The Problematic Second Sentence of HJR 6

The Indiana Law Blog posted on tweets by two reporters indicating that Sen. Long is now saying that he’s troubled by the second sentence in HJR 6 and that if he could rewrite the amendment, he’d leave out that sentence.

As the ILB noted, it bears keeping in mind that, in 2011, Senator Lanane offered an amendment that would have kept the first sentence in HJR 6 but would have done away with that clumsy, overreaching language of the second sentence which says, “A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.”

Here (pdf) is the roll call for Senator Lanane’s amendment. Senator Long was among the 36 senators who voted against that idea.

IN Supreme Court avoids question of whether House violated Wage Payment Statute

When the Democratic members of the Indiana House of Representatives boycotted the session in order to prevent a quorum and stall Republican initiatives of which they disapproved, the House imposed fines against them for failing to attend. However, they also went a step further and collected those fines by means of submitting a pay grid to the State Auditor that deducted the amount of the fines from the pay of the offending members. This appeared to be in violation of IC 22-2-4 (Wage Payment Statute), IC 22-2-8-1 (prohibiting an employer from imposing fines and deducting them from a paycheck), and IC 22-2-6 (regulating assignments of wages).

In Berry v. Crawford, a 3-2 majority of the Indiana Supreme Court has declined to say whether the withholding was or was not in violation of these statutes because it’s a legislative matter and, therefore, separation of powers prevents the judiciary from interfering. I agree with that proposition on the issue of whether the fines were properly imposed. I find the court’s reasoning unpersuasive when dealing with the more mundane issue of debt collection. For example, if Speaker Bosma had broken into Pat Bauer’s house and grabbed handfuls of cash to pay the debt, I doubt the judiciary would regard itself as powerless to interfere? I can’t blame them too much for ducking the question though. Following the letter of those laws and leaving the Democrats with triple damages plus attorney’s fees (less the amount of the fines) – turning a profit from the exercise – would have been a political shit storm.

Updated to add a bit more detail on the idea of triple damages:
An employer who violates the wage payment statute winds up owing an employee three times the amount of the wages due. IC 22-2-5-2 adds, in addition to the base wages due, liquidated damages of 10% per day late capped at double the wages plus attorney’s fees. So, after twenty days, an employer would owe the base wage plus 200% of the wages.

I figure the way it would have worked is that the violation of the Wage Payment statute would have been triple damages, but the fines themselves would still be valid and the legislators would have had to pay that back. After paying the fine, the bolting legislators would have ended up with double the money.

Developments in Immigration Law. Also, too: Tax Cuts!

I hear that Mike Pence is boldly proposing tax cuts as part of his campaign platform. Groundbreaking! He should probably talk to the local governments and school districts that have been squeezed hard over the last few years, the government pension fund managers, and our creditors at the federal government to whom we owe something like $2 billion in unemployment insurance loans. They might point out a number of ways in which the State’s “surplus” which will fund these tax cuts are illusory.

Back in the real world, it appears that Attorney General Greg Zoeller (about whom, despite being castigated as a partisan liberal by my detractors, I have few complaints) has announced that, in the wake of the Supreme Court’s ruling on the Arizona immigration law, the AG’s office can no longer defend large chunks of Indiana’s own immigration law.

Indiana’s top lawyer has recommended a federal judge strike down parts of Indiana’s immigration law in light of the U.S. Supreme Court’s recent decision that Arizona provisions dealing with warrantless arrests are unconstitutional.

“The Supreme Court made clear that immigration enforcement is a federal government responsibility,” Indiana Attorney General Greg Zoeller said in a statement.

Zoeller filed the brief with the U.S. District Court which has been considering whether Indiana’s law — passed in 2011 but never fully enforced — is constitutional.

Zoeller said Tuesday key parts of the law “cannot be defended” under the Supreme Court’s ruling.

The District Court had issued a preliminary injunction on parts of the immigration law back in June 2011. As I said then:

When the Democrats boycotted the General Assembly, we were treated to a lot of faulty analogies about how, if this were private business and those guys didn’t show up for work, they’d get fired. Well, in the wake of two court rulings finding big Constitutional problems with two major pieces of legislation, we can add another. If workers in private business were producing this much defective product, exposing their employers to lawsuits, they’d also get fired.

SB 11 – Animal Fighting Contests

Sen. Arnold’s SB 11 elevates attending an animal fighting contest from a Class A misdemeanor to a Class D felony. Current law regards attending an animal fighting contest as “cruelty to animals” as a Class A misdemeanor – raised to Class D felony if the person attending is also in possession of an animal.

Probably has something to do with living with dogs most of my life; but I have no patience for being cruel to animals for sport. I probably get worked up less than I should when the poor living conditions are for a useful purpose — e.g. mass produced pork and beef — but, without even that justification; you’re just getting your kicks off of watching animals damage each other, let those folks rot in jail.

Trial Court Enjoins Withholding of Walkout Penalties on Democratic Lawmakers

WIBC has posted Judge Dreyer’s decision (pdf) requiring the House Democrats to be paid back the withheld walkout fines and enjoining the State Auditor and Clerk of the House of Representatives from further withholding such fines. (See a previous post on the matter here.)

The question at issue is not whether the House Democrats can be fined; Judge Dreyer has held that that’s not for the courts to decide — the Indiana legislature is to resolve such matters internally. Rather, it’s how the money is allowed to be collected. The issue of collection involves not just the House or the Senate, but the State of Indiana as a whole — because it’s not the House cutting the checks, it’s the State Auditor. At that point, you’re beyond an internal legislative matter and into something the courts can decide.

The court found that the House Democrats are State employees for the purpose of compensation. The are paid a salary, they are members of the state insurance and pension plans, and they get W-2s from the State. It also found that, under the Wage Payment Statute, the House Democrats are employees, that the Wage Payment Statute did not exclude government officials, and that IC 22-2-6-2 precludes the State from withholding the House Democrats’ wages. The court also referenced IC 22-2-8 which says, “It is unlawful for any employer to assess a fine on any pretext against any employee and retain the same or any part thereof from his wages.”

The trial court also found that such a withholding was a violation of due process. I’m not sure I agree with that. Seems like the discussion on that goes more toward the imposition of the fine in the first place and beyond the question of collection.

Silly Editorial Characterizes Election Law As Silly

The Louisville Evansville Courier Press has a sloppy editorial up which is critical of the election law that requires “no election may be held” for those races where a municipal candidate is unchallenged.

The editorial says the law is “the height of nonsense and makes no sense.” It further states that the law is “silliness” and “ridiculous.”

In terms of saving money, it’s true, that the savings aren’t huge; but they aren’t non-existent either. There are some savings in labor as well. The better justification for the law, in my mind, is that it highlights the lack of a choice in the election. It underscores that a vote in such a “race” is mostly illusory. There is probably some blame to go around in why there isn’t a lot of choice in a good number of races.

Let’s start with the obvious: sometimes the office holder is doing a good job, and no one is too excited to replace him or her. Then there are politically stacked localities, where the political affiliation is so skewed that the primary is effectively the election. And, we shouldn’t forget ballot access restrictions which make it tougher for third parties and independents to get on the ballot.

But, putting an uncontested candidate on the ballot doesn’t really change this lack of choice. In some ways, it’s lipstick on a pig. The uncontested “election” benefits from its association with real elections between more than one candidate where the voter is actually choosing something — this is the bedrock of democracy. So, we feel good about putting a mark next to the uncontested candidate of our choice (or not putting a mark there). But it’s a stretch to say that you’re actually accomplishing much of anything by doing so.

By taking the uncontested candidate off the ballot, the General Assembly also isn’t fixing the underlying problems associated with lack of effective choice between candidates. And, it’s not saving much money. So, for my part, I can’t say the policy choice is compelling either way. But, the Courier Press’s hand waving declaration that the law is “silly” “nonsense” (and “makes no sense”) reminds me a little of the Meat Council film in the Simpsons:

Jimmy: Uhh, Mr. McClure? I have a crazy friend who says its wrong to eat meat. Is he crazy?

Troy: Nooo, just ignorant.

Municipal Election Pushback Suggests Townships Are Here To Stay

I’ve had some personal involvement with a provision passed by the legislature this most recent session concerning uncontested races for municipal office. The new law says that, where only one candidate for the office qualifies for the municipal ballot, “an election may not be held.” (See here and here for my involvement — short version: my side lost.)

I’m not going to make a big case for the wisdom of the General Assembly’s approach. If the ballot laws are stringent enough to exclude all but one from the ballot or interest for the position is so low that only one person is stepping up for the job, the General Assembly apparently decided that having an “election” is a bit of a waste of time. Your vote may make you feel good, but in terms of functionality, it’s not accomplishing much.

What was notable to me was the strength of the push back from municipal office holders and their supporters. That’s with respect to a relatively minor issue — after all, they still get to keep their jobs. But, it offered a window into why getting rid of township offices is so unlikely. These people are politically active and fiercely protective. The people who might favor getting rid of local offices in theory are mostly not as politically active and don’t have a fire in their belly for the task. It’s asymmetric warfare.

Another Gun Ban Lawsuit

I predict these things are going to pop up like mushrooms after a big rain. A few weeks ago, I commented on the gun ban lawsuit in Hammond. Mark Wilson, writing for the Evansville Courier Press, has an article on a new gun lawsuit in Evansville. The new lawsuit is based on an incident that happened at a zoo in Evansville which a police report describes as follows:

The police report begins by saying that zoo staff confronted Magenheimer about carrying a gun and then called police to “try and ask him to leave the property.”
. . .
The incident happened when Magenheimer went to the zoo with his wife and infant son on Sept. 10. According to a police incident report, zoo officials called police after several patrons complained about a man at the facility who was visibly carrying a handgun. When one of the officers asked him to conceal the weapon, the man refused and “started getting loud and causing a scene,” according to the report.

According to the report, officers asked the man to leave the zoo because he was frightening other patrons. He refused and police had to escort him out. After he left, according to the police report, zoo staff told the officers that Magenheimer’s attitude was intimidating and that he told them he could not be denied his right to bear arms.

Although the police report said Magenheimer was argumentative and not cooperative, Relford disputed that.

The Evansville Courier Press provides a copy of the lawsuit here (pdf).

The General Assembly passed legislation, specifically IC 35-47-11.1 encouraging a lot of gun lawsuits this year. They created a private right of action and then awarded as damages, three times whatever you can get your attorney to spend prosecuting the lawsuit. So, the bill is designed to encourage attorneys to generate a lot of legal activity so their client can cash in.

The law prohibits a local unit of government from adopting or enforcing “an ordinance, a measure, an enactment, a rule, or a policy” regulating firearms.

This lawsuit is going to get muddy pretty fast (consequently generating a lot of legal fees) because from the facts alleged, it doesn’t look at all clear that the request that the guy cover up his gun because he was scaring people at the zoo was the enforcement of a local policy. The complaint alleges that the parks department had a policy to require patrons to conceal their weapons and to prevent lawful carrying of firearms. But, if the police were acting on probable cause to believe the individual was in violation of a state regulation, then this lawsuit against Evansville should fail.

Trouble is, the statute is designed to force local government to cave to lawsuits:

A prevailing plaintiff in an action under section 5 of this chapter is entitled to recover from the political subdivision the following:
(1) The greater of the following:
(A) Actual damages, including consequential damages.
(B) Liquidated damages of three (3) times the plaintiff’s attorney’s fees.
(2) Court costs (including fees).
(3) Reasonable attorney’s fees.

Pretty much anybody who gets adverse treatment from a police officer while the person is carrying a gun is going to want to take a crack at getting some money under this statute.

Study Committee Activity

The General Assembly is still at work, earning their per diems with study committee activity. This week:

Sept. 7 at 9 a.m.: Interim Study Committee on Employment Issues – Invited speakers:

J.R. Gaylor, President/CEO Associated Builders and Contractors (ABC) of Indiana

Dr. Dale Glaser, principal of Glaser Consulting, statistical consultant and Adjunct Professor of Statistics at the University of San Diego

Erik Brovold, founding President of the National University System Institute for Policy

Kevin Korenthal, Executive Director, The ABC California Cooperation Committee

Andy Conlin, National ABC

Paul Kersey, Mackinac Policy Institute

Charlie Kahl, Indiana Construction Association

Pete Rimsans, Executive Director, Indiana State Building & Construction Trades Council

Dale Belman, Professor, School of Labor and Industrial Relations, University of Michigan

John Reamer, Inspector of Public Works, City of Los Angeles Gerry Scheub, Lake County Commissioner

Speros A. Bastistatos, President and CEO, South Shore Convention & Visitors Authority

Jim Tsareff, Vice President, Construction Operations, ERMCO Electric

Rhonda Cook, Indiana Association of Cities and Towns

David Bottorf, Association of Indiana Counties

Sept. 7 at 1 p.m.: Commission on Developmental Disabilities: First Steps program and Music Therapy.

Sept. 8 at 1:30 p.m.: Interim Study Committee on Driver Education:

(A) Report From Indiana Bureau of Motor Vehicles Concerning Accident Reports Containing Ages and Genders of Those Involved.

(B) Report From the Indiana Criminal Justice Institute Concerning Effects of the Graduated Driver’s License on Accident Rates and Fatality Rates.

(C) Report From IVY Tech Concerning IVY Tech Classes for Driver Education Instructors.

Sept. 9 at 1:00 p.m.: Criminal Code Evaluation Commission: The agenda doesn’t list any particular topics of discussion. Looks like prior meetings have focused on penalties for property crimes and also on matters having to do with sex offenders.

I Have An Idea

Indiana Public News Radio has an article on the General Assembly’s study committee getting recommendations from an advocate to reduce underage drinking:

She told a summer study committee today that she wants substantial reforms – like raising the alcohol tax and instituting a social host law. Social host laws are those that punish adults who knowingly allow underage drinking on their property.

I have an idea. Lower the drinking age. I can almost guarantee that will reduce the incidence of underage drinking. It’s one of those malum prohibitum things.

This was part of the Senate Commission on Mental Health and Addiction’s September 6 meeting (pdf).