SB 212: Inmates and Medicaid

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.

SB 107 – Immunity for Not Prohibiting Firearms

Sen. Steele has introduced SB 107 which would provide immunity to a person who fails to prohib an individual from possessing a firearm on their property or an employee from possessing a firearm in the course of employment.

The dynamic is that usually the whack job who shoots people doesn’t have much in the way of money. So, the civil suits focus on the person with the deep pockets. This would limit one avenue for doing that — the plaintiff would not be able to allege negligence based on failure to prohibit the shooter from having a gun even if the person had the authority to make such a prohibition.

Six Years Later: S.Ct. decides ICRC had no authority to do anything but dismiss a complaint

Today, the Indiana Supreme Court decided the case of Fishers Adolescent Catholic Enrichment Society, Inc. (FACES) v. Bridgewater and concluded that, because the Indiana Civil Rights Commission had no jurisdiction over a complaint, it never had power to do anything except dismiss that complaint and that, by extension, a retaliation claim based on the underlying complaint could not proceed either.

FACES was, in effect, a social group formed by homeschoolers. One of the kids was allergic to food that was being served at a masquerade ball being held as an alternative to Halloween. The group said that they wouldn’t ask the venue to provide anything else and told the parent of the allergic kid not to contact the venue but the kid could bring a meal from home. The kid’s parents filed a complaint with the Indiana Civil Rights Commission. The group kicked the kid out of the group. The ICRC’s Administrative Law Judge concluded:

that FACES did not commit an unlawful discriminatory practice because it had provided a reasonable accommodation for Mrs. Bridgewater’s daughter’s dietary needs—but that FACES did commit an unlawful discriminatory practice when it expelled the Bridgewater children after they filed the disability discrimination complaint. The administrative law judge ruled that Mrs. Bridgewater’s daughter should be awarded $5,000 in damages and that FACES should take corrective action.

The ICRC apparently reduced the damages somewhat but otherwise affirmed the ALJ. The Indiana Supreme Court found that the ICRC shouldn’t have been doing any of this because it doesn’t have jurisdiction.

The Indiana Civil Rights Law explicitly conditions the Commission’s exercise of its enforcement powers to incidents where a person has “engaged in an unlawful discriminatory practice.” To be “unlawful” under the [Indiana Civil Rights] Law, the discriminatory practice must relate to “the acquisition or sale of real estate, education, public accommodations, employment, or the extending of credit.” Ind. Code § 22-9-1-3(l) (emphasis added).

Education was the only one of those items at issue here, and the Supreme Court found that to read the statute broadly enough to conclude that this claim related to education would be to convert almost every occasion of parental guidance and training into an activity “related to education.” And, by extension, the Indiana Supreme Court determined that the retaliation claim should also fail inasmuch as the ICRC didn’t have jurisdiction in the first place. To hold otherwise would invite and incentivize the intimidating technique of bootstrapping a retaliation claim onto a meritless complaint alleging discrimination not subject to the [Indiana Civil Rights] Law.

I like legal fees more than the next guy, but I shudder a little to think of the fees that were spent in this matter that could have been saved by a prompt ICRC order stating, “this doesn’t belong here – take it somewhere else.” There were probably fees responding to an investigator, asking for a determination of no probable cause, possibly mediating the case, then at a hearing before an ALJ, then petitioning the ICRC for review, then going through the Court of Appeal process, then going to the Indiana Supreme Court. And these are big time Indianapolis lawyer fees, not the sort of reasonably priced, sound legal advice you get from, say, an attorney in Tippecanoe County.

SB 64: Solemnization of Marriage by Notary Publics

Sen. Broden has introduced SB 64 which would add notary publics to the list of people who can solemnize marriages in Indiana. I believe that this legislation is a response to the decision in the case brought by the Secular Humanists challenging the Constitutionality of Indiana’s solemnization law which would not recognize marriages solemnized by humanist secular celebrants. The court in that decision indicated that the secular humanists would be satisfied with a policy that allowed solemnization by notary publics.

The 7th Circuit said of Indiana’s current marriage solemnization statute:

These examples, and the state’s willingness to recognize marriages performed by hypocrites, show that the statute violates the Equal Protection Clause of the Fourteenth Amendment as well as the First Amendment. It is irrational to allow humanists to solemnize marriages if, and only if, they falsely declare that they are a “religion.” It is absurd to give the Church of Satan, whose high priestess avows that her powers derive from having sex with Satan, and the Universal Life Church, which sells credentials to anyone with a credit card, a preferred position over Buddhists, who emphasize love and peace. A marriage solemnized by a self-declared hypocrite would leave a sour taste in the couple’s mouths; like many others, humanists want a ceremony that celebrates their values, not the “values” of people who will say or do whatever it takes to jump through some statutory hoop.

SJR 2: Constitutional Right to Hunt, Fish, and “Harvest Wildlife” (The Li’l Lisa Slurry Preservation Act)

SJR 2 has been introduced by Senator Steele and it brings back a proposed constitutional amendment that has already been adopted once by a General Assembly.

Section 39. (a) The right to hunt, fish, and harvest wildlife:
(1) is a valued part of Indiana’s heritage; and
(2) shall be forever preserved for the public good.

(b) The people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:
(1) promote wildlife conservation and management; and
(2) preserve the future of hunting and fishing.

(c) Hunting and fishing shall be a preferred means of managing
and controlling wildlife.

(d) This section shall not be construed to limit the application of
any provision of law relating to trespass or property rights.

I’m generally against amending the constitution, and this is no exception. I know the meaning of every word in that proposed amendment, but I still don’t understand what this amendment does. My best guess is that it’s a sop to those people who have a strong cultural affinity for hunting and fishing. (I’m not entirely sure what “harvesting wildlife” means, but it reminds me of Mr. Burns’ method of stitching together millions of six-pack holders together into a net which he uses to catch tons of sea life, in order to make “Li’l Lisa’s Patented Animal Slurry”: a multi-purpose edible compound.)

As for “traditional fishing,” one venerable tradition is that it be safe to eat the fish you catch, and I’m not sure the fish in the waters of Indiana really meet that condition. Could this provision be used to challenge acts that contaminate Indiana waters? Or would that be construing the provision to limit property rights? And if this provision is a dead letter any time it comes into contact with some sort of property right, what’s left?

SB 133: Employment and Protective Orders

Sen. Randolph has introduced SB 133 concerning employment and protective orders. The sentiment isn’t bad. An employer can’t take adverse employment action against an employee and the employee can’t be deprived of unemployment benefits as a consequence of filing for a protective order.

As usual, the implementation will be problematic. What I’ve found is that all too often, protected status for workers will be claimed by workers who are legitimately being fired for other reasons. I don’t know that there is any help for it in such cases other than the employers going ahead and firing the bad eggs and taking their chances with false claims about the discharge being made for improper reasons. (Easy for me to say since that means more legal fees all around.)

SB 111 – Repayment of Wrongfully Received Unemployment Benefits

Senators Tallian and Lanane have introduced SB 111 which would protect former employees from having to repay unemployment benefits received even if their termination was determined to have been for just cause.

In Indiana, generally speaking, someone involuntarily separated from employment through no fault of their own is entitled to unemployment benefits. Someone fired for just cause (or who quits voluntarily) is not. Sometimes “just cause” can take awhile for the courts to figure out. During a period where one level of the judicial process has determined the termination was not for just cause, an employer can be required to pay unemployment benefits. If a higher body reverses and determines that the termination was for just cause, than the former employee can find themselves liable for the “overpayment” — for the amount paid to them that they shouldn’t have received. The review process goes: claims deputy -> administrative law judge -> review board -> court of appeals -> Indiana Supreme Court. (Ask me how I know.)

This bill would provide that the former employee’s liability to an employer – including an employer who “makes payments in lieu of contributions” – for those benefits would be waived if they were received during the pendency of an appeal before the ALJ or the Review Board. There are basically two ways an employer pays into the unemployment insurance system – by making “contributions” which functions sort of like paying an insurance premium or by “making payments in lieu of contributions” which functions sort of like being self-insured, only with an account maintained by the Department of Workforce Development. The employer pays into the account dollar-for-dollar the benefits received by the former employee(s). So, in that case, this bill is telling employers, “even though you were correct and had just cause to discharge the employee, we’re letting the employee keep your money.”

I understand the sentiment. If it was a close call on whether the termination was “just cause,” it will work a hardship on the former employee to have to pay back unemployment money he or she shouldn’t have received. (I guess it will also work a hardship where it wasn’t a close call and the ALJ was just incompetent and the former employee delusional about being entitled to benefits.) But the “fair” solution doesn’t seem to be to take money out of the pocket of the employer in such cases. I guess you could reason that the problem was caused by some level of government (e.g. ALJ) making the wrong decision and, therefore, make the government (e.g. taxpayers generally) pay for the mistake.

SB 56: Legacy Trusts (also known as “dynasty trusts”)

Senators Steele and Bray have introduced SB 56 which would permit the creation of legacy trusts in Indiana. Legacy trusts (pdf) appear to be a device for creating and maintaining dynastic wealth and protecting the assets from creditors of the trust beneficiaries. These trusts can last indefinitely (the Rule Against Perpetuities is suspended for such trusts) and receive significant input about management of the assets from the beneficiaries.

This is not my area of the law, so maybe someone can offer better insights, but I don’t understand the public policy that is served by having wealth controlled by the dead hand of our ancestors or by allowing individuals to enjoy the benefits of wealth while limiting the ability of creditors to obtain payment for debts that are due and owing for goods and services that have been provided.

SB 10: Coroner Conflict of Interest

Sen. Steele has introduced SB 10 which would direct a coroner to recuse him or herself when the coroner has a conflict of interest and to “obtain the services of the coroner of another county” to fulfill the coroner’s duties.

The bill says that “The coroner of the other county serving under this section shall be paid by the county in which the conflict of interest exists.”

A couple of thoughts:

1. I don’t think it’s really “the county in which the conflict of interest exists” that should necessarily pay. Depending on the nature of the conflict, that could be a different county than the one employing the coroner with the conflict. Maybe something more like, “the county served by the coroner recusing himself or herself shall pay the coroner who performs services under this section.”

2. How much is the serving coroner to be paid? Is this in addition to the salary that coroner already receives? Does it matter if the services performed for the other county results in the coroner performing fewer services for his or her own county?

3. It would be nice to have more direction on how the conflicted coroner goes about obtaining the services of the other coroner and whether that coroner has any obligation to step in and help.

SB 2: Proceedings Supplemental and Certified Mailings

Some of the introduced bills for the 2015 session have been released and, true to form, Sen. Steele has the earliest releases. The first one is SB 2 concerning charges for certified mailings. Typically when a document is filed with the court and the Clerk is required to mail it by certified or registered mail, there is no additional cost to litigants. It’s paid for out of court costs. Indiana is really pretty cheap in this regard, it seems. Some of my collection clients have expressed some surprise at not having to pay much in the way of additional costs when going back to court trying to collect a judgment.

SB 2 would provide that, in the case of proceedings supplemental, a litigant who wanted to have the court mail a document by registered or certified mail would have to pay the costs of that mailing. (A proceeding supplemental is part of a court case that takes place after judgment is entered – typically a proceeding where a judgment creditor is trying to locate income or assets available to satisfy the judgment.) If it passed, this would most likely increase the use of the Sheriff to serve these documents. There is a one-time fee of, I believe, $13 that covers service by Sheriff.

As a side note, it’s been my experience that most (if not all) courts require a judgment plaintiff to serve the initial proceeding supplemental document on a judgment debtor by certified mail or sheriff’s service. As a practical matter, this makes sense if a judgment creditor is going to ask the court to issue a writ of body attachment if the defendant fails to appear. However, when I researched this years ago, I came to the conclusion that the trial rules don’t actually require it. The court obtained jurisdiction over the defendant in the underlying litigation, and the plaintiff should be able to serve the defendant in future matters by ordinary mail with a certificate of service. The defendant is required to (but very often doesn’t) keep the court advised of any changes of address.