Sesquicentennial of Surrender

As many of you know, upon the election of Abraham Lincoln in 1860, numerous citizens in the Southern States decided to commit treason in defense of slavery rather than abide by the democratic process. The citizens purported to have the Southern States secede – but large numbers of individuals in the Southern States (notably black people) were not consulted about whether those Southern states should remain part of the United States.

In any event, despite their boastful assertions about the relative martial prowess as between northerners and southerners, the Southern rebels were to learn that war wasn’t a game but is, rather, a contest of raw power, and they had less of it. Lincoln kept the country together, Sherman made the traitors howl, and Grant ground them down. Lots of Americans died in the process. But, in the end, Hamilton won.

On April 9, 1865, Robert E. Lee surrendered to Ulysses S. Grant at Appomattox Court House.

Dressed in an immaculate uniform, Lee waited for Grant to arrive. Grant, whose headache had ended when he received Lee’s note, arrived at the courthouse in a mud-spattered uniform—a government-issue sack coat with trousers tucked into muddy boots, no sidearms, and with only his tarnished shoulder straps showing his rank.

Grant’s terms were generous. Lee’s men would not be prosecuted for treason. The southern soldiers kept their horses and the officers kept their sidearms.

I write harshly about the Southerners on this blog – to some degree because they were horribly wrong. But, a great deal of history features all nature of atrocity and, yet, I’m able to write about it without venom. What gets me going on this subject is the present day revisionism where apologists try to say that what the Southerners were doing wasn’t treason and/or that their actions were not about slavery. The latter is especially galling in light of the fact that the articles of secession written at the time were very explicit about slavery being the driving impulse. The U.S. still suffers from pathologies created by the South’s “peculiar institution.” And slapping a bandage over a festering wound is not going to do any long term good.

Today, people who love the U.S. and who recognize slavery as abominable — from both North and South — should be thankful that the North won and the South lost.

School Funding Debate Continues

Kris Turner, writing for the Indy Star, has an article about this year’s school funding contained in the budget bill, HB 1001, which will be considered by the Senate appropriations committee.

Two of the most important components of determining how much funding a school corporation gets from the state are the base / foundation amount and the complexity index amount. The base amount is what all schools get on a per pupil basis. The complexity index is tied to poverty in the district out of recognition of the additional challenges they face. An earlier article in the Indy Star describes it this way:

Under the state’s current school funding formula, the complexity index calculates additional dollars based on a district’s proportion of low-income students who qualify for textbook assistance — granting more for districts where that’s the vast majority.

At IPS, where more than four out of every five students come from low-income families, the complexity index alone adds $2,197.17 in state dollars per student.

At Zionsville, where about 5 percent of students receive free or reduced meals, it amounts to just $123.39 more per student.

That’s a difference of more than $2,000 per student, all because of families’ income levels.

Wealthier districts are complaining that the base funding is too low – that they don’t receive enough to keep the doors open without passing referenda increasing taxes in their areas. (West Lafayette Schools had a successful referendum to increase property taxes in my area several years ago.) The budget as currently drafted has an increase in the base funding but decreases the complexity index funding — the upshot being that the wealthier schools get more relative to 2014 funding and the poorer schools get less. (However, the poorer schools still get more per student in absolute terms.) The schools in poorer districts will observe that they are struggling even at current levels – reducing their funding levels is not likely to improve their situations. From the first news story linked, here are the “winners” and “losers.”

The Winners: The top 10 school corporations that will received funding boosts in 2016 and 2017.

Hamilton Southeastern Schools: $24.3 million
Carmel Clay Schools: $15.1 million
Metropolitan School District of Perry Township: $12.5 million
Tippecanoe School Corporation: $10.7 million
Noblesville Schools: $10.5 million
Indiana Connections Academy Virtual Pilot: $9.9 million
Avon Community School Corporation: $9.7 million
Westfield-Washington Schools: $8.9 million
Brownsburg Community School Corp: $8.8 million
Metropolitan School District of Pike Township: $8.7 million

The Losers: The bottom 10 school corporations that will lose state funding in 2016 and 2017.

Indianapolis Public Schools: $32.4 million loss
Gary Community School Corp: $9.2 million loss
School City of East Chicago: $4.6 million loss
Muncie Community Schools: $4.6 million loss
School City of Hammond: $4.2 million loss
Jennings County Schools: $3 million loss
South Bend Community School Corp: $2.9 million loss
Marion Community Schools: $2.5 million loss
Thea Bowman Leadership Academy: $1.9 million loss
Michigan City Area Schools: $1.7 million loss

School funding is a huge chunk of the state’s annual budget – something like 50%. So this really isn’t an easy decision for state lawmakers. Even small changes on a per-student basis have a huge impact on the budget. What makes it more complicated is that, as the complexity funding suggests, educational issues get muddled with broader social welfare issues. The social welfare issues get buried here because they aren’t addressed elsewhere. Our tendency is to view the economy as a morality play where people are poor due to personal failings. Kids are “innocent,” so we don’t tend to have as many mental blocks against dealing with their problems.

Schools like IPS need extra funding not strictly as an educational matter but because the social safety net is inadequate in other parts of these kids’ lives. It’s politically easier to address some of these issues under the umbrella of “education,” but it can make things complicated because we’re only addressing those secondary issues indirectly.

So, because the money isn’t addressing these broader social welfare issues directly, a place like Hamilton Southeastern can complain, “hey – we need to educate our kids too. Look how much less per student we’re getting. It’s not fair.” And such arguments will be at least somewhat convincing because the debate isn’t focused on, say, factors having to do with a chaotic home life resulting from other non-educational social issues.

R.I.P. Jason Perkins

I got the news that Jason Perkins, a friend of mine, died unexpectedly. We had not been all that close recently, but I spent a good bit of the summer of 1988 tooling around Wayne County in his black Ford EXP. He was warm-hearted, rye, and funny. And a little bit unpredictable. I was an inveterate rule follower and probably needed a little unpredictability about then. Man, that was a good summer.

I think I met him when he was an assistant of some sort for the teacher of a science class I was in. I don’t think he’d been around town for very long at that point. We were both sarcastic and liked to laugh, and I think that formed the basis of our friendship. He was a grade ahead of me, went off to the Army, and we didn’t really re-connect. I think his life got a little chaotic after that. He landed in Lafayette for a period of time and then left shortly before I arrived. Most recently he was doing some kind of IT work up in Chicago but had been spending more time down here, I believe. We met up for an hour or two maybe a year ago and had been keeping in touch at a fairly low level over social media.

A few memories, in no particular order:

  • Having worked at McDonalds for a period of time, he liked to blast the music in his car when we went through a drive through.
  • He introduced me to “the Destroyer” series of books.
  • He had a neighbor who apparently liked to do carpentry in the middle of the night.
  • He dubbed my Volkswagen Dasher “the Wounded Moth” in honor of the sick, dying sound the horn made.
  • I’m not sure I’ve ever been so mad as when he pulled the emergency brake on the Dasher as we were driving down US 40 between Centerville and Richmond. The tires locked up, and he apologized, saying he thought it would just slow the car down.
  • I probably met and talked to more girls hanging out with him for 6 months than I had in 3 years prior. He had a gift for gab.
  • He had apparently written some modem software on the Commodore 64 at age 15 or 16.
  • We both had an affinity for Pink Floyd’s “The Wall.” He liked the Pet Shop Boys — I didn’t.

    While we didn’t ultimately have a lot to do with each other as adults, he was a big part of a brief, but significant, part of my teen years. He was only a year older to me. So, this is yet another reminder to not take my future for granted.

    He leaves behind, along with other family, three sons and a daughter. I wish them well.

  • RFRA Fix

    The “fix” is in. (I say “fix” because I believe that for many supporters of SB 101, it was less an issue of unintended consequences and more an issue of getting their hands caught in the cookie jar.) SB 50 is apparently being gutted and replaced with language that will amend the newly created IC 34-13-9. Here is my first impression.

    As you may recall, SB 101 created IC 34-13-9 and stated that government could not substantially burden a person’s exercise of religion. Exercise of religion was defined fairly broadly and the burden did not have to be central to the person’s religion. If a person demonstrated a substantial burden, the governmental action could continue with respect to that person only if the government demonstrated a compelling interest and that the governmental action was the “least restrictive means” of advancing that interest. My sense was that the political point of the exercise (giving the timing and the identity of the strongest advocates) was to give social conservatives a win against the GLBT community. But, legally, the impact on the rights of gay citizens would not be hugely significant because there aren’t a lot of government protections based on sexual orientation in the first place. Where there might have been a practical impact was in the case of human relations ordinances in various municipalities that did offer protections based on sexual orientation. State law would have trumped those.

    The amendment adds two new sections: IC 34-13-9-0.7 and IC 34-13-9-7.5:

    Sec. 0.7. This chapter does not:
    (1) authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service;
    (2) establish a defense to a civil action or criminal prosecution for refusal by a provider to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service; or
    (3) negate any rights available under the Constitution of the State of Indiana.

    . . .

    Sec. 7.5. As used in this chapter, “provider” means one (1) or more individuals, partnerships, associations, organizations, limited liability companies, corporations, and other organized groups of persons. The term does not include:
    (1) A church or other nonprofit religious organization or society, including an affiliated school, that is exempt from federal income taxation under 26 U.S.C. 501(a), as amended (excluding any activity that generates unrelated business taxable income (as defined in 26 U.S.C. 512, as amended)).
    (2) A rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.

    So, let’s break this down. It does not authorize (or establish a legal defense) where a “provider” refuses services, facilities, use of public accommodations, goods, employment, or housing. This is pretty broad. But I’d just flag the legal maxim expressio unius est exlusio alterius (the expression of one thing is the exclusion of the other.) I can’t think of a context for objectionable discrimination that falls outside of services, facilities, public accommodations, goods, employment, and/or housing, but they could exist and if they do, this language probably somewhat strengthens the ability to discriminate in those non-articulated contexts. Specifically, there is no authorization or legal defense for these refusals where they are based on “race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.” Again, pretty broad. But if there are non-articulated groups, they might be fair game because they’re not in this laundry list.

    Now, what’s a “provider”? Because that language above suggests that non-providers might be able to discriminate on those bases (to the extent otherwise legal). “Providers” are pretty much anyone except for churches and other organizations “exempt from federal income taxation under 26 U.S.C. 501(a)” — but excluding activity generating unrelated business income. (I’m not quite sure how that will play out functionally, they have excluded particular persons based on status as a particular kind of organization but, in a sense re-included the organizations based on activity (as opposed to organizational status). The tax code might provide guidance for this kind of partial carving out of an organization.) Also excluded from the definition of “provider” are “a rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when the individual is engaged in a religious or affiliated educational function of the church or other nonprofit religious organization or society.”

    The upshot is that they have defined as non-providers religious people and organizations to the extent they are fairly tightly engaged in religious pursuits. The rest of the world is pretty much prohibited from using RFRA as a justification for pernicious discrimination. As a legal matter, I think this pretty well removes the impact from the human rights ordinances I know about. As a political matter, this has to sting the most ardent advocates of the local RFRA.

    Fighting Unreality with Reality

    As I’ve mentioned before, I see this RFRA debate as mostly divorced from reality. There is a proxy war aspect to this whole thing. At some level, the dynamics at play reminded me of the Simpsons episode where, after a random bear sighting, Springfield panics and invests heavily in defenses against bears.

    Homer: Not a bear in sight. The Bear Patrol must be working like a charm.
    Lisa: That’s specious reasoning, Dad.

    Homer: Thank you, dear.

    Lisa: By your logic I could claim that this rock keeps tigers away.

    Homer: Oh, how does it work?

    Lisa: It doesn’t work.

    Homer: Uh-huh.

    Lisa: It’s just a stupid rock.

    Homer: Uh-huh.

    Lisa: But I don’t see any tigers around, do you?

    [Homer thinks of this, then pulls out some money]

    Homer: Lisa, I want to buy your rock.

    RFRA was sold as the rock that keeps the non-existent gay danger away. Now that gay people and supporters of gay people are demanding that Indiana get rid of the rock, lawmakers are trying to say, “what’s the big deal, it’s just a rock?” But, no dice. Supporters and opponents don’t believe it’s just a rock anymore. Opponents see it as an affliction, supporters see it as protection. It doesn’t matter if the tiger-protection salesmen ever believed in the power of the rock to start with. And it doesn’t matter how many other states have rocks of their own.

    Sow the wind. Reap the whirlwind.

    RFRA and Gay Rights

    Sorry to go all RFRA, all the time here. But I wanted to address a little bit further the issue of how the RFRA discussion came to be focused on gay rights. My sense of the actual text of the law is that it does not particularly target gay rights or, for the most part, let people infringe upon such rights based on religion. I can see it coming up in the context of a local human rights ordinance that protects against discrimination based on sexual orientation where the person doing the discriminating claims it’s compelled by their religion.

    That said, the text of the law does not address gay rights directly and certainly similar legislation has been approved in places and by people one normally associate as being favorably inclined toward gay rights. So, why has the debate played out in Indiana the way it has?

    My sense is that the social conservatives felt stung by their defeat in the marriage equality battles. They failed to get a marriage amendment to the Indiana constitution on the ballot and the federal courts have declared such measures to be contrary to the U.S. Constitution. That was when the Indiana RFRA push began. I think it was something that was substantively palatable to most of our lawmakers because it had been passed in many places and has been largely unobjectionable to most people. At the same time, it could be sold rhetorically by advocates of social conservatism as a victory against the LGBT menace threatening Christianity. Take, for example, Eric Miller of Advance America:

    Indiana now becomes the 20th state with a Religious Freedom Restoration Act.

    Eric Miller, the Founder and Executive Director of Advance America stated: “It is vitally important to protect religious freedom in Indiana. It’s the right thing to do. It was therefore important to pass Senate Bill 101 in 2015 in order to help protect churches, Christian businesses and individuals from those who want to punish them because of their Biblical beliefs!”

    Churches, Christian businesses and individuals deserve protection from those who support homosexual marriages and those who support government recognition and approval of gender identity (men who dress as women). SB 101 will help provide the protection!

    Here are just three examples where SB 101 will help:

    Christian bakers, florists and photographers should not be punished for refusing to participate in a homosexual marriage!

    A Christian business should not be punished for refusing to allow a man to use the women’s restroom!

    A church should not be punished because they refuse to let the church be used for a homosexual wedding!

    (Holy exclamation points, Batman!). Miller isn’t just some crank off the Internet. He was given a prominent spot at the private signing ceremony by Gov. Pence. He is one of the people this legislation was designed to appease.

    So, legislators are in a bit of a bind. It’s all well and good for them to say that this legislation doesn’t hurt gay rights. There is a pretty good chance they’re mostly right. But that message isn’t going to carry the day unless and until they come out and directly admit to social conservatives, “we haven’t done anything to address your concerns about gay people.” Unless that message comes across clearly, the gay community and those who support them can be excused for taking people like Miller at their word that this legislation was intended to assist guys like him retain the ability to treat gay people like second class citizens. The ability of lawmakers to communicate that message is further complicated by the fact that they had an opportunity to amend the bill in a variety of ways that would have made explicit that it was not intended to facilitate discrimination. See, for example, Sen. Lanane’s proposed amendment:

    (b) This chapter does not apply to:
    (1) IC 22-9-1 (Indiana civil rights law); or
    (2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

    That proposal was defeated in the Senate 10-40.

    Whatever the legal effects, however, the rhetoric surrounding this legislation was never closely tethered to reality. Now that it’s law, getting the horse back in the barn by asking people to focus on what the law does in reality will be awfully tough.

    More on SB 101: Religious Freedom Restoration Act

    By popular demand, I’m following up on SB 101, dubbed the “Religious Freedom Restoration Act.” I don’t know that I have a lot of value to add, but I’ll go ahead and supplement my earlier post with what I think might be relevant information.

    What does it do?

    The law subjects government action to “strict scrutiny” if the government “substantially burdens a person’s exercise of religion.” Strict scrutiny means that the burden is permitted only if the burden is the least restrictive means in furthering a compelling governmental interest. If the government imposes such a burden without satisfying the strict scrutiny review, the court can enter an order preventing, correcting, restraining or abating the government action, awarding compensatory damages, and awarding attorneys’ fees.

    On the national level, the federal RFRA was a response in 1993 to the 1990 Supreme Court case of Employment Division v. Smith. Smith challenged a decision that his employment termination was for just cause (and therefore he was not entitled to unemployment benefits) where he failed a drug test after using peyote as part of a religious ritual. The court held that, even though the unemployment benefits arguably burdened his free exercise of religion, such a burden was permissible so long as the burden arose out of a neutral law of general applicability. The alternative, according to the decision would be “to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

    Congress felt that this opinion interpreting the scope of the First Amendment’s free exercise clause was insufficiently solicitous of religion and, therefore, passed a federal law that provided for more expansive protections. However, the Court determined in 1997 in the case of City of Boerne v. Flores that RFRA was unconstitutional as applied to the states. Congress has some leeway to regulate the states, particularly arising out of the Fourteenth Amendment, but the court did not see this free exercise legislation as having a remedial purpose within the scope of section 5 of the Fourteenth Amendment.

    The Volokh Conspiracy has a pretty good discussion.

    Do I think it is a good law?

    Personally, I don’t. Like I said earlier, the definitions are vague and I think it’s a solution looking for a problem. In particular, I think determining what constitutes a substantial burden to a person’s exercise of religion is very problematic. Additionally, I don’t believe there is cause to elevate the right to free exercise of religion above other rights.

    Perhaps I’m wrong, but I don’t think there is a lot of meaningful standards that allow a court or litigants to challenge a plaintiff’s assertion that he, she, or it really objects on the basis of religion and that the religious belief is sincerely held. If a person largely ignores their religion and disregards the less convenient mandates of the stated religion until it’s time to raise this legislation as a shield or a sword, it’s still going to be problematic to argue that their religious profession is pretextual. Beyond that, showing that any governmental action is the “least restrictive means” is a very high hurdle. Although, I confess that my knowledge of “strict scrutiny” jurisprudence is mainly in the context of race. In that context, it has been described as “strict in theory, fatal in fact.” In other words, once the strict scrutiny review is selected, the governmental action always failed. However, in that Volokh Conspiracy link above, “strict scrutiny” in the religious burden context was described as “strict in theory, feeble in fact.” But that was from 1960s era judicial review. Right now, I guess knowing how strict scrutiny would play out in practice is a work in progress.

    If it’s o.k. for lots of other states, isn’t it o.k. for Indiana?

    I think there is some variant of state level RFRA in 20 other states. So far as I know, this has not caused great injustice. As a legal matter, this might be a tempest in a teapot. If an inmate can claim a religious reason and be entitled to a short beard instead of following the jail’s rules on being clean shaven, is that a big deal? So, the law’s proponents might be correct that the practical effects won’t be, by and large, that significant. (Which raises the question – what real need did we have for the legislation in the first place?)

    But, as a political matter, context matters. RFRA started getting pushed here, so far as I can tell, in response to decisions having to do with gay rights and reproductive rights. Legally, it might permit religious rights to trump the civil rights of gay people and the reproductive rights of women. Politically, it sends a message of hostility to those who don’t share politically conservative religious sensibilities. And, at least in the short term, Indiana is going to experience some backlash due to that political message. I think we saw some evidence of that backlash when Gov. Pence felt obliged to sign the law somewhat furtively behind closed doors.

    Given that I’m not religious, that I do support equal rights for gay people, that I do support reproductive rights for women, and that I do not support potentially arbitrary exceptions to laws (particularly those of local government) of general applicability, it’s not surprising that I don’t support this legislation.

    Update: I have seen a lot of discussion about whether the intent of this law is discriminatory, particularly with respect to gay people. The text and history elsewhere, as described above, lends support to the proposition that it was not. The rhetoric accompanying the recent push lends support to the proposition that there was discriminatory intent, at least in some circles. Governor Pence said, “this bill is not about discrimination, and if I thought it legalized discrimination in any way in Indiana, I would have vetoed it.” But the fact remains that supporters of the bill voted against amendments that would have provided clarity on the issue of discrimination. For example, Sen. Lanane’s proposed amendment was defeated 10-40. It would have added language that said the following:

    (b) This chapter does not apply to:
    (1) IC 22-9-1 (Indiana civil rights law); or
    (2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.”

    The Naming of Indiana (as presented to the Wayne County Historical Society in 1898)

    I was searching for something completely unrelated and came across a publication called the Indianian in Google Books and, in particular, an article on “the naming of Indiana” which was presented to the Wayne County Historical Society by Cyrus W. Hodgin on February 19, 1898.

    The short version is that it does not actually tell us much about how our state got its name. However, it does go into some detail about a region that held the name for some years until about 1798 with the area which became our state taking the name in about 1800.

    As to the prior region with the name, apparently there was a Philadelphia trading company bringing goods into the Ohio Valley in the 1760s. The Iroquois claimed the area and the Shawnee as tributes. Some Shawnee members raided the company’s traders. The company made a claim to the Iroquois who acknowledged the debt but decided to pay in land rather than in some other fashion. In 1768, the Iroquois deeded about 5,000 square miles in what is present day West Virginia. The company called the area “Indiana” because, you know, Indians. Unfortunately for them, the State of Virginia never recognized the claim and, after some unsuccessful petitions to Virginia and a suit before the Supreme Court that was snuffed out by passage of the Eleventh Amendment, the claim evaporated and freed up the name “Indiana.”

    The Continuing Saga of Troy “I’ll Never Vote for It” Woodruff

    Former Rep. Troy Woodruff gained my attention when he became the deciding vote for abandoning Hoosier Standard Time and imposing Daylight Saving Time on Indiana. (I can’t say for sure, but Richard Mourdock is probably the only state official at whom I’ve taken more shots over the years.) Mr. Woodruff cast his fateful DST vote after promising his constituents he would never vote for it. After that, Mr. Woodruff was the beneficiary of some RV-1 fundraising love during his next House campaign.

    After losing his election to Kreg Battles, Woodruff had a soft landing with the Indiana Department of Transportation – which one could infer might have been repayment by friends and well-wishers in appreciation for the tough vote that probably cost him his position. (His wife also gained INDOT employment). But, then, he moved on from that position after some sketchy land deals.

    And, now, Ryan Sabalow and Tony Cook, writing for the Indy Star, bring us another installment in the ongoing saga. “Indiana’s ethics laws generally require former state employees to take a year off before working for companies with which they directly did state business.” The notion is that you might not be a great steward of public funds with respect to a particular organization if you know that you can arrange for that organization to make big money from the State, then jump ship and cash in by becoming an employee of the company. Woodruff is skirting this restriction, after the Indiana Ethics Commission told Woodruff they would not grant him approval to quit his state job and become vice president of RQAW in whose favor Woodruff signed contracts in his capacity as chief of staff for INDOT.

    “So what if I was an ‘independent contractor’ instead of an ‘employee’ of RQAW?” Woodruff seems to have asked himself.

    [A]n Indianapolis Star investigation has found that Woodruff is working for the very company that ethics officials had warned him to avoid for a year. But not as an employee. He’s an independent contractor.

    “I’m doing it within the law,” Woodruff told The Star. “If I want to have an affiliation with those guys on a contractual basis, and it doesn’t violate the law, I feel like I should be able to do that.”

    Government ethics experts say it appears Woodruff is on sound legal footing, thanks to a loophole written into the state’s ethics rules.

    *Slow clap*

    The General Assembly and Public Access

    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.