if it isn’t being used for an exempt purpose. (Maybe a generally charitable organization has property that it’s using for straight up profiteering. Maybe a church opens a gym and makes money off of membership fees.) So, I’d be inclined to recommend an exempt purpose requirement to get the 501 entity out from under the tax payment requirements.

HB 1039: Right-of-Way in a Roundabout

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The bill title sounds like it could make a good movie or book title for some reason. But I digress. The

Look kids: Big Ben! Parliament!

Senate is considering Rep. Torr’s HB 1039 on second reading. It’s part of the Carmelization of our roadways and governs the right of way in roundabouts. (I see that the legislation does away with the term “rotary traffic island.”)

I had a little trouble visualizing what was going on from the language. But, it sounds like if you’re dealing with two or more lanes in the roundabout, cars have to yield to long or wide trucks (40 feet long and/or 10 feet wide) and if there are two long trucks in the roundabout, the one on the right has to slow down and yield to the one on the left.

Like I said, I might have this wrong, but it sounds like a situation where the long truck might not be keeping to its lane very well. The duty to yield doesn’t apply when the truck is entering the roundabout from the side. If it’s only one lane wide, then I don’t see where yielding within the roundabout would come up. And, if it’s separate lanes, ordinarily there wouldn’t be any yielding because you each have your own lane. But, if you have a long truck and a tight circle, staying in your lane might be a little tough.

Still, if there is a collision, I wonder how the negligence issue shakes out — the truck is going to say that the car had a duty to yield while the car is going to say that the truck had a duty to stay in its lane.

The Legislative Services Agency Turns 50

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The Indiana Law Blog has a post noting that LSA is having a celebration of its 50th anniversary tomorrow (March 7). Marcia was there at its founding in 1967 (and worked for its predecessor). Its creation came during a time of legislative reform generally. The agency is nonpartisan and is responsible for drafting legislation, calculating the fiscal impact of proposed legislation, and providing legislators — to the extent possible — with unbiased advice. Legislators obviously have partisan interests to serve as well, and for this, they have caucus attorneys who can and sometimes do draft legislation. But, for the most part, the bulk of the legislation is drafted by LSA. I’m biased, but I’d put the clarity and functionality of our Indiana Code up against  any state’s, and it’s far more usable and understandable than the United States Code. (As an LSA staffer, it was not my job to offer policy advice. So, I won’t – at this point – comment on the merit of the policies reflected in that Code.)

I was only there from 1996 – 1999, but the agency had a significant impact on me. Legislative drafting exercises some different muscles than the more narrative brief writing or drafting contracts (which is, stylistically,  maybe a hybrid between briefs and legislation). It forces a precision that can be helpful. (In many ways, I think legislative drafting and computer programming have a lot in common.) It gave me an interest and an insight into the legislative process which (in combination with my unpursued dream of being a newspaper columnist) morphed into this blog. And, it gave me some marketable skills that I was able to parlay into the job I have now.

Most of all, I was fortunate to work with some really great people. (My boss was kind enough to arrange to have himself appointed judge for a day so he could be the officiant when Amy and I got married.) I think the list of people who worked there when I was there is getting pretty small, but I think the culture of quiet diligence and professionalism still endures, and that’s a tremendous asset to the State.

So, from DI #93, Happy 50th Birthday to LSA!

 

Another Study: Vouchers are not improving education

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Indiana General Assembly school vouchers

Who are you going to believe, a comforting ideology or “experts” with their “analysis of available evidence”?

A new study out of Stanford concludes that voucher programs do not improve educational outcomes. (Unfortunately, I read this immediately after reading a piece that said contrary evidence will cause ideologically committed people to adhere even more firmly to their factually unsupported beliefs. So, maybe I’m doing more harm than good by sharing the Standford report.)

Studies of voucher programs in several U.S. cities, the states of Florida, Indiana, Louisiana, and in Chile and India, find limited improvements at best in student achievement and school district performance from even large-scale programs. In the few cases in which test scores increased, other factors, namely increased public accountability, not private school competition, seem to be more likely drivers. And high rates of attrition from private schools among voucher users in several studies raises concerns.

. . .

In the only area in which there is evidence of small improvements in voucher schools—in high school graduation and college enrollment rates—there are no data to show whether the gains are the result of schools shedding lower-performing students or engaging in positive practices. Also, high school graduation rates have risen sharply in public schools across the board in the last 10 years, with those increases much larger than the small effect estimated on graduation rates from attending a voucher school.

. . .

The report suggests that giving every parent and student a great “choice” of educational offerings is better accomplished by supporting and strengthening neighborhood public schools with a menu of proven policies, from early childhood education to after-school and summer programs to improved teacher pre-service training to improved student health and nutrition programs. All of these yield much higher returns than the minor, if any, gains that have been estimated for voucher students. (Emphasis added)

The report also notes that voucher evaluations often do not reflect the hidden costs — such as erosion of the quality of the teaching profession by private school practices such as hiring younger, lower cost teachers and not compensating them at a long-term level necessary to sustain them throughout their career. This depletes the level of experience available in the pool of teachers. It also notes that voucher schools are able to avoid retaining higher cost students and that there are administrative costs associated with managing voucher programs. It also argues that there is a cost to voucher programs in the form of distracting from potentially more successful strategies like early childhood education and nutrition programs.