A Citizen's Guide to Indiana

Rep. Cox has introduced HB 1358 which creates a procedure for judgment creditors to garnish state tax refunds owed to judgment debtors. I have some questions about the how the timing is supposed to work. The legislation talks about the creditor filing a post judgment request for a garnishment with the trial court. The judgment debtor has some time to object and, failing a successful objection, the trial court issues a “writ of garnishment” which the judgment creditor serves on the Indiana Department of Revenue.

There is language that suggests, but not clearly, that the writ is good for only one tax year. It also says that, in the case of multiple writs, the department of revenue is to honor them in the order the department receives them. I’m wondering at what point in time IDOR makes the determination of whether there is money subject to garnishment. If it paid out a refund in March and it gets my writ in April, does the IDOR tell me there is no money to be garnished and then I have to file again in, say, February 2016? If I don’t have to wait until 2016, does the IDOR hold the writ until next year? Can I file a writ in April 2015 for the 2016 tax year, payable in 2017? Would that put me in the front of the line for the 2017 tax year or would prior writs unsuccessfully seeking refunds for the 2016 tax year be in front of me?

I don’t know that we need a special process for state tax refunds. Just say that the Indiana Dept. of Revenue is like any other third party with an account payable to a judgment debtor and let the courts process the proceedings supplemental and resulting garnishment orders accordingly.

I got a small chuckle out of one line in the proposed legislation that said, “The department is not liable for the department’s negligence in carrying out its duties under this chapter.” I guess the Department of Revenue’s reputation proceeds it.

HB 1241, introduced by Reps. Braun, Brown, and Heaton, would require hospitals and physicians to publish their gross billed charges (the chargemaster for hospitals) on the Internet along with a comparison of those charges to their Medicare rates for those services.

My initial reaction is positive. Medical pricing is opaque, to put it charitably. And, while there are other reasons why medical services aren’t notably responsive to market forces; lack of transparency in pricing is also a factor. On the other hand, a couple of my buddies are doctors, and I can’t help but think what a colossal pain in the ass this would be for them.

Reps. Price and Riecken have introduced HB 1225 which would urge the legislative council to assign an interim study committee to study the issue of public records requests for police video. Included in the study would be:

(1) Whether additional exemptions are needed in the open records law (IC 5-14-3) to prevent the disclosure of private information caught on police body camera video, including interiors of private homes, medical information, juveniles, witnesses, and victims.

(2) Restricting the scope and size of public records requests for police body camera video.

(3) Restricting the persons and agencies that may obtain police body camera video by making a public records request.

(4) Restricting the purposes for which police body camera video may be used.

(5) The ability of a public agency to search, redact, and edit police body camera video to remove nondisclosable information

It’s a brave new world. Cameras are becoming ubiquitous and digital storage space enormous. The intersection of these trends with public access laws is bound to make us uncomfortable. We’re headed into the Panopticon.

You’d think the General Assembly that caught so much crap for trying to define pi would be a little careful with its definitions, but HB 1136 has a reckless swagger about its medical definition. Specifically, it says that “”Fetus” means a
human being produced by a human pregnancy from fertilization through birth, including a zygote, blastocyst, and fetus.”

Certainly the theologians can argue about when a human becomes a human, but zygote and blastocyst seem to have meanings that make them distinct from fetus.

In any event, this legislation would give pregnant women the right to determine the final disposition method for an aborted fetus, charge the state department of health with determining appropriate methods of disposal, and require abortion providers to discuss the matter with the woman.

This is pretty clearly part of an effort to make abortion providers talk with pregnant women about topics that might dissuade her from getting an abortion. Choices have consequences, and – while it’s paternalistic to think that women haven’t thought about these consequences – it’s not entirely inappropriate to want the woman’s choice to be an informed choice. However, I note that the statute does not spend any time requiring women to also consider the consequences of not having an abortion. (Again, it’s patronizing to think that women making these decisions haven’t thought it through.) So, this isn’t so much about making sure women make an informed choice, it’s more about trying to make sure women don’t make what these particular lawmakers regard as the wrong choice.

HB 1064, introduced by Reps. Bacon and Smith, would provide that tenants, and not the owner of the real estate, are responsible for municipal sewer fees in rental properties and that the unpaid sewer fees do not become a lien on the real property. Currently, I believe, the default is that such unpaid fees do become a lien against the property though the municipality is permitted to adopt an ordinance that would specify that the renter is liable and unpaid fees don’t become a lien.

I’m not in favor of this. The sewer hook up clearly provides a benefit to the real property. Landlords are going to have trouble renting property with an outhouse. Since a municipality is providing a service that benefits the real property, it’s reasonable to impose a lien on the property when the fees for that service are not satisfied.

Rep. Miller has introduced HB 1061 which urges the study of the “Bert J. Harris Private Property Protection Act” – which is Florida legislation that seems to expand the situations for which property owners can be compensated due to government regulatory action. You can read a discussion of the Bert Harris act here.

Very generally, a landowner can be compensated under the “takings” clause of the U.S. Constitution pretty readily if there is some sort of physical intrusion of the government on the property. A regulatory taking — where the government issues a regulation that limits the use of the property in some fashion — is much less likely to occur. The landowner isn’t necessarily entitled to the “highest and best” use of the property. Rather, the regulation has to “deny the property owner any economically viable use” of the land before it’s regarded as a taking in the Constitutional sense. So, for example, if the government tears up a road and that lets you get on the main highway 1/10th of a mile down the road and leaves you with a situation where you now have to travel a mile to get to the main highway, that obviously impairs the use of your property, but it’s not a compensable taking. If the government tears up the only road that goes to your property, it probably has committed a compensable taking.

The Bert Harris act gives landowners an expanded cause of action to get money from taxpayers if a regulation impairs the landowner’s use of the property “inordinately” where “inordinate” is described as being, among other things, being “permanently unable to attain reasonable, investment-backed expectations for use of the property” as a result of the regulation.

Sounds reasonable. After all, mean old government is telling you what you can’t do with your land. You have reasonable, investment backed expectations and now those expectations are frustrated. Pay up for frustrating me, taxpayers! But, here is the thing — the government is exercising its police powers which, unless it is an illegitimate use that can be struck down as being beyond those police powers, are being exercised to improve the health and welfare of the community; at least as the lawmakers see that health and welfare. This means that, in one sense or another, the property owner’s investment backed expected use of the property externalizes a cost of some sort onto the community. Let’s say the regulation is some variant of “don’t pollute.” The landowner says “I had a reasonable, investment backed expectation of being able to pollute.” With this law, the government seems to have a choice between letting the landowner impair the use and enjoyment of land by the landowner’s neighbors in the community or, in effect, paying him not to pollute.

In any event, when lawmakers consider this, they shouldn’t regard it in the context of some abstract, capricious government versus an aggrieved landowner. Rather, it should be regarded in the context of a landowner whose actions have consequences for the rest of the community and determine where the proper balance between property rights and other sorts of rights ought to be struck.

Sen. Leising has introduced SB 248 which is an oddly specific requirement that, beginning not later than July 1, 2015, the BMV begin negotiating with Germany for an agreement that would provide for reciprocal exchange of driver’s licenses with Germany. The statute already gives the BMV the discretion to negotiate such agreements with foreign countries. But this one would mandate negotiations with German, and only Germany.

Sen. Kruse has introduced SB 266 which will teach a generation of students how to cover their asses in the corporate world by copying their supervisors on every email. It requires students and teachers to copy the student’s parents and the principal on every electronic communication and requires the principal to archive all the communications for at least two years. If the teacher fails to abide by this statute, it’s a Class A misdemeanor. The student would merely be subject to school discipline.

Is this based on a fear of teachers and students kanoodling? Or is there something else going on?

Sen. Kruse has introduced SB 267 which would provide a mechanism for a graduate to obtain a seal on their diploma indicating they are proficient at two or more languages. This would be termed a “seal of biliteracy.” As written, the first language apparently has to be English. But the remaining language could be another modern language, sign language, Latin, or Native American languages.

Googling “biliteracy” and seal of biliteracy highlights legislative efforts in several other states. So a nationwide lobbying effort of some sort seems to be underway. I haven’t tried to dig into who that is.

Sen. Miller has introduced SB 212 which would, generally speaking, make the Department of Correction and County Sheriffs an inmate’s authorized representative for the purposes of applying for Medicaid benefits for unreimbursed medical expenses. The sheriffs and DOC would have to enter into an agreement with FSSA to pay FSSA for the state share of the Medicaid expenses.

Unfortunately the fiscal note is not yet available. I have a dim notion that this is designed to take advantage of additional federal money available to fund health care for inmates without making the state adjust the way in which it pays for health care.