Wednesday, January 24, 2018

The Repairs Succeeded

In 2011, I expressed disagreement with the Indiana Supreme Court's controversial (and flawed) first Barnes decision and its subsequent controversial (and flawed) second Barnes decision.  Though my objections to the second of the two were not limited to the "right to defend" (as I came to call it) issue, those two issues were what led me to post quite a bit of information on just how highly regarded and well-established that right, which was widely known as the "First" or "Primary Law of Nature", in our own legal and philosophical traditions as well as in others.  In 2012, I also noted with approval that the Indiana General Assembly responded swiftly (considering that it is only in session for a few months at the beginning of each year) with repairs.

I am now happy to (belatedly) point out that this case from 2015 shows that those repairs succeeded.

Thursday, January 18, 2018

Laws With Selective Application -- More Information

When I wrote about one of the more senselessly narrow (and generally puzzling) of the alternative sets of qualifications under which certain cities and counties may enjoy a limited exemption from Indiana's Sunday-only alcohol sale prohibition (a prohibition that may only exist for another few months), I mentioned that the other alternatives provided for in IC 7.1-3-1-25(a) did not appear to make a lot of sense, either.  However, I did not at that time take a closer look at those other alternatives (preferring to focus on the one that narrowly extends that exemption to a city with a population ranging from 4,950 to 5,000 people, which I thought provided the more effective and unmistakable demonstration that population parameters had been abused at some point by a past General Assembly).

I want to be certain that readers know that such abuse of the incorporation of population parameters into legislation is not confined to this single, extreme case.  To show that the abuse is not limited to that outlying case, let's look at how the very same code section used population ranges to identify the counties that are allowed that same special exemption.

IC 7.1-3-1-25(a) provides that it applies to cities and counties that meet any of the nine alternative specifications that it lists.  (Instead of covering all of the details right here, I will minimize the clutter in this post by "showing my work" in this separate post.)  Six of those nine use population ranges to identify the affected counties, and the population ranges of some of them run right up to the edge of the population range of another, with the result that those six alternatives combine to form three larger population ranges.  Counties whose respective populations fall inside any of those three ranges have the benefit of IC 7.1-3-1-25(a); other counties* do not.

The problem with the specified population ranges is the absence of any obvious rationale for IC 7.1-3-1-25(a) to apply to counties with populations falling inside those ranges but not to counties with populations falling outside of those ranges.  It is especially difficult to imagine what might set apart the counties that have populations falling somewhere in the gaps between the ranges.  What it is that supposedly makes those counties unfit to enjoy the benefits of IC 7.1-3-1-25(a), even though that code section does apply both to counties with larger populations and to counties with smaller populations -- and not only that, but it applies to those more populous and less populous counties on the basis of population?

The following are the ranges within which a county's population must fall (any one of the three) for IC 7.1-3-1-25(a) to apply to the county:

125,000 to 138,000
175,000 to 250,000
270,000 to 400,000

Of course, this excludes counties with populations below 125,000 and counties with populations above 400,000. I do not know what the purpose of that could have been, but let's turn our attention again back to the gaps between these ranges. Without the gaps, these ranges would have covered all counties with populations falling between 125,000 and 400,000 (inclusive), between which there is a difference of 275,000. It is useful to keep that in mind as we decide what we ought to think of the gaps:

138,000 to 175,000 -- a difference of 37,000
250,000 to 270,000 -- a difference of 20,000

So, as a general matter, IC 7.1-3-1-25(a) applies to counties within a population range spanning 275,000, but it has evidently been decided that any counties with populations falling inside either of two small sections of that range ought to be excluded from its effect -- one segment with a span of 37,000 and another with a span of 20,000.  Strictly speaking, it is not impossible that legislators believed (perhaps even with a reason for believing it) that counties with populations between either 138,000 and 175,000 people or 250,000 and 270,000 people are somehow less fit than other counties to have the benefit of IC 7.1-3-1-25(a) ... but I see no need to take that possibility seriously.**

* A county also has the benefit of IC 7.1-3-1-25(a) if it happens to be the county of a consolidated city.  So far, the only Indiana county which that has ever described is Marion County, which has been consolidated with the City of Indianapolis for approximately fifty years.

** That benefit is to permit the sale of alcohol at certain public facilities -- including on Sundays.  This benefit may not be one of the highest importance, but it is one that I believe that every county is as fit as any other county to have.

Tuesday, January 16, 2018

The City With A Population Between 4950 and 5000

When I was looking at the special exemptions to Indiana's Sunday-only alcohol sale prohibition (a prohibition that will not survive the current session of the Indiana General Assembly -- or so all intelligent and decent people hope) that over the years have gradually been written into Indiana law, I found one exemption -- a limited one -- that only has effect in specific Indiana cities and counties.  The code section (IC 7.1-3-1-25(a)) that identifies the cities and counties that have the benefit of this exemption does not identify them by name, which would almost certainly violate the Indiana Constitution's prohibition of special and local laws (Article 4, Sections 22 and 23).  Instead of identifying the affected cities and counties by name, the code section (in a practice that has evidently managed to "pass" for constitutional, so far*) identifies nearly all of them by limiting its applicability to certain stated population ranges within which the communities to be affected happen to fall.

The code section specifies that it applies to counties falling within one of six listed population ranges, to any consolidated city and its county (which, for nearly fifty years, has described only Indianapolis - Marion County), to a Second class city (which itself is defined mainly by whether it falls within a particular population range), or to a city -- presumably no more than a single city, for reasons that you are about to see -- that the code section identifies using a population range ... a very peculiar population range.

I have been unable to determine which city the code section was even meant to identify and affect, but this is how the code section describes it: "A city having a population of more than four thousand nine hundred fifty (4,950) but less than five thousand (5,000)."

Considering the language used in expressing it, the actual range within which the city's population must fall runs from 4,951 through 4,999 -- within a window of forty-nine.  Of course, we can afford to be a little more accommodating than that, but even the most generous treatment of it can only expand the window to fifty-one.  So, while it is possible for a small Indiana city to enjoy the benefit of this special, limited exemption from Indiana's Sunday-only alcohol sale ban, the population of that city must be equal to one out of fifty-one possible numbers, ranging from 4,950 through 5,000 (inclusive).

I noticed that there were some things about the population ranges that the code section designated for the counties that did not make a lot of sense, either, but in this post, I choose to focus on the mystery city whose population is (unless somebody made a mistake!) equal to one of the fifty-one numbers between and including 4,950 and 5,000.  I am focusing on this because this decision that legislators made at some point (I do not know when it was done, but I do know that it was not done recently), that this legal provision should specifically target and apply to a lone city to be identified using a population range so narrow that it includes a mere fifty-one allowable population totals, provides an example (another example) of not only how absurd Indiana's alcohol laws have become but also an example of how population ranges can be abused in an attempt to evade the Indiana Constitution's prohibition of local and special laws (when general laws can be made applicable).

What conceivable characteristic possessed by a city with a population of 4,950 through 5,000 (inclusive) distinguishes it from other cities in such a way as would explain why it might be fit to have the benefit of an exemption from the Sunday-only alcohol sale ban while other cities are not?  There is none.  The population range, in this case, is nothing but an amusingly incompetent attempt to conceal the fact that the General Assembly was (many years ago, whenever it was that it actually did this) making a special rule for a single, specific city.

Depending on whether or not there is a better set of population figures for Indiana cities than I have managed to find, so far, the use of such a narrow population range in that code section might also be an amusingly incompetent attempt to apply that special rule to the single, specific city that the General Assembly of that time actually intended.  As I write this, I have not yet found a listing of the populations of Indiana cities that identifies any city as having 4,950 - 5,000 people.  Does anyone else know which city this was meant to target?  If so, does anyone know what legislators might have felt was so special about that city?

* Legitimate uses of population ranges to classify political subdivisions (in order to allow state law to be designed to account for their differences in characteristics and circumstances) do exist.  Of course, those classifications are at least somewhat arbitrary, in the same kind of way that it is arbitrary to establish a given age as the threshold for legal adulthood, but also in that same kind of way, it can serve a useful purpose.

Sunday, January 14, 2018

You Can't Do That!

As I was looking through the Indiana Code, I found something unexpected.  It appears that it was added to the Indiana Code by the General Assembly in the late 1980s.  The code section is IC 1-1-5-2, which reads,
Sec. 2. Each general law of the state is enacted subject to the right of the general assembly to amend or repeal that law at any time, unless the general assembly waives this right in that law. Except as provided in:
    (1) IC 5-1-14-9; or
    (2) any other law containing a covenant that the general assembly will not amend or repeal that law;
the general assembly may not be construed to have waived its right to amend or repeal any general law at any time.
The first part of it is certainly true -- no legislature can pass a law that deprives subsequent legislatures of the power to repeal or amend it.  The latter legislature is the equal of the former.  This is ... pretty fundamental.  (If, instead of simply legislating, the legislature actually manages to make a contract, then it is of course forbidden to make any law impairing its obligation, but it can always pass a law to repeal a law.  I looked at IC 5-1-14-9, and it looks as though the General Assembly may have conceived of that as involving itself in a contract, but that was as far as I went in looking into that part of this.)  In this, the General Assembly was correct.

But then, the General Assembly expressed the opinion that it had the ability to waive the right of any future General Assembly to amend or repeal a particular law, and then it indicated that it could do so by passing a "law containing a covenant that the general assembly will not amend or repeal that law".  In that, the General Assembly was wrong.

I post this as a warning to any legislators who might stumble upon IC 1-1-5-2 and get the idea to write a bill "containing a covenant that the general assembly will not amend or repeal that law": Don't even bother.  You'll just be wasting everybody's time.

Saturday, January 13, 2018

Murder Should Be Illegal

Those who think that the attention that I have been giving to the State of Indiana has been excessive may take comfort in this knowledge: I am preparing something important about the laws of the State of Ohio.

Specifically, it concerns those aspects of Ohio law which relate to the subject of murder.  Ultimately, it will be up to the people of Ohio (and their representatives) to consider what I have written, to decide for themselves (individually, and then as a state) how much merit there is to it, and then to decide what, if anything, to do in response to it.  However, I believe they will receive it well.

I do not think that it is acceptable for certain prosecutions for murder to fail due to the structure or the wording of laws that -- as unbelievable as this surely would sound -- leave it an open question whether a given murder (though the fact itself may have been proven) was actually prohibited by law.

I am sure that the people of Ohio won't be willing to tolerate that, either.

Friday, January 12, 2018

That's A Start

When I wrote about strange exceptions to Indiana's Sunday-only prohibition of the sale of alcohol (which is itself bizarre and unjustifiable, but to which a large number of exceptions now exist, and which it is hoped that the Indiana General Assembly will finally put an end to during its current session) a few years ago, I mentioned that this prohibition also extended (for whatever reason) to Christmas Day.

I am happy to report that the following year, the Indiana General Assembly did eliminate the Christmas Day-only selective prohibition of alcohol.

The General Assembly still needs to complete what it has already begun during its current session by eliminating the Sunday-only prohibition, but fixing Indiana law's closely related Christmas problem was nonetheless a good start.

Thursday, January 11, 2018

Indiana should repeal the misleading Indiana Code article concerning United States Article V national conventions

The Indiana General Assembly is currently in session, so I urge it to (among other things) altogether repeal a profoundly deceptive article of the Indiana Code.

IC 2-8.2 pretends to establish an airtight statutory system to control the proceedings of any national constitutional convention which might, at some point in the future, be called pursuant to Article V of the United States Constitution.  Its design clearly relies on assumptions that advocates for an Article V national constitutional convention regularly assert and insist upon.  I have never come across such an advocate who was able to offer any basis for those assertions -- much less a sound basis.  (I do not find this surprising, because I am familiar enough with the writings, proceedings, and political and legal history from the decades prior to the 1787 Constitutional Convention through the years that followed its ratification, including all of the available information on the debates in the 1787 Constitutional Convention and the subsequent state ratification conventions, that I know that there is no basis for the assurances that present-day advocates for an Article V national constitutional convention give us concerning the full control that state governments would allegedly have over any such convention.)

IC 2-8.2 should be repealed because if people were to read it, they would mistakenly conclude that article 8.2 could ever have legal force.

Do we really want our laws to continue to make false promises (as IC 2-8.2 currently does) that lead people, in reliance on those promises, to advocate a "fast-track" path to proposing unknown amendments (with no way of knowing who would draft them or vote on them, either) to the United States Constitution?  I don't.