A Citizen's Guide to Indiana

The Indianapolis Star has an opinion piece based on the death of a 4 year old Lafayette girl, apparently the result of abuse involving her hands being bound and duct tape over her mouth, that was previously reported in the Lafayette Journal & Courier and upon which I posted a blog entry. I had thought that I was straying fairly far afield from my normal Indiana political beat. But, the Star Opinion brings it a bit closer to home. According to the Indy Star:

The child protection system in Indiana is broken. Badly. And, for 4-year-old Aiyana and thousands of other children suffering from abuse or languishing in foster care, tragically.

Aiyana’s case is especially maddening because her grandfather says family members called Child Protection Services three times in recent months to warn that the child was in danger. The director of the Tippecanoe County Office of Family and Children says there was insufficient evidence to investigate the complaints, despite the fact that Aiyana’s father, Christian Gauvin, was convicted less than two years ago of battery on a child. Both he and the child’s stepmother have been in trouble with the law many times.

One reason why children like Aiyana are not better protected is the sheer volume of reports handled by the state. In fiscal year 2003, state workers investigated 61,492 reports. In a system in which caseworkers are hopelessly overworked and undertrained, mistakes — life-threatening mistakes — become all but inevitable.

The Lafayette Journal & Courier has a story on Child Protective Services and its deficiencies, as well as efforts to address the problem. The J&C also has a story with more details on Aiyana’s death.

Joint Resolution 0004 Constitutional Right to Hunt & Fish. Passed 41-6. I sure hope that this dog of a Constitutional Amendment makes somebody feel better. Because having this thing cluttering up the Constitution isn’t actually going to protect anybody’s rights. And I quote:

The people have a right to hunt, fish, and harvest game, which are a valued part of our heritage and shall be forever preserved for the public good, subject to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly.

This amendment says that the General Assembly can go ahead and do what it wants with regard to regulating hunting and fishing. The state is not restrained in the least by this amendment. And it won’t bind the federal government from exercising its authority. I mean, at least the homosexual marriage amendment actually does something. Agree or disagree with the policy, if passed, it will limit the authority of the state government.

Joint Resolution 0007 The AntiGay Marriage Amendment passed 76 to 23. If the legislature passes it again in 2007, and the people of Indiana ratify it, my marriage will finally be safe! A big thank you to the General Assembly for doing this important work and preventing all them homersexshuls from destroying my marriage.

Senate Bill 0132

Premises liability. Provides that if a person enters the premises of a nonprofit religious organization that is used for worship services with the permission of the nonprofit religious organization, the nonprofit religious organization has a duty to: (1) warn the person of a hidden danger on the premises if a representative of the nonprofit religious organization has actual knowledge of the hidden danger; and (2) refrain from intentionally harming the person. Provides that if a person enters the premises of a nonprofit religious organization without the permission of the nonprofit religious organization, the nonprofit religious organization has only a duty to refrain from intentionally harming the person.

I’m afraid I’m not up to speed enough on my premises liability law to notice immediately how this differs from premises liability for any other similarly situated organization that doesn’t happen to be used for religious purposes. Also not immediately obvious to me are the policy reasons for treating nonprofit places of worship differently from other nonprofit places open to the public with respect to premises liability. In any event, the House Judiciary Committee approved this and sent it on to the full House.

A couple of House Bills passed the Senate without amendment and should, therefore, be on their way to the Governor:

House Bill 1540 Indiana Abraham Lincoln bicentennial commission. Establishes the Indiana Abraham Lincoln bicentennial commission. Passed 49-0. (Who is going to vote against Abe?)

HB 1032 Use of biodiesel fuel in state vehicles. Requires the use of blended biodiesel fuel in state vehicles when feasible. Passed 48-0. (Biodiesel fuel is defined as “a blend of biodiesel with petroleum diesel so that the percentage of biodiesel in the blend is at least two percent (2%) (B2 or greater). The term does not include biodiesel (B100).”

Most of the House’s action was on Second Reading matters yesterday. Some of the bills that passed 3rd reading and head to conference committee are:

Senate Bill 0444 – Meth & Pharmacy security. Passed 91 – 6. Among several other things, the bill:

Requires a package of a drug containing ephedrine or pseudoephedrine to be: (1) protected by an anti-theft device; and (2) stored in an area that is under constant video monitoring. Allows a pharmacist to refuse to honor a prescription if honoring the prescription would endanger the safety of a person employed by the pharmacy. Requires a pharmacist to notify a physician who issued a prescription if the pharmacist refuses to honor the prescription because honoring the prescription would: (1) be against the best interest of the patient; or (2) be contrary to the health and safety of the patient.

SB 483 Voter Identification. Passed 52 – 45. Requires state or federal ID to be used before a person can vote at the polls (but not absentee). Sets up a provisional ballot procedure for people who don’t have their ID on them. (My guess is about 0% of people will jump through the provisional voting hoops set up in this bill.) The House Republicans previously rejected several propoosals that would have required notification to voters of their rights and obligations with respect to producing identification and provisional ballots.

Kevin Corcoran for the Indianapolis Star has an article entitled Budget freeze spurs talk of private prison. The article states that Indiana’s new prisons chief, J. David Donahue is looking at building Indiana’s first private prison as a way of coping with the budget’s freeze on prison spending:

Indiana’s new prisons chief says he’s looking at building the state’s first private prison to help ride out a two-year budget freeze amid projections of a surge in inmates.

Department of Correction Commissioner J. David Donahue has dropped the previous Democratic administration’s plans for a new state-run 1,800-bed prison for men and a juvenile prison dormitory in Plainfield.

Along with related moves such as outsourcing nursing care and cooking, a private prison for Indiana’s growing adult prison population appears likely.

“I’ll be looking at an opportunity for a private facility to be sited, financed, built and operated by private companies,” said Donahue, a former vice president and chief operating officer for U.S. Corrections Corp., a private prison company. Any new prisons, he said, should not be paid for by taxpayers.

I really do not like the idea of having any corporation doing business in Indiana that has a profit motive related to the incarceration of Indiana citizens. It just creates perverse incentives. Their bottom line gets better as more Hoosiers are locked up. And if Mr. Donahue used to work for the private prison industry, it raises some serious red flags. Not that he has a lot to work with. The House of Representatives’ decision to flat-line prison spending without taking appropriate measures to reduce the need for prison spending is short-sighted and irresponsible.

According to Mr. Corcoran’s article:

The nation’s largest owner and operator of private prisons, Corrections Corp. of America, runs 64 facilities with about 70,000 beds in 19 states and the District of Columbia, according to the company’s Securities and Exchange Commission filings. Last year, the company reported profits of $61 million.

Private prison companies such as Corrections Corp. and Prison Health Services Inc. have contributed a total of more than $50,000 to Democrats and Republicans in Indiana since 2000, with Daniels receiving about one-third of this money.

Dick Cheney and his Secret Service Agents left the City of Evansville high and dry defending against a civil rights lawsuit brought by protestor, John Blair who was carrying a sign saying “Cheney: 19th Century Energy Man”, as result of the security measures insisted upon by Cheney’s Secret Service Agents when Cheney attended a fund raiser for Rep. John Hostettler (R-Ind).

Judge McKinney found that the City of Evansville violated Mr. Blair’s 1st and 4th Amendment rights. Monetary damages have yet to be determined. The Evansville City Attorney David Jones complained bitterly:

Jones faulted the Secret Service, who devised the security plan for Cheney but failed to help Jones defend the city in a lawsuit brought after environmental activist John Blair was arrested for violating the Secret Service’s no-protest zone. Jones said the Secret Service refused to provide evidence, testimony and witnesses he needed to make the city’s case. Jones also said the Secret Service “used” city police to provide costly security and then abandoned the city when problems arose. “This is not fair,” said Jones. “We’ve been used like a pair of work gloves and when we were no longer handy, we were just discarded.”

Jones noted he’d asked the Secret Service to allow him to question the agent who instructed city police on the details of the no-protest zone. The agent told police that protesters had to be kept at least 500 feet away from the entrance to The Centre, where Cheney was appearing at a Republican fund-raiser for Rep. John Hostettler. But that agent apparently no longer works for the Secret Service; Jones said the agent’s supervisors told him that the agent couldn’t be located.

(emphasis mine). The Secret Service can’t locate a former agent? Nice Homeland Security. Some details follow.

John Blair, an Evansville photographer and writer, was arrested after entering a large “no-protest” zone surrounding “the Centre”, the site of a February 6, 2002 Cheney visit to Evansville where Cheney was attending a fundraiser for Rep. John Hostettler (R-Ind.). The large “no-protest” zone was set up by the Evansville City Police at the direction of Cheney’s Secret Service detail. Blair was carrying a sign that said, .

Blair had intended to meet people near the Centre, however, when they did not show up by 4:15 p.m., he walked toward the venue. Id. at 14-17. Blair did not see any area designated for protest and did not see any person in the designated protest area as he walked by. Id. at 17. Therefore, he walked to an area where people attending the event could see his sign.

Blair stood silently with his sign on the sidewalk at a spot about 100 feet from the entrance where people could easily get around him.

[Evansville Officer] Welcher indicated that there was a designated area for protesters that Blair had to go to if he wished to engage in protest. Blair objected and noted that the Civic Center of the community should be an appropriate place to engage in protest. Nevertheless, Welcher indicated that Mr. Blair had to move on. Blair asked on whose authority this order was being made. Welcher indicated that he had created a Public Safety Order requiring him to move on. . . . Blair and Welcher talked for about two to three minutes. At some point Welcher stated that if Blair did not move he would be arrested. . . . Blair did not want to walk to the end of the street to the location pointed out by Welcher because this area was so far away that no one attending the event, including the Vice President,
would be able to see his sign. . . . After a few minutes, Blair began to move away from the Centre towards the protest zone. . . . However, at least one time Blair stopped to direct more inquiries to Welcher. When Mr. Blair was about ten to twelve feet away from where he had originally been on the sidewalk, he turned and asked Welcher if he could stand in the parking lot on the other side of Ninth Street where people were parking. Welcher refused this request. Welcher then gave the order to arrest Blair.

Blair was incarcerated for two hours before bonding out. The charges were dropped about 2 weeks later.

The court found that the no-protest zone in this case and the creation of a designated protest zone was not a reasonable restriction on Blair’s freedom of speech. The Court found that a designated protest zone 500 feet from the only entrance to the venue was excessive and that the Defendants’ purported concern over Cheney’s safety was belied by the fact that Cheney’s motorcade would pass a sidewalk away fromt he protest zone.

[T]he Court also conclude[d] that the protest zone was not an adequate alternative channel for communication by protestors. Although an adequate alternative channel for communication need not be the speaker’s first or best choice, it must be more than merely theoretically available. It must be realistic as well. Furthermore, an adequate alternative cannot totally foreclose a speaker’s ability to reach one audience even if it allows the speaker to reach other groups. In the case at bar, the protest zone was 500 feet from the entrance for attendees, and well over 500 feet from the parking lot where the majority of attendees would park for the event. This limitation significantly curtailed Blair’s ability to convey his message to one of his major targets: the event patrons.

With regard to Blair’s Fourth Amendment claim, the Court rejected the Defendants’ claims that Blair could reasonably have been believed to be engaging in disorderly conduct or resisting law enforcement.

The City of Evansville and the individual officers were found to have violated Blair’s First and Fourth Amendment rights. (The individual officers are not liable to Blair on the First Amendment issue because, prior to this case, the law surrounding this type of First Amendment case was not sufficiently clear to make a reasonable officer aware that he was violating a Constitutional Right. The individual officers are, therefore, entitled to qualified immunity on the First Amendment claim. There is no similar immunity available for the City of Evansville. And there is no qualified immunity available on the Fourth Amendment claims. Presumably, now that this case has issued, the First Amendment law is sufficiently clear (at least in the Southern District of Indiana) to put officers on notice and, therefore, subject them to liability.)

The only issue remaining in the case is the extent of Blair’s damages and how much the City and the Officers will be required to pay Blair.

Sources:

Judge McKinney’s decision (pdf)

Evansville Courier Press story (free registration may be required.)

Indy Star story

The Evansville Courier Press has an opinion on the Consumer Bankers Association’s effort to have federal law supercede Indiana state law to allow its member Banks to engage in telemarketing to Indiana customers.

The Courier Press takes a states’ rights position on this one. I don’t know what the proper federalist position on this one is, but I certainly don’t appreciate the effort to water down Indiana’s do not call list. Turns out the Banks may have walked into a buzzsaw with this one. The Courier Press closes its opinion with this:

In the meantime, Indiana lawmakers are making an effort to send a message to the bankers. In addition to the efforts of Bayh and Lugar, state lawmakers have drafted legislation to prohibit violators of the Indiana law from doing business with the state, reports .

State Sen. Greg Server, R-Evansville, called it a “back at ya'” to the banks.

According to the AP, because of the issue, three banks headquartered in Indiana have disassociated themselves from the group’s FCC petition, and one has severed its membership.

They got the message: Don’t mess with Indiana’s no-call list.