A Citizen's Guide to Indiana

Masson's Blog

State GOP Platform Excludes Same Sex Couples from ‘Strong Families’ Formulation

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Thomas Langhorne, writing for the Evansville Courier Press, has a report on the Indiana Republican convention where the group came up with the party platform. One plank states as follows:

“We believe that strong families, based on marriage between a man and a woman, are the foundation of society. We also recognize that some families are much more diverse and we support the blended families, grandparents, guardians, single parents and loving adults who successfully raise and nurture children to reach their full potential every day.”

The language is notable for its insistence on the “a man and a woman” composition for strong families. I’ll get to the exclusion of same-sex couples in a second, but the way this thing is drafted, the support for everyone but married, heterosexual couples is really backhanded. I don’t know that this was the intent, but shoe-horning the man/woman language into the text changes the message for everyone else. If the language said, “we believe strong families are the foundation of society. We recognize families are diverse and support . . . ” that would be an indication that families, of whatever composition, are critical to society and we’re going to support them. As it is, the language says that families not centered upon a heterosexual, married couple are not foundational. They are incidental — at least by implication. Saying that marriages ought to be heterosexual is one thing (a thing with which I disagree), but saying that families composed of grandparents and guardians and whatnot are something other than foundational is fairly startling.

As for the idea of same-sex marriage, I was originally thinking of picking holes in the rationales for opposing same-sex marriage: their Biblical interpretation is rigid on this point where they  re-interpret or ignore other parts of the Bible; their historical analysis ignores many times, places, and aspects of marriage in our past; the State’s interest in marriage is not the same as that of the Church; and so forth. But, that’s probably somewhat disingenuous of me. Whatever the merits of the arguments I could muster on those points, that’s ultimately not why I support same-sex marriage. I support it, pretty simply, because I have gay friends and family members. I grew up in a time when being gay was regarded as aberrant and immoral, and nobody I knew admitted to being gay. Fortunately, in my lifetime, being gay has more-and-more come to be regarded as more or less just another variable in the human condition. Some people are blonde, some people like beets, some people are gay, etc. We’re obviously not completely there yet and, because our culture has a lot of hang-ups about sex, it’s probably going to take awhile. But, at the end of the day, people who are gay are every bit as deserving of marital rights, duties, and societal support as people who are not gay. Extending them the legal recognition of marriage doesn’t hurt me and doesn’t weaken society. In fact, I believe it strengthens society. As such, I think the platform language adopted by the state GOP is misguided.

 

On Self-Pardon and the Rule of Law

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So, Trump has declared that he has the power to pardon himself, and a lot of very serious people are scratching their heads and some are saying it’s an open question. In terms of statutory language and precedent, the question is maybe a blank slate where the normal tools of legal analysis don’t shed much light. The analysis I’ve seen, however, seems to look at the law as an abstraction with right and wrong answers hidden in the back closet somewhere. And that’s the wrong way to look at the law. As a younger lawyer, I had this vague notion that I could work cases like a geometry proof — if I cited cases with the correct language, then the court had no choice but to find in my favor, irrespective of the real world consequences and subjective concerns like the perception of fairness.   But that’s not how it works.

The law has no independent existence. We have to give it power. In my role as an attorney for the Legislative Services Agency, I wrote statutory language on my computer. The words were conjured up in my head. But that didn’t mean I was personally creating law. The process of going through committee hearings, through one chamber, then the other and then past the governor, full of people who had been elected to the position — that’s the magic dust that turned the words I typed on my computer into law binding on the entire community. And, even then, the process wasn’t done — there is a huge apparatus of judges, law enforcement officials, and other bureaucrats who give life to the law. Ultimately, the law lacks meaning unless enough of us believe in its legitimacy.

Does a self-pardon have that sort of legitimacy? Can you point convincingly to the intent of the Founding Fathers to create an executive who could pardon himself for his own crimes? No. They were attempting to move away from monarchy, not toward it. Can you point to good policy reasons for giving a person the power to excuse himself from obeying the law? No.

Of course you’ll have partisans who will twist and turn and desperately contort their principles in an effort to make it o.k. But, any fair minded person is going to agree that, if the rule of law means anything, it means that a citizen will not sit in judgment of him or herself while everyone else is subject to the force of external legal processes. Of course, the law could obviously be circumvented by an amoral executive, a feckless Congress, and a complicit judiciary. The primary remedy for that is at the ballot box.

Fight Should’ve Been Stopped . . . Man could’ve been killed: Muncie Schools Edition

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Steve Hinnefeld has a good post on HB 1315 which allowed, among other things, Ball State to take over the Muncie Community Schools. (The citizens of Gary also lose their ability to govern their school corporation.)  Yesterday, I had tweeted some of the arbitrary, but mostly incidental exemptions the General Assembly decided to give Muncie Schools. For example, while they are still required to fly the flag, Muncie Schools are no longer required to sing the national anthem or offer a moment of silence for prayer like other public schools are required to do. Steve’s post gets into some more substantive exemptions:

The state law that calls for schools to receive A-to-F grades on the basis of student test scores and other measures? Muncie schools will be exempt. The law requiring state intervention and potential takeover for schools that consistently get low grades? Exempt from that too.

The post also says, “Behning said drastic measures were called for after the Muncie and Gary school districts dug themselves in deep financial holes.” The conceit that Gary and Muncie simply did this to themselves reminds me of a post-fight interview I watched a long time ago. “Merciless” Ray Mercer had knocked out Tommy “Machine Gun” Morrison. As Wikipedia put it, “With Morrison backed up into the corner, Mercer was able to land a 15–punch combination. Clearly hurt from the exchange, Morrison slumped against the ropes, but the referee allowed Mercer to land several more punishing blows to a now defenseless Morrison before finally ending the fight.” After the fight, Mercer was asked about it. He replied, “fight should’ve been stopped. Man could’ve been killed.” The phrasing stuck with me. As if he had no responsibility for the punishment inflicted on Morrison.

I’m sure Gary and Muncie could have done better, but as the post points out: “Both districts have lost considerable state revenue, in part because of changes in the school funding formula and in part because of the growth of charter schools, vouchers and inter-district public school transfers. Both had their local tax revenue cut dramatically by Indiana’s property tax caps.” Those have to be analogous to a good 9 or 10 of these punches:

Let the Teens Sleep: Noblesville Schools

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Emma Kate Fittes, writing for the Indianapolis Star, has an article on a plan by Noblesville Schools to basically flip their elementary and high school start times to accommodate research showing that teens are wired to sleep later. “In 2019, elementary schoolers will start their day almost an hour earlier, at 7:50 a.m., and middle and high schoolers will begin more than an hour later, at 8:40 a.m.” This comports with a recommendation by the American Academy of Pediatrics that school start times for adolescents be 8:30 or later.

Studies show that adolescents who don’t get enough sleep often suffer physical and mental health problems, an increased risk of automobile accidents and a decline in academic performance. But getting enough sleep each night can be hard for teens whose natural sleep cycles make it difficult for them to fall asleep before 11 p.m. – and who face a  first-period class at 7:30 a.m. or earlier the next day.  . . . [T]he American Academy of Pediatrics (AAP) recommends middle and high schools delay the start of class to 8:30 a.m. or later. Doing so will align school schedules to the biological sleep rhythms of adolescents, whose sleep-wake cycles begin to shift up to two hours later at the start of puberty.

I suspect this move will cue the chorus of people who routinely complain about how we’re coddling kids these days. That chorus, I further suspect, has a significant overlap with the population which isn’t likely to be convinced by “research” and “science.” Their gut says that if we don’t make life hard for kids then we’re ruining them. Making them soft. Also, early start times were good enough for the older generations. (Also, walking to school uphill both ways in the snow, outhouses, leechcraft, etc. Probably.)

One parent asked, “if students would have access to wifi on the bus, to get a jump start on homework instead of waiting until they get home.” This was not part of the article, but . . . about homework: There doesn’t seem to be much evidence that it’s helpful. So, we could probably free up some sleep time by thinning out the amount of homework being assigned. But, again, that probably would offend our cultural sensitivity about the evils of sloth, virtue of work, and weird need to believe that each generation is worse than the last.

Needle Exchanges in the News

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I won’t say too much about this since it involves a local issue where I might be called upon professionally, but I saw two mentions of needle exchange programs in the news, back-to-back, and it seemed worth noting.

Scott Miley, reporting for CNHI, had an article about recommendations as to where potential opioid settlement money should go. (The lawsuits are fairly fresh, so discussions about settlement money might be a little premature). In that article, there was a discussion of needle exchanges:

The IU study also suggests that policymakers recognize the critical importance of syringe exchange and similar safe-space programs, which can provide Naloxone and treatment options.

“The state’s syringe exchange program (SEP) remains incoherent with major county-by-county variations,” the report states. “This is despite the clear evidence base for exchanges as recognized by, for example, the Surgeon-General’s Report (of 2016), their proven role in reducing the transmission of HIV/AIDS and overall cost effectiveness.”

Researcher Ross Silverman, professor of health policy and management, said that syringe and safe-space programs need to build trust with their communities. But policymakers, too, should evaluate Indiana law affecting those trying to seek help for addictions.

“The way that Indiana law is structured, when an individual can now be charged with a level 6 felony for possession of drug paraphernalia, sends a very contrary message to getting people to be actively involved in syringe exchange programs,” Silverman said.

The other story I happened to see was on the local Tippecanoe County needle exchange program, written by Jeong Park for the Lafayette Journal & Courier. There have been a variety of objections to that program locally, mostly centering on either the location of the program or on whether this encourages drug use. Fear of dirty needles has also been a prominent concern. This report is on the rate of return of needles to the program which is apparently up since the program’s inception last summer.

About 14,000 out of 19,700 needles given out have been returned as of March 31, according to the data released Thursday. That’s a return rate of 71 percent, an 11.5 percentage point increase from about four months ago. The county expects the rate to increase as more return to the program.

As of March 31, 230 people have used the program, an increase from 138 as of Dec. 31.

“We’ve been a bit surprised,” said Tippecanoe County’s health officer Jeremy Adler. “It’s a reflection of how bad the epidemic has hit our community. It’s an eye-opening number.”

Gateway to Hope, the needle exchange program, started in August to address the hepatitis C epidemic and other health challenges that come with the opioid crisis.

 

Intellect, Emotion, Glorious Justice, and Tricksy Hobbitses

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Sheila and Tipsy have recent posts that perhaps oddly seemed to mesh in my mind as having a theme in mind. Tipsy’s post touched on the role of Hell in Evangelical cosmology. This part stood out:

In fact, despite my own Calvinist background, just about the only people in these debates about hell who totally creep me out are those who seem to feel some deep emotional need for hell to exist and for most people to go there. This classic statement from Section VII of Article III of the Westminster Confession (which Confession I loved and which statement I accepted, albeit with little enthusiasm) captures something of that feeling:

The rest of mankind God was pleased, according to the unsearchable counsel of His own will, whereby He extendeth or withholdeth mercy, as He pleaseth, for the glory of His sovereign power over His creatures, to pass by; and to ordain them to dishonour and wrath for their sin, to the praise of His glorious justice.”

(Emphasis added) Maybe I’m reading it anachronistically, but that bolded phrase now gives me the willies. Eternal wrath and “glorious justice” seem difficult to reconcile in a way that would permit a decent human being, at least in our current state of seeing as through a glass, darkly, to exult in anyone’s eternal torment.

Meanwhile, Sheila quoted from Michael Gerson, former speech writer for George W. Bush, and discussed the struggle, perhaps the impossibility, of reconciling principled conservatism with Trumpian Republicanism. Principled conservatism has something to say about the desirability of tariffs and regulating immigration. But Trump isn’t coming at this from an angle that has anything to do with considered policy positions. She quotes Gerson as saying:

Trump’s policy proposals — the details of which Trump himself seems unconcerned and uninformed about — are symbolic expressions of a certain approach to politics. The stated purpose of Trump’s border wall is to keep out a contagion of Mexican rapists and murderers. His argument is not taken from Heritage Foundation policy papers. He makes it by quoting the racist poem “The Snake,” which compares migrants to dangerous vermin. Trump proposes to ban migration from some Muslim-majority countries because Muslim refugees, as he sees it, are a Trojan-horse threat of terrorism. Trump’s policy ideas are incidental to his message of dehumanization.

Both of these put me in mind of history books I’ve read which talk about the back and forth in Western European Christianity between the intellectual doctrine guiding Church leaders versus the more emotion-based narratives that motivated the rank & file. (I’m fairly certain I’ve read of similar dynamics for other religions, but Western European history is more home turf for me.) While scholars attempt to divine God’s will through carefully approved texts, the rank & file might be more appreciative of adventure stories featuring Saints. While intellectuals grapple with what it all means, the common person was more likely looking for something to help with the random horrors of day-to-day life. There often seemed to be a back-and-forth as the Church went up and down the spectrum from intellectual rigor to satisfying the emotional needs of adherents.

For those who value their faith more as an emotional balm than as an intellectual exercise, Hell often seems not to be incidental to God’s glorious justice. For too many people, punishing those who broke the rules and the smug satisfaction it brings to those who chose correctly is practically the whole point of the exercise.

I believe similar tension exists between principled conservatives and those who think a Trump Presidency is a good idea. Intellectually, tariffs and stronger immigration policy might have their place in the conservative toolbox but only where analytically necessary. For Trump, the positions seem no more rigorous than Gollum’s opinion of hobbits:

They’re thieves. They’re thieves, they’re filthy little thieves. Where is it? Where is it? They stole it from us. My Precious. Curse them, we hates them! It’s ours it is, and we wants it.
. . .
We wants it. We needs it. Must have the precious. They stole it from us. Sneaky little Hobbitses. Wicked. Tricksy. False.

And this has appeal to many Trump supporters in a way that Heritage Foundation papers don’t. They feel that the world has wronged them and seek a vent to this rage. Whether that vent is productive or intellectually coherent is quite beside the point. Perhaps any organization based on ideology is going to bounce between id and superego.

(The more I think of it, the more the Gollum analogy holds up better than it should. Gollum had a legitimate beef about Bilbo’s “what I have I got in my pocket?” question during the riddle game. Total b.s. as a riddle. But, looking at the larger picture, Gollum only had the ring because he murdered Déagol to get it, and his efforts to reclaim it were antisocial and counterproductive. Hopefully the Trump Presidency is merely the finger we have to sacrifice on the road to wise leadership and a more just future. If that’s going to happen in 2020, we’re still waiting for Aragorn to emerge from the wastelands.)

Phil Downs on the Cumulative Effect of Vouchers

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We’ll be better off if we make sure that our kids become smarter than we are.

Phil Downs, Superintendent of the Southwest Allen County Schools, has a column in the Fort Wayne Journal Gazette that very patiently works through some of the funding issues with the voucher system in Indiana. Generally, he says that overall state funding of education hasn’t kept up with inflation and, in addition, vouchers have an impact on your school even if none of the kids in your school district use a voucher to go to private school.

It is conventional wisdom that the voucher program only affects big cities. While voucher usage is higher in big cities, the financial effect is felt in every school district because the voucher dollars come out of Tuition Support, in effect reducing the dollars supporting students in all public schools.

Recall that vouchers were initially sold as a way for public school kids to get out of struggling schools. From that premise, it has grown to be one of the most expansive voucher programs in the nation. Now we have a system where it’s not necessary for a kid to have ever attended public school and it’s not necessary for the school to be struggling for the kid’s parents to divert money from the public school. (Downs says that, of approximately 35,500 voucher students, only 274 were used to leave an F-rated school). Now, we see it’s not even necessary for kids in your district to flee to voucher schools in order for your district to suffer from the voucher program.  He suggests that Peru Community Schools had no vouchers used within its system and, even so, the state’s voucher program cost Peru $321,000 in funding. This reduced funding does not, by the way, result in a better education for the voucher kids.

It’s no secret that I’m critical of the money-follows-the-child philosophy on which the voucher system is premised. People with no children pay into this system. We fund education to build our communities. We do this, in part of course, by educating the individual students. But our schools are also part of the fabric of our cities, towns, and counties. They help tie us together and make us a community rather than a mere collection of individuals.

Special Session Coming

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The Governor announced that he will call a special session after the General Assembly ended sine die with the clock having run out on some of his priorities. Indiana law provides that, for a short session, “The second regular session of each term of the general assembly shall adjourn sine die not later than March 14 in any even-numbered year.” (IC 2-2.1-1-3). The finish to the short session has been described as “chaotic” as time ran out, the clock struck midnight on March 14, and the session ended by law. This article in the Indy Star by Tony Cook, Kaitlin Lange, and Arika Herron has a great timeline.

In the murky days of yore, there are stories of the General Assembly literally stopping the clock in the chambers and continuing their work. This time, there was an aborted attempt of dubious legal affect to have the Governor sign an order keeping the session going. (As a former employee at the Legislative Services Agency, I cringed at the motion with “adjournment” misspelled and Sen. Long’s name crossed out and replaced with Governor Holcomb’s. I know that someone was ordered to produce that document in extreme haste. We had an unofficial saying, “if you want the document bad, that’s how we’ll give it to you!”)

Tim Swarens has what strikes me as an overly glib column on the supposed incompetency of the General Assembly. The Senate didn’t stay in session long enough! They knocked off early and spent too much time honoring themselves with resolutions! I think this probably ignores the underlying mechanics of the negotiations with respect to the legislation that didn’t get passed. As an initial matter, let me say that I have absolutely no inside knowledge of what happened. I’m just going on the news reports and some experience with negotiations generally. There was plenty of time to get everything done. But, there are some people who simply won’t negotiate in good faith until there is time pressure. They think they’ll get a better deal if they are stubborn and use the ticking clock. It sounds to me like someone miscalculated. Rep. Soliday was singled out for special mention by Sen. Long. Whether it was him particularly or not, it sounds to me like someone in the House was playing games and the early adjournment and lengthy resolution process was the Senate’s way of pushing back. To me, the moral of the story seems to be that you ought to (if at all possible) square away your negotiations earlier in the day, even if it means compromising a little more, and get your legislation locked down before the mad rush at the end.

The Governor’s priorities for the special session are reported to be “a funding boost for school safety, providing Muncie Community School Corporation with a one-time $12 million loan and matching the state’s tax code with the federal tax reform changes.” Those aren’t bad priorities, but our courts have held that the power of the General Assembly to legislate on any subject when convened in special session is not limited by the Constitution. The Governor says he’ll call the special session in mid-May. Per IC 2-2.1-1-4, a special session “shall continue for not more than thirty (30) session days nor more than forty (40) calendar days following the day upon which it is commenced.” It will be up to the General Assembly itself to determine whether to limit itself to the topics suggested by the Governor. I wouldn’t be surprised if the good folks in Americus have to spend the next month or two watching out for Rep. Ellington to see if he tries to slip any more language eviscerating local control over mining into whatever bill might be handy.

 

Beer on Sundays: Emergency Legislation!

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Indiana's liquor laws will drive you to drink

B double-E double-R U-N: beer run. B double-E double-R U-N beer run. All we need is a ten and fiver; a car and key and a sober driver. B double-E double-R U-N: beer run! (But not until noon on Sunday).

At long last, the people of Indiana can buy alcohol for carry out on Sundays. It’s a little amusing that, though the law prohibiting Sunday sales has been an anachronism for decades, the enacting legislation says “an emergency is declared for this act.”

The “emergency” language sounds funny under the circumstances, and so I’m not above poking a little fun. The explanation for the “emergency” language is that this is a bit of boilerplate that’s added when the General Assembly wants legislation to go into effect immediately upon passage. Without that language, it’s standard for legislation to go into effect on July 1 of the year in which it’s passed. (I guess I’m not certain whether there is a date prior to July 1 that wouldn’t require the “emergency” declaration.)

For some time, it’s been legal for restaurants and bars to sell alcohol on-site on Sundays. More recently, they passed legislation that lets craft breweries sell beer for carryout on Sundays. (And, as I now have three quality breweries within 4 miles of my house, this has been my go-to solution if I’ve felt like buying beer on Sundays.) The prohibition on retail sales has, therefore, been arbitrary for a long time.

It’s easy to carp about how long it took Indiana to make this move, but we should probably take victories where we find them. Still, at least one arbitrary prohibition remains: while retail sales of alcohol are permitted on Monday through Saturday from 7 a.m. to 3 a.m., on Sundays such sales are legal only from noon – 8 p.m. What’s the explanation for this? It looks like a church thing, but maybe there is something else about Sunday mornings that cries out for special treatment. (If it is a church thing, that raises some First Amendment questions. And, as a practical matter, it’s a fairly small percentage of the American population that goes to church on Sunday mornings. Many are members of faiths that have services at other times and other days. Many more just don’t go to any kind of service.) If the differential treatment of Sundays is not a matter of religious preference, the law still has to meet a rational basis test. This is a pretty low bar for laws to clear; but, even so, it’s not immediately clear to me what the rational basis might be for mandating reduced hours on Sundays but not on other days.

That said, this is positive legislation. Cheers!

SB 386: Nothing is Dead Until Sine Die – Eliminating Local Control of Mining Operations Resurrected

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Indiana General Assembly mining regulation legislation

If I want a strip mine in my backyard, the nanny state government shouldn’t be able to tell me “no.” It’s not my problem if the neighbors can’t sleep through the 3 a.m. blasting.

Rep. Ellington has proposed an amendment to SB 386 which has to do with funding flood control projects. Rep. Ellington’s amendment would roll the text of HB 1289 which I blogged about a couple of weeks ago into SB 386. Not to put too fine a point on it, but the scope of this language is breathtaking. When you break it down, it says that “a county, city, town, or township may not regulate the extraction of mineral resources on private property.” [Edited: Originally, I said that this would affect  things like the Carmel ordinance. I think it has been edited so that now it would not — it now says that a unit may not regulate the development of natural resources on private property outside the of the corporate boundaries of a municipality – a “municipality” is a city or town. So, the County couldn’t regulate your mine if it was just outside the city boundary, but it looks like the city may be able to regulate things inside the boundary line.] This means that citizens in unincorporated places like Boonville and Americus can’t go to their County Commissioners to ask for help if someone is blasting rock on their neighbor’s property at 3 a.m. or altering the flood plain with the spoil from their excavation.

I’ll take a moment to walk through the main portion of the text by way of explanation:

It adds a new IC 36-7-39, section 3 of which reads, “A unit may not regulate the development of natural resources on private property.” Section 1 states that “development of natural resources” includes “the extraction of mineral resources.” A “unit” means a county, municipality, or township. And, a municipality means a city or town. Put that all together, and it says that, “a county, city, town, or township may not regulate the extraction of mineral resources on private property.”

The original HB 1289 passed through in the House, in large part I believe, because legislators didn’t really understand what was being proposed. I think they thought this was just about some trees in Boonville and the legislation wouldn’t have a lot of statewide implications. When word started to get out about the scope of this thing, it seems that the Senate Committee on Natural Resources wasn’t inclined to give 1289 a hearing. So, you get maneuvers like this, where Rep. Ellington is trying to have it inserted in a bill that has already cleared the Senate. If successful, the bill would then be able to circumvent the regular committee process in the Senate, only having to clear a conference committee and the full Senate.

Hopefully House members will be a little more skeptical of the implications of the mining language if this Amendment receives a floor vote.