A Citizen's Guide to Indiana

Frakt on Entrepreneurship Lock & Healthcare

March 31, 2014 by Doug Masson Leave a Comment

Austin Frakt, writing in The Incidental Economist, has a good post on studies that have provided some insight into “job lock” caused by our health care policies. This is the latest in a series of posts along these lines and this one deals specifically with “entrepreneurship lock.” In other words, do people forego starting and running their own businesses because they need healthcare through another employer.

The preponderance of evidence from the literature is that “entrepreneurship lock” exists, though there are varying estimates of its extent.

I’ve always thought health care and employers go together like fish and bicycles. I would have preferred that Obamacare go further in decoupling the two things.

Do Corporations Have Religious Beliefs?

March 25, 2014 by Doug Masson 15 Comments

I don’t know the legal answer to that question – if it has been squarely addressed before, but the Hobby Lobby case was argued to the Supreme Court today and the question came to mind again. The ACA requires that if a corporation provides compensation to its employees in the form of health insurance benefits that the insurance include, among other things, coverage for contraception. The owners of the shares in Hobby Lobby Stores, Inc. oppose on religious grounds certain IUDs and pills that prevent impregnation of a fertilized egg into the uterus.

In my mind, corporations are incapable of belief and the religious beliefs of individuals are distinct from the religious beliefs of the corporations in which they have an ownership interest.

Corporations are a government created legal fiction designed to limit personal responsibility. There is obviously utility to the corporate structure. But, I don’t understand how religious beliefs can get through the corporate shield but personal liability cannot.

I could probably get behind allowing individual owners to abandon the corporate form and exercise their religious beliefs to avoid the contraception mandate if they felt that strongly about it. Or, better yet, go single payer and disassociate insurance and employment altogether.

Why Should Legislative Caucuses Be Private?

March 25, 2014 by Doug Masson 2 Comments

The Indiana Law Blog raises an interesting point that I’ve found mildly irritating for years. The underlying post is about Speaker Bosma’s request for an opinion about whether Rep. Turner violated ethics laws or other authorities by lobbying for a family member’s nursing home business. But that led Ethics Committee chairperson Rep. Steuerwald to voice concerns about the investigation potentially running up against confidentiality concerns with legislative caucuses.

Legislative caucuses are, generally speaking, where members of the same political party in a chamber (e.g. House Republicans, Senate Democrats) meet behind closed doors to discuss strategy.

Generally speaking, I think private discussions have some utility. For example, members can speak their mind without fearing that some poorly articulated nuance is going to be thrown in their face at the next political campaign. So, I’m not entirely against these private discussions. My gripe is that the General Assembly does not extend the same privilege to other public bodies. Under the Open Door Law, other boards, commissions, departments and offices exercising administrative, judicial or legislative power aren’t entitled to meet in private to hash out a decision in advance.

Whatever standard the General Assembly applies to itself should also be applied to other state and local boards and commissions. It’s a goose and gander thing.

Executive Orders Making Guarantees to the NFL and NCAA

March 25, 2014 by Doug Masson 7 Comments

Governor Pence has issued Executive Orders 14-04 and 14-05 providing for cooperation with the NFL and the NCAA respectively.

The executive order concerning the NFL is in furtherance of efforts to land Super Bowl LII and provides a commitment that Indiana will supply such things public safety, fire, and street maintenance services at no cost to the NFL or the teams playing. The State will also actively protect the NFL’s intellectual property rights — or at least that’s how I read the bit about agreeing to “actively protect against unauthorized promotional activities” for a three week period surrounding the Super Bowl.

The executive order concerning the NCAA is to host, I gather, one of the Final Fours between 2017 and 2020, and it makes similar guarantees to the NCAA and teams participating in the Final Four.

Vacation Over

March 23, 2014 by Doug Masson 5 Comments

My lack of posting the past 10 days or so has been due to our family Spring Break vacation. This year we went down to Cocoa Beach for a couple of days then got on Royal Caribbean’s Enchantment of the Seas for a four day cruise from Port Canaveral to Nassau and back. At Nassau we went to the Atlantis resort. On the way, we were supposed to stop off at Royal Caribbean’s island, Cocoa Cay, but the winds were too heavy to permit a tender from the ship to the island and back. We got back to port on Friday and surprised the kids with a trip to EPCOT.

Some thoughts in no particular order:

-Driving through the night is still my favorite way to travel long distances. My family mostly gets to sleep through the experience, we avoid almost all of the traffic, and I can indulge my obsessive compulsive driving habits which cause me to bristle at any delay for trivialities like food and boredom. This time, I started driving at about 4 pm and turned the wheel over to my wife at about 6 am (we stopped in Indy for dinner). I’m getting soft in my old age. Normally I would have held out for dawn and/or the Florida border, but I decided there was no need to be a hero. Podcasts have really revolutionized the driving process for me. I used to find an AM station with moderately interesting programming (Art Bell’s Coast to Coast AM used to be a favorite) and then suffer through an endless series of news updates and Gold Bond advertisements. We arrived in Cocoa Beach at about noon. On the way back, we drove through the day — got on the road at about 8:30 a.m. and arrived home at 1:30 a.m. this morning. Despite it being a Saturday, we had to slog through Atlanta traffic. I’ve never been brave enough to tack on the additional mileage necessary to get from Indiana to Florida without suffering through Atlanta.

-I hate the Orlando area with a white hot passion. It’s a toxic stew of strip malls, aggressive Christian signage, and an inscrutable patchwork of toll roads. First of all, I’m not a fan of the Disney properties or Orlando theme parks generally. This is a minor disgruntlement. Somehow I keep ending up there. Three years ago, we went to Disney because the kids were of an age where the pilgrimage seemed required. Then two years ago we went to Universal because we are Harry Potter junkies and they have Harry Potter themed stuff. Last year, we took a cruise excursion to Sea World when we docked at Port Canaveral (leaving out of Baltimore). This year, we couldn’t see leaving the warm Florida area a day early for the eternal Indiana winter. So we decided to leave a lot of extra cash with the Disney people instead. The experience is pleasant, but nowhere near worth the price. Kings Island and Cedar Point have much better rides. Aside from the theme parks, the driving is obnoxious. The development in the area seems like it was poorly planned or not planned at all, leading to an endless array of stoplights and strip malls. The toll roads, as I said, are inscrutable. The spacing of toll booths or the toll charged certainly does not seem to have anything but a nodding relationship to distance traveled. I assume there is a patchwork of competing jurisdictions, each delaying your travel and pawing at your pocketbook. If we’re letting Floridians travel our roads for free, perhaps we could charge them a hurricane relief fee to balance the scales? And, just as a cherry on top, I saw a fair amount of signage proclaiming my condemnation to hell, denouncing the baby murderers, and proclaiming that, if I’m honest, I know that God is real. Just the Christians though. I did not see any aggressive quotation of Koran or Torah passages.

-To the guy at EPCOT who couldn’t get a table for his family next to his brother at the German buffet, nicely done edging right up to Godwin’s Law without technically going over the edge. But, yelling at the server about anti-semitism as the reason for the seating snafu made you look ridiculous. Moreover, I can’t quite grasp the level of narcissism that leads you to conclude that your unhappiness with seating arrangements makes it appropriate to curse a blue streak in front of my family and dozens of others. Also, too, when tables full of strangers are jeering at you to sit down, it’s time to STFU.

-The Atlantis resort at Nassau is awfully cool. We went there for a day, but 2 or 3 days would have been better. There is just a lot to do there. The water slides are outstanding. The “Leap of Faith,” with its approximately 60 foot near vertical drop, is probably the big ticket slide, but some of the others – The Challenger, The Abyss, and the Surge – were very entertaining as well. . The place is just big and beautiful. In addition to slides and pools, “The Dig” is an impressive underground aquarium. We didn’t even make it to the beach that day.

-Cruises are a good place for kids to expand their palate. My kids continue to impress me with their sense of adventure when it comes to trying new food. They simply disdain the kids’ menu these days. In “real life” some of the fancy dining options would cost a fair amount of money to try, which is problematic if they hit something they just don’t care for. But on a cruise, with the meals prepaid, the dynamic is a little different. They can branch out with not a lot of risk if something doesn’t pan out. This particular cruise also had a rock climbing wall that the kids enjoyed quite bit. And so did I! I’ve never done rock climbing walls before, but it was fun – and, I’m happy to say, I successfully reached the top on my first try. I can’t imagine doing that for real in a setting where the hand and foot holds aren’t bolted in.

-The International Palms Resort in Cocoa Beach is not very resort like. We stopped there for a couple of days on the beach and got a room with a cool little divided off area with bunk beds for the kids. The lobby and public areas were nice enough, but the rooms were just trashy. Exactly like the kind of thing we would pile into on Spring Break in college. It wasn’t a big problem for us or anything but if you’re looking for posh or “moderately clean” or “mirrors that aren’t horribly scratched up” then this place isn’t for you.

And, for those of you who have read this far, here is a picture of me and the kids enjoying the beach.

Cocoa Beach

Nobody Expects the Spanish Inquisition: Senators, Intelligent Design, & Ball State

March 14, 2014 by Doug Masson 25 Comments

Senators Kruse, Walker, and Holdman, and Rep. Thompson are trying to inject themselves into a Ball State personnel and curriculum matter. Ball State apparently has a policy against teaching intelligent design as science. Which is fine because whatever intelligent design is, it’s not science. But, there is an astronomy professor who apparently wants to teach it as science.

The trial court in Kitzmiller v. Dover Area School District had some thoughtful things to say about Intelligent Design and why it isn’t science. The Dover court issued a 139 page decision (pdf). The court noted that ID was, at heart, a religious argument and observed that the writings of leading intelligent design proponents reveal that the designer postulated by intellgient design is the Christian God. This passage by the court gets to the heart of whether Creationism (or intelligent design) ought to be taught as science:

After a searching review of the record and applicable caselaw, we find that while ID arguments may be true, a proposition on which the Court takes no position, ID is not science. We find that ID fails on three different levels, any one of which is sufficient to preclude a determination that ID is science. They are: (1) ID violates the centuries-old ground rules of science by invoking and permitting supernatural causation; (2) the argument of irreducible complexity, central to ID, employs the same flawed and illogical contrived dualism that doomed creation science in the 1980s; and (3) ID’s negative attacks on evolution have been refuted by the scientific community. …It is additionally important to note that ID has failed to gain acceptance in the scientific community, it has not generated peer-reviewed publications, nor has it been the subject of testing and research. Expert testimony reveals that since the scientific revolution of the 16th and 17th centuries, science has been limited to the search for natural causes to explain natural phenomena.

However, not teaching it as science apparently strikes these social conservative legislators as anti-religion. So they are making ominous sounding rumblings at Ball State. The letter had ominous undertones of “nice university you got there, be a shame if the General Assembly had to investigate it.”

They suggest that they won’t be happy if the Ball State committee reviewing the matter is made up of scientists who think that intelligent design isn’t science. Which it isn’t. Populating the committee with mainstream views about what is and isn’t science would be stacking the deck, you see.

Once again, feel free to suggest intelligent design is a notion some people have about how the universe was created. But don’t suggest that it’s science. There is no testable, falsifiable hypothesis involved.

Judge Posner Is Not Amused

March 13, 2014 by Doug Masson 1 Comment

A March 12, 2014 decision by the 7th Circuit Court of Appeals must have been gratifying for the plaintiff-appellee in the case of Central States v. Lewis. Judge Posner gave the defendant-appellants a beat down – their lawyer in particular.

Plaintiff was a health plan. Defendant had been injured in a motor vehicle accident. The health plan paid for defendant’s medical bills to the tune of about $180,000 following a motor vehicle accident. Defendant (through her Georgia attorney — the accident took place in Georgia.) turned around and sued the person who caused the accident. So far, so good. The motorist’s insurance company paid defendant $500,000. The health plan has a lien against that settlement. The defendant is supposed to pay back her health plan the $180,000 because the wrongdoer has now paid for the injury. You can’t double dip. But her attorney just ignored the lien, paid his client $200,000 and pocketed the remaining 60%. (Awfully high as a contingency fee as Judge Posner notes).

The health plan filed suit to enforce the lien and get their $180k back. The District Court entered a preliminary injunction ordering the attorney to put at least $180k in his client trust account on behalf of his client until the lien issue was resolved. He ignored the order. When pressed, the lawyer proclaimed that his client had already spent her money and that none of the money in his firm’s account was from that settlement. When pressed for an accounting, their documentation was skeletal. The District Court entered a finding of civil contempt which was what was on appeal here.

The only supporting evidence cited (it is not discussed) is an affidavit by Lewis saying that she and her husband had spent her entire share of the settlement proceeds on a new house, a vehicle, and “repayment of personal loans, medical expenses, prescriptions, living expenses, and other expenses”; a pair of affidavits by Lashgari stating that neither he nor his law firm is “in possession of funds that could be used to” restore $180,000 to a client trust account; and a bank statement dated June 2011 for a trust account maintained by Lashgari’s law firm, Lashgari & Associates, P.C., www.lawyers4carwrecks.com (visited March 12, 2014). The bank statement shows the $500,000 deposit of the settlement proceeds and a subsequent withdrawal of $202,000, representing Lashgari’s disbursement to Lewis of her share of the settlement. The share he retained—$298,000, a shade short of 60 percent of the settlement proceeds—seems too high for a contingent fee, but he argues that Lewis owed him for unspecified “advances” that he had made to her. The latest entry in the statement is for June 30, 2011— fewer than three weeks before this lawsuit was filed—and shows a balance of $341,000.

These documents—the only evidence cited in the defendants’ brief—show that Lewis and Lashgari willfully ignored the plan’s lien against the settlement proceeds. Lewis’s statement does not indicate the value of her assets; even if she has spent every last cent of the settlement proceeds that she received, it doesn’t follow that she’s assetless— presumably she still has the vehicle and the house, and she has not indicated their value. And though her statement was not notarized until December 2012, it purports to state her financial situation as of May 2012; there is no subsequent information about her finances. As with Lewis, so with Lashgari: one of his affidavits states that the money in the trust account from Lewis’s settlement has been spent, but there is no information about the account’s current balance or the assets of his law firm.

. . .

The defendants’ conduct has been outrageous. After resolving the merits of the underlying suit, the district court should give serious consideration to transmitting copies of this opinion and the record to the Department of Justice and to the General Counsel of the Georgia Bar. In the meantime, we direct the district court to determine whether the defendants should be jailed (a standard remedy for civil contempt, see, e.g., Turner v. Rogers, 131 S. Ct. 2507, 2512–13 (2011); In re Grand Jury Proceedings, 280 F.3d 1103, 1107–08 (7th Cir. 2002)), until they comply with the order to deposit the settlement proceeds in a trust account.

Judge Posner described the defendants’ behavior as “contumacious effrontery.” He also questions why the District Court has been so slow to deal with this case.

If You Have the Votes, Sparring With Witnesses is Stupid

March 11, 2014 by Doug Masson 14 Comments

Niki Kelly, writing for the Fort Wayne Journal Gazette, has an article about a committee hearing concerning legislation that would restrict the property rights of schools by preventing them from restricting gun owners from keeping a gun in parking lots on school property. What struck me was the contentious posture apparently taken by some of the lawmakers toward testifying witnesses.

It got especially heated when Zionsville mother Shannon Watts, of Moms Demand Action for Gun Sense in America, testified. For every statistic she used, Lucas countered from a book he carried. For every statement she made on mass shootings, another lawmaker would refute. Lucas even pointed out her maiden name and read a list of her previous jobs to note her expertise in media and marketing. And Rep. Jud McMillin, R-Brookville, called her disingenuous for supporting background checks and other gun regulations but claiming to be a strong supporter of the Second Amendment. A representative from the National Rifle Association spoke in support of the bill, but no private citizens did.

Proponents of reduced firearm regulation don’t do themselves any favors by being unnecessarily confrontational. They will tell you that they are promoting self-defense and the constitution. However, they need to be aware that many proponents of increased firearm regulation see firearms as a force enhancer for blowhards who are spoiling for a fight. At this point in the process, Sen. Lucas should have his votes sewn up. Or at least he should have already educated his colleagues on the fence sufficiently that a witness like Watts is incidental to the process. At best, engaging her will do nothing. At worst, it will blow up in his face – making her more important to the process than he had any need to make her.

Also, are firearms still not permitted at the State House? Seems like a decent respect for consistency would make that the first place to drop restrictions.

CATO Brief on Truthiness in Political Speech

March 11, 2014 by Doug Masson 6 Comments

The Supreme Court case of Susan B. Anthony List v. Driehaus involves a challenge to an Ohio law that makes it illegal to “[p]ost, publish, circulate, distribute, or otherwise disseminate a false statement concerning a candidate, either knowing the same to be false or with reckless disregard for whether it was false or not, if the statement is designed to promote the election, nomination, or defeat of the candidate.” A parallel provision proscribes false statements “designed to promote the adoption or defeat of any ballot proposition or issue.” Susan B. Anthony List is a pro-life organization who planned to put up billboards that said “Shame on Steve Driehaus! Driehaus voted FOR tax-payer funded abortions.” They based this statement on Rep. Driehaus voting for the Affordable Care Act. He countered that the ACA did not fund abortions and threatened legal action. The Susan B. Anthony List’s advertiser refused to put up the ads due to the threatened action.

In any event, the CATO Institute with the assistance of P.J. O’Rourke filed a pretty bold amicus brief in opposition to the Ohio law and in support of the Susan B. Anthony List. It contends that truthiness is a time-honored and, more importantly, First Amendment protected part of American political discourse.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular humanist professors of Chicano studies.

I tend to agree with CATO on this one. Even setting aside First Amendment concerns, policing political speech for honesty is an unworkable legal thicket.

HB 1076 – Eminent Domain Actions by INDOT

March 10, 2014 by Doug Masson Leave a Comment

When the Indiana Department of Transportation seeks to acquire land for a road, it is required to make an acquisition offer to the owner. If the owner rejects the offer, under current law, INDOT is required to file a complaint to acquire the land by eminent domain within 6 years. If it fails to do so, INDOT is prohibited from initiating a renewed acquisition process for an additional 3 years.

HB 1076 shortens the time for filing a complaint to acquire the land from the 6 years to 3 years. Additionally, if INDOT does file such a complaint, courts are ordered to expedite the action and the court of appeals is instructed to adopt rules to expedite review of those trial court decisions.

That last part is pretty vague and, therefore, probably toothless if courts are inclined to ignore it. Aside from that, in light of the separation of powers, I wonder if the General Assembly is truly entitled to require courts to expedite particular things.