A Citizen's Guide to Indiana

Masson's Blog

HB 1427 – Licensure of Naturopathic Physicians

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Rep. Lehe has introduced HB 1427 which would license “naturopathic physicians.” With some exceptions, people would be prohibited from practicing naturopathic medicine without a license. Naturopathic medicine is defined as, “the prevention, diagnosis, and treatment of human health conditions, injury, and disease using patient education and naturopathic therapies and therapeutic substances recognized by the Council on Naturopathic Medical Education and approved by the medical licensing board.”

It includes mechanotherapy, articular manipulation, corrective and orthopedic gymnastics;  hydrotherapy;and  electrotherapy as well as  the practice of the material sciences of healing, including
nutrition, phytotherapy, treatment by natural substances, and external application.”

There are some broad exceptions to the application of the licensure requirement — for example, it doesn’t affect the ability of a health professional to practice within the scope of their license. It also doesn’t apply to a person treating themselves or their family. And, it doesn’t apply to “a person that sells and provides information about vitamins or herbs that the person offers for sale.”

Still, even if you accepted that “naturopathic” medicine is a legitimate discipline that can be practiced safely only by credentialed professionals (a contention that is very debatable), the definition is way too broad. As written, unless one of the exceptions applies, “only a licensed naturopathic doctor may practice naturopathic medicine.” “Naturopathic medicine” includes the material sciences of healing which includes nutrition. So, arguably, providing information about nutrition puts you in violation.

Back when I was drafting these things, it was my perception that it was the credentialing organizations mostly pushing for the licensure bills and they were going to profit by selling professional education classes. I suppose I don’t know that’s the case with this one, but I think it would be a solid guess.

Publication of annual report of local government receipts and expenditures online rather than in print

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EXTRA! EXTRA! Town of River Forest Files Annual Report of Receipts and Expenditures!

The Hoosier State Press Association has an opinion column in the Courier Press objecting to proposed legislation that would result in annual government reports of receipts and expenditures being published online and would no longer require them to be published in the newspaper. It specifies HB 1004 by Rep. Siegrist (concerning cities and towns) and HB 1005 by Rep. Ziemke (concerning townships).

At the end of the year, local governments complete an annual report for their shareholders — taxpayers. For decades and decades, the state legislature has required that those reports be published in local newspapers. The information helps taxpayers determine whether their tax dollars have been spent wisely by elected officials.

As an initial matter, the “taxpayers are shareholders” metaphor rubs me the wrong way. There is tremendous overlap between citizens and taxpayers, but ultimately, citizenship is what confers an “ownership” stake in the country. Paying taxes is an incident of citizenship. The rights and duties we have flow from our status as citizens; not whether and how much we paid in taxes.

But that’s an aside. The thrust of the opinion piece is that posting the financial report on the Department of Local Government Finance website is “hiding” the information because lots of people read the newspaper (3 million a week!) while, the argument goes, not very many people go to the DLGF website.  I am very skeptical of the idea that significant numbers of people are poring over these financial reports buried away in the classifieds. The people who are reading these things in the papers are mostly, I would guess, the same people who would go the DLGF website to take a look.

I have to think that this is more about money, and the opinion is not being very forthright about the idea that this is about a source of revenue that newspapers do not want to lose. The newspapers are, after all, free to reprint the information from the DLGF if they want. If this is the sort of information that interests the 3 million readers per week touted by the opinion piece, skipping the publication fee would presumably be a small price to pay. The opinion piece tries to dismiss the cost of newspaper publication as an average of $167 per unit. (That number was for cities and towns. The best number the fiscal report came up with for townships was $300, but it indicated that number might be high.) However, I suspect that when you start adding up all of the units and publication costs, the money paid to these newspapers starts to add up.

To me, having a central location where you can find all of this information when you need it seems like it makes more sense than hoping you catch the edition of the newspaper where the annual financial report was published. And, yes, you could do both — but fundamentally, I just don’t think that many people are paying attention to these reports as they’re published in the newspaper. Regardless of whether my opinion is correct, the headline to this opinion is inflammatory: “Don’t let Indiana lawmakers operate in the shadows.” I think people of good will can disagree about whether local government financial reports are more readily found in the daily paper or in a central, online repository. But accusing these lawmakers of trying to let government “operate in the shadows” based on a proposed shift from local papers to a state website is simply unfair.

HCR 3 – Overt Identification of Free and Reduced Price Lunch Recipients

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Being a kid is hard enough. In this land of plenty, they should at least be well fed.

Rep. Siegrist has introduced House Concurrent Resolution 3 concerning the practices of schools with respect to overt identification of students who receive free and reduced price lunches. The resolution urges the legislative council to study the issue of how to reduce overt identification of these students. It’s not terribly surprising that students (like anyone) perform better when they’re well fed. The problem this resolution seeks to address is that it’s embarrassing to be the poor kid who needs government assistance for food. As a society, we’re way too quick to assign a moral value to poverty or wealth — poverty as evidence of the absence of moral fiber and wealth as evidence of probity. But, even if you subscribe to the economy-as-morality-play view of life, it’s tough to blame a kid for the fact that his or her parents are poor. So, school lunches should be one place where we generally don’t mind trying to make sure the kids are fed and don’t mind trying to make sure that they don’t feel bad if they need financial assistance to make that happen.

The resolution notes:

Whereas, Students would often rather go without an adequate meal than be identified by their peers as being a free or reduced price lunch student; and

Whereas, Although overt identification is prohibited under state and federal law, it often unintentionally occurs in schools, either causing students to skip meals they need to be academically successful or to feel shame for accepting a public benefit;

It goes on to note that the federal government has developed a best practices guide that, among other things, helps avoid inadvertent overt identification and argues that state-level study could build on this federal study to “further reduce overt identification, increase the use of free and reduced price meal benefits and, ultimately, to increase the health and performance of Hoosier students.”

Sen. Stoops has introduced legislation on a similar topic. SB 314 would specifically require schools to provide meals to students even if they owe money unless the student’s parents has specifically asked them not to. It would prohibit schools from requiring a student to dispose of the meal because they owed money. (This is presumably related to reports that some schools would make kids dump their lunch trays if it turned out they couldn’t pay for them.) If a student gets more than four meals into debt, it instructs the school to take specific measures to try to get the kid signed up for financial assistance, if appropriate, and reach out to the parents to see what’s going on. It prohibits the school from publicly identifying or stigmatizing a student who is unable to pay for a meal or has a meal debt, and it prohibits schools from making kids work off the debt.

It’s probably the old debt collector in me, but it seems to me that it might also be appropriate to give schools some additional tools for debt collection against the parents (e.g. allowing addition of attorney’s fees and collection costs if they don’t respond to demands for payment or requests for financial information). I’m all in favor of erring on the side of feeding kids. I’m on record as saying that if we, the public, end up feeding a few extra kids, I won’t be that bothered:

But, I’m just an old softy because, at the end of the day if extra kids get fed with taxpayer dollars, I’m kind of o.k. with that. Because, you know, feeding kids — even kids who are from families that are lower middle class instead of poor — is not the worst way to spend tax dollars.

That said, these meals do cost money. And schools don’t have a ton of that money. Many families simply don’t have enough to make ends meet or, if they do, are living right on the edge. We should not be reluctant to feed kids from those families. But, there are inevitably some parents with sufficient resources who are simply neglectful of their children, and some thought should be given to what recourse schools might have against neglectful parents.

HB 1011 – All Players Stand or Triple Your Money Back! (Face Value Only. Some Restrictions May Apply)

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“As your financial adviser, I can’t recommend that you continue attending your daughter’s soccer games. There’s just no profit in getting offended there.”

Rep. Milo Smith has introduced HB 1011 which rewards people for being offended if they attend games of the NFL, the NBA, or the WNBA and the players kneel during the national anthem. Soccer fans offended at Indy 11 games or baseball fans offended at Indians games will have to be made of sterner stuff.

Specifically, the legislation says that if a person purchases a ticket, attends the game, and the person “is offended by a professional sports athlete, who is a member of the professional sports team hosting the game, not standing during the national anthem” then the person can demand their money back (face value only) and the team then has 7 days to pay. If they don’t pay up, the person can go to a small claims court (but cannot – as the legislation is written – go to a court of general jurisdiction) and be awarded triple damages, costs, and attorney’s fees. The genius part here is that with triple damages, rich people (who buy more expensive tickets) can profit more from their hurt feelings than regular folks in the cheap seats. Stoic people are just shit out of luck.

The partisan temptation is to take shots at people who are offended by players kneeling during the national anthem because they aren’t recognizing the underlying issue that players are kneeling, not to show disrespect, but to protest structural problems with the way black people are treated in the country. However, I know people who legitimately don’t harbor ill-will toward people of color but who nevertheless have a heart-felt, negative response to people kneeling during the national anthem. My personal view is that these folks are too dismissive of the underlying reason for the protest and are misconstruing the intent of the players. But, often, I don’t think they are bad people; and I don’t want to mock them. (Even were I inclined to mock them, doing so would cause them to be even more supportive of politicians like Smith — which is, of course, what he would like.)

This legislation, however, is a different matter. It is transparently unconstitutional. It specifies a particular kind of speech (not standing during a national anthem) at a time when the context makes this clearly a governmental burden imposed because of the content of the message. And, it is conspicuously under-inclusive, singling out only football and basketball players. (And just the players — there’s no recovery if only the coaches are kneeling.) I can speculate that the constitutional challenges have been explained to Rep. Smith. As such, it looks like a cynical ploy to exploit the passions of a portion of the citizenry that bristles at anything that looks like disrespect for the flag. Those citizens feel what they feel even if, given the context of the protests, they are misguided about whether any disrespect is intended. Regardless of whether we can give citizens taking offense to player protests the benefit of the doubt, lawmakers should be held to a higher standard.

SB 400 – Ranked Voting

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Sen. Stoops has introduced SB 400 concerning “ranked voting.” It’s a long piece of legislation, and the election code — Title 3 – is somewhat bewildering, so, full disclosure: I haven’t read it all. But, very generally, it allows cities, towns, and counties to provide for ranked voting in filling their offices.

The way ranked voting would work is that voters could rank some or all of the candidates, first choice, second choice, third choice, etc. The first time through, you give all the candidates their first choice votes. If a candidate gets a majority of the votes, that candidate wins and the counting stops. If no candidate gets a majority, you go to step 2. You eliminate the candidate with the fewest votes and then, for the ballots that selected that candidate as the first choice, you go to the second choice on those ballots and assign them to the remaining candidates. If no candidate has a majority at that point, you rinse and repeat until you get a majority.

SB 155 – The Voting Dead

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The motive behind SB 155 concerning deceased voters is not a bad one, but with a subject like “deceased voters,” you’re going to invite people to make fun of it. I clearly couldn’t resist. Sen. Walker’s bill provides that, if a person casts an absentee ballot and then subsequently dies (making the vote very absentee), the person’s votes are valid and should be counted, notwithstanding the death.

Wanting to honor the wishes of the dead is laudable but, in my mind, I guess the point of an election is to determine the will of the governed. When someone has passed away, they are beyond the laws of man. And, so, to me, it seems reasonable to count the votes of only the living who will be subjected to the laws and governance of the person put in office. That said, I can’t imagine that this amounts to very many votes. And, death is the ultimate non-partisan issue. So, even though I lean against the legislation, I’m not going to get any heartburn if it passes.

The bill passed out of the Senate Elections Committee and will head to the floor of the Senate.

SB 172 – Computer Science Curriculum

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Sen. Raatz has introduced SB 172 mandating that high schools include computer science in their curriculum and creating a state computer science grant program and associated fund. I’m generally against state mandates for local school curriculum. But, if the state is going to impose requirements, computer science sounds like a good one.

It’s not cursive, but I guess the kids might need to know about computers, too.

The grant program would provide for the State to give money to universities and other institutions capable of training teachers to teach computer science. A grant fund is created but, at least in this bill, no money is placed in that fund. I don’t know if that would be in separate legislation or wait until the budget bill.

Current law states that sciences are a required part of any school corporation’s curriculum. The bill amends that provision to say that “sciences” includes (after June 30, 2021) “computer science.” It also states that:

(a) After June 30, 2021, each public school, including a charter school, shall offer at least one (1) computer science course as a one (1) semester elective in the public school’s curriculum at least once each school year for high school students. (b) After June 30, 2021, each charter school shall include computer science in the charter school’s science curriculum for students in kindergarten through grade 12.

The fiscal note suggests that this curriculum requirement could be satisfied by routing students to the Indiana Online Academy at a cost of $295 per student which the schools could either pay themselves or require students to pay. If the school has to hire teachers, the fiscal note estimates the cost of hiring each teacher as about $59,000.

HB 1094 – Animal Cruelty

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Indiana General Assembly considers protective orders for pets

Don’t be cruel.

Rep. Hatfield has introduced HB 1094 concerning animal cruelty. It enhances the penalty and creates some standards related to the offense. For example, it defines “adequate shelter” as, among other things, requiring four walls, a roof, and construction material that is impervious to rain. “Minimum care” is defined as, among other things, having access to sufficient food not less than once a day and continuous access to potable water that is not in the form of snow or ice. The term “neglect” is then amended to include a failure to provide that level of minimum care as well as failure to bring a dog into a temperature controlled environment when the temperature falls below freezing or above 85 degrees or during a heat advisory, wind chill warning, or tornado warning have been issued.  Failing to provide adequate shelter or minimum care would be acts of animal cruelty, a Class A misdemeanor or a Level 6 felony if the person has a prior conviction.

It also defines “tethering” a dog and creates minimum standards and limited times when tethering is permitted. For example, the tether has to be at least three times the length of the dog, measured from nose to the base of the dog’s tail. If the dog is tethered at night — between 10 p.m. and 6 a.m. — the dog can be tethered for a period not longer than necessary “for a person to complete a task” and, in any event, not longer than an hour. Improper tethering would be a Class C misdemeanor.

(As a pedantic matter, I object to the proposed amendment of existing law that says the term “mutilate” includes certain specified types of bodily injury. The amendment would say that the term includes, “but is not limited to” those specified types of bodily injury. The “includes, but is not limited to” formulation is fairly common in legal documents. But, as I recall, the legislative drafting manual discourages that formulation as redundant. “Includes” means a list is not exclusive. If you add this “but is not limited to” formulation, you run the risk of having lists in other statutes that do not have that formulation construed as being exhaustive rather than merely descriptive.)

I’m a dog person. We have two, and we very much treat them as members of the family. (In fact, my arm is contorted at an odd angle as I type this to accommodate a dog snuggled up against me.) So, in general I support requirements for humane treatment of dogs in particular. But, I think it’s worth at least recognizing that our attitudes toward dogs are evolving. There is going to be a clash of cultures when people like me who regard dogs as family members encounter, say, older people from a more rural background who regard dogs with the same sentimentality as I regard livestock. It’s probably not much different from how I feel about steaks as compared to the sensibilities of the “meat is murder” crowd. That doesn’t mean we can’t impose regulations that are more consistent with evolving norms. But, on some level we should at least recognize that the norms are evolving and haven’t been carved in stone for generations.

 

 

SB 270 – State consent required to settle local litigation (Updated)

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Sen. Koch has introduced SB 270 which, among other things, requires that local government get the consent of the State to settle certain kinds of local litigation. (“Unit” refers to a unit of local government).

Sec. 8.7. A unit does not have the power to compromise or settle a claim by agreeing, in whole or in part, to:

(1) adopt, refuse to adopt, or refuse to enforce an ordinance; or

(2) the terms of an injunction, restraining order, or consent decree;

without the consent of the attorney general

The legislation imposes similar restrictions on school corporations (except that — weirdly to my eyes — charter schools are specifically carved out of this restriction). “[A school corporation does not have the] power to compromise or settle a claim by agreeing, in whole or in part, to: (A) adopt, refuse to adopt, or refuse to enforce a policy; or (B) the terms of an injunction, restraining order, or consent decree; without the consent of the attorney general.”

Not only does this legislation call for the Attorney General to second guess school corporations, local units of government, and their legal counsel who are going to be far more familiar about the facts on the ground with respect to the pending litigation. This legislation would also let the State gamble with other people’s money. If the proposed settlement has an injunction with respect to a policy or ordinance, a lot of times the litigation is going to be associated with some kind of civil rights action that results in the defendant paying the plaintiff’s attorneys fees if the plaintiff wins. Those expenses can add up fast. If the Attorney General vetoes a proposed settlement and the school or local government loses, this legislation does not have the State offering to pick up the tab. Under local expenditures the fiscal note states that “the bill could potentially cause a unit or school corporation to incur additional expenses due to delayed settlements, injunctions, restraining orders,or consent decrees.” It should add “potentially catastrophic legal fees” if some local township or small, rural school corporation has to pay an Indianapolis civil rights attorney his or her rate of $400 or $500 per hour because the Attorney General had a philosophical difference of opinion about a bathroom case or something.

Update: I think I’ve stumbled across the “ripped from the headlines” issue that led to this legislative proposal. Olivia Covington, reporting for the Indiana Lawyer, has a story about Attorney General Curtis Hill’s effort to intervene to protest a consent decree entered into between Marion County and Antonio Lopez-Aguilar concerning Lopez-Aguilar’s lawsuit claiming that he was illegally detained by Marion County in cooperation with the Immigration & Customs Enforcement (“ICE”). The result of the lawsuit was that Marion County entered into a consent decree. The prohibiting “the Marion County Sheriff’s Office from detaining illegal immigrants on behalf of U.S. Immigration and Customs Enforcement unless ICE can produce a signed warrant or other probable cause.”

I haven’t read the underlying facts for this case, but I am familiar with the general framework of what’s often at issue. Someone suspected of being an illegal immigrant will be arrested for a non-immigration related crime. The person will be serving a sentence or awaiting trial or whatever. ICE will ask the jailer to let ICE know when the person’s sentence is up and then hold them until ICE can come pick them up. I believe case law is still percolating a bit, but courts have been holding that the jailer doesn’t have the authority to honor the hold request unless there is a warrant or some particularized basis giving them probable cause to believe there is a basis for detaining the individual. In 2016, a District Court in Illinois issued an opinion in Moreno v. Napolitano, 213 F.Supp. 3d 1999 (N.D. Ill. 2016) holding that detaining an individual on an ICE hold (after the basis for imprisoning the person under state or local law has passed) was basically the same as a warrantless arrest and that ICE was permitted to “dispense with a warrant only when one cannot be obtained before the subject will likely escape.” 

The Attorney General is correct that IC 5-2-18.2 requires local law enforcement to cooperate with the federal government’s immigration efforts. But, if the local law enforcement agency cooperates in a way that violates the 4th Amendment, that will expose the local government to liability for that constitutional violation. Because my bias is in favor of local control, I’m obviously not a fan of this legislation. But, if the General Assembly proceeds with this legislation, I would definitely urge a provision that requires the State to reimburse the local school or governmental unit for any expenses added by the State’s decision.

HB 1086 – Garnishments

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Judgment or game of cat and mouse? Why not both?

Rep. Hamm has introduced HB 1086 concerning garnishment orders. There are two broad categories of tools given to judgment creditors in order to collect debts that have been reduced to judgment: attachment and garnishment. Attachment refers to an order that a judgment debtor turn over property in his or her possession while garnishment refers to an order that a third party in possession of the debtor’s property turn that property over to the judgment creditor instead of to the debtor. Most of the time, if a person is in a situation where the debt has gone all the way to court and a judgment has been entered, it’s because they don’t have the money on hand. And, if they do, they’re more likely to conceal what they have and use it on more immediate needs or wants.

So, the creditor goes looking for third parties. Usually this is an employer who will get an order to withhold a certain amount or percentage of the paycheck and remit it to the Clerk of the court who will, in turn, send it to the creditor.

This bill gives a little to creditors and potentially takes away a lot. If the creditor gets a court order, the creditor  would be permitted to access certain wage information provided to the Department of Workforce Development concerning the judgment debtor. Usually access to this information requires the prior written consent of the judgment debtor/employee.

What the bill takes away from creditors, however, is the fact that – under current law – if a garnishment order is entered, it remains in place even if the debtor/employee leaves his job and then comes back. When he comes back, the garnishment continues on. And, garnishment orders apply even where the judgment debtor is characterized as an “independent contractor” rather than an “employee.” The key is, basically, whether the judgment debtor receives periodic payments from the business.

Under the proposed legislation, if an employee left employment (and the employer notifies the court of that fact), the garnishment stops. If the employee returned to employment (and the judgment creditor is lucky enough to discover that fact), the judgment creditor would be required to go back to court and obtain  a new garnishment order before any wages were withheld and applied to the judgment. Obtaining a garnishment is a somewhat cumbersome process generally requiring that you get a hearing date from the court, serve the judgment debtor and employer with notice, and get an order from the court. It takes some time. This encourages game playing. Garnishments are a hassle for the employer and obviously they’re no picnic for the employee. But, if we’re going to take seriously the idea that judgments should be paid, they are a necessary tool.

Employment these days is often a seasonal or sporadic affair in any case. So, why not have the employee take a couple of weeks off to get the garnishment off the books then have him come back and work for a month or two before a new garnishment can be secured? And, of course, this legislation potentially creates confusion with the independent contractor who is receiving periodic payments. Strictly interpreted, because the legislation uses the terms “employer” and “employee,” it wouldn’t apply to the independent contractor scenario. But, in practice, courts, businesses, and judgment debtors would claim that it does — which creates another level of complexity.