A Citizen's Guide to Indiana

Rep. Negele (800-382-9841) has introduced HB 1272 concerning the situation where publication in a local paper is required but the paper fails to actually follow through with a requested publication. Under the proposed legislation, the local governmental entity could still proceed if it posts printed notice in three prominent places in the political subdivision or on the local government’s website in a location where the notice is easily accessible.

I’m in favor of this. I’ve seen a situation where government action had to be delayed for several weeks because a local paper agreed to publish the notice but due to a clerical error failed to actually make the publication. (What made it worse is that the publication was required in two papers, and it was a much lower circulation paper — so the utility of the notice was questionable at best).

I think we’re getting close to the day when publication of legal notices in the newspaper is going to become obsolete. How many people read the legal notices in the newspaper but don’t have Internet access? Seems like it would be simple enough for the State to create “legalnotices.in.gov/county” for a one-stop repository of legal notices. The cost of the publication is one thing, but what can really be irritating is when the paper has a long lead time to get notices into the paper.

This bill doesn’t go anywhere near that far, but it’s a nice failsafe for the governmental entity that did its part to provide proper notice through the newspaper(s).

Sen. Leising (317-232-9400) has introduced SB 293 concerning certification of a service animal’s good health. Currently state law requires public accommodations to permit service animals to enter without requiring an extra fee. The proposed amendment would restrict that to “certified” service animals. The only thing necessary for certification under this proposed legislation is that the animal be certified by a veterinarian as being in good health. The bill directs the board of veterinary medical examiners to come up with standards and prescribe a form for this certification.

I very much sympathize with the goals of this legislation. The well-intended service animal regulations are abused. If a person has a disability and they have a trained service dog that assists with that disability, then it makes all the sense in the world that the normal concerns of public places concerning admission of pets be set aside in favor of letting the person with a disability get along with their life. But, there are people who just don’t want to leave their animals behind. They may or may not be disabled. They have dogs that who might have some general training but not particularly related to their disability. And they’ll maybe flash a card from some Internet mill characterizing the dog as a “service animal.” That puts public accommodations in a difficult spot — basically just abandon their “no pets” policies when they receive the slightest push back, or risk a lawsuit.

However, it seems to me that this particular legislation is likely to cause more harm than good. In particular, I fear that establishments will rely on this legislation, decline entry for a dog who has not been certified, and find themselves on the receiving end of a federal ADA lawsuit. The ADA’s requirements for what constitutes a service animal are poorly defined. It’s only necessary that the animal be “individually trained” to do work or perform tasks for the benefit of an individual with a disability. The work or tasks performed by a service animal must be directly related to the individual’s disability. The nature of the individual training is not defined. The individuals can do it themselves, and there does not appear to be any requirement that the dog be successfully trained or well trained. Additionally, the ADA implementation regulations suggest that an establishment is allowed to ask only ” (1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform?” This makes it challenging to ascertain, prior to a lawsuit, whether the training, the work, or the tasks are directly related to the individual’s disability.

I haven’t done any research on how pre-emption of state law by federal law works in this context, but it seems likely that asking about whether the dog is “certified” under this state law would result in a violation of federal ADA regulations.

Rep. Lehman (800-382-9841) introduced HB 1133 which prohibits local control of rentals for a term less than 30 days. Specifically, a local unit of government is not allowed to prohibit short term rentals (defined as residential for less than 30 days) or regulate them except for certain specified regulations that are permitted.

My guess is that this is meant to stop local regulation of Airbnb, VRBO type rentals. I don’t particularly like the state pre-empting the locals without some pressing need. So, I’m curious what the pressing need might be in this situation. Also, I wonder how this would affect application of innkeeper’s taxes. The tax is authorized by state law but is enacted by local government. Where such taxes are authorized, they are imposed on lodgings for less than 30 days. By its own terms, HB 1133 does not account for imposition of such taxes. I would anticipate that a court would find that a statute in IC 6-9 authorizing such taxes overrides the prohibition on regulation imposed by HB 1133. But, because it’s not explicit, there is no guarantee.

Rep. Ellington (800-382-9841) has introduced HB 1132 which would weaken the definition of “urban” and reduce the ability of lawmakers to regulate mining.

IC 36-7-4-1103 prohibits action by an area plan commission (the body more or less in charge of zoning regulations) that prevents “the complete use and alienation of any mineral resources or forests by the owner or alienee of them.” The mining companies can argue (and have argued) that this language is incredibly broad. Regulation of any kind at the local level is seen by them as precluded by this statute.

The exception, embedded in the current statute, is that this prohibition is effective only outside of “urban” areas. So people in “rural” areas are (if the mining company interpretation of the statute is to be believed) powerless to implement zoning regulations to keep noise levels down, prevent contamination of water quality, and generally avoid and mitigate the problems that go along with large scale mining operations.

In the statute “urban” is defined as an area with eight or more residences within a quarter mile square area. Rep. Ellington’s legislation would impose a 600% increase in the urban/rural threshold, increasing the number of residences from eight to fifty. My guess is that this would significantly expand the map of places that would lose the ability to regulate mining activity.

Sen. Raatz (800-382-9467) has introduced SB 56, this year’s iteration of the perennial Sharia bill that at least Senators Kruse and Steele have introduced before him.

If they’re just going to re-introduce the same bills, I guess I’m justified in just regurgitating the same analysis:

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.

Rep. Shackleford (800-382-9842) has introduced HB 1060 which would create the “healthy food financing program.” It creates a fund, the purpose of which is to “provide financing for projects that increase the availability of fresh and nutritious food in underserved communities,including financing for retailers to open, renovate, or expand grocery stores.”

The Indiana Housing and Development Authority is charged with overseeing the fund and with setting program criteria that can then be delegated to a non-profit for administration. Projects eligible for financing include construction of grocery stores, grocery store upgrades, and farmers’ markets. (Interestingly the provisions about grocery store upgrades and farmers’ markets have some conditional language about making fresh produce available that isn’t necessarily specified for new grocery store construction.)

The applicant for funding has to be able to demonstrate a likelihood that the project will be financially sustainable. The applicant also has to accept SNAP (food stamps), SSNP (WIC), have 50% space for perishable foods, and promote the hiring of local residents. The bill calls for the appropriation of $10 million over two fiscal years for the program.

This seems to be part of an ongoing legislative effort to address “food deserts.” In 2014, Indianapolis ranked worst in the nation as a food deserts.

Rep. Steuerwald (1-800-382-9841) has introduced HB 1062 which would create the DNA exoneration fund and provide a mechanism for wrongfully convicted individuals, exonerated through DNA evidence, to receive compensation from the State.

It states that a person whose conviction is vacated (in whole or in part) on the basis of DNA evidence is entitled to compensation in the amount of $25,000 for each year that the person was wrongfully incarcerated in the department of correction. It initially appropriates $200,000 to the fund and directs the attorney general to administer the fund and investigate claims. In return for receiving compensation under this mechanism, the person is required to waive any further claims against the State.

This seems like a generally positive initiative, but I wonder what the rationale behind including DNA-based exonerations but excluding non-DNA exonerations. Maybe related to the relatively more objective nature of DNA versus other potential methods of exoneration?

Reps. Thompson, Bartlett, and Lawson are co-authors.

The fiscal note is pretty interesting. The analyst found nine cases of DNA based exoneration in Indiana. One of them is David Camm who the Indiana Law Blog has been following for a dozen years or so. Convictions on that list range from 1985 through 2002 and exonerations from 1993 – 2013. The longest case of incarceration was David Scott at 23 years from 1985-2008 who would be entitled to $575,000 under this methodology. (The bill would only apply to exonerations that take effect after June 30, 2017).