A Citizen's Guide to Indiana

Masson's Blog

Indiana Legislature 2016: Year of the Bathroom

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The smallest room seems poised to be the biggest issue for the Indiana General Assembly this year. I already posted about Sen. Mrvan’s bill seeking to make certain private bathrooms in retail establishments available to people who suffer from Crohn’s Disease and the like.

Sen. Holdman’s SB 100 concerning sexual orientation, gender identity and religious freedom (see my write up here) contains provisions which I described as:

7. The chapter permits separate restrooms, shower facilities, dressing facilities based on sex, sexual orientation, or gender identity. The attorney general will defend charter schools, public schools, local governments (and the State) against lawsuits based on allegations that their policies with respect to restrooms, shower facilities, and dressing facilities are discriminatory.

And, now, I see Sen. Tomes has introduced SB 35 entitled “single sex facilities” which seems primarily targeted at transgender people. But, in practice, its larger impact may be to turn women at college bars into criminals when they use the men’s bathroom because of the shorter line. The bill has two main provisions – one for schools, and another for public facilities.

In schools, Sen. Tomes’ bill requires that any “student facility” (being a locker room, restroom, or shower room designed for use by multiple students at the same time) be designated as either male or female and requires that a student facility for females be used by only students of “female biological gender” and one for males be used by only students of “male biological gender.” Non-student visitors get to use an outhouse in the back, perhaps?

As I understand it, the use of “biological gender” may be a bit of a problem. The bill defines the term as referring to the person’s chromosomes and physical characteristics. I’m no expert in the field, but I think the biology relates to sex and gender relates to more to a person’s social role or personal identification. “Biological sex” might be the better terminology. (See Wikipedia entry).

Outside of school, Sen. Tomes’ bill creates a crime called “single sex public facility trespass.” It applies to public accommodations with locker rooms, restrooms, and shower rooms in places of public accommodation accessible by multiple people at the same time and designated for use by only males or females. It then defines females as someone “who was born female at birth” or someone having “at least one x chromosome and no y chromosomes.” (So, for the first option, he makes the drafting mistake of defining a thing by referencing the thing itself — a “female” means someone who was born “female” — a defined term.) A male is someone who was born male at birth or who has at least one x chromosome and at least one y chromosome. So, for all that verbiage, it appears that if you have a Y chromosome, you go to the men’s room and if you don’t have a Y chromosome, you go to the ladies’ room. It’s a Class A misdemeanor if a female knowingly or intentionally enters a men’s room (or vice versa.) However, she is permitted to clean the toilets in there — exceptions are made for maintenance, for assisting in a medical emergency, and for accompanying a child less than 8 years of age. (The chapter also doesn’t apply to children under 18.)

The main problem is that sex and gender just aren’t as simple as Sen. Tomes’ wishes they were. And this, frankly, underlies a lot of what seems to come out of social conservatism. Gender occupies a spectrum and isn’t binary. There are challenges to accommodating that spectrum if we’re going to keep our bathrooms binary. Making matters worse, most of us get more wound up about nakedness and excretory functions than is probably necessary. The added emotional charge just makes dealing with the issues even more challenging. You have a person who feels like a man but looks like a woman who, like everyone else, needs to go to the bathroom from time to time. You have these binary bathrooms and people in them who are uncomfortable with the presence of someone who, outwardly anyway, looks like a person of the opposite gender. And, you have pooping and peeing and visible genitals. These are not the ingredients for a logical conversation about sound policy.

Dominic Holden, writing for Buzzfeed, has a column entitled “Why America’s Top LGBT Group Is Losing An Argument Over Bathrooms” where he observes that, despite the recent political successes for advocates of LGBT rights, they have been losing ground when bathrooms get involved. Describing the reason for the failure of an equal rights ordinance in Houston, he writes:

Their defeat can be attributed primarily to one ubiquitous, bumper-sticker-ready slogan: “No men in women’s bathrooms.” Anti-LGBT activists ran that message with visceral TV and radio commercials that claimed Houston’s nondiscrimination law would lead to men sexually assaulting young girls in public restrooms. This attack has been raised by conservative opponents virtually everywhere laws like this have been debated in recent years.

The argument is based on an underlying premise that transgender women are actually dangerous men — a claim that has no factual foothold. It’s never been an issue in the 200 cities and 17 states with laws like these on the books. But it’s kryptonite to LGBT nondiscrimination laws.

Based on that insight, I think we can expect to hear a lot more about bathrooms this session.

SB 33 – Restroom Access for Customers with Crohn’s Disease and IBS

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Sen. Mrvan has introduced SB 33 which would make it a Class C infraction for a retail business to decline to allow a customer with Crohn’s Disease or Irritable Bowel Syndrome to use a bathroom on the premises if such a bathroom was available to employees and it would be safe for the customer to use.

If this goes forward, one item I’d like to see is some mention of an affirmative duty for the Customer to advise the business of the eligible medical condition. Also, the terminology is a little misleading. It defines a “retail business” as “a place of business that is open to the general public for the sale of goods or services.” So far, so good. But, it defines “Customer” as “an individual who is lawfully on the premises of a retail establishment.”

Taking my law firm as an example, I think regardless of the law, I’d let someone who had a medical condition use the bathroom. But, as a general rule, we have debtors come into our office to pay bills we’re collecting on behalf of our clients. Sometimes, they’ll ask to use our bathroom, and if we have no other experience with or connection to the individual, we’ll usually decline and tell them we don’t have any public bathrooms in our office. We have an arm’s length, often adversarial relationship with some of these individuals. They are not our “customers.” But, under this law, they are “customers” in the sense that we’d have to open up our bathroom. Like I said, no big deal if they have a medical condition, but the terminology could be clearer, and I’d like them to have some obligation to put us on notice of the condition. As it’s currently written, they could say nothing, we could decline, and I think we’d be liable for the $100 penalty if they had an eligible medical condition.

SB 29: Eek! Sharia! (Again)

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Sen. Steele has introduced SB 29 concerning “application of foreign law.” I believe this is a return of the Sharia law bugaboo that crops up from time to time. (For example Sen. Kruse’s SB 90-2012).

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.

SB 19: Equine Dentistry

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Sen. Boots has introduced SB 19 which would apparently distinguish between “veterinary dentistry” and “equine dentistry.” The former could be performed only by a vet, but equine dentistry would not be so limited.

“Equine dentistry” is not comprehensively defined, but it includes the “diagnosis, treatment, correction, or prevention of any dental disease, defect, injury, deformity, pain, or condition of a horse.” (Also of note – under existing law, “equine massage therapy” is a thing and it can be performed by non-veterinarians.)

These things don’t tend to come from nowhere. Presumably there is someone working on horse’s teeth without a veterinarian’s license and has persuaded Sen. Boots that horses are somehow different than other domestic animals (because under current law, “veterinary dentistry” is specifically mentioned as requiring a vet’s license.)

SB 30: Accident and Sickness Insurance Claim Denials

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Sen. Miller has introduced SB 30 which contains a proposal recommended by the interim study committee on public health, behavioral health, and human services.

It would require the Dept. of Insurance to post on the department’s website information concerning internal and external grievances for accident and sickness insurance policies and HMO contracts. The Insurers and HMOs would have to provide information about the DOI website and the policy grievance procedures to their insureds when the policy is issued or renewed and also along with each notice of denial.

Insurers and HMOS would also be required to file quarterly reports with the Commissioner of Insurance on the number of denied claims during the quarter. The quarterly reports are required to contain information about how many claims were denied because they were experimental, investigational, and/or not medically necessary.

Seems like a good idea to me. Part of the insurance game seems to involve discouraging claims with bureaucracy. My personal experience involved denial of a claim following a medically necessary C-Section for one of my kids. Because I’m a lawyer and one of my best friends is a doctor, I was able to read the policy, determine what types of C-sections were covered and what types were not, and articulate why our case was best regarded as being in the former category. Even though, economically, I was in a better position than a lot of the people receiving medical services, it was still a pretty scary situation for us. I can only imagine what it must be like for people with fewer resources, both in terms of navigating the bureaucracy, and paying for the amounts that eventually come due.

Hopefully this bill would be helpful in discouraging arbitrary denials by insurers.

Lawmaker compensation: Penny-wise, pound foolish

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Public official compensation has been in the news lately. A report came out that state legislators, despite being “part time,” can make more than part-time money when you count per diem.

Base salary for Indiana lawmakers is just $24,140, but members collect a generous per diem for food and lodging. Legislators receive $159 a day even if they live close enough to the Statehouse to stay at home during the session or if they dine at a lobbyist’s expense.

Leadership apparently ends up making about $65 – $70,000 when leadership bonuses are figured in. Meanwhile, there was a hue and cry over a proposal to raise compensation for Marion County officials. The proposal would have raised the mayor’s salary from $95,000 to $125,000 and council salaries from $11,400 to $16,400.

Raising lawmaker compensation is deeply unpopular. This stems from a variety of factors. People don’t like government. It’s easy to complain that government spends too much as it is. Lawmakers should be ordinary citizens, and ordinary citizens often make much less than lawmakers. Lawmakers are, in effect, giving themselves a pay raise which is always unseemly. But, up to a certain level anyway (I think there are diminishing returns as salaries climb higher), you get what you pay for. And when you look at the overall budgets of the State and Marion County that these officials are charged with overseeing, sweating these salaries seems penny wise, pound foolish. Indiana has a budget of $15 billion and Marion County has a budget of a billion dollars. The mayor’s salary is something like 1/10,000th of the County’s budget.

I don’t expect the intense resistance to public salaries will decline any time soon, but I find it tough to get very excited about what usually ends up being a very minor part of the public budget.

Quis Custodiet Ipsos Custodes? — ISTEP Edition

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Chelsea Schneider and Tony Cook, writing for the Indy Star, report that the latest round of ISTEP scoring is unreliable. In particular, it appears that there were flaws in the computer program used by CTP McGraw Hill to score our kids’ tests. They knew about the problem but proceeded anyway. To make matters worse, company officials and test scoring supervisors don’t agree on what happened.

Company executives would not speak with The Indianapolis Star, but in a letter Tuesday to the Indiana Department of Education, Executive Vice President Ellen Haley downplayed the problem. She said the issue “was very rare” and “did not affect student scores.”

Seven supervisors who spoke with The Star disagreed. All said they believed the problem was more widespread. Two estimated that tens of thousands of test questions were likely given incorrect scores. Others said it is difficult to put a number on the problem, but it was pervasive enough to merit rescoring the potentially impacted tests.

The company wouldn’t speak with the newspaper and has an obvious interest in minimizing their failures. I don’t know the supervisors or what their biases may be. So, at the moment, the company appears to be the less credible source.

The State’s education policy makers have put a lot of their eggs in this testing basket. Schools, teachers, and students are evaluated based on this testing metric. It was already a problem that we didn’t have a lot of confidence that we were measuring the right things. Now we don’t even know if the measuring tool itself is reliable.

The problem had to do with entering the scores. If an evaluator entered multiple scores quickly using a key pad, the system would record the same score twice — discarding one of the scores entered. A fix was eventually implemented, but apparently re-scoring the tests compromised by the computer error would be expensive and the company opted not to do it.

“We are just assuming that CTB is giving us the correct information,” Warren Township Schools Superintendent Dena Cushenberry said. “There is no checks and balances to the system.”

So, to paraphrase the old question about who watches the watchmen: who is testing the testers?

We’re wasting time and money and not adding much to the education of our kids.

Indiana Becomes a State: Dec. 11, 1816

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Indiana became a state 199 years ago — on December 11, 1816 — and we are a mere one year from our bicentennial. I wanted to take a little look at our State’s history. Hopefully, I can manage a bit of a series by way of tribute.

The Territory

The Indiana Territory was created in 1800, extending westward to the Mississippi and from the Ohio River up to Canada. It had about 5,600 white people (the only ones who “counted” at the time), mostly clustered around Clark’s Grant and Vincennes. Even by 1813, when the territory was much reduced by the splitting off of the Michigan and Illinois Territories and the territorial capital was moved from Vincennes to Corydon, the population was mostly in a crescent down the Whitewater, along the Ohio, and up the lower Wabash. The primary reason for this was Indian resistance to white expansion. As territorial governor, William Henry Harrison was primarily responsible for dealing with this. Harrison was expansionist and aggressive, negotiating land cessation treaties in the early 1800s. The loss of land, among other things, provoked resentment among the Native Americans, creating an environment ripe for the rise of Tecumseh and his brother, Tenskwatawa, the Prophet. While the Prophet preached, Tecumseh worked on uniting the tribes of the Northwest. Harrison described Tecumseh as “the efficient man-the Moses of the family . . . a bold, active, sensible man daring in the extreme and capable of any undertaking.” (James Madison, “the Indiana Way” at p. 43). Adding to the concerns of the Americans were the friendly relationships of the Native Americans with the British. Convinced that hostilities were imminent and concerned about Tecumseh’s ability, Harrison determined to strike while Tecumseh was away. On November 7, 2011, Harrison defeated the Prophet at the Battle of Tippecanoe (which is, as luck would have it, about 5 miles away from where I am writing this.)

The War of 1812 initially went poorly, with Indians striking into southern Indiana as far south as Scott County. But eventually, the Northwest Army with Harrison in charge pushed back and by October of 2013, the Indians were defeated decisively at the Battle of the Thames north of Lake Erie at which Tecumseh died. That was pretty well the end of Indiana military resistance to white incursions into Indiana. Not that non-military efforts did the Indians any good. The Miamis who had stayed neutral and tried to honor their treaties with the Americans were not treated noticeably better than the Shawnee or the others.

Indiana’s initial push for statehood was unsuccessful. As a Congressman, Jonathan Jennings petitioned Congress for Indiana statehood in 1811. The War of 1812 broke out, and Congress had other concerns. After the war, a census of the Indiana Territory was taken. 60,000 adults were needed for a territory to become a state, and Indiana was found to have 63,000. Jennings again petitioned for an enabling act to permit the Indiana territory to become a state. Congress drew up the boundaries and delegates were selected in the State to go to Corydon and draw up a state constitution.

Jonathan Jennings

Jennings was an interesting character who dominated early Indiana politics but who seems largely forgotten now. By the time he died, apparently he was so broke, there was nothing left with which to purchase a headstone and he was buried in an unmarked grave.

Born the middle child of an educated family, he grew up in Pennsylvania and eventually studied law. A couple of his childhood friends in Pennsylvania, William Hendricks and William Wick, would go on to be his political allies in Indiana. Jennings briefly practiced with his brother in Steubenville, Ohio before heading west to the Indiana Territory in 1806, opening a law practice in Vincennes. There wasn’t, apparently, a great deal of work for lawyers at the time; so he fell in with the territorial land office and made a good deal of money in land speculation.

Fairly soon after arriving in Vincennes, Jennings seems to have developed an antagonistic relationship with Harrison arising out of Harrison’s relationship to Vincennes University and Jennings position of clerk with the Board of Trustees. But the antagonism would develop deeper roots when Jennings moved east where there were more anti-slavery sentiments and a resentment of Harrison’s aristocratic manner. When the position for territorial representative to Congress opened up, Jennings ran against Harrison’s preferred candidate (Thomas Randolph — the territory’s attorney general who would die at the Battle of Tippecanoe two years later) and won — with a large part of his support coming from the Quakers in the eastern part of the Territory. Irregularities in Dearborn County’s vote counting led a U.S. House committee to recommend a re-vote, but the full House eventually rejected that proposal, leading the way for Jennings to take his seat.

Harrison and slavery would also figure prominently in Jennings’ campaign for re-election. Harrison and Randolph’s support was further eroded when the Illinois territory was separated off from the Indiana territory because the pro-slavery faction, loyal to Harrison, was based more to the west. After his re-election, Jennings kept after Harrison. One of the complaints against Harrison was the sense that he unnecessarily raised tensions with the Native Americans. This line of attack probably became more complicated after the Battle of Tippecanoe and the beginning of the War of 1812. Jennings lamented the battle but promoted a bill to compensate veterans of the battle and their widows and orphans. He was not a hawk with respect to the War of 1812, but resigned himself to it.

With a war on, Harrison resigned as territorial governor to serve as a military general. Jennings and his allies took advantage of this by pushing to move the territorial capitol away from Vincennes – a Harrison stronghold. Jennings also won another election against a Harrison ally with Jennings running under the campaign slogan, “No Slavery in Indiana.”

Statehood

Indiana petitioned for Statehood in 1815. This was not universally supported. Among the most persuasive arguments was that Indiana did not yet have the population to support statehood financially. Statehood would mean that a lot of support from the federal government would go away even as the new state had to finance the infrastructure of government. Proponents of statehood were often willing to overlook this difficulty inasmuch as they hoped to fill the newly created government offices. (But also: democracy). On April 19, 1816, President Madison signed into law an Enabling Act, providing for election of delegates to a convention. (Mississipi was Indiana’s Slave Twin State — suggesting a precursor to the Missouri Compromise was underway in Congress already.)

[S]aid state shall consist of all the territory included within the following boundaries, to wit: bounded on the east, by the meridian line which forms the western boundary of the state of Ohio; on the south, by the river Ohio, from the mouth of the Great Miami river, to the mouth of the river Wabash; on the west, by a line drawn along the middle of the Wabash from its mouth, to a point, where a due north line drawn from the town of Vincennes, would last touch the north western shore of the said river; and from thence by a due north line, until the same shall intersect an east and west line, drawn through a point ten miles north of the southern extreme of lake Michigan; on the north, by the said east and west line, until the same shall intersect the first mentioned meridian line which forms the western boundary of the state of Ohio[.]

Delegates were elected by the white men in the territory according to the population in the various counties. Specifically, the counties and their delegate counts: Wayne (4), Franklin (5), Dearborn (3), Switzerland (1), Jefferson (3), Clark (5), Harrison (5), Washington (5), Knox (5), Gibson (4), Posey (1), Warrick (1), Perry (1). These 43 men met at Corydon for the Constitutional convention (often under the shade of a large elm tree). Most had origins from south of the Ohio River, including 27 hailing from Kentucky. Three had been at the Battle of Tippecanoe: James Smith of Gibson County, Patrick Shields of Harrison County, and Benjamin Parke of Knox County.

The delegates copied liberally from the constitutions of other states, Ohio and Kentucky in particular. There was generally (but not necessarily sharply) a split in factions between eastern, pro-statehood Jennings men on the one side and western, anti-statehood Harrison men on the other. Great quote from John Badollet of Vincennes describing the Jennings faction as “empty babblers, democratic to madness, having incessantly the people in their mouths and their dear selves in their eyes.” (Madison at 51) — Guess some things don’t change all that much. The Jennings faction mostly got their way, resulting in a more populist set up. Members of the House were to be elected annually; members of the Senate every three years. The legislature was to be the dominant branch of government. All white male citizens over 21 who had resided in the State for a year would be able to vote. Men between 18 and 45 were required to enroll in the militia, “Negroes, Mulattoes, and Indians excepted.” In addition to the revolutionary stuff for the time that we take for granted — freedom of speech, to bear arms, to assemble, to worship, etc. — the Hoosier delegates were fairly creative and progressive for the time by requiring that the General Assembly provide for a general system of education from township schools to a state university. Free and open to all (as soon as circumstances will permit). There was also the provision, still in our present Constitution, requiring that the the penal code be “founded on the principles of reformation and not of vindictive Justice.” (Some criminal punishments have struck me – as an outsider – as being more vindictive than restorative; but it’s good to have noble aspirations in any case.)

With regard to slavery, the State would be mostly slave free. Slavery and involuntary servitude were formally banned. However, only indentures of “any negro or mulatto hereafter made” were declared invalid. So, there was wiggle room for indentured servitude already in force at the time of the Constitution. This was more prevalent in the western, pro-slavery section of the state and not so common in the east (for which you can probably thank, in part, the Quakers). Knox County apparently remained a popular place to own slaves even after Statehood. However, it was not too long before the Indiana Supreme Court took steps to end slavery for good in the State.

The new constitution was signed by the delegates on June 29, 1816. Elections took place in August. Jennings easily defeated his pro-Harrison opponent, Thomas Posey, and, on December 11, 1816, President Madison signed the congressional resolution admitting Indiana into the Union.

Rep. Ziemke Shares Family’s Struggles with Heroin

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The AP has a story on Rep. Cindy Ziemke (R-Batesville), her sons’ struggles with heroin, and what the struggles bring to her legislative outlook. Both of her sons have addictions to heroin. Among other things, one ended up in prison and another in a hospital as well as in and out of rehab.

She is proud of what her sons have accomplished though she acknowledges her expectations have changed over the years.

“I used to think they were going to be doctors or lawyers,” she said. “You want to know my proudest moment lately? Sean got a new car. He’s got a clean driving record, a 750 credit score, and he can afford a car payment. That was my proudest moment lately.”

I have to say that this is a scenario that plays out in my nightmares. I have a couple of kids who are delightful and seem to be very much on the right track. And, so, I wonder — how much randomness is there in addiction derailments of otherwise promising lives?

From a policy perspective, this has emphasized to Rep. Ziemke the need for better treatment options in Indiana.

Unlike Indiana, Southern California boasts a wide range of treatment options and, as a result, a much larger sober living community. There is a wider array of housing options for those in recovery, and employers are more open to hiring recovering addicts, she said. There are 12-step meetings available any night of the week.

It’s a stark contrast to Indiana, with its limited treatment options. Fostering a stronger recovery environment in Indiana will take time, she said, but it begins with recognizing the need. And that means spreading the truth that heroin abuse can affect anyone.

To that end, she’s sharing her experiences more frequently. She mentioned Sean’s struggle during the last legislative session when she sponsored a bill expanding the availability of naloxone, the overdose antidote that helped save her son’s life.

And just last month, she spoke to about 500 people at Mental Health America of Indiana’s annual gala.

“It’s hard to do,” she said. “But it gets easier.”

Dram Shop, Intent, and Proximate Cause

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The Court of Appeals issued an interesting 2-1 decision in the case of Marlow v. Better Bars, Inc. (pdf). The trial court had granted summary judgment to a bar in Mooresville (“the Bar”) that had served the plaintiff (“Marlow”). Marlow had been at the Bar until at least 1 a.m. when his co-workers left him there. At about 2:30 a.m., police officers were called to a White Castle where Marlow was causing some trouble in the drive through. The police made him stand outside of his car, handcuffed in front of a squad car while an officer moved Marlow’s car out of the drive through. As this was happening, Marlow fled the police, running out into State Road 67, where he was hit by two cars causing serious injury. At the hospital (shortly thereafter apparently), his BAC was .206% — and, at 5:17 a.m., his BAC was 0.158% (by way of comparison, it’s illegal to drive with more than .08% in your blood).

The Dram Shop Act makes it illegal for a bar to sell alcohol to a patron where the bartender knows the person is intoxicated. (It’s broader than that, but that’s sufficient for this case). All three judges agreed that summary judgment based on lack of evidence that the Bar knew Marlow was intoxicated was improper. Because Marlow was at the bar from at least 11:30 – 1:00 a.m., there was evidence that he had been served at the Bar, and, after 2:30 a.m., had a BAC of .206%, the Court found that a jury could legally conclude that the Bar served Marlow when the bartenders knew he was intoxicated.

The more interesting question, leading to the 2-1 split, was whether Marlow’s intentional criminal act of fleeing from the police was an intervening event that broke the chain of causation such that serving the alcohol was no longer a “proximate cause.” Even after 19 years of practicing law and 3 years of law school, I still have trouble with the precise meaning of “proximate cause.” The general notion is that causation never ends: one thing leads to another, on and on, from the beginning of time to the end. Ripples in a pond and all of that. At some point, you have to cut off legal liability for those rippling consequences. So, the common law created this notion that it’s not enough to merely be the cause of some bad thing — rather, you have to be the proximate cause of that bad thing. Where and how cause stops being proximate has always been a fuzzy line to me, and I think you see the judges wrestling with that notion here.

To be considered a proximate cause, the negligent act must have set in motion a chain of circumstances which, in natural and continuous sequence, led to the resulting injury. However, the willful, malicious criminal act of a third party constitutes an intervening act which breaks the causal chain between the alleged negligence and the resulting harm.

(Internal quotations and citations omitted). Both the majority and the dissent find support in the case of Fast Eddie’s v. Hall. In that case, summary judgment was appropriate where the bar served a patron who subsequently sexually assaulted and murdered a woman. The patron’s intentional criminal acts were the intervening cause of the woman’s death which broke the causal chain between the tavern’s negligence and the woman’s assault and death. The Court distinguished this from automobile accidents where taverns have been held liable for the damage caused by the drunk driver. “Unlike automobile accidents which occur as the result of alcoholic beverage consumption, assault and murder are intentional acts of volition which are the result of an assailant’s deliberate design . . . [whereas the drunk patron’s] criminal intent would have been present whether or not [he] was intoxicated.” The majority decision stated that they could not determine whether Marlow’s criminal intent to flee the police would have been present had he not been drunk. The dissent, on the other hand, thought that the Fast Eddie’s court had established that the chain of proximate cause was broken by the act of intentional volition advancing the drunk patron’s criminal design. In a drunk driving case, the drunk patron doesn’t mean to weave into oncoming traffic, it’s an accident — an accident made a lot more likely because of the intoxication. In the sexual assault/rape case, the rape isn’t an accident — it’s intentional.

And, of course, we have a lot of criminal cases (where some kind of culpable mental state is a required element) that tell us being drunk isn’t a defense.

I think what we have here is a legal system that is a lot more precise than the human condition, and the judges are struggling (not just in this case but with respect to alcohol use generally) to make the legal system yield the correct result. Some thoughts about competing interests in no particular order:

1. We want our crimes to be based on mental culpability and not just bad outcomes.
2. Alcohol has the potential to permit action without conscious thought but we don’t want to allow alcohol-induced lack of mental capacity to be used as a defense to criminal prosecution.
3. Taverns are profiting off of drunkenness and we don’t want them to externalize the costs of their business on innocent third parties.
4. We want the drunk to be personally responsible when it’s a question about whether they’ll go to jail or not. We don’t want the drunk to be personally responsible (or at least not solely financially responsible) when it’s a question of whether an injured person will be compensated for their injuries.
5. Holding taverns responsible for rapes and sexual assault feels like it’s going too far.
6. Saying that the rape and assault in the Fast Eddie’s case would have happened even without the alcohol may be true, but it also seems like an unsupported assertion for the purpose of creating a bright line where one doesn’t really exist.
7. Running into traffic to get away from the police feels a little more like a drunk driving accident and a little less like the rape and sexual assault, but the Court has to reconcile the intentional volition language from prior decisions.

I wouldn’t be surprised if the Bar attempts to take this one up to the Indiana Supreme Court.