A Citizen's Guide to Indiana

Sen. Bray has introduced SB 306 which would specify a limited duty of care to trespassers on one’s property. Basically, a landowner would have to refrain from willful and wanton behavior toward a trespasser the landowner knows about. Otherwise, the landowner would have no duty of care toward the trespasser and if the trespasser got injured while on the property then that’s his tough luck. There is an exception that would make landowners liable under some circumstances for injuries sustained by trespassing children if the cause of the injury was what amounts to an attractive nuisances to children.

I thought the duty of care used in SB 306 is pretty much the same as what the court’s have articulated with respect to trespassers. “The duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring him or her after discovering his or her presence.” Yates v. Johnson County, 888 N.E. 2d 842, 848-849 (Ind. Ct. App. 2008). So, I’m not sure what this bill is attempting to remedy. Maybe it’s the definition of “trespasser” as someone who “enters or remains on real property possessed by another person without: (1) a right to enter or remain on the real property; (2) the consent of the other person; or (3) an actual or implied invitation from the other person.” But, at a glance, that looks a lot like what I’ve seen for the definition of trespasser in the case law.

The Indiana Law Blog has a post highlighting an editorial (note: paywall) from the Marion Chronicle Tribune about how local government should have to publish their budgets on the newspaper because putting them online wasn’t sufficient.

Says the Marion Chronicle-Tribune:

It is stunning how little commitment there seems to be to government transparency in Indiana.

There is apparently a similar effort afoot with tax sales to only publish a short notice telling people what website to visit to see the property description or parcel information.

I couldn’t read the entire editorial because it was behind a pay wall. The newspaper urges caution because electronic notices are malleable and not a permanent record. True enough – but you could surmount that issue without publication by requiring an official hard copy to be filed with the Clerk’s office or Recorder’s office or other repository of official documents. The other argument the newspaper makes is that this is done to make officials’ lives easier by avoiding scrutiny. I’m not sure how that follows if the notices are, in fact, available online. Are the watch dogs who are going to hold public officials accountable the sorts of people who will pore over a newspaper version of the notices but won’t go to a website? I’m skeptical.

Now, maybe the public is more aware of the legal notices in the small print at the back of the newspaper than the notice on a government website. The fact is that publication of legal notices in newspapers is a real expense to taxpayers. And, it’s hard to avoid observing that the newspaper may have a stake in this issue that goes beyond mere public interest. Maybe the part of the editorial that discusses the Marion Chronicle Tribune’s income from legal notices is behind its pay wall. The newspaper is, itself, making a choice between informing the public and its own fiscal interests. So, while the newspaper’s arguments are worth considering, I have a hard time believing the editorial board is actually “stunned” by the General Assembly’s efforts to strike a similar balance.

Sen. Steele’s SB 354 the Senate on Third Reading. The bill concerns supplemental proceedings a judgment creditor can initiate when a judgment debtor fails to pay the judgment. It says the creditor can get an order requiring the judgment debtor to appear in court and testify about his or her income and assets once every six months or more frequently if the judgment creditor believes the judgment debtor’s circumstances have changed.

I don’t know for sure, but I think this is in response to language in some Court of Appeals decisions that can be read as requiring a creditor know about a change in a debtor’s financial circumstances before the creditor can bring the debtor back to court for a proceeding supplemental. Kirk v. Monroe County Tire, 585 N.E.2d 1366 (Ind. Ct. App. 1992) cited a legal treatise and an Illinois appellate court for this proposition. Carter v. Grace Whitney Props, 939 N.E.2d 630 (Ind. Ct. App. 2010) cited Kirk for this proposition. Kirk involved a situation where the debtor was bringing the debtor back weekly. There is no doubt that the court should put a stop to that kind of nonsense. Proceedings supplemental are equitable in nature and, therefore, I’d think a court would have the inherent discretion to avoid oppressive hearings. But, requiring the creditor to know the debtor has income or assets before bringing them in to testify about their income or assets is also not reasonable. The point of the proceeding, in many cases, is so that a judgment debtor can come and tell the creditor what has or has not changed about their financial situation.

This six month default rule isn’t a bad idea. I suppose I would request clarification that a proceeding can be continued to a later date (within the six month period) if the court finds that doing so is reasonable. For example, if I ask a debtor how much they have in a bank account and they say they don’t know, it would be reasonable to continue the hearing for a week to allow the judgment debtor to acquire that information and report back under oath.

HB 1192, introduced by Rep. Mahan, is an interesting concept. It would prohibit insurers from paying out noneconomic damages to uninsured motorists and would immunize other motorists from having to pay noneconomic damages to such motorists. Noneconomic damages refers to such things as pain and suffering, emotional distress, and other nonpecuniary losses. It does not refer to medical expenses, lost wages, or loss of economic potential. “Uninsured motorist” means the owner of a vehicle who doesn’t have the required financial responsibility in place at the time of the accident — whether the individual was operating the vehicle at the time of the accident or not. There are exceptions for kids under 18 and victims of intentional acts or crimes.

Not sure I agree with the legislation, but I understand the premise. Most damage claims are going to be paid, one way or another, by insurance money. Why should someone be permitted to take advantage of the responsible act of another (e.g. paying their insurance premiums) when they didn’t show the same responsibility themselves. They wouldn’t be missing out on “real” losses — medical expenses, lost income, and the like; but only the less easily quantifiable losses like pain and suffering. If the roles were reversed, their victims would get nothing from them (but could recover from their own uninsured motorist coverage if they had it.)

On the other hand, this can also be seen as creating a two tiered system – one for poor people who can’t (or won’t) afford insurance and a different one for people who can. (The retort to this would be that if you can’t afford insurance, then you can’t afford to drive.) I’m guessing the Indiana Trial Lawyers Association is against this one!

Sen. Stoops has introduced SB 549 which would expand access to the Supplemental Nutritional Assistance Program (SNAP) (formerly “food stamps,” I believe) by expanding categorical eligibility without respect to assets. My understanding of this process — which is laughably limited — is that there are people who are eligible for SNAP assistance by virtue of being participants in certain programs (TANF for example). The eligibility for the other program is a proxy for neediness; or perhaps the policy decision has been made that government should support the effectiveness of one program by buttressing it with the other. If the SNAP applicant is a participant in one of these other programs, they are categorically eligible and do not need to particularly demonstrate that their income is below a certain threshold ordinarily necessary to be eligible for SNAP assistance.

Anyway, I guess federal law allows states to expand categorical eligibility. I believe this paper out of Ohio is on point:

The federal food stamp regulations provide some options to states with respect to expanding categorical eligibility for assistance groups who are receiving or authorized to receive TANF or MOE funded benefits and services. States have the authority to determine which of the TANF or MOE funded programs or services are of benefit to the entire household and therefore confer categorical eligibility. States also have the option to determine whether TANF or MOE-funded services that meet TANF purposes 3 or 4 (as long as there is an income eligibility limit up to 200% of the federal poverty level) will confer categorical eligibility to the entire assistance group.

I guess I’d be a little surprised if this General Assembly showed a great deal of interest in expanding the social safety net. There isn’t a fiscal note ready at this point. I suppose there is probably a saving grace in that a lot of the new people who would be categorically eligible would have met the income limitations anyway, and this just streamlines the process.

Rep. Porter has introduced HB 1584 concerning the use of deadly force. It strikes the language in current law that says a person has no duty to retreat. The remaining language says that a person is justified in using deadly force where the person reasonably believes such force is necessary to prevent serious bodily injury to themselves or third parties or to prevent or terminate the other person’s entry of the first person’s dwelling, curtilage, or occupied motor vehicle.

The struggle, as always, is to balance the desire to give citizens the latitude they need to defend themselves in an emergency while not, at the same time, sanctioning vigilante justice or extreme violence based more on emotion and ego than on a pressing need to use such force.

I attended my first “Third House” meeting in Tippecanoe County today. I’ve been eyeing the program for years but for whatever reason, never signed up. (Might have something to do with the 7:30 a.m. Saturday morning meeting time.) Seems like it’s right in my wheelhouse. It’s an event conducted every couple of weeks on Saturday mornings during the legislative session by Greater Lafayette Commerce where local legislators attend along with an interesting cross section of the community to discuss legislative matters. I knew a number of the people there personally and a number of others by reputation.

The main part of the initial meeting this morning was a presentation by Everybody’s favorite economist ™, Larry DeBoer. Not a great surprise, but it looks like school funding is going to be the main or at least one of the main issues this session. K-12 funding makes up about half of the state budget. The school funding formula has a base per pupil component and then schools get additional funding using (I think) the number of kids getting subsidized textbooks as a proxy for determining which schools have kids who need extra help. In Tippecanoe County, West Lafayette Schools are near the bottom of per-pupil funding and Lafayette Schools are near the top. Tippecanoe School Corp. is in the middle. So, the joke went, if our Third House can figure out a formula that makes all the Tippecanoe schools happy, we’ll probably have the state budget mostly solved.

Another issue he mentioned had to do with taxes on agricultural land. Those taxes have been rising pretty sharply, mostly in response to the fact that agricultural land values have been going up, and agricultural commodities are doing pretty well. That’s fine so far as it goes. Your income and wealth increase, you pay more in taxes. However, the agricultural valuations are made in arrears. That’s generally good news when prices are trending upward. Your income and assets are going up while your taxes are based on previous years when things weren’t so good. That’s generally bad news when prices are trending downward because you have less money to pay taxes with, but your taxes are assessed based on the better years.

Anyway, I’ll be interested in seeing how the process works as the session progresses. I’ve been assigned to the courts and criminal code committee. So, I guess my role at Third House will be more focused on bills affecting the judiciary and helping to make recommendations on those issues. More specifically, I’m probably going to be focused on civil legal matters because the committee is stacked with people way more experienced in criminal law than me. Should be interesting.

Rep. Thompson has introduced HB 1482 which would establish the “Office of Marriage Promotion,” a new bit of bureaucracy controlled by the governor. It doesn’t really have a specific charge except to promote the goal of increasing the number of children born to married parents. (Not to quibble, but if we’re going this direction, shouldn’t the goal be to decrease the number of children born to unmarried parents — we’re not, I don’t think trying to increase the overall population so much as trying to mitigate the perceived problems with unmarried parents.)

To promote that goal, the office is supposed to promote the following ideas:

(1) Children born to married parents are more likely to better develop academically and socially.

(2) Children born to married parents are more likely to be physically and emotionally healthier.

(3) Children born into single parent households are more likely to live in poverty, commit crimes, commit suicide, use illegal drugs and tobacco, drop out of school, be an unemployed adult, and be incarcerated. Nothing in this subdivision is meant to diminish the amount of hard work that all parents experience in raising a child.

That last line in subdivision (3) with a legislative version of “no offense,” made me think of Rodney Dangerfield in Caddy Shack:

Al Czervik: Oh, this is the worst-looking hat I ever saw. What, when you buy a hat like this I bet you get a free bowl of soup, huh?
[looks at Judge Smails, who’s wearing the same hat]
Al Czervik: Oh, it looks good on you though.

Rep. Speedy has introduced HB 1419 which would give people a tax deduction for gym memberships. I actually kind of like this one. The deduction would be the “sum of the expenditures to the fitness facility” with a cap of $500 for an individual filer and $1,000 for a married couple filing jointly or an individual with one or more dependent children. “Fitness facility” means “real property and equipment that is located in Indiana and made available for public use by an organization for the purpose of enabling patrons to engage in various forms of physical exercise.”

The idea is obviously to create an incentive to get Hoosiers off their collective behinds and start moving. Also, it would be a boon to gym owners – and, for various reasons, I’m friends with several. So, I’m biased.