A Citizen's Guide to Indiana

Sen Gard’s SB 91 would permit an employer to consider a prospective employee’s tobacco use as a factor in its employment decision. At least that’s what I think it does. As it pertains to prospective employees, IC 22-5-4-1 states, “an employer may not require, as a condition of employment, a prospective employee to refrain from using tobacco products outside the course of the prospective employee’s employment.”

I’m not sure why the legislature saw fit to offer special protections to tobacco users in the first place. An employer could, if it wanted, decide not to hire golfers and terminate the employment of employees who golfed when they weren’t at work. It wouldn’t be a “just cause” termination, so the employee would be eligible for unemployment benefits. But, Indiana’s an “at will” employment state. But, in any case, Indiana seems to offer more protections to smoker employment than, say, golfer employment; and Sen. Gard is attempting to roll back one of those protections.

I believe Sen. Kruse’s SB 90 is properly understood as part of the non-existent Sharia menace.

Prohibits the enforcement of a foreign law (defined as a law established and used outside the jurisdiction of the United States) if the enforcement would violate a right granted by the Indiana or United States Constitution.

This part strikes me as gratuitous. What court in the U.S. is subordinating constitutional rights to foreign law? The whole scheme of statutory construction is premised on the notion that laws are unenforceable if they violate the constitution. So far as I know, foreign law is recognized as, at most, persuasive authority. That can change if, for example, parties have contracted to have their rights determined under a choice of law in a foreign jurisdiction, in which case the courts can be asked to determine the intent of the parties as to their rights under the contract by interpreting the law of a foreign jurisdiction.

The bill goes on to say that a foreign choice of law provision in a contract is void if it would violate someone’s constitutional rights. I think this is already a principle of contract interpretation, but it mostly does not come up because constitutions typically constitute the bounds of appropriate government behavior and not relations between private parties. So you can, for example, enter into a non-disclosure agreement without violating the First Amendment guarantee of free speech. On the other hand, a contract to enslave yourself is unenforceable.

I don’t know that this bill has any practical application. I think it’s properly understood as another chapter in the Great Sharia Freakout. See also.

I have a theory that lawmaker’s brains are made of tapioca, and I demand that this be taught as a theory in high school civics and biology classes. O.k., it’s not a “theory” in the scientific sense wherein “theory” does not mean the same thing as unfalsifiable, wild-ass guess. In related news, Senator Cruse has introduced SB 89.

This bill would add a section to IC 20-30-6 that says:

Sec. 18. The governing body of a school corporation may require the teaching of various theories concerning the origin of life, including creation science, within the school corporation.

What’s worrisome here is that the use of the terms “creation science” and “theories” hint at the notion that it’s optional to teach creationism as science; which is bad science and bad public policy. The schools can already teach creationism as part of a course on comparative religion along side, I suppose, the “theory” that we’re riding a disc on top of an immense cosmic turtle and, from there, it’s turtles all the way down.

Sheila Kennedy has an impressive rant on the subject. For my part, I want the bill to specify whether the option is to teach “creation science” as science or as not science. If the former, it should be roundly rejected. If the latter, then I don’t have any strong feelings; just a general sense that the legislature ought not get too involved micromanaging school curriculum.

Sen. Steele’s SB 87 would prohibit a court from admitting evidence, in a personal injury action, of a writeoff, discount, or other deduction associated with a “collateral source payment.” In simple terms, this means that the court could not allow evidence that a medical provider accepted payment from an insurance provider of something less than 100% of the sticker price as satisfaction in full of the medical debt.

This matters quite a bit because a jury is directed to award an injured person, among other things, the “reasonable value” of the medical services required because of the injury. Under Ind. R. Evid. 413, a statement from the medical provider constitutes prima facie evidence that a charge for the service is reasonable. That means the plaintiff can carry his or her burden of showing what the service cost and that it is reasonable simply by showing the bill. The defendant, then, is allowed to counter the plaintiff by introducing other evidence showing that a different number is, in fact, the reasonable cost of the service.

The 800 lb. gorilla in this particular room is that the market for medical services is dysfunctional, and the sticker price on medical bills are often fantastic, based on a marked up chargemaster price, used primarily for the purpose of starting a negotiating point for insurers and Medicare.

Personal injury plaintiff’s lawyers love this phenomenon since it increases the take for their clients (and, incidentally, improves the contingency fee) – the insurer pays a reduced negotiated fee to the hospital, the jury only gets shown the sticker price and awards that, the plaintiff pays the insurer back the reduced amount, and the plaintiff keeps the spread. Everyone wins but the defendant. The argument goes that the defendant should not be rewarded for the prudence of the plaintiff in getting insurance. That’s true, as far as it goes, but the defendant should also not be penalized because the sticker price of a medical bill is inflated above market rates. (There is also a concern, based probably on now outdated notions about insurance, that the jury will be less likely to award damages on insured losses because it’s already been taken care of.) Indiana courts have started allowing evidence of insurance write downs, notably in the case of Stanley v. Walker. This is a reaction to that.

The fundamental question is how do we get juries to arrive at a “reasonable value” for medical services. Unfortunately, that’s a challenge nobody, let alone juries, has been able to solve with any notable success.

SB 121 exempts home brewers from the law prohibiting a person from refilling a container with alcoholic beverages.

From the What The Hell Department, we have Sen. Becker’s SB 122 which requires that a school is required to enter into a contract with a performer before the performer is allowed to sing the Star Spangled Banner.

If they don’t do it right, they have to pay $25 bucks. The contract has to incorporate standards for singing the national anthem set by the Department of Education. The standards have to include:

1) Acceptable words and music.
2) Procedures for recording the performance and maintaining it for 2 years.
3) Procedures for filing and adjudicating complaints.

Update This had slipped my mind when I wrote the post originally, but I’ll bet this has something to do with the complaints about the national anthem as performed by a Bloomington North student. The student is black, and the complaints arose from a performance she did in Martinsville, so there have been questions about whether there was a racial component to the complaints.

So, in any event, while this raises shades of the apoplexy over Roseanne Barr’s performance of the National Anthem in 1990, the legislation probably didn’t come out of nowhere.