A Citizen's Guide to Indiana

I believe that HB 1264, introduced by Rep. Pressel” is of the “ripped from the headlines” genre of legislating. Not that I disagree with it: it makes it a felony for a physician who treats a patient for infertility to use the physician’s own sperm or eggs without the patient’s consent or to use donated human reproductive material without the consent of the donor. It also provides a civil cause of action by the woman who was impregnated or her surviving spouse against the physician. The person can recover their attorney’s fees, costs of fertility treatment, and actual damages or $10,000 (whichever is greater). (Seems like that $10k should be higher.) It also delays the time for bringing prosecution based on how long it takes the State to reasonably discover that the fertility fraud has been committed.

Dr. Rocky Killion, superintendent of the West Lafayette Schools, has an op-ed in the Lafayette Journal & Courier prompted by the House Education Committee’s proposal to raise teacher salaries by diverting money away from other school funding necessities such as custodial, maintenance, secretarial, health, special education and other supports services for students and teachers. Rather than increasing the burden on teachers by diverting money away from those supports, Killion identifies $180 million wasted on school testing mandates and private school vouchers that the General Assembly should eliminate, freeing up money for teacher salaries:  $100 million on standardized testing; $10 million on I-READ 3 testing; and $70 million on vouchers.

My favorite line from the column was with respect to I-READ 3, “Teachers do not need this test to determine whether or not a student is reading at a third-grade level. The best, most efficient way to find out if a third-grade student is reading at a third-grade level is by asking a third-grade teacher.” Dr. Killion also points out that 60% of students who are using taxpayer dollars to attend a private/religious school have never attended a public school.

I have a slightly less dignified take on the current proposal:

Teachers: Hey, General Assembly, . . . hey! How about a little something, you know… for the effort, you know?

General Assembly: Oh, uh, there won’t be any money, but when you die, on your deathbed, you will receive total consciousness.

So, they’ve got that going for them. Which is nice.

 

 

 

Sen. Kruse has introduced SB 373 concerning flags and god in public schools. He wants to mandate that a framed picture of a U.S. flag, a state flag, and the words “in God we Trust” be placed in every public school library and classroom. The entire display must be at least 14 x 17 inches with the motto being at least 4×15 and each flag being 5×5.

The bill also amends the current legislation permitting schools to offer a survey of religion class by specifying that the survey may include the study of the Bible as one of the permissible documents that may be studied in the survey. It does not specify any of the holy texts of other religions as eligible for study (although, under current law, the Bible and all of those other documents are already eligible for study.)  The bill also states that a school corporation may mandate the teaching of creation science as one of the “various theories concerning the origin of life.”

Current law allows a parent to pull a kid from school to go receive religious instruction for two hours a week. This bill would allow the school to adopt a policy to award academic credit for that religious instruction. Finally, the legislation adds some happy talk about the liberty of the parent to direct the education of a child being a fundamental right and some strict scrutiny language to the effect that a school policy or state law can’t infringe upon that right unless it demonstrates the need for the policy or statute is “of the highest order and not otherwise served.”

This stuff about flags, “in God We Trust,” singling out the Bible for special mention, and Creation Science is about marking territory and isn’t calculated to improve kids’ educations. The policy giving credit for religious instruction actually doesn’t strike me as that bad as it’s written (how it worked in practice could be problematic.) The strict scrutiny language on a parent’s right to direct the kid’s education is ripe for unintended consequences and, beyond that, ignores the fact that the public also has an interest in an educated citizenry — exactly where and how we should draw the line where the parent’s interest and the public interest intersect is a tough question, worth more thought than this legislation reflects.

Much as I complain about her incessant pursuit of mandatory cursive legislation, I do like the sentiment behind Sen. Leising’s SB 169 concerning service animals. It makes it a Class A infraction for a person to misrepresent that the person “is an individual with a disability or has a disability related need that requires the use of a service animal” or to fit “an animal that is not a service animal with a harness, collar, tag, vest, or sign that would cause a reasonable person to believe the animal is a service animal.” A few years back, I had a case where a guy had paid an organization a few dollars to give him a vest and ID card for his dog that said “emotional support animal.” When my client’s turned him away, saying that service animals were allowed inside and emotional support animals were not, he sued my client, claiming that he was disabled and the dog was, in fact, a service animal. It was surprisingly labor intensive to get the case dismissed. The guy said he had PTSD and made assertions about having trained the dog himself. Under the ADA, no particular credentialing or certification is required. The animal need only have “individualized training” to assist the individual with the individual’s disability. (This means that the training has to have some relation to particulars of the individual’s disability.)

I am concerned about existing legislation, IC 35-46-3-11.5 that defines “service animal” in a way that isn’t necessarily consistent with the federal definition under the Americans with Disabilities Act. This legislation uses the definition of service animal in IC 36-46-3-11.5. The inconsistencies could get people in trouble — if, for example, they rely on the state definition and end up violating the ADA as a result. Another problem, potentially, is that people aren’t going to know whether their own dog meets the definition of “service animal.” Perhaps they are disabled, but the training the dog receives isn’t related to that disability. Or maybe they misunderstand the distinction between emotional support animal and service animal and think that one of these mail away places that gives you ESA documentation is certifying that your dog is a service animal.

In any case, there seem to be  people who simply want to bring their pets places and are abusing the ADA regulations on service animals to do it. That’s something that ought to be addressed for the benefit of property owners and individuals with disabilities who have legitimate service animals.

Rep. Morrison has introduced HB 1085 which would prohibit employers from requiring an employee to implant, inject, or ingest a device into their body as a condition of employment. The employee would be eligible for attorney’s fees and damages in the case of a violation.

A quick Google search suggests that this is maybe somewhere above dystopian speculation and but below common problem. For example, a 2015 article from the BBC talks about a Swedish company that required microchips be planted in the palms of employee’s hands to access the business facilities. A 2017 article in the New York Times talks about a Wisconsin with a voluntary program where employee’s can get a chip in their finger that allows them to, for example, open doors and pay for meals in the cafeteria. That article suggests some of the potential abuses that could come later, e.g. to track the length of employees’ bathroom or lunch breaks.

Rep. Pryor has introduced HB 1036 concerning “shared mobility devices.” Such a device is defined as one that: (1) has at least two (2) wheels in contact with the ground with a floorboard for the user to stand on when using the device; and (2) is propelled by a motor at not more than twenty (20) miles per hour. I assume this is primarily a response to the recent infestation of motorized Bird scooters. Vendors of such shared mobility devices are those who make the devices available to the public for consideration. Vendors would be liable “for the total cost of property damage or
bodily injury suffered by a person in connection with the use or presence of the vendor’s shared mobility device.” They would also be required to maintain liability insurance to cover the loss and publicize phone numbers for making claims.

I don’t see this going anywhere, but I definitely see where the concern comes from. Emergency room people are, at least anecdotally, reporting a lot of visits from people who get injured riding the scooters. They are being thrown in water ways, blocking streets and sidewalks. I know a fair number of people like them, and they are being championed as a more environmentally friendly way of covering “the last mile.” But, at the same time, the companies’ business model seems to be externalizing a lot of costs onto the general public. Legislation such as this bill seeks to internalize those costs — make the company bear the cost of operations so that the cost of the scooters can be reflected in the price and the market will have better information for evaluating the costs and benefits of this kind of transportation.

In any legislation governing these scooters, I’d recommend something negating any click wrap arbitration requirements in their terms of service and permitting disputes to be litigated in the courts of any county where damage or injury occurs.

Sen. Ford has introduced SB 348 concerning covenants not to compete. It prohibits an employer from requiring an employee or prospective employee from entering into a covenant not to compete if the employee’s earnings don’t exceed $15 per hour. A covenant not to compete is one that restricts the employee from working for another employer for a specified time and/or in a similar field or from working in a particular geographic area. It declares such contractual provisions as void and against public policy.

I think this is a good concept. Courts are generally pretty skeptical of covenants not to compete as it is — restricting a person’s ability to work is not something they’re very comfortable with. There are some legitimate business reasons for a covenant not to compete – the employer has given the employee valuable training or contacts or information and the employee should not be able to profit off of those inputs at the employer’s expense. But, if the training or information or other inputs with which the employer has entrusted the employee are so valuable, it stands to reason that the employer would be compensating the employee accordingly. If the employee is making less than $15 per hour, it stands to reason that a covenant not to compete isn’t protecting the employer’s legitimate business interests so much as it’s being used as a tool to gain additional leverage over the employee.

The General Assembly might, however, look at tightening up the “earning $15 per hour” language. Compensation models that involve commissions or tips or irregular bonuses could complicate things somewhat. Courts could probably figure it out, but some additional attention might make it harder for employers to find work-arounds.

 

Rep. Steuerwald has introduced HB 1150 providing that an exonerated prisoner is entitled to $50,000 for each year that the individual was incarcerated in the Department of Correction for a conviction that was vacated. The person has to otherwise waive their claims against the State and can’t have pending or previous wrongful conviction claims against the State. If there is not enough money in the exoneration fund to pay claims at the $50,000 per year rate, the compensation may be pro rated by the Attorney General (who is to administer the exoneration program). And, according to the fiscal note, there’s might be a lot of pro-rating. The legislation appropriates $200,000 to the fund. The note estimates at least thirty-four eligible people with 369 total years of incarceration, resulting in potential demands on the fund of $18,450,000. If my math is correct, pro-rated, that amounts to a cool $542 per year for wrongful incarceration.

This is maybe a little obscure, but the $542 reminds me of the old skit by The State where Barry & LeVon brag about getting $240 worth of pudding.

“We had the $240. We had to have the pudding.”

“Now, we could’ve bought $100 worth of pudding — and that would have been a *lot* of pudding — but we had to go all the way, baby.”

“See this here, it says first you cook, then you chill. And that’s what I do every night! First I cook, and then I chill! Aw yeah.”

 

 

Rep. Bacon has introduced HB 1016 which increases the penalty for battery from a Class B misdemeanor to a Level 6 felony if it’s committed against a utility worker in the course of the worker’s duties.

I have nothing against utility workers and can see how they are at an increased risk — going onto strangers’ properties and so forth — but I am wondering how this sort of thing squares with the arguments we often see against hate crime legislation. Critics complain that hate crime legislation creates a hierarchy of victims — some victims are treated as being more important than others. In fact, the current law on battery already offers additional penalties to certain victims: law enforcement officers, firefighters, and the like. This isn’t uncommon and there are good policy justifications for the enhanced penalties.

While I’m at it, I’m also confused by hate crime detractor’s “thought crime” line of opposition to such legislation. They claim to object to the idea of courts or juries weighing the thought, belief, or emotional affect behind an act. But the fact of the matter is that courts and juries are asked to make a determination of the mental state of the accused in almost every crime. The mens rea of the accused is an element of most crimes.  That’s what that whole business about “knowingly or intentionally” is about. (I think one of my favorites is the “malice aforethought” that used to describe an element of murder.)

But anyway, this was about battery against a utility worker.

Rep. Saunders has introduced HB 1028 concerning mental health care for released inmates. It directs the Indiana Department of Correction to assist inmates with obtaining an appointment with a physician or psychiatrist for evaluation within 30 days of the inmate’s release date. It also requires the DOC to provide the offender with enough of the offender’s medication to last until the evaluation. (Presumably the evaluation and the medications are related to the inmate’s mental health condition, but the legislation isn’t necessarily specific on that point.)

It’s maybe a drop in the bucket, but it’s a move in the right direction. Continuity of care is a big problem with inmates, particularly with respect to mental health. Jails and prisons become the mental health providers of last resort (or maybe first resort — our mental health infrastructure isn’t exactly robust). As the mental health condition deteriorates, the person will often do something that transgresses lawful behavior and find themselves in the justice system. Jails and prisons don’t provide the best mental health care, but often what they provide is better than what the person gets on the outside. Being released with no plan for maintaining the person’s mental health increases the likelihood that the person’s mental health is going to decline and, consequently, they’ll end up back in jail.