A Citizen's Guide to Indiana

Book: The Silk Roads

February 19, 2017 by Doug Masson 1 Comment

I’m only 50 pages in, but I thought I’d mention a book that I’m really enjoying at the moment called “The Silk Roads: A New History of the World” by Peter Frankopan. I responded to a friend in a Facebook post, and enjoyed my own response enough (I’m modest that way) to want to convert it into this blog post.

As I said, I’m not that far into it. But, so far, it’s walking through a historical time line from the perspective of what things looked like in the Constantinople/Persia area without necessarily being a deep history of those places. Rather, it’s kind of telling what happened there as the situation changed to the east and west. When Rome became aggressive in the area and adopted Christianity as its state religion, Christians in the area had a tougher time — Zoroastrianism became more closely tied in as part of the Persian state identity and more militant as well. As the people of the central Asian steppes were displaced and/or marauded to the west and south, Rome and Persia found themselves aligned, and the power of Rome declined, Christianity was making inroads in Persia and co-opting Buddhism to some extent to expand to the east. (Any errors in this time line, I’m sure are mind — I’m reading this as a hobby and not necessarily studying closely).

That’s where it stood as I went to bed last night. The chapter ended with mention of a wave of bubonic plague that created a great deal of devastation in the 6th century and indication that Islam was about to get going in the 7th. So, Christianity is about to experience some reversals and Islam will spread along those trade routes.

What I like about this book is the shifted perspective. There is a great argument to be made — and the author is making it — that this was the heart of the world for much of human history. So much of how I learn history is that stuff happened in Egypt and Mesopotamia for awhile, but it’s a little foreign. Greece really got culture started. Rome rose and adopted Greek culture. Rome fell but the Catholic Church carried the torch until the Renaissance and Enlightenment. Europe kicked ass and founded America. The U.S. had the Civil War and then beat the Nazis. Roll credits.

I’m a bigger fan of history than most, I think. And I’m painfully aware of how much more there is to know. Part of what ails our society, in my opinion, is a significant lack of perspective about what has happened in other places and other times. So, read your history, people!

SB 291 – Right to Work Out For Free

February 9, 2017 by Doug Masson Leave a Comment

What a small, weak Hoosier will look like in the future. Probably.

Another one brought to my attention by Justin Harter. SB 291 seems to be an attempt to prevent gyms from locking people into contracts as a condition of using their services. That on its own is probably overreaching, but the motivation behind it is laudable enough. There have been gym owners who have engaged in some seriously sketchy behaviors with respect to membership contracts — for example, making them difficult to cancel and continuing to charge credit cards after a member has taken the actions necessary to cancel them. Even when strictly legal, they prey on peoples’ aspirations to get healthy with the knowledge that a lot of folks will quit, never show up, and still be on the hook for monthly fees. The legislation is in a part of the Indiana Code that imposes restrictions on what these gym membership contracts can look like. And, much of the legislation is focused on membership contracts. However, as written, SB 291 appears to go much further than even preventing the use of membership contracts.

A health spa is defined as, among other things, any business entity that provides instruction or facilities for exercising. Under this legislation, “a health spa may not require an individual to . . . pay dues, fees, assessments, or other charges of any kind as a condition to use the health spa’s health spa services.” I know some fitness professionals who probably won’t be excited to provide their services or use of their facilities for free. This was assigned to the Rules committee, so I expect it’s safe to say that this one is not going anywhere.

HB 1470 – Legislative Access to Local Government Data

February 8, 2017 by Doug Masson 4 Comments

HB 1470 was introduced by Rep. Ober and seems to have been significantly amended in committee by Rep. Mahan. As amended, it contains provisions which, as I read them, require local government units (and pretty much any other state or local governmental entity) to, upon request, provide whatever government information the Legislative Services Agency requests at the expense of the governmental entity receiving the request. And it has to be provided in a format and within the time frame set by LSA. Specifically, LSA can demand government information from: the state, a state agency, a political subdivision, an agency of a political subdivision, a state educational institution, a separate body corporate and politic, and any other entity established by Indiana that performs a governmental function. Governmental information to which LSA is entitled is defined as “recorded information, regardless of the form or the media on which the information is recorded.”

Indiana General Assembly gathers information

Idea: Try not to give litigation strategy about suing the State to the State.

I used to work for LSA, and I’m a huge fan of their work. But I’m not a fan of this provision of HB 1470. First of all, if the legislature wants the records, it should pay for them. This should at least make them judicious about what they ask for. If it’s all free to you, it’s pretty easy to just ask for the kitchen sink.

Secondly, (and bear in mind I have a huge bias here) — but, if I’ve made strategic recommendations to my County government client, I’m not inclined to have that information disclosed to LSA. County government and state government are separate entities. Sometimes, we can be adverse entities. If the County sues the State, can LSA demand my memos to the County about the lawsuit? Can LSA demand the public defender or prosecutor’s thoughts about pending cases? This legislation does not seem to permit local government or state officials to withhold privileged information — rather, it simply requires LSA to “maintain the confidentiality of that information as required by federal law, Indiana law, or both.”

Unless I’m missing something that limits LSA’s ability to demand confidential information (attorney work-product being near and dear to my heart), this strikes me as pretty significant overreach.

The bill also has some generally laudable looking measures that are designed to streamline and make data more easily shared among state agencies, with local government, and with the public.

Eye on the Prize

February 8, 2017 by Doug Masson 6 Comments

Justin Harter alerted me to SB 518 which appears to be a campaign in the War on the War on Christmas. That led me to SB 520 by the same author which has the General Assembly assuming the role of government grammar police.

His unflinching gaze, focused laser-like on the issues of the day.

SB 518 allows a school corporation to “instruct students about the history of any traditional winter celebrations, including Christmas, and allow students and employees to offer traditional greetings regarding the celebrations, including Merry Christmas, Happy Hanukkah, Happy Holidays, “and other seasonal greetings.” So long as the display doesn’t “include a message that encourages adherence to a particular religious belief,” it may include scenes or symbols associated with traditional winter celebrations, including a menorah, Christmas tree, Nativity scene, or other religious symbol associated with traditional winter celebrations. The display must include a scene or symbol of more than one religion and/or one religion and at least one secular scene or symbol. Clearly this is an effort to educate kids about Saturnalia and the solstice-related origins of winter celebrations. Sarcasm aside, this legislation is pretty clearly trying to comply with Supreme Court case law on how you can include religious displays on government property without running afoul of the Establishment Clause. And, I don’t want to take efforts at complying with the Constitution for granted. The problem is that it seems to be trying to address a problem that exists more in the fevered imagination of talk radio hosts than in reality.

Meanwhile SB 520 says simply that a unit of state or local government “shall not use the term “free” to describe a payment, good, or service unless the payment, good, or service is funded entirely through private contributions.” That’s it. No guidance on what constitutes “using the term.” The fiscal note says that the legislation will have no fiscal impact. Luckily it did not say the bill was “free.”

These bills were both introduced by Sen. James Smith (800-382-9467).

R.I.P. Stan Jones

February 7, 2017 by Doug Masson Leave a Comment

Various news sources, including the Journal & Courier, are reporting the passing of Stan Jones. He was a Purdue graduate and state Representative from the Lafayette area in the 70s and 80s. He then went to work for the Bayh administration as the Commissioner for Higher Education.

During his time as commissioner, Jones oversaw the development of the 21st Century Scholars program, Indiana’s Education Roundtable and the implementation of Core 40, the state’s required high school curriculum, according to the statement.

He went on to found Complete College America, a nonprofit with a goal to ” increase the number of Americans with quality career certificates or college degrees and to close attainment gaps for traditionally underrepresented populations.” Governor Holcomb released a statement saying, “Stan Jones was a leader in every sense, continuously striving to enhance the lives of Hoosiers and bettering the institutions that serve them. He transformed the state of Higher Education in Indiana and helped countless students here and across the nation complete their dream of going to college. He will be sorely missed.”

I don’t believe I ever had direct interactions with Stan. But he was active enough in state policy that his name would come to my attention pretty frequently over the 20 years I’ve been paying attention to state politics. Obviously, his efforts extend longer than that — going back more than 40 of his 67 years. That’s an impressive record of public service. My condolences to his family.

State of Washington Brief in Opposition to Trump’s Muslim Travel Ban

February 5, 2017 by Doug Masson Leave a Comment

A friend of mine posted a link to the State of Washington’s brief in opposition to Trump’s Muslim Ban. It’s well-written and gets pretty directly to the point about what’s wrong with Trump’s executive order.

President Trump’s Executive Order bans all refugees from entering the country for 120 days, and bans all refugees from Syria indefinitely, whether they be infants, schoolchildren, or grandmothers. Washington families waiting to be reunited with their loved ones have had their dreams of reunification destroyed, as their refugee relatives around the world were taken off airplanes or told they are no longer welcome. The Order also bans nationals from seven countries from entering the United States for 90 days. Though the administration’s interpretation of the Order has changed repeatedly over the last 48 hours, it has applied the Order to block longtime legal permanent residents from returning to this country, and the Order’s text purports to grant the administration authority to continue denying entry to such residents.

. . .

While preventing terrorist attacks is an important goal, the order does nothing to further that purpose by denying admission to children fleeing Syria’s civil war, to refugees who valiantly assisted the U.S. military in Iraq, or to law-abiding high-tech workers who have lived in Washington for years.

. . .

To begin with, the Order is profoundly overbroad. Section 3(c) bans those from disfavored countries without any evidence that any individual poses a threat of terrorism. It sweeps within its ambit infant children, the disabled, long-time U.S. residents, those fleeing terrorism, those who assisted the United States in conflicts overseas, and many others who the government has no reason to suspect are terrorists. The government simply cannot establish any factual basis for presuming that all people from a given country pose such a great risk that an outright entry ban—rather than less extreme measures—is warranted.

At the same time, the order is also underinclusive to achieve its purported ends. By way of example, the Executive Order recites the tragic events of September 11, 2001, but imposes no entry restrictions on people from the countries whose nationals carried out those attacks (Egypt, Lebanon, Saudi Arabia, and the United Arab Emirates). Decl. N. Purcell ¶8; Ex. B. As to admission of refugees, the order claims that a temporary prohibition is necessary “to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States.” Sec. 5. Citing no evidence at all, the Order declares that “the entry of nationals of Syria as refugees is detrimental to the interests of the United States.” Sec. 5(c). But assertion is not evidence, and there is no evidence that refugees pose any unique risk to the United States.

. . .

A recent and exhaustive study concluded that the chance of an American being killed by a refugee in a terrorist attack is 1 in 3.64 billion a year

The brief also cites Trump’s campaign statements in an effort to prevent the feds from pretending that religion has nothing to do with the order. It’s worth a read if you’re really trying to get a sense of what the actual legal issues are.

Posner on Originalism/Textualism

February 1, 2017 by Doug Masson 3 Comments

Trump has nominated Judge Gorusch to replace Justice Scalia on the Supreme Court. My very brief review of Judge Gorusch suggests that he’s serious and competent. His conservative views shouldn’t, by themselves, be a reason to exclude him from the Court. If the Democrats resist his nomination, it will not (or should not) be because of his abilities as a judge. Rather, their justification will have to do with Merrick Garland who was also a Presidential nominee for the Supreme Court and who was also very qualified. Gorusch’s nomination is the result of a bare-knuckle power play that had nothing to do with judicial competence. Any howling about Democratic obstructionism is going to be disingenuous. That said, I think Gorusch will ultimately be sworn in as a Justice.

But that’s not why I wanted to write a post. I just get twitchy when people start waxing poetic about Justice Scalia (and soon, Judge Gorusch’s) purported judicial philosophy of “originalism” or “textualism.” Those labels are mostly just noise. When you look at actual decisions, you find that this philosophy doesn’t seem to restrain the judge very often — the judge’s divination of the original intent, and the decision of the case, tends to very happily align with the judge’s ideological views. Judge Posner is smarter than me and did a better job of critiquing this purported philosophy than I could.

Scalia and Garner reject (before they later accept) Easterbrook’s warning. Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

One senses a certain defensiveness in Justice Scalia’s advocacy of a textualism so rigid as to make the ambulance driver a lawbreaker. He is one of the most politically conservative Supreme Court justices of the modern era and the intellectual leader of the conservative justices on the Supreme Court. Yet the book claims that his judicial votes are generated by an “objective” interpretive methodology, and that, since it is objective, ideology plays no role. It is true, as Scalia and Garner say, that statutory text is not inherently liberal or inherently conservative; it can be either, depending on who wrote it. Their premise is correct, but their conclusion does not follow: text as such may be politically neutral, but textualism is conservative.

. . .

It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education, is nonoriginalist. In 1868, when the Fourteenth Amendment was ratified, the provision that states not deny to any person the “equal protection of the laws” meant that states—the former states of the Confederacy being the particular concern, of course—must not deny legal protection to the newly freed slaves (and to blacks more generally). In particular, states could not, without facing legal consequences, turn a blind eye to the Ku Klux Klan’s campaign of intimidation of blacks and carpetbaggers. Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified. Yet Scalia and Garner claim that “recent research persuasively establishes that [the ruling in Brown that separate but equal is not equal] was the original understanding of the post-Civil War Amendments,” citing for this proposition a single law review article published seventeen years ago.

. . .

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

Thus they declare that “a fair system of laws requires precision in the definition of offenses and punishments,” implying that judges are entitled to use a concept of “fairness” to interpret statutes creating offenses and punishments. How is that to be squared with textual originalism? They say that “textualism, in its purest form, begins and ends with what the text says and fairly implies” (emphasis added), but evidently Scalia and Garner are not committed to its “purest form,” for they say that “determining what is reasonably implied [by the words of a statute] takes some judgment” (emphasis in original). They endorse the “rule of lenity”—the interpretive principle that ambiguity in criminal statutes should be resolved in favor of the criminal defendant—without showing how it can be consistent with textual originalism.

(emphasis added). The whole thing is worth reading. Judge Posner describes Justice Scalia’s approach to textualism as “remarkably elastic.”

Judge Gorusch’s approach to deciding cases is likely as valid as the approaches of other conscientious judges. But, when someone tries to sell you on the merits of “textualism” or “originalism” be aware that they’re probably trying to sell you something that you might not otherwise buy.

HB 500 – Prohibition on HOAs Restricting Solar Power

January 31, 2017 by Doug Masson 2 Comments

I think this array would look nice on my front lawn.

Senator Freeman (317-232-9400) has introduced SB 500 concerning Homeowner’s Associations (HOA) and solar power.

It states that an HOA can’t ban a homeowner from installing a solar energy unit. The HOA can require preapproval of the location and manner of installation. The legislation incorporates the definition of solar energy unit from IC 36-7-2-8 (which declares Indiana’s support for solar energy and restricts local government’s ability to adopt ordinances that impair the use of solar energy):

(1) any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating or cooling, or for water heating; or

(2) any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of energy for space heating or cooling, or for water heating

I note what I think might be a mistake in drafting, however. It has a number of exclusions — for example the HOA can ban the solar energy unit if there is a court order saying it’s dangerous. But, in this laundry list of exceptions, you have:

A homeowners association may prohibit a solar energy system if any of the following apply:

(5) The solar energy system is located in an area other than on the roof of the dwelling unit or of another structure.

(6) The solar energy system is located in an area other than in a fenced yard or patio owned and maintained by the owner of the dwelling unit.

If I’m reading this correctly, 5 & 6 cancel each other out. If the system is on the roof then it is going to be in an area other than a fenced yard or patio & if the system is on the patio, then it’s in an area other than on the roof. I think they probably want to combine 5 & 6 into one item so it can be in any of those places.

I’m also a little confused by the language that says “except as provided in IC 36-7-2-8, a homeowner’s association may not prohibit the owner from installing a solar energy unit.” That section speaks to a municipality’s ability to adopt ordinances that impose reasonable safety restrictions on solar energy units. It does not, so far as I can tell, have anything to do with HOAs. The only thing I can think of is an ordinance that delegates some kind of safety review to an HOA. But that would seem unusual.

I assume this legislation arises out of a situation where an HOA has stymied a homeowner’s desire to install solar. I also assume that the HOA was concerned about its appearance. The statute attempts to address aesthetic concerns to some extent by, for example, saying that an HOA can impose certain requirements such as precluding the system from extending above the roof, limit the color of piping, and a few other things. If it’s on the patio, the HOA can require that the system not extend above the fence line.

I don’t have strong feelings about this. I like the idea of encouraging and allowing homeowners to use solar if they want to. But, I also know that homeowners can sometimes make garish choices that have an impact on neighbors and that the politics of HOAs can be difficult.

SB 117 – United States History Courses

January 29, 2017 by Doug Masson 6 Comments

Sen. Kruse (317-232-9400) has introduced SB 117 which mandates certain content for U.S. History courses in Indiana schools. The bill is up for second reading on Monday. In particular, it requires schools to teach “the structure of state and federal governments, including the role of separation of powers, the freedoms guaranteed by the Bill of Rights of the United States Constitution, and the Federalist Papers.” It also requires the school to administer “the United States Civics Test prepared by the United States Citizenship and Immigration Services.” Schools could choose whether test results are tied to credit in the course.

“Give me your tired, your poor, your huddled masses yearning to breathe free, the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me, I lift my lamp beside the golden door!”

I don’t have a problem with any of these items in particular. I see value in knowing the structure of state government, the structure of federal government, the role of separation of powers, the Bill of Rights, and the Federalist Papers. However, as an initial matter, I don’t like the General Assembly micromanaging the school curriculum.

Next, it’s hard to escape the feeling that Sen. Kruse is trying to put his thumb on the scale of what the kids are taught in order to promote a particular view of federalism. Whether that’s his intent or not, the text of the legislation provides a lot of flexibility. I might be inclined to spend a lot of time talking about how, in the pre-Civil War period, Southern states were enthusiastic supporters of the Fugitive Slave Act which required the federal government to go into anti-slave states that weren’t observant enough of the slave states’ laws permitting white people to own black people. That, in fact, the federal government’s lackluster intrusion into the business of the free states was a major theme in secession declarations. And that, historically, a declared love of federalism has often been pretext for resisting civil rights legislation.

I do like the idea of kids having to take the immigration test. It might give them an appreciation of their own citizenship and the responsibilities that ought to come with it.

HB 1116 – County, City, and Town Officer Salary Waivers

January 29, 2017 by Doug Masson 1 Comment

Indiana General Assembly local official compensation

It’s all about the Washingtons.

Rep. Lehman (317-232-9677) has introduced HB 1116 which up for second reading on Monday. It creates a process by which County and City officers can waive their compensation. There is already a process in place for town officials but the legislation specifies that a partial waiver is an option.

I’m actually not in favor of this legislation. It seems like a win for taxpayers if officials waive their compensation, and maybe it is short-term. But, long-term, I think this creates political pressure for candidates to make campaign promises about waiving their compensation. And that gives wealthier candidates another leg up. I think our democratic institutions work best if offices are populated by competent, mostly middle class citizens. Not that rich people can’t do a good job. Often enough, they may have become rich by being very competent. But that’s not necessarily the case, and you want officeholders who are attuned to the lives of the citizenry and the challenges that they face.