Rep. Leonard has introduced HB 1040 which essentially abolishes the “American Rule” for attorney’s fees. The “American Rule” is the default for civil litigation in the U.S. and basically establishes that, unless a law or contract specifies to the contrary, each party bears their own legal fees. This is distinct from the “English Rule” where the loser pays attorney fees. HB 1040 would provide that “in all civil actions, the court shall award attorney’s fees as part of the cost to the prevailing party.” (emphasis added.) On its face, this doesn’t sound like such a bad idea. It sounds fair. Why shouldn’t the person who was wrong have to pay the person who was not wrong for the expense of litigation? But, as a practical matter, it would discourage middle class people from bringing or defending against lawsuits. Rich people can afford the risk. Poor people have nothing to lose. Middle class people could be wiped out by a debatable point of law or an arbitrary jury. It would also tend to inhibit settlements beyond a certain point. If the legal fees get to a certain level, parties in a tenuous financial situation might not have any realistic option besides seeing it through to the bitter end and hope they win.
Sen. Boots has introduced Senate Joint Resolution 9 which would amend the Indiana Constitution to prohibit courts from mandating state or local government to expend money for the operation of any court in the State. I have mixed feelings about this one. In my experience judges have been pretty restrained about mandating that money be spent for court operations. But, I have seen such mandates in cases where it didn’t look like the County in question was trying to target the court; rather the county council was working with limited resources and county departments in general had to make due with less. Courts are state entities funded by the counties where they operate, so they are different from the standard county department, but those situations still at least felt problematic.
On the other hand, one rationale for giving the courts mandate power to secure the operation of the courts is to preserve judicial independence. You don’t want the state or a county that has been subject to an adverse decision or has a matter pending before the court to try to leverage more favorable decisions by granting additional funds or withholding them. Putting the courts at the mercy of other entities for their funding could obviously be abused.
I don’t know if anyone anywhere does it this way, but my knee-jerk thought is that it might be good to give the Supreme Court taxing authority and have it take responsibility for funding the courts.
Sen. Holdman has introduced SB 189 which would allow golf carts to operate on non-Interstate highways. It has to be operated in a manner that does not impede traffic or endanger life or property. In most cases, it has to be operated “(i) in the right hand lane available for traffic or (ii) as close as practicable to the right hand curb or edge of the highway.” As drafted, I’m not really sure where item (ii) would be a limiting factor. Unless you’re driving the wrong way on a one-way isn’t there always going to be a right hand lane available for traffic such that this doesn’t obligate you to crowd the curb? Or maybe item (ii) is only applicable on one-lane one ways (since there is no right hand lane)? Neither items (i) or (ii) are applicable if the golf cart is passing another vehicle or is preparing for a left turn.
Maybe I just don’t live in the right places, but how necessary is this legislation? I guess you’re not supposed to think this way when writing laws, but seems like if the golf cart isn’t causing problems, local law enforcement is probably going to look the other way.
This is a very slightly modified reprint of a post from 2010, providing some small insight into the process of how Indiana’s Legislative Services Agency converts a bunch of legislators’ ideas into a stack of bill drafts they can consider and vote on during the legislative session.
Maureen Hayden, writing for CNHI, had written an article (in 2011) on bill requests being made by legislators and being drafted by employees at Indiana’s Legislative Services Agency (LSA). At that time, there had been about 900 bill requests (in the December heading into a long session.) We’re heading into a short session this year, so that number is likely to be less. However, the General Assembly is pretty erratic about what they make available to the public prior to the session. So, for example, the House of Representatives has posted only 5 bills. That number will surely explode tomorrow when the legislature comes back into session. Anyway, the drafting process:
I used to work for LSA back in ’96 – ’99. Ms. Hayden reported in 2010 that LSA consisted of “about 80 lawyers, fiscal analysts and support staff.” Most of the bill requests are drafted by the lawyers in the section of LSA called the Office of Bill Drafting and Research (OBDAR). There were 18 of us when I was in that office. The lawyers had fiscal analyst counterparts in the Office of Fiscal Management and Analysis (OFMA). The fiscal analyst provides a report on the fiscal impact of a given piece of legislation. A third branch of LSA is the Office of Code Revision. After my stint at OBDAR, I became a deputy director at OCR. Our job, during session, was to edit the bill drafts submitted by the OBDAR attorneys.
The way it worked was, a legislator would come in and meet with the director of OBDAR and tell him what he or she wanted, generally, in terms of legislation. The director summarized the request and assigned it to a bill drafting attorney. (I don’t know how, exactly, the OFMA analysts got assigned, but there was a corresponding assignment to a fiscal analyst.) The drafting attorney would, in a lot of cases, just draft the bill without having to do a lot of extra research. A good chunk of these bills are simply repeats of requests from prior years. A fair number of others are pretty basic — e.g., change the speed limit from 65 to 70 mph. But, there are still plenty of requests that are complicated.
For the complicated ones, you work out the questions that need to be answered, and try to get in touch with the requesting legislator. This can be a challenge – these folks are very busy. Then, you have to get the legislator to slow down enough to pay attention to the, usually boring, details of the issues you need to work through. A lot of legislators are frenetic, big picture types — not generally inclined to put everything on hold to really bear down on niggling details.
A lot of times, lobbyists are involved – either the legislator is carrying water for a particular group or that group is a trusted source of information and policy advice for the legislator. So, you’ll have to talk with those folks. Not uncommonly, you’ll get a draft piece of legislation that has originated with the lobbying group. Often, these drafts are horrible messes that don’t really pin down who gets to do what to whom and under what circumstances. They require an extra step. Before you can get to work, you have to discern what these drafts are actually trying to accomplish. Only then can get to work on drafting language that actually accomplishes the goal.
Because of the legislative calendar, the bulk of bill drafting season coincides with the holiday season. Elections take place in early November. Legislators get organized through early November. Bill requests really get going in the latter half of November. What’s really fun is when a legislator pops into LSA on his way to the airport in Indy to drop off a pile of bill requests before he or she flies off to a Christmas vacation some place warm with the family. Anyway, you end up with long days and nights of drafting through the end of November all of December and into January before the General Assembly kicks into gear the first or second week of the new year.
The good folks at LSA are a little like legislative elves, slaving away in Santa’s sweatshop, churning out bills for good little representatives and senators to introduce at the beginning of the session.
As for the number of bills produced, from talking with folks who have been at LSA for a long time, it seems that the number is essentially a function of the technological ability to produce the documents. It used to be that setting the type and producing the paper was more of a barrier to creating bills. With word processing and reproduction getting easier and easier, that has allowed the number of bills to increase over the years.
Sen. Leising has introduced SB 182 which basically requires a health care practitioner to disclose the nature of his or her licensure in any advertising and to wear a badge while providing direct health care that states their name and licensure. This applies to a “practitioner” which is defined as someone who holds a license, certificate, or permit regulated by a variety of regulatory boards (e.g. chiropractic, nursing, dentistry, medical licensing, optometry, podiatrist, pharmacy, psychiatry, psychology, physical therapy, audiology, athletic trainer).
It requires that, when advertising for health care services (not defined, I don’t believe), the practitioner must prominently identify in the advertisement the type of license held by the practitioner. It also provides that, with certain exceptions, when providing direct patient care, the practitioner must wear an identification badge. “Direct patient care” is defined as “health care that provides for the physical, diagnostic, emotional, or rehabilitation needs of a patient, or health care that involves examination, treatment, or preparation for diagnostic tests or procedures.” The badge must state the practitioner’s first and last name, the type of licensure using the name of the relevant profession, and – if applicable – the practitioner’s status as a student, intern, trainee, or resident. Exceptions to the badge requirements are permitted if it’s not clinically feasible (e.g. during surgery), where there is some concern for the practitioner’s safety (not stated – but I’m thinking having the last name on the badge while providing care to a violent criminal?), the relevant information is already posted on the door to the office, or if the practitioner has the information posted on the wall of their office.
Health care already feels like such an inscrutable maze, I guess I’m not optimistic that these additional bits of information will really make a dent in the challenges we face as health care consumers. It feels like drops of water in the ocean. Meanwhile this adds just a bit more bureaucracy to the system.
Sen. Zay has introduced SB 143 which would alter the composition of the State Board of Education. Currently, it is composed of the Superintendent of Public Instruction, eight members appointed by the governor, one appointed by the President pro tempore of the Senate, and one appointed by the Speaker of the House of Representatives. Three of the Governor appointees have to be at least nominally from another party. With the elected Superintendent of Public Instruction position being replaced by the Governor-appointed Secretary of Education position beginning in January 2021, that’s a lot of marbles in one basket.
SB 143 would give the Governor two appointees (plus the Secretary of Education). The Speaker of the House would get three, the President pro tempore would get three, and the minority leaders of the House and Senate would each get one. Under current law, six of the Governor’s eight appointees are required to have “professional experience in the field of education.” Under SB 143, six of the appointees would still be required to have professional experience in the field of education but the legislation does not specify how that requirement is to be coordinated among the appointing authorities. Also, the meaning “professional experience in the field of education” has been tweaked. The current definition says that means teacher, principal, superintendent, or assistant superintendent. The new law would add “an executive in the field of education.” I don’t known what that’s supposed to mean, but to my jaded eyes that screams “testing company executive” or “owner of a charter school management company.”
Diversifying the appointing authority for the State Board of Education makes sense. I don’t have strong feelings at the moment as to what might constitute the proper balance. As citizens, we should all be aware that the State has pretty thoroughly taken over education in Indiana and, with the Superintendent of Public Instruction set to no longer be an independently elected position, the power to set education policy will sit pretty firmly in the Governor’s office. Education represents something like 50% of the State’s budget. I don’t think it’s overstepping to suggest that a citizen’s vote for Governor or the General Assembly should mostly rise and fall on education policy.
Sen. Koch has introduced SB 196 imposing duties on prison superintendents and jail commanders to assist the federal government in enforcing immigration laws. It requires the person in charge of a jail, prison, correctional facility or other place of detention to “attempt to determine” a person’s residency status by asking the prisoner or by examining “relevant documents.” (Relevant documents are undefined.) If the person in charge of the detention facility is unable to make a determination, he or she is to check with Immigration and Customs Enforcement (ICE) and report the person’s presence to the Department of Homeland Security (DHS). (Oddly, this requirement is triggered only if the person in charge is unable to make a determination. I’m not sure if there is a reason why it’s not drafted to also require notification where the person in charge determines that the inmate is not here legally.)
If DHS requests a custodial interview, the detention facility is required to accommodate the request within 24 hours. If DHS notifies the detention facility that the inmate is the subject of a detainer, the person in charge of the detention facility (not DHS or ICE) is required to go to the local court and ask for a hearing concerning the detainer and, if the court determines that the inmate is the person who is the subject of a detainer, order the person held for an additional 48 hours.
The fiscal note does not address as potential local expenditures the costs of legal fees required to go to court with one of these petitions or the costs of Fourth Amendment lawsuits if it turns out that the federal detainers were not supported by probable cause. And often times they aren’t:
Federal courts agree that holding someone on a detainer after they have concluded their local or state custody constitutes a new arrest that must meet Fourth Amendment requirements. As discussed further below, most holds pursuant to ICE detainers do not satisfy the Fourth Amendment.
. . .
The Northern District of Illinois has ruled that detainers issued out of the Chicago Field Office (covering at least six states and sometimes more) because they exceed ICE’s own statutory arrest authority, although a request for a stay of the order revoking all the detainers has been filed, pending an appeal. This holding so far only applies to the Chicago Field Office, but its analysis is national, so any jail holding people on ICE detainers is risking liability for that detention.
Local jails and sheriffs have been held liable for unlawful detention and violation of the detainee’s Fourth Amendment rights because of unlawful detention based on ICE holds. 8 Moreover, many jails have been held liable or forced to settle with U.S. citizens that they unlawfully held on immigration detainers.
(The memo I’m quoting here is a couple of years old and isn’t from a neutral source, so you can quibble with whether or how much it’s overstating the case, but the issues it raises and the cases it cites are real.)
I don’t want to get into the ways in which federal immigration law is problematic, and state law already requires that local government not interfere with federal enforcement of immigration law. That’s a legitimate policy choice. This, however, puts local jails in a bad spot if the federal government isn’t doing its job. Like I said, if the detainers are not based on probable cause, the local government might be on the hook for holding the inmate without legal authority to do so. A jail might defend on the basis that the state court issued a 48 hour holding order — but I’m not sure if that would be sufficient. The proposed legislation does not contemplate a court making a determination on the legal sufficiency of the detainer — just whether the inmate’s identity is correct. And there are going to be legal expenses associated with preparing a petition, going to court, and explaining the law to the judge. These expenses are imposed entirely on the person in charge of the correctional facility.
Seems to me that the better way to accommodate the federal government while not burdening local government is to notify the federal government of the inmate’s presence and leave it up to the feds to go to court to get the hold order. They’ll presumably have much better access than state or local government to the information supporting a probable cause determination.
Update: It occurred to me that, because the inmate’s liberty is at stake, in all likelihood, the County will also have to pay for the inmate to have a public defender if the inmate is unable to afford one — and that’s probably going to be a substantial percentage of the inmates in this situation.
Sen. Koch has introduced SB 197 which concerns “prohibited technology purchases.” It defines a “prohibited person” as “a person that has been designated as posing a national security threat to the integrity of communications networks or the 10 communications supply chain under 47 CFR 54.9 (as in effect on 11 January 1, 2020).” According to the fiscal note, the two companies that meet this criteria are Huawei Technologies and ZTE Corporation. Both are Chinese technology companies. The bill prohibits the purchase of any services or equipment from these companies, effective upon passage. It does not make any provision for contracts already in place. The fiscal note says that the bill will affect only “projects which do not receive federal funding, as federally-funded projects are currently being addressed by the 2019 National Defense Authorization Act.”
Both Huawei and ZTE are accused of allowing surveillance by the Chinese government through their products.
Rep. Cook has introduced HB 1002 which gets rid of the requirement that “objective measures of student achievement and growth” as a required component of teacher evaluations. This is similar to the subject matter of SB 59 which I mentioned a few days ago which would limit such “objective measures” to 5% of a teacher’s evaluation. I keep putting the “objective measures” in scare quotes because we’re not entirely sure what they are measuring. On top of that, the problem with using them as part of a teacher’s evaluation is that there are too many confounding variables. It’s very difficult to trust that higher or lower student test scores are a function of any given teacher’s performance. For example, such scores track very closely with household income.
Sen. Kruse is engaged in a bit of culture war nonsense with SB 131 which mandates that each school classroom and library display a framed picture or durable poster with “In God We Trust” and the U.S. and Indiana flags. The poster has to be 11″ x 17″, the “In God We Trust” has to be at least 4″ x 15″ and the flags each have to be at least 5″ x 5″. No funds are appropriated for this expense.
This is bush league stuff. We’ve got real problems.