A Citizen's Guide to Indiana

SB 285: “Any Means Necessary”

January 19, 2017 by Doug Masson 7 Comments

Any Means Necessary

Sen. Tomes (800-382-9467) has introduced SB 285 which commands local officials to “use any means necessary” to clear roads of protestors who block traffic for more than 15 minutes. If he were really serious about law and order, he’d add a provision to the Indiana Tort Claims Act immunizing the officials involved with clearing the roads. (Although, there is an immunity provision for law enforcement activities that would probably apply to a lot of claims.)

Specifically, it requires a mayor (for cities), a town board (for towns), and a sheriff (for unincorporated parts of the county) to “not later than fifteen (15) minutes after first learning that a mass traffic obstruction exists in the official’s jurisdiction, dispatch all available law enforcement officers to the mass traffic obstruction with directions to use any means necessary to clear the roads of the persons unlawfully obstructing vehicular traffic. “Mass traffic obstruction” is defined as 10 or more people blocking traffic in violation of IC 35-44.1-2-13 (and that provision really just says that it’s a crime to obstruct traffic if you intend to do so.)

There are two main problems here. First is that it looks like Sen. Tomes and the General Assembly would be substituting their judgment for that of local officials. Local officials can probably handle making a judgment call about traffic without help from Indianapolis. Second, the “use any means necessary” makes it sound like he wants law enforcement to go all Kent State on people for blocking traffic. The Guardian caught wind of this bill, and that’s how this article makes it sound.

Opponents of the bill, introduced by a Republican state senator, rushed to the general assembly in Indianapolis on Wednesday afternoon to attend a hearing for the legislation, arguing that it could give a green light to the police to shut down protests harshly “even to the point of costing lives”.

For most protests, this bill will probably give the protestors better optics and more attention than they otherwise would have managed. Having to go a couple blocks out of their way would make most motorists a little grumpy about the people causing the inconvenience. Video of a police officer handling a protestor roughly for spending 15 minutes in the street will have the opposite effect.

HB 1438 – Syringe Exchange Programs

January 18, 2017 by Doug Masson Leave a Comment

Indiana General Assembly needle exchange program

Needles are cheaper than livers.

Rep. Kirchhofer (a href=”tel:1-800-382-9841″>1-800-382-9841) has introduced HB 1438 which would make syringe exchange programs somewhat easier to implement by local government. Currently after a local health official declares a health emergency that would be helped by a needle exchange program, the County executive or legislative body of a municipality holds a public hearing and, if appropriate, adopts the declaration. The local government body must then notify the Indiana State Department of Health, describe other efforts to address the emergency that have been tried and failed, and seek approval of the ISDH.

As I read this legislation, approval of the ISDH would no longer be necessary, and it would not be necessary to detail efforts other than needle exchange that have been tried and failed. (It’s also my understanding that the health emergencies in this situation are typically going to be an increase in cases of HIV and/or Hepatitis C.) The bill also requires that the needle exchange program stock overdose intervention drugs (Naloxone and Evzio) which, the fiscal note indicates, cost $42 and $501 per claim, respectively.

The State has been resistant to needle exchange programs. The HIV crisis in Scott County started the ball rolling to make the programs possible. They certainly have their challenges. Nobody wants one in their back yard. It’s probably not unrealistic to fear that crime in the area where the needles are exchanged might increase. But, ultimately, we probably can’t jail our way out of addiction problems; and a few needles are a lot cheaper than a new liver.

HB 1240 – Garnishment of Once and Future Employees

January 16, 2017 by Doug Masson Leave a Comment

Indiana General Assembly garnishment of wages

Dollar, dollar bill y’all.

Rep. Hamm (1-800-382-9841) has introduced HB 1240 concerning garnishments. Currently if a judgment creditor gets a garnishment order against a debtor’s wages with a particular employer, it remains in place until the judgment is satisfied. If the employee leaves the place of employment, there will be no wages to garnish, but the order remains in place. If the employee returns, the order remains in place and, so, the garnishment should resume.

Under this bill, if the employee leaves employment (for an unspecified period of time), the employer would not be required to resume the garnishment. The judgment creditor would be required to go back to court and get a new order.

This would be a great tool for debtors to avoid paying their debts. The nature of the economy is such that, I would guess, those subject to garnishment orders are more likely than average to work in a job that is seasonal, is more prone to layoffs, and/or is subject to gaps of some sort. Employers who don’t want the administrative hassle of a garnishment order and employees who would prefer to keep their money instead of paying their debts wouldn’t have any trouble arranging a gap in employment that could be relatively short.

The way these things usually work, I would envision that the garnishment stops. It takes a couple of weeks before the creditor can confirm that this is a termination of employment rather than something else; a month or two before the creditor can get the debtor served and back into court; maybe another month or two if the debtor doesn’t show up at the court date & the court gives the debtor a second chance; and then some time to get the order issued and processed by the employer and money to start flowing again. Even working relatively quickly as these things go, the creditor is going to miss out on a lot of garnishable wages to which it would currently be entitled and is going to use up judicial resources in the process.

I’d be more supportive of this proposal if there were a substantial period of non-employment involved – say, if the employee was gone for 2 or 3 years.

HB 1228 – Vouchers for Underperforming Schools

January 16, 2017 by Doug Masson 2 Comments

Rep. Candelaria Reardon (1-800-382-9842) has introduced HB 1228 which is an interesting proposal that I don’t see getting a hearing. It says that, if a voucher school gets a lower performance grade than the public school in which a student lives, then the student can’t use the voucher at the voucher school. If the kid was already at the voucher school, the student can keep attending.

If the purpose of “school choice” is for students to be able to get out of failing schools and move to a better school, then this proposal makes a lot of sense. If the point of the exercise is to subsidize parochial education, to bust unions, or to divert public education money to friends and well-wishers, then obviously this proposal would not be met with favor.

Whether this would save the state money or cost it money is tied to the question of how many students that attend voucher schools would otherwise attend public schools. There seem to be a fair number of kids who were going to attend the voucher schools anyway but are now being subsidized by taxpayers to go to these schools. (“[M]ore than 50 percent of students accepting vouchers had never attended a public school.”) So, in terms of financial impact to taxpayers, the question is whether, if their private school underperformed the public school and they were no longer eligible for a voucher, the kids would stay at the private school or go to the public school in their area.

R.I.P. Gene Cernan

January 16, 2017 by Doug Masson 8 Comments

The Big Blue Marble. Taken December 7, 1972

I remember in the late 80s, when I lived in Richmond, there was a considerable amount of hand wringing about how to repair the G Street Bridge over the Whitewater River. I asked my dad how it was that we were able to ever build these bridges if we were unable to even repair them now. I don’t recall what his answer was. At the time, I think I had Isaac Asimov’s Foundation series on my mind. In that series, the Galactic Empire was failing and the men of that time were unable to repair the great works of earlier times.

Today’s announcement of the death of Gene Cernan reminded me of that conversation with my Dad and, by extension, the diminished stature of the Galactic Empire (which was, itself, based on Asimov’s notion of the Roman Empire).

Cernan passed away at the age of 82. Forty-four years ago, at the age of thirty-eight, he was the last person to walk on the moon on December 13, 1972.

As he climbed the ladder to the lunar module and left the surface of the moon, he said:

[A]s I take man’s last step from the surface, back home for some time to come – but we believe not too long into the future – I’d like to just (say) what I believe history will record: that America’s challenge of today has forged man’s destiny of tomorrow. And, as we leave the Moon at Taurus–Littrow, we leave as we came and, God willing, as we shall return, with peace and hope for all mankind. Godspeed the crew of Apollo 17.

There is a good chance that I’m too focused on the moon as a measuring stick for our capabilities. After all, we (almost) harpooned a comet back in 2014. But it seems to be that the news is full of talk about what we can’t do, what we don’t want to do, what we can’t afford, and what we hate about each other. The fact is, we have not returned to the moon.

Some days, I think we need a Great Purpose to give our lives meaning. Without such a purpose, we take to building up the Other as Great Evils so that we can be heroic protagonists in our own minds. Nobody wants to be an insignificant part of an enormous, indifferent, and rudderless universe. So, we create narratives.

And, if we are not building mole hills into mountains, it feels like we’re drifting toward war just to give ourselves something important to worry about. It would be much better if we had something productive around which to unite and upon which to release our energies and focus our desire to be heroic parts of an epic story. I can think of much worse efforts than space exploration.

This is not, I’m afraid, much of a tribute to Captain Cernan. He was part of a great effort that did incredible things. He said:

“What is the real meaning of seeing this picture? I’ve always said, I’ve said for a long time, I still believe it, it’s going to be — well it’s almost fifty now, but fifty or a hundred years in the history of mankind before we look back and really understand the meaning of Apollo. Really understand what humankind had done when we left, when we truly left this planet, we’re able to call another body in this universe our home. We did it way too early considering what we’re doing now in space. It’s almost as if JFK reached out into the twenty-first century where we are today, grabbed hold of a decade of time, slipped it neatly into the (nineteen) sixties and seventies (and) called it Apollo.”

Hopefully we can build upon his efforts sooner rather than later. I’d rather be of a generation that was part of a continued rise in knowledge, ability, and accomplishment than a generation that was part of a preventable failure in imagination and effort.

About Selling Health Insurance Over State Lines

January 13, 2017 by Doug Masson 8 Comments

One popular conservative response to the call for a health care plan is to talk about allowing health insurance to sell policies across state lines. They respond with this item because, I think, they by-and-large like the idea, and it gives them something to talk about when the question comes up. Providing health care is a hard policy question, and finding a response that doesn’t dwell on ugly truths and/or bore your audience isn’t that easy. Currently, an insurance policy has to conform to regulations in each state. What proponents mean when they say “selling over state lines,” is that, as long as the policy conforms to the rules in the state where the company is located, the company can sell the policy to consumers in other states.

But selling insurance policies over state lines isn’t a good idea. Proponents paint the picture of a robust market where competition drives prices down. But this probably isn’t what the future would hold. We’ve seen the likely result in the context of the credit card industry: a regulatory race to the bottom where the insurers congregate in the state that gives them the most pro-insurance company regulations (which are often, of necessity, a bad deal for consumers).

Ezra Klein described it as follows:

[Conservatives] want insurers to be able to cluster in one state, follow that state’s regulations and sell the product to everyone in the country. In practice, that means we will have a single national insurance standard. But that standard will be decided by South Dakota. Or, if South Dakota doesn’t give the insurers the freedom they want, it’ll be decided by Wyoming. Or whoever.

This is exactly what happened in the credit card industry, which is regulated in accordance with conservative wishes. In 1980, Bill Janklow, the governor of South Dakota, made a deal with Citibank: If Citibank would move its credit card business to South Dakota, the governor would literally let Citibank write South Dakota’s credit card regulations. You can read Janklow’s recollections of the pact here.

Citibank wrote an absurdly pro-credit card law, the legislature passed it, and soon all the credit card companies were heading to South Dakota. And that’s exactly what would happen with health-care insurance. The industry would put its money into buying the legislature of a small, conservative, economically depressed state. The deal would be simple: Let us write the regulations and we’ll bring thousands of jobs and lots of tax dollars to you. Someone will take it. The result will be an uncommonly tiny legislature in an uncommonly small state that answers to an uncommonly conservative electorate that will decide what insurance will look like for the rest of the nation.

For those who put (in my mind) too much faith in the market, this can’t be what will happen. If the widget makers in South Dakota make low-cost but toxic, low-quality widgets while the widget makers in California make high-quality but expensive widgets, why shouldn’t consumers get to take their pick? Primarily because health care has a lot of qualities that make such a choice less than straight forward: the prices are opaque, consumers are going to have a tough time anticipating their needs, consumers aren’t doctors with an understanding of the medicine involved, health care is often not an arm’s length transaction you can walk away from if the terms aren’t to your liking.

Klein reports that a Congressional Budget Office study suggests such legislation “would not change the number of insured Americans or save much money, but it would make insurance more expensive for the sick and cheaper for the healthy, and lead to more healthy people with insurance and fewer sick people with insurance.” I’ve seen some take exception to the idea that the healthy should subsidize the sick; but that’s pretty much the whole idea behind insurance.

That’s not how this works. That’s not how any of this works.

January 12, 2017 by Doug Masson 6 Comments

Rep. Judy wants to repeal environmental protections

Pollution does not respect state borders

Rep. Judy has introduced HB 1127 (317-232-9619). It purports to nullify all regulations of the federal Environmental Protection Agency. The bill preemptively starts with some 10th Amendment gobbledy-gook, then declares all regulations passed by the EPA are void in Indiana. So, according to this statute, Congress has no authority to adopt, say, the Clean Water Act under the commerce clause or otherwise.

First of all, it’s ridiculous posturing to say that every clean water regulation adopted by the EPA under the Clean Water Act exceeds the authority granted under the U.S. Constitution. Second, even if the regulations were unconstitutional, the method for rectifying that is going to a federal court and requesting that a judge strike down the law. The Tenth Amendment zealots might claim that they shouldn’t have to go to a federal court — states are co-equal sovereigns, after all. But that ignores the Supremacy Clause. States can’t unilaterally invalidate a federal statute.

The fiscal note reports that Indiana would lose $24.7 million annually. In this case, it should also probably estimate the cost of fighting and losing the inevitable lawsuits.

And all of this is ignoring the more substantive point that there is a good reason for environmental protection to be the subject of federal regulations. Pollution does not respect state lines. Bad environmental policy in the Midwest can cause acid rain in the Northeast. Federal regulation can help ensure that Indiana does not, for example, externalize the costs of producing energy — reducing its costs and dumping them (literally in some cases) on other states.

HB 1272: Local Government Publication of Notices

January 10, 2017 by Doug Masson 2 Comments

Rep. Negele (800-382-9841) has introduced HB 1272 concerning the situation where publication in a local paper is required but the paper fails to actually follow through with a requested publication. Under the proposed legislation, the local governmental entity could still proceed if it posts printed notice in three prominent places in the political subdivision or on the local government’s website in a location where the notice is easily accessible.

I’m in favor of this. I’ve seen a situation where government action had to be delayed for several weeks because a local paper agreed to publish the notice but due to a clerical error failed to actually make the publication. (What made it worse is that the publication was required in two papers, and it was a much lower circulation paper — so the utility of the notice was questionable at best).

I think we’re getting close to the day when publication of legal notices in the newspaper is going to become obsolete. How many people read the legal notices in the newspaper but don’t have Internet access? Seems like it would be simple enough for the State to create “legalnotices.in.gov/county” for a one-stop repository of legal notices. The cost of the publication is one thing, but what can really be irritating is when the paper has a long lead time to get notices into the paper.

This bill doesn’t go anywhere near that far, but it’s a nice failsafe for the governmental entity that did its part to provide proper notice through the newspaper(s).

HB 1160: Study of Tax Court Effectiveness

January 10, 2017 by Doug Masson Leave a Comment

Rep. Cherry (800-382-9841 has introduced HB 1160 concerning a study of the effectiveness of the Tax Court. It urges the legislative council to assign a summer study committee to review the jurisdiction and role of the tax court, the size of the tax court and its staff, the operations of the tax court, the caseload considered by the tax court, and the number and types of appeals from the tax court accepted by the Indiana supreme court.

The tax court is a specialized court that handles tax matters:

The Tax Court has exclusive jurisdiction over any case that arises under the Indiana tax laws and that is an initial appeal of a final determination made by the Indiana Department of State Revenue or the Indiana Board of Tax Review. In addition, the Tax Court has jurisdiction over certain appeals from the Department of Local Government Finance.

The Indiana Law Blog has previously reported on backlogs at the Indiana Tax Court. Joby Jerrells had a column in the Indiana Lawyer this summer discussing the findings of an ad hoc Tax Court Task Force created by the Supreme Court. Delays at the court seem to be the major issue. Proposals to speed things up include adding a magistrate to the court and possibly expanding the bench to three judges.

SB 293: Certification of Service Animal’s Good Health

January 10, 2017 by Doug Masson 10 Comments

Indiana General Assembly considers regulation of service animals

Sen. Leising (317-232-9400) has introduced SB 293 concerning certification of a service animal’s good health. Currently state law requires public accommodations to permit service animals to enter without requiring an extra fee. The proposed amendment would restrict that to “certified” service animals. The only thing necessary for certification under this proposed legislation is that the animal be certified by a veterinarian as being in good health. The bill directs the board of veterinary medical examiners to come up with standards and prescribe a form for this certification.

I very much sympathize with the goals of this legislation. The well-intended service animal regulations are abused. If a person has a disability and they have a trained service dog that assists with that disability, then it makes all the sense in the world that the normal concerns of public places concerning admission of pets be set aside in favor of letting the person with a disability get along with their life. But, there are people who just don’t want to leave their animals behind. They may or may not be disabled. They have dogs that who might have some general training but not particularly related to their disability. And they’ll maybe flash a card from some Internet mill characterizing the dog as a “service animal.” That puts public accommodations in a difficult spot — basically just abandon their “no pets” policies when they receive the slightest push back, or risk a lawsuit.

However, it seems to me that this particular legislation is likely to cause more harm than good. In particular, I fear that establishments will rely on this legislation, decline entry for a dog who has not been certified, and find themselves on the receiving end of a federal ADA lawsuit. The ADA’s requirements for what constitutes a service animal are poorly defined. It’s only necessary that the animal be “individually trained” to do work or perform tasks for the benefit of an individual with a disability. The work or tasks performed by a service animal must be directly related to the individual’s disability. The nature of the individual training is not defined. The individuals can do it themselves, and there does not appear to be any requirement that the dog be successfully trained or well trained. Additionally, the ADA implementation regulations suggest that an establishment is allowed to ask only ” (1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform?” This makes it challenging to ascertain, prior to a lawsuit, whether the training, the work, or the tasks are directly related to the individual’s disability.

I haven’t done any research on how pre-emption of state law by federal law works in this context, but it seems likely that asking about whether the dog is “certified” under this state law would result in a violation of federal ADA regulations.