A Citizen's Guide to Indiana

Niki Kelly, writing for the Fort Wayne Journal Gazette, has an article discussing efforts in the General Assembly to change the school referendum process. This is the mechanism by which local populations can increase tax support for their schools if they decide the state support for education is inadequate. One of the initiatives, apparently dead for the session, would have required that locals wait until the next general election rolled around to put the question on the ballot. The rationale is that more people vote in these elections, so you get a truer sense of the will of the community. First of all, delaying a year or two to have a vote can impose real hardship if there is an educational need for the money. Second, the extra turnout in a general election is going to contain a lot of voters who don’t know what the hell is going on. This raises a philosophical issue of whether quantity or quality is better for governance: lots of votes, or a higher percentage of votes from people who understand the issue?

There is also a “school safety” referendum where voters can vote specifically for money earmarked for school safety expenditures: metal detectors, etc. However, as I pointed out in the linked blog post, “a system where Hamilton Community School Corp can generate 14x as much per student as Cannelton despite having similar population sizes and 8x as much per pupil as Mishawaka despite having, I suspect, fewer security concerns, is not a great system.” More generally, I’m not a fan of segmenting the permitted uses of money from these referendums. It’s a cumbersome process, so eventually micro-targeting the permitted expenditures is going to get to a point where the money generated is not worth the time, effort, and expense of getting the referendum approved. At some point, you have to trust school officials to spend money where the education needs are the greatest.

A third issue up for consideration (not discussed in the linked FWJG article) is in HB 1641 which would, among other things, require school districts for whom a referendum is approved to give some of that money to charter schools in their district. The money would be distributed according to school population — so if a public school was educating kids who are more expensive to educate while the charter school was cherry-picking less expensive students, the money would nevertheless go to charter schools on an even per-student basis. This looks like just another way of starving the traditional public schools of resources.

Sen. Alting has introduced SB 474 concerning terms of probation for people convicted of an animal abuse offense. The legislation makes a list of animal abuse offenses (e.g. animal abuse, animal neglect, use of animals in fights) and then requires that the offender be prohibited from “owning, harboring, or training a companion animal.” It defines companion animal as an animal which is not a service animal under IC 35-46-3-11.5. My only concern with this legislation is with the drafting of the service animal bit.

First, (as I mentioned in a discussion of SB 169), I’m not confident that the definition of “service animal” in IC 36-46-3-11.5 tracks with the definition in the regulations surrounding the Americans with Disabilities Act. In the Indiana Code, “service animal” is defined in a way that the animal is servicing only a subset of people with disabilities (blindness, deafness, physical disability, or medical condition). I’m not sure how medical condition is defined, but this might exclude service of people with a mental disability. The ADA also includes as disabled, for example, a person with a mental impairment that substantially limits one or more major life activities as well as someone who is perceived as having such an impairment. The Indiana definition of “service animal” says that it’s an animal that a person who is disabled (as described above) “relies on for navigation, assistance in performing daily activities, or alert signals regarding the onset of the person’s medical condition.” The ADA says that a “service animal” is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” So, there are animals that would be “service animals” under the ADA but not under the Indiana definition and vice-versa. That’s bound to cause problems.

Second, if all you want to do is exclude service animals from application of this law, I think you probably just say that instead of creating the newly defined term of “companion animal.”

Those issues aside, I definitely support the intent of SB 474. Dave Bangert, writing for the Lafayette Journal and Courier, has an article highlighting the Tippecanoe County background of this proposed legislation. Several of the cases he mentioned are very familiar to me — as I handled the civil ordinance violation cases against Sanders, Hansen, and Kirts mentioned in that article and was able to obtain a civil injunction prohibiting at least Sanders and Hansen (can’t remember about Kirts) from having animals in Tippecanoe County for a set term of years and indefinitely thereafter unless they petitioned the court for permission.

I’m glad that Sharon Dull got a mention in that article. If the animals in Tippecanoe County have a bigger champion than her, I don’t know who that would be.

SB 352 introduced by Sen. Leising would amend the law concerning when a minor can consent to receipt of medical services. It failed to pass by a vote of 25 nays to 24 ayes. I believe that means it could be brought to the floor again because it wasn’t defeated by a majority.

Generally, it’s up to the parent to consent on behalf of someone who is under eighteen years old. There are some exceptions: e.g. the minor is married or emancipated. This legislation would add to the exceptions, permitting a girl who is at least 16 years old and pregnant, in labor, or within 60 days postpartum to give consent to the minor’s medical care relative to the pregnancy, delivery, and postpartum care.  The introduced version of the bill stated that it included consent to obtaining postpartum contraception but that was taken out in committee. (If I’m understanding Mary Beth Schneider’s reporting on Twitter about Sen. Leising’s statements, federal law makes contraception available to minors, so that committee change might be more symbolic than substantive.) The legislation also specifically excludes consent to an abortion from application of this legislation.

It’s hard to argue with Sen. Leising’s statement:

Leising said she can almost guarantee that if a girl comes to a doctor or ER when pregnant, even without parent, “she needs care.”

On an abstract level, I suppose one could argue that, if we require parental consent for a minor’s medical care generally, why should pregnancy be any different? I think the answer is that it’s because people aren’t entirely rational when it comes to the subject of their kids and sex. Decent parents are going to get their kid treatment for a broken leg or cancer — or at least try.

Because of the moral cruft that’s built up about sexuality and pregnancy over the centuries, otherwise decent parents might well fail their daughters when it comes to medical care related to pregnancy. Or, even if the parents would do the right thing, it may be that daughters can’t face what they believe will be the moral opprobrium coming from their parents and, as a result, they harm themselves or their babies by avoiding the discussions with their parents and, consequently, not obtaining necessary medical care.

Rep. Miller has introduced HB 1158 concerning bid requirements for public works contracts. The description calls the bill “fair and open competition for public works contracts.” I consider it a red flag whenever a bill is editorializing for itself. Let the policy do the talking.

This bill provides that a governmental agency soliciting bids for public works projects can’t require a potential bidder to submit any information which the bidder considers to be confidential or proprietary. It doesn’t define confidential or proprietary and, therefore, gives the bidder way too much control over the process. What if the governmental agency wants to know if you’ve been accused of sketchy labor practices in the past, used inferior quality materials, or have a history of delayed completion? The language of this legislation seems to make it too easy for a bidder to label inconvenient information as confidential or proprietary.

The bill also says that a governmental agency can’t limit the pool of potential bidders by requiring a certain sized company, certain background experience, or union membership. In the quest for the cheapest bid, this requirement would seem to put public works projects at a greater risk of poor quality work. Sometimes you get what you pay for.

Finally, the bill dictates that a governmental agency not make union membership or contracting with labor organizations a condition of the bid. So, in this respect, it’s pretty straight forward anti-labor legislation.

Flood schmud. If I want a strip mine in my backyard, the nanny state government shouldn’t be able to tell me “no.”

Rep. Jeff Ellington has introduced HB 1531 which renews his efforts to limit local control on mining. Readers of this blog might remember his efforts last year to pass legislation which likely would have had an impact on the efforts of our folks here in Tippecanoe County — particularly near the town of Americus — to resist efforts of Rogers Group to place a mine near their homes. The language in his current HB 1531 isn’t so broad as last year but would likely have the same effect. Of particular interest to Americus is the following effort to amend IC 36-7-4-1103(c):

(c) ADVISORY—AREA. This chapter does not authorize an ordinance or action of a: (1) plan commission; or (2) board of zoning appeals; that would prevent, outside of urban areas, including flood plains, the complete use and alienation of any mineral resources or forests by the owner or alienee of them.

The key addition here is, “including flood plains.” This legislation seeks to overturn the Indiana Court of Appeals decision in Irving Materials v. Johnson County which held, “when the General Assembly empowered counties to regulate land use in flood plains, it created an exception to the rule that prohibits a county from regulating mineral extraction in non-urban areas.” When Rogers Group challenged the need to request a special exception from the Tippecanoe County Board of Zoning Appeals, the Indiana Court of Appeals held that “because Section 1103(c) continues to be subject to a flood plain exception, we affirm the trial court’s ruling that Rogers Group must obtain a special exception from the Area BZA if it wishes to mine in a Flood Plain zone.”

If the statute were to pass, it would likely eliminate the ability of Tippecanoe County to require that a mining operation in a flood plain obtain a special exception demonstrating that its operations wouldn’t, among other things, negatively impact the flood plain. In Irving Materials, the court reasoned, “Our goal in Indiana is to prevent the loss of lives and property caused by floods and to limit the effects of floods on the life, health and convenience of the people. ?Ind.Code §?14-28-1-1. ? Whether a flood plain lies in an urban or non-urban area, the interests of the community as a whole outweigh the interests of an owner or alienee of mineral resources.” Rep. Ellington’s bill would change that balancing of interests such that the interests of the owner of mineral resources would outweigh the interests of the community as a whole.

Rep. Wolkins has introduced HB 1411 amending the level of compensation for what the statute calls “non-public” uses. I put that term in quotes since, if it was truly “non-public” then the use of eminent domain wouldn’t be possible. The 5th Amendment provides, “nor shall private property be taken for public use, without just compensation.” Back when the blog was young, I covered the case of Kelo v. City of New London wherein the Supreme Court held that an economic development plan by the City to revitalize a blighted part of the town was a Constitutionally permissible taking where the City would ultimately transfer some of the taken land to private developers. The breathless opposition to the case at the time proclaimed that the concept of private property was at an end! Turns out, not so much. In any case, shortly thereafter, the General Assembly passed IC 32-24-4.5 at the time which governed governmental taking of the kind contemplated by Kelo.

The statute defined “public use” as being where the government actually retained ownership for things like highways, airports, and parks; leasing public property to a private entity (e.g. the Toll Road); and utilities (even if those were privately owned). So, some transfers to private entities were specifically o.k., but the statute specifically excluded from the term “public use” ” the public benefit of economic development, including an increase in a tax base, tax revenues, employment, or general economic health.” This was the kind of “public use” that’s constitutionally permissible under Kelo. And, it remained permissible under Indiana law if the real estate was, in some sense (defined in the statute), blighted and the acquisition would do more than just improve the property increase the property tax base of the governmental entity. The entity condemning the property would also have to pay more for it: 125% of market value for agricultural property; 150% of market value for owner-occupied residential property; and 100% for any other real property.

That’s a long wind up for what Rep. Wolkin’s legislation would do: make the 150% apply to all residential property whether owner-occupied or not. However, it defines “residential property” as a single-family dwelling that’s not owned for the purpose of resale, rental, or leasing in the ordinary course of business. So, I’m not sure if the intent is to protect land owned by trusts but occupied by the beneficiary of the trusts or to protect land where, say, mom and dad own the property but let family members live there or what. My guess is that there is a specific story behind this particular piece of legislation.

Sheila Kennedy has a good post on legislation to be introduced by Rep. Forestal (I can’t currently find the bill listed under the list of bills he’s involved with.) The legislation has to do with preventing discrimination by private schools that operate with public money — particularly having in mind the Roncalli situation where the school fired an otherwise qualified guidance counselor because she’s married to a woman. The school says this violates their religious beliefs.

Pro-voucher legislators say that they want to improve kids’ educations by giving them a choice. They want to improve schools by unleashing market forces and competition. They want to help poor kids access alternative to the failing public schools they are in. That was more persuasive before the voucher policy was actually put in place. Now we know that a lot of the money goes to kids who never went to public school in the first place — let alone were stuck in a failing school. Voucher don’t improve educational outcomes. If anything, they harm those outcomes. What’s really going on is that pro-voucher legislators want to: a) hurt the teacher’s unions; b) re-direct education money to friends and well-wishers; and c) subsidize religious education. Forestal’s bill, as described, would target item “c.”

Sheila writes:

The bill that Representative Forestal proposes to introduce addresses another glaring defect of the voucher program: the lack of standards imposed on participating schools.

A colleague and I recently surveyed voucher programs operating around the U.S., in order to see whether any of those programs required participating schools to teach civics. You will probably not be surprised to learn that none did. I’m relatively confident that if we conducted a follow-up survey, we would be equally unable to find programs imposing non-discrimination requirements. Any nondiscrimination requirements, not just those protective of LGBTQ students and faculty.

There is something very disturbing about taking money away from our public schools and sending it to religious schools without attaching any meaningful conditions. Taxpayers may well be funding schools that teach creationism, that refuse to teach evolution, and that discriminate against students and faculty members who violate tenets of their theologies. (In Louisiana, schools participating in that state’s voucher program were found to be doing all of these things.)

I hope such legislation moves forward, but doubt it will. Pro-voucher legislators likely view permitting such discrimination as more of a feature than a bug. One of the main purposes of voucher legislation was to subsidize this kind of thing.

Pro-tip: Whether it’s a crime or not, don’t have sex with someone who doesn’t want to have sex with you.

Dave Bangert, writing for the Lafayette Journal & Courier, has an article about introduced bills that might address the situation at Purdue where a guy had sex with a woman after climbing into her boyfriend’s bed where she was sleeping, causing her to believe it was her boyfriend. (I wrote about a Buzzfeed article on the subject a month or so ago.)

The first is HB 1489 introduced by Rep. Errington concerning rape and sexual battery. The main thrust of this bill is to define “consent” and add the concept of lack of consent to the rape and sexual battery laws. Currently, rape requires sexual intercourse where the person is compelled by force or is mentally incapable (e.g. unconscious or significant mental disability) of consent (which is undefined under current law). Under the new law, intercourse without consent would be rape and touching for one’s own sexual gratification without consent would be sexual battery. The legislation defines consent as follows:

Sec. 57.7. “Consent” means a free, voluntary, knowing, and mutual agreement to engage in a specific sexual act or contact, including positive and affirmative cooperation in words, act, or attitude pursuant to the exercise of free will. Consent may be withdrawn at any time, and any expression of lack of consent, by words, act, or attitude, means that consent does not exist or has been withdrawn. The: (1) existence of a current or previous dating, social, sexual, or marital relationship by itself; or (2) manner of a person’s dress; does not constitute consent. Submission under the influence of fear, deception, coercion, or surprise does not constitute consent.

I’d defer to the prosecutors and the defense attorneys as to how this would actually play out in criminal prosecutions, but I agree with the general concept. Defining “consent” in the context of the criminal law such that it survives a vagueness challenge strikes me as tricky. (Courts tend to review the language of criminal statutes more closely because it involves the power of the government to take away the liberty of its citizens.) As such, I’m not sure I’d include “free” in there because I don’t know that it carries any freight not already covered by “voluntary.” I’m also not sure I’d include “mutual” because, do you really care if the offender is part of the agreement? It’s the agreement of the person on the receiving end of the action that you’re worried about.

I’m also a little concerned by the change of words in the middle. Up top, it says “consent means agreement.” But then, at the end, you say “submission under the influence of fear, deception, coercion, or surprise does not constitute consent.” So, you’ve switched from talking about agreement to submission. I’m not sure whether as a practical matter that switch in terminology would cause mischief, but that’s the kind of thing I worry about when I’m drafting legislation. And, of course, there are the line drawing problems that detractors of consent legislation have raised. Some is kicking up dust because they don’t want things to change, but some is worth discussion — e.g. if he says “I love you” but he really doesn’t, does that constitute deception which turns the act into criminal behavior? Should it?

The other is bill is HB 1584 which seems aimed more directly at the Purdue incident. It adds to the crimes of rape and sexual battery intercourse or sexual touching where “the person knows or reasonably should have known that the other person believes that the person is the other person’s spouse or significant other. “Significant other” means “a person with whom someone has a dating relationship or an ongoing personal relationship. The term ‘ongoing personal relationship’ does not include a family
relationship.” I guess my problem with this is confining the crime to spouses or significant others. It seems to imply that rape by deception is more or less o.k. if you’re impersonating someone the victim didn’t know very well.

However this plays out, I did like Rep. Campbell’s comment at the end of the Bangert article:

“I don’t know if this bill or any other like it will be heard in committee,” Campbell said. “If it doesn’t, this is something we’ll keep pushing for. No one should have to go through what (Finney) went through. It’s a crime. Indiana should say so.”