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.

HB 1225 – Public Records Requests for Police Video

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.

HB 1136 – Fetus Means Blastocyst

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 – Tenant Sewer Fees

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.

HB 1061 – Study of “Bert J. Harris Private Property Protection Act”

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.