SB 354 – Proceedings Supplemental

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 – No Noneconomic Damages for Uninsured Motorists

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!

SB 549 – Expanded Categorical Eligibility for SNAP Program

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.

HB 1584 – Use of Deadly Force, Duty to Retreat

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.

Maureen Hayden on LSA

Good to see the Legislative Services Agency getting some love. (H/t Indiana Law Blog). LSA is the non-partisan agency that provides support to the Indiana General Assembly. Among other things, the staff attorneys draft legislation and the fiscal analysts provide analyses of the fiscal impact of legislation.

As Maureen Hayden’s article notes, the hours can be challenging – particularly around the holidays. It was not atypical for a legislator to drop off a bunch of bill requests on his or her way out of town for Christmas vacation so the requests would be ready for the beginning of session at the beginning of January. During the session, late nights and weekend work were not uncommon. One of the things that was most frustrating to me was, during session, Friday mornings were often slow. The House and Senate would adjourn on Thursday and not come back until Monday morning. So, you would have a slow Friday morning then, at 3 pm, you’d get a call from a lobbyist saying that Representative X told him to get in touch with you to have a proposed amendment ready for Monday morning. The ebb and flow of negotiations would manifest in bill and amendment requests at odd hours with quick turn around times and frequent last minute edits.

Occasionally a legislator asks you if you think whatever the proposal might be is a good idea. But, mostly they don’t; and that’s not really your role as a member of LSA. The snarky tone you see on this blog from time to time is probably a fair reflection of the behind closed door grousing you’d hear from time to time among LSA staffers. But it was studiously equal opportunity — you didn’t burden the legislators with those opinions; and you tried to produce a good product regardless of how flawed you thought the underlying policy goals might be.

It was probably those years of bottling up my opinion that made me so eager to share them here. Also, just an aside, but I wonder if it’s just coincidence that two of the longest running blogs about Indiana law/policy/politics (my own and the Indiana Law Blog) come from people with LSA backgrounds.

Third House (Tippecanoe County)

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.

HB 1482: Office of Marriage Promotion

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.

HB 1419 – Gym Membership Tax Deduction

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.

HB 1358 – Garnishment of State Tax Refunds

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 – Publication of Health Care Charges

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.