A Citizen's Guide to Indiana

Masson's Blog

The General Assembly and Public Access

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The Indiana Law Blog has been covering an ongoing effort to obtain records from the General Assembly through the Access to Public Records Act (APRA). The initial request was denied via the House Republican Caucus attorney on the general grounds that APRA does not apply to the Indiana General Assembly. They created APRA and can exclude themselves from APRA, the theory goes.

The public access counselor found that the General Assembly did not, in fact, exclude itself from APRA but found that the initial public records request was not improperly denied because the request was not made with the reasonable particularity required of any public records request by APRA. So, the requester – individuals from something called the Energy and Policy Institute – increased the level of specificity. (As an aside, I think they still went too broad. Their request reads like a discovery request under the Trial Rules, filled with “including but not limited to” type language. My strategy would be to isolate the issue of whether APRA applied to the General Assembly by being extremely particular – “correspondence, including email, between [specific sender] and [specific recipient] between date x and date y. Sure you’ll miss something, but you can circle back with a broader request if and when a court determines APRA does apply to the General Assembly).

But I digress. The request was for, essentially, correspondence from Sept. 1, 2014 to the present between Rep. Eric Koch and various players in the energy policy world (e.g. Duke Energy, NIPSCO, Vectren, etc.). The response acknowledged the Public Access Counselor’s opinion that APRA applied to the General Assembly but disagreed.

As I explained to the Public Access Counselor, the Access to Public Records Act does not apply to the Indiana House of Representatives (“House”) under applicable constitutional provisions. Pursuant to Article 4, Section 10 of the Indiana Constitution, “each House shall choose its own officers… determine the rules of its proceeding, and sit upon its own adjournment.” In determining the rules of its proceeding, the House has a long history of treating all correspondence as confidential. This encourages constituents-and anyone else-to communicate all necessary information to their-or any– legislator without fearing that the information (which is often personal and private in nature) could be released to an outside party.

The bit about encouraging open and frank information to public officials is not an illegitimate policy concern, but it is in no way exclusive to the General Assembly. In other words, it strikes me as a bit of a pretext. If the General Assembly decided that the value of public records outweighed the value of confidential communications to every other part of state government, why would it not make the same policy decision for itself. (Other than “it’s good to be the king”?)

The letter goes on to cite work product exemptions found in IC 5-14-3. My familiarity with the work product doctrine has to do with the context of litigation. I’m not sure exactly how it would play out in the context of the legislative process. It shields documents or materials collected or prepared in anticipation of litigation. That “in anticipation of litigation” is a significant factor. An insurance company that gathers inconvenient facts in the ordinary course of business can’t generally shield that material because it’s subsequently in litigation. The same material may be shielded if it’s gathered specifically in anticipation of litigation. It’s purpose is to shield the mental processes and strategies of attorneys and litigants as to the process of litigation. So, I’m not convinced that emails from, say, a power company to a state representative urging the passage or non-passage of public laws constitutes “work product.” And, if it does, that suggests a more intimate relationship between the lawmaker and the power company than your average, arm’s length citizen-lawmaker relationship.

Wealth and Work

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Dan Carlin’s Common Sense podcast from January 31, 2015, used the most recent State of the Union and subsequent political maneuvering as a launching point to discussing the nature of work and similar themes. Carlin notes that he hates the term “income inequality” because it frames the issue of wealth disparity in ways that are potentially unhelpful, but struggles for a better term.

His stuff is always worth a listen. This particular podcast reminded me of some prior posts I had done, particularly this one entitled “Technology and the Future of Work.” One question we have to ask ourselves is whether what we designate as the free market, if unregulated, will function in a sustainable way. And, if not, what sorts of regulations are necessary to create that sustainability. Obviously, I think regulation of some sort is necessary. After all, the very concept of property (as distinguished from “stuff you happen to possess at the moment” and the manner of its enforcement is itself regulation of sorts. Now we’re just haggling over the price.

We also have to come to grips with our goals for an economy. Maximum productivity sounds like a good goal until you think of the distribution. Lets say the unregulated free market produces $100 worth of value but $98 goes to one guy and the remaining $2 is divided up so that the remaining 99 people get about $0.02 apiece. Then lets say that regulations put a serious drag on productivity, cutting it in half so that the regulated economy produces only $50 in value. But, let say that the distribution is much closer to equal – maybe the one guy gets $10 while the other 99 get more like $0.40 apiece. Which economic system is better?

One of the things Carlin mentioned was a billionaire commenting that the masses simply needed to reduce their expectations. Maybe the economy has changed such that the average job simply isn’t going to make you able to afford a suburban home and an iphone. This plays somewhat on an idea I’ve had for awhile – that it would be useful for the State to provide a model budget for its citizens based on various income levels. My initial impulse for this was that a lot of citizens are bad with money, and there are often complaints that poor people have enough to live on, but they’re making poor spending choices (e.g. cable, cell phones, tattoos, cigarettes). Perhaps a model budget would help — one for poverty level, one for median income, and maybe model budgets for other income levels. On the other hand, it would be a little uncomfortable if that model budget for median income revealed that the middle class simply could not afford the things we normally associated with “middle class.”

A certain amount of income inequality is very sustainable and, in fact, desirable. If there is that pot of gold available if you just work a little harder, that is quite an incentive. But, at a certain point, the folks on the bottom just aren’t going to give a damn about the productivity of the system and the underlying government structure that supports it. Carlin mentioned the people in Greece and their recent lurch to the left in the wake of austerity measures. How much of a reduction are the people at the top of the heap willing to take in exchange for a sustainable system? Maybe the guy getting $98 in the unregulated market is willing to go to $10 if his alternative is the peasants snapping, wrecking the system, and just murdering him for his stuff (think French & Russian Revolutions).

If we don’t rely solely on the free market to make the determination, how do we decide who gets what and under what circumstances? Well, that’s politics.

R.I.P. Terry Record

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Joshua Claybourn has posted on Facebook that Terry Record has passed away at the age of 34. I thought it appropriate to mention that here since I had a number of posts about Record back in 2007 – 2009. Record was a deputy prosecutor under Carl Brizzi in Marion County when he was involved in a drunk driving accident that killed Jimmy Cash. He eventually plead guilty to a Class C felony and spent a year in jail.

Writes Josh of Record’s post-accident efforts:

I will remember his courageous path toward redemption and a renewed faith, particularly through the Catholic tradition. He worked hard to cross the bridge of forgiveness toward a new hope.

I’m hoping for peace for Mr. Record’s friends and family and, of course, hope that Mr. Cash’s friends and family have found peace as well. Sounds like a difficult stretch for these everyone involved with these individuals.

Calamity and Wealth – My Thoughts on Robert Putnam’s America

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Emily Badger, writing for the Washington Post, has an article entitled “The terrible loneliness of growing up poor in Robert Putnam’s America.” Putnam’s ideas – as presented – aren’t terribly shocking: children of upper class parents have a lot of advantages that children of lower class parents do not, and these trends are becoming more pronounced and locked in over the years. From the article, it sounds as if he starts the trend line from the 1950s and focuses primarily on the condition of white Americans in that era.

Half an hour into his Swarthmore lecture, Putnam winds into the voice of what an associate calls an “Old Testament prophet with charts.” He starts throwing graphs on the screen behind him that reflect national trends mirrored in Port Clinton: rising income inequality, growing class segregation, the breakdown of the working-class family.

They all look ominously similar. Each graph shows two lines diverging over the last several decades in the experiences of American kids at the top and bottom: in the share born to single mothers, in the chances that they’ll eat family dinners, in the time parents spend reading to them, in the money families invest in their clubs and lessons.

. . .

The poor children in “Our Kids” are missing so much more than material wealth. They have few mentors. They’re half as likely as wealthy kids to trust their neighbors. The schools they attend offer fewer sports, and they’re less likely to participate in after-school activities. Even their parents have smaller social networks. Their lives reflect the misfortune of the working-class adults around them, who have lost job prospects and financial stability.

More than 60 percent of children whose mothers never made it past high school will now spend at least some of their life by age 7 in a single-parent household. In the 1970s, there was virtually no difference in how much time educated and less-educated parents spent on activities like reading to infants and toddlers, which we now know matter tremendously for their brain development. Today, well-off children get 45 minutes more than poor kids every day of what Putnam calls “? ‘Goodnight Moon’ time.”

This sort of work is complemented by the work of Thomas Piketty, the French economist who has shown that, in developed countries, the rate of capital return exceeds the rate of economic growth and, consequently, we see a concentration of wealth among those who own the capital.

In simplistic terms, you don’t acquire wealth through merit so much as you acquire wealth by being in close proximity to it. Putnam wants to change the dynamic through a “won’t anyone please think of the children” appeal to strengthen our social fabric. Which isn’t awful. It’s certainly easier to sympathize with kids who are more or less innocent than with adults who have made a series of poor life choices — even if their circumstances, economic and familial, put a thumb on the scale, tipping the balance in favor of those bad choices. Americans can also always be counted upon to be nostalgic for the ideal of the 1950s when everyone (by which I mean white men) was a member of the Rotary or Masons or Moose or other civic minded organization, and kids grew up in a community with a strong sense of itself. (Putnam’s point of origin – at least rhetorically – seems to be Port Clinton, Ohio circa 1959 which is the place and time of his high school graduation.)

But, historically, what was the actual condition of the working class in, say, the 1890s or the 1910s? Were the kids of laborers in the Gilded Age looking at brighter prospects than the kids of today? I think not. If my assumption is correct, it’s worth looking at what got us from the Gilded Age to the 1950s — which was a better time for working families, even if it wasn’t quite the Leave It to Beaver ideal. Maybe I’m just in a cynical frame of mind, but my sense is that if we find one period of time with particularly concentrated wealth followed by another time of economic prosperity that reaches the middle class, in between we will find a period of calamity.

The prosperity of 1950s middle-class America was built in no small part by the draining of wealth from the upper classes, both domestically and abroad, during the World Wars. Notice how we don’t see so much in the way of landed gentry in England as we once did? Government had no choice but to extract wealth where it could be found in order to fight off the existential threat of war. High taxes on the wealthy and relatively generous benefits for the returning soldiers meant the wealth did not return all at once to the places from whence it came. So, that’s my hypothesis. I’d be interested to see examples of societies that transitioned from concentrated wealth in the upper classes to a more egalitarian sort of prosperity without some intervening awfulness. (An aside – but I also have a notion that societies with concentrated wealth trend toward more extraction of wealth from others (e.g. empire, slave owners) while societies with a more equal spread trend toward more of an organic growth of wealth model (e.g. businesses rising to meet demand — of which there is more if more people have money in their pocket.)

The beneficiaries of concentrated wealth are few in number but the rest of the population are often pitted against one another, fighting over the remainder. (Bringing to mind the Jay Gould quote I’ve probably worn out by now, “I can hire one half of the working class to kill the other half.”)

From the Putnam article where he suggests solutions such as more investment in early childhood education, criminal justice reform so more low-income men can find work, religious groups taking up mentoring, and public schools ending “pay to play” fees for after school sports:

Many of these things will require money, though, and that is where the fight brews. In Port Clinton, his team interviewed one mother from the wealthy community that has grown up on the town’s lakefront, as neighborhoods just inland have collapsed into poverty. She is wary of the idea of special education funding for poor kids in town.

“If my kids are going to be successful,” she says, “I don’t think they should have to pay other people who are sitting around doing nothing for their success.”

So, are there viable, less than unpleasant solutions? From my perspective – that of a middle class white male coming from middle class, very educated parents – I don’t know. From my perspective, I earned a lot of what I have. My kids will prosper based on the work and sound choices I’ve made. In the short term, what’s the upside to me and my family for making sacrifices. Now, I can abstract myself from my own personal situation and, at a macro level, see some reasons. But personally, not really.

I studied hard as a kid. I saw a lot of kids goofing off. I even got mocked by fellow students for using big words. I’m not, therefore, naturally inclined toward sympathy for those who didn’t value education. I waited to have kids and picked a compatible spouse to marry after I was done being a kid. I’m not, therefore, naturally inclined toward sympathy for those who have the opportunity to delay being a parent or pick a compatible spouse, fail to take advantage of that opportunity, and suffer economic consequences. I work hard – I’m often the first in and last out of work, I stress over my business even when I’m not at work. I don’t smoke. I exercise. I don’t (often. anymore.) drink to excess. In short, there is some justification for the internal narrative where I worked hard and played by the rules, and I can attribute my relative prosperity to that. Not knowing nearly as much about others, I can attribute their lack of prosperity to them not working hard and playing by the rules. (The narrative about the more prosperous is a little telling — could they have worked that much harder and played by the rules that much more? Of course not. They don’t deserve *their* wealth, go ahead and take it from them if you must. Just leave me alone.)

Fortunately, I’m introspective enough to realize that narration from my perspective is limited at best, but often enough, just plain unreliable. I had opportunities not given to others. My parents valued education, so of course I did. I goofed off quite a bit. More than a little luck is involved in choosing a good spouse (particularly for those who came from unstable families). A lot of the reason I work so hard and stress about my business is because I *have* a business, and if I generate profit, I get to keep it. But relying on that level of introspection and at least a bit of short-term selflessness to create egalitarian social change seems a little too hopeful by half.

So, I think we’re going to continue seeing this concentration of wealth play out until it either causes or is the victim of the sort of calamity that leads to a shuffling of the cards. And, if you’re one of the lucky ones, maybe you can escape the calamity relatively unscathed and enjoy the benefits of a prosperous middle class and an economically secure lower class.

With Malice Toward None: Sesquicentennial of the Second Inaugural

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Today is the 150th anniversary of Abraham Lincoln’s Second Inaugural Address:

At this second appearing to take the oath of the Presidential office there is less occasion for an extended address than there was at the first. Then a statement somewhat in detail of a course to be pursued seemed fitting and proper. Now, at the expiration of four years, during which public declarations have been constantly called forth on every point and phase of the great contest which still absorbs the attention and engrosses the energies of the nation, little that is new could be presented. The progress of our arms, upon which all else chiefly depends, is as well known to the public as to myself, and it is, I trust, reasonably satisfactory and encouraging to all. With high hope for the future, no prediction in regard to it is ventured.

On the occasion corresponding to this four years ago all thoughts were anxiously directed to an impending civil war. All dreaded it, all sought to avert it. While the inaugural address was being delivered from this place, devoted altogether to saving the Union without war, insurgent agents were in the city seeking to destroy it without war–seeking to dissolve the Union and divide effects by negotiation. Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came.

One-eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was somehow the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union even by war, while the Government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war the magnitude or the duration which it has already attained. Neither anticipated that the cause of the conflict might cease with or even before the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible and pray to the same God, and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offenses; for it must needs be that offenses come, but woe to that man by whom the offense cometh.” If we shall suppose that American slavery is one of those offenses which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South this terrible war as the woe due to those by whom the offense came, shall we discern therein any departure from those divine attributes which the believers in a living God always ascribe to Him? Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said “the judgments of the Lord are true and righteous altogether.”

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations.

Wow. As powerful now, I think, as it must have been then.

In the name of compromise, lawmakers recklessly allow the continued threat of self-service liquor displays

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The other day, I proposed a compromise to my wife.* (*Fiction: may not have happened). “Oh?” she says.

“I’ll unload the dishwasher 50% of the time,” I offer magnanimously.

“You should be doing that anyway,” she observes.

“And, in return,” I continue, unfazed, “every day you’ll drive to Delphi and back.”

“Why would you want me to drive to Delphi and back?” she asks, perplexed.

“Compromise!” says I.

In unrelated news, the Sunday liquor sales bill died without passing the House. Rep. Dermody declined to call down HB 1624. This was the bill that would have allowed Sunday alcohol sales. However, the package liquor store interests were successful in inserting a poison pill amendment that invented (for stores other than package liquor stores) a concept known as “self-service displays” which simply means “liquor on a shelf a customer can get to without going through a sales clerk.”

For no good reason, regular stores would have to pull the liquor from shelves where they are now, put them behind a counter, inconvenience customers, and add extra duties for sales clerks. I’m not sure advocates pretended to have any noble policy goals for this measure — if they did, I expect it was “for the children” or somesuch. But, it was pretty transparently a power play designed to stall Sunday sales against public pressure and throw in a fig leaf of “we tried and negotiated in good faith – really we did – but the big box stores wouldn’t compromise.”

See, for example, this disingenuous column from a lobbyist for the package liquor industry: “Serving and protecting consumers should have been at the center of this debate.” Sure. Protecting and serving are what this debate was about, but it’s the package liquor store that is being protected.

Give Sunday sales an up or down vote. If lawmakers actually think consumers need additional protections from the scourge of demon alcohol, use a separate bill to do that. If lawmakers honestly think Hoosiers need to be protected, shouldn’t they be doing that anyway? Are they needlessly endangering Hoosiers by permitting the ongoing threat of “self-service displays?” Seems pretty reckless of them. Unless, of course, that rationale was just a pretext.

A Corporation is a shield except when it’s not

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Initial disclaimer: two different courts, a different legal scenario, and I think the Indiana Court of Appeals probably got it right here. In Meridian North Investments v. Sondhi, decided today, Meridian North was the landlord and Sondhi-Biggs Orthodonics was the tenant. Dr. Sondhi, owner of Sondhi-Biggs, signed the lease on behalf of Sondhi-Biggs. Later, he slipped on some ice and fell, allegedly because Meridian North was negligent in maintaining the premises. The lease contained exculpatory clauses where the tenant said it wouldn’t hold the landlord liable for negligently maintaining the premises. The Court of Appeals said that those clauses didn’t bind Dr. Sondhi because Sondhi-Biggs, and not Dr. Sondhi, was the signatory on the lease. As an agent, he waived liability asserted by Sondhi-Biggs but not himself.

And, yet, under Burwell v. Hobby Lobby, Sondhi-Biggs could assert rights and exemptions from general regulations under the Religious Freedom Restoration Act (and perhaps Indiana’s pending state version) based on Dr. Sondhi’s religious beliefs.

I suppose I’m just taking another opportunity to vent about the inconsistency in how and when we recognize the corporate form. It’s a government created legal fiction designed to limit personal responsibility. It has it’s uses, but that form should be recognized or not consistently.

SB 101: “Religious Freedom Restoration”

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Senator Kruse’s SB 101 passed out of committee and is now eligible for second reading. It has been designated “religious freedom restoration.” It seems to track the federal law with the same name but generally, as the synopsis says, it:

Prohibits a governmental entity from substantially burdening a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the governmental entity can demonstrate that the burden: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering the compelling governmental interest.

“Substantial burden” is not defined, nor, for that matter, is “religion.” However, “exercise of religion” is defined as “any exercise of religion,whether or not compelled by, or central to, a system of religious belief.”

First of all, this kind of broad and ill-defined language is a huge headache for government. A person doesn’t want to follow the law and says it substantially burdens his religion. Now what? You might just have to take his word for it — his religious belief, as the statute points out, doesn’t have to be part of any kind of organized system — nor does the objectionable regulation have to be central to the person’s religion.

I’m not religious but I’m not going to sneer at those who are. I recognize that plenty of good, thoughtful people have sincere religious beliefs. I will, however, observe that this legislation gives religious beliefs a preferred status above other sorts of beliefs that are just as sincerely held. If I object to an ordinance for sincere but secular reasons, those are just the breaks of being a citizen. I don’t see the compelling policy reasons for the General Assembly to make this distinction.

SB 95 – Retroactively Killing 15 Year Old Lawsuit

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Sen. Tomes is carrying SB 95 which has an effective date retroactive to August 26, 1999. (h/t Indiana Law Blog). That’s so long ago that I was employed by the General Assembly at the time. And I haven’t worked there for a long, long time. The intent is to kill a specific lawsuit that has been around for all those years.

The background is that the City of Gary filed suit in September 1999 against various gun manufacturers on various theories. The suit has been allowed to proceed under the theory that, if the allegations were proven as true, they “are sufficient to allege an unreasonable chain of distribution of handguns sufficient to give rise to a public nuisance generated by all defendants.” See, Smith & Wesson v. City of Gary 875 N.E. 2d 422 (Ind. Ct. App. 2007) and City of Gary v. Smith & Wesson, 801 N.E.2d 1222 (Ind. 2003). State and federal legislation subsequently passed that immunizes gun manufacturers from such activity has not been sufficient to get the case dismissed.

Regardless of what you think about the lawsuit itself, this is horrible public policy. Reaching back in time to shield particular, well-connected, well-funded defendants and change the rules in their favor to the detriment of a particular plaintiff undermines the credibility of our legal system. The bill passed out of committee on a 7-1 vote and went through second reading without amendment. It is now eligible for third reading to be passed out of the Senate.