Archive for October, 2005

Eminent Domain commitee makes final recommendations

The Interim Study Committee on Eminent Domain has finished its deliberations for the year. On Thursday we met to make final recommendations for legislation to deal with the ramifications of the U.S. Supreme Court decision in Kelo v. New London.


That case essentially held that while eminent domain should be restricted to public use, states are free to decide what constitutes “public use” - including, potentially, private economic development projects.

Groups such as the Indiana Association of Cities and Towns feel that eminent domain is a critical part of their economic development tool box. However, I have felt all along that the property rights - particularly of homeowners - need to be guarded carefully.

As Susette Kelo of the eponymous case says:

If homeowners, small business owners, churches and others are to be safe, state and local lawmakers across the nation should… respect our right to own property rather than cut sweetheart deals with developers who tempt lawmakers with the promise of more taxes and jobs. What we have now at the local, state and federal level amounts to “government by the highest bidder.”

If the government was taking our property for a road or firehouse, I would be prepared to sell without a fight. But the government should not be able to force me to sell my home so someone else can enjoy my view.

With that in mind, my recommendation to the Committee was to prevent any owner-occupied homes from being designated as an “area needing redevelopment” as set forth in IC 36-7-1-3. That section of Indiana Code is the mechanism by which private property can be declared subject to eminent domain for purposes other than “traditional” eminent domain needs - such as roads and bridges.

My argument, unfortunately, did not prevail. However, in the end, we were able to agree on recommendations that should make it very difficult for any homeowners to lose their property to an eminent domain action being used for “economic development” purposes.

Recognizing that there may be circumstances when a City would need to use eminent domain to rehabilitate truly uninhabitable properties, we resolved to tighten the definition of an “area needing redevelopment” to something that is beyond doubt a “condemnation-eligible” property.

This would prevent a normal home or neighborhood from being placed at risk just because someone thinks its location might be a great spot for a new strip mall.

The Committee also resolved to:

  • revamp the “just compensation” criteria for property taken in eminent domain actions,
  • consider limiting eminent domain only to those instances where there is “no reasonable alternative,”
  • address insufficient attorney’s fees for plaintiffs in eminent domain actions, and
  • specify that “economic development” cannot be defined solely by an increase in tax revenue.

  • Representative David Wolkins
    (R-Winona Lake) deserves praise for taking the lead on this issue, as do the rest of the committee members, who all demonstrated bipartisan cooperation and devoted careful thought to this issue.

    There will likely be several bills addressing eminent domain in the upcoming session, but the Committee recommendations will be a valuable guide for the deliberations of the Legislature in the upcoming session.

    Add comment October 28th, 2005

    EQSC adopts final report

    The Environmental Quality Service Council (EQSC) held its final meeting of the year on Wednesday. The Council adopted a final report, which included recommendations on several areas of environmental policy.


    The final report has not yet been posted, but I have uploaded a draft version of the report and made it available here (the highlighted portions are additions from Wednesday’s meeting).

    One of the most significant recommendations deals with the mercury switch problem that I discussed in an earlier entry:

    Essentially, the problem is that car manufacturers included motion-activated switches in automobiles (like the switches under your hood and trunk that turn on lights when you lift them) for many years. Although most of these switches are no longer included in cars, the mercury from them ends up in scrap steel. This scrap steel is melted down by steel manufacturers, and pumped back in to the atmosphere.

    Many other states are dealing with this problem, and the issue always comes down to who covers the cost of reclamation from the scrap yards - car manufacturers, steel recyclers, the scrap yard operator, or the state taxpayers.

    The Council essentially endorsed the concept of a state “bounty” system to pay for the collection of mercury switches from scrap yards. Exactly how the bounty will be funded - and by whom - is an issue that will be hashed out in the Legislature. Other states have required automobile manufacturers whose cars contained mercury switches to contribute to their collection programs.

    Another recommendation was to improve the practices of Confined Animal Feeding Operations (CAFOs) - including the possibility of requiring financial assurance bonding. Indiana CAFO issues have been covered extensively at Kemplog, if you would like to do further reading on the subject.

    The report also includes a recommendation for the Governor to establish a Sustainable Energy Commission to examine the potential long-term impacts of alternative energy and energy efficiency. The recommendation mirrors some of the policy contained in HB 1642 that was introduced by Representative Matt Pierce (D-Bloomington) in the last session.

    I look forward to working on these and other environmental issues in the upcoming session. As always, if you have any suggestions or comments, please feel free to let me know.

    Add comment October 27th, 2005

    ND research results in possible CSO fix

    I have posted before about the costs associated with fixing Combined Sewer Overflows. Today’s South Bend Tribune has a very interesting story about one approach that could dramatically reduce those costs:

    ND researchers could save South Bend millions

    Jeffrey Talley, assistant professor of civil engineering and geological sciences at the University of Notre Dame… is leading a research effort, using South Bend’s sewer system as his laboratory, that would use a network of embedded wireless sensors inside sewer pipes to measure water levels during wet weather. If a pipe fills up with rain or melted snow, the sensor would send a radio message alerting a “smart valve” to open and send water into other pipes with more room.

    Talley said he has been contacted by cities from around the world, including Paris, New York, Chicago, Detroit and Los Angeles. Initially he was inundated with e-mails and was receiving 15 calls a day from people wanting to learn more… One of those inquiries came from Milwaukee-based Johnson Controls Inc., which is negotiating with the University of Notre Dame to license the patent for the process and commercialize it. Brad Van Meter, municipal utilities solutions manager with the company, said he sees a potential $1 trillion world market for the process.

    I have followed the progress of this research for a while now, after being briefed on it by the City of South Bend last year.

    It is a clear demonstration of the potential benefits of a society strongly invested in research and development. Hopefully, more advanced technologies like this will result from the proposed South Bend technology park that I discussed in a previous post.

    Add comment October 25th, 2005

    Visit to Healthwin

    healthwinLast Monday I paid a visit to the Healthwin Specialized Care Facility in Clay Township.

    Originally constructed as a tuberculosis hospital in the 1930’s, Healthwin is not only architecturally impressive; it is impressive in the quality of care it provides for its residents.

    Residents and their family members were uniformly positive about the dedicated staff and administration at Healthwin. From physical therapy classes to a visiting dog program – it was clear Healthwin strives to improve the quality of life of its patients.

    Two-thirds of Indiana nursing home patients are on Medicaid, and they must be approved by the state prior to admittance.

    I spoke with Healthwin administrators, board members, and a representative from the Indiana Health Care Association about the financial and quality of care challenges they face.

    healthwin inside

    Nursing homes are part of a continuum of care ranging from outpatient therapy and home care to hospitalization. It is important that Indiana maintain a variety of health care options for our senior citizens and those with disabilities.

    St. Joseph County can be proud of the healthcare asset it has in Healthwin.

    44 comments October 25th, 2005

    Commission on Courts Final Meeting

    The final meeting of the Commission on Courts took place on October 20, 2005.

    After hearing testimony on the need for additional capacity to keep up with growing workloads in the Indiana Court of Appeals, the Commission approved the final report for the year.


    The recommendations included new judicial officers for Marion County, a new court for Jackson County, a reorganization of the Madison County Courts, and a change in the election cycle for the Hendricks County Courts.

    We also recommended a clarification of the “garnishee defendant” issue, and the confusion as a result of HB 1113 as to whether a garnishee should be considered a defendant in a civil case.

    The Attorney General provided the Commission with a written opinion that concluded:

    Based on the garnishee defendant’s role as a “defendant” outside of the original action, the garnishee defendant is named as the holder of wages or funds for the defendant that are subject to claims of the plaintiff. Our preliminary research would indicate that the “garnishee defendant” is not a “judgment defendant” to the original action and therefore the fees assessed to such defendants would not apply to the garnishee.

    A formal opinion is due this week. That should help clear up some of the confusion as to whether plaintiffs are charged fees for garnishees – but we will likely try to seek a statutory clarification in the upcoming legislative session.

    The final Commission report should eventually be available on the website.

    1 comment October 24th, 2005

    The New Logan Center

    I attended the dedication ceremony for the new Logan Center facility in South Bend yesterday, and was very impressed with both the new buliding and the outpouring of community support.

    Dan Harshman, CEO of Logan, has worked tirelessly for years to bring a better quality of life to people with disabilities, and his efforts - together with those of countless others - were on display yesterday.

    If you haven’t had the chance, you might want to spend a day volunteering at Logan. I did my first stint there as a middle schooler through a program at St. Pius X Church, and it was a great experience.

    Add comment October 24th, 2005

    RegFlex Final Meeting Makes No Recommendations

    The final meeting of the year for the Regulatory Flexibility Committee was held yesterday. The stated purpose of the meeting was to “consider recommending proposed legislation concerning telecommunications reform.” However, no recommendation ended up being made.

    At the previous meeting, Co-Chairman Representative Jack Lutz suggested that the committee should endorse a specific legislative proposal for consideration in the upcoming legislative session. It became apparent at Tuesday’s meeting, however, that there was little consensus on the issue.

    I enjoyed the caliber of discussion at our final meeting. It helped that it was held in a conference room in the Government Center, rather than in one of the Statehouse committee rooms. In a conference setting all of the members were able to engage in a discussion sitting across from each other at a table.


    For truly meaningful dialogue on our technological infrastructure, though, I would like to see committee members (and the rest of the General Assembly, for that matter) receive more education on everything from the basics of broadband, to the latest standards in technology - like WiMax, which has the potential to revolutionize the industry.

    Indiana Interconnect is a collaborative effort between business, government, education and technology leaders to “evaluate and improve Indiana’s advanced telecommunications infrastructure and level of technology adoption.” They have more information on our state’s telecommunications infrastructure, including a detailed final report (that is about two years old now).

    The adoption of new technologies is spreading quickly across the country. As a state, we need to be at the experimental forefront of telecommunications innovation – not trying to stifle innovation.

    Of course, the citizenry needs to be an active participant in these discussions. As it was stated at F2C:

    Too often the discussion of telecommunications policy turns on phrases like “overregulation,” and “investment incentives.” These are critical issues, to be sure, but like the term “last mile,” such phrases frame the issues in network-centric terms. As more and more intelligence migrates to the edge of the network, users of the network need to be part of the policy debate. Let’s put the user back into the picture.

    Please let me know if you have ideas you would like to contribute.

    Add comment October 19th, 2005

    Environmental Crimes Task Force - First Meeting

    envirocrimesThe Environmental Crimes Task Force held its first meeting on Thursday, October 13, 2005. The Task Force is chaired by Senator Luke Kenley, who sponsored the enabling legislation – Senate Enrolled Act 195.

    Indiana’s environmental crimes statute (IC 13-30-6-1) is the topic under consideration by the committee. The law now simply allows a D felony to be charged for any intentional, knowing, or reckless violation of any Indiana environmental law. The concern is that the statute is so overly broad that it could be found unconstitutional under the void for vagueness doctrine, the rule of lenity, and the fair notice requirement of due process.

    In 2002, the Indiana Supreme Court in Healthscript, Inc. v. State (770 N.E.2d 810) found a Medicaid fraud statute unconstitutional on similar grounds. In fact, the environmental crimes statute would probably be considered even more broad and vague than the Medicaid statute that was overturned in Healthscript .

    The initial challenge will be determining the scope of the Task Force’s job. The first meeting was devoted to examining other states’ environmental crimes statutes, and figuring out just how much education the Task Force members need on the issues of environmental code and criminal law before beginning the meat of the work.

    We have until November of 2007 to make a recommendation to the Environmental Quality Service Council (of which I am also a member). Ideally, that recommendation would be draft legislation with bipartisan support.

    This will be a long-term project that involves a good deal of public testimony from all sectors before a consensus can be reached that will withstand constitutional muster.

    Feel free to let me know if you have any input you would like to offer on this topic.

    3 comments October 18th, 2005

    Community Corrections update to the Sentencing Policy Study Committee

    sentencingThe Sentencing Policy Study Committee met Wednesday afternoon to hear more testimony on community corrections programs. Julie von Arx, the Deputy Commissioner for the Indiana Department of Correction’s Re-Entry and Community Programs and Deanna McMurray, the Director of Community Corrections gave an assessment of existing programs.

    Community Corrections programs are implemented in 68 counties across the state, and include programs such as Work Release, Home Detention, Day Reporting, and Juvenile Alternatives. A state budget of $27 million funds these efforts with the goal of reducing crime, and diverting offenders from the more costly Department of Corrections prison facilities.

    One problem that exists with the program is a lack of statistical analysis and performance measurement. Without any measurement of results, there is no true accountability for the funding that the State provides.

    Another issue is that half of the program participants are misdemeanants. If a major justification for state funding of these programs is relieving costs to the state Department of Corrections, perhaps more of the state dollars should be targeted toward adjudicating felons.

    Finally, the Committee discussed the lack of integration between various community correction programs, re-entry programs, and community transition programs. Ideally, all of these efforts should be united under one umbrella to manage offenders both diverted from prison, and those returning to the community.

    The Committee set a tentative next meeting date of October 28, 2005.

    Add comment October 14th, 2005

    IDEM reports to the EQSC

    eqscThe Environmental Quality Service Council (EQSC) convened yesterday to hear testimony from the Indiana Department of Environmental Management (IDEM) on their updated “Strategic Issues,” legislative recommendations for the 2006 session, and a status report on the dedicated funds collected and administered by the agency.

    IDEM Commissioner Easterly cited Combined Sewer Overflows (CSOs) and non-attainment with air quality standards as the two most important issues facing the agency.

    As I discussed in an earlier post, CSOs present a serious health risk and financial challenge to many areas of the state. IDEM’s main concern at this point is that the U.S. Environmental Protection Agency is reluctant to approve individual Long Term Control Plans without an enforceable document in place. Currently, only one of the seven IDEM-approved plans is incorporated into an acceptable Agreed Order, but the remaining LTCPs are in the process of being incorporated into enforcement documents.

    Air quality is also a major concern because 1.2 million Hoosiers are living in counties that do not meet air quality standards. Particulate matter, ozone, and other pollutants can contribute to increasing rates of childhood asthma, lung disease, and cancers.

    Some progress is being made, though. Recent measurements put most counties back into federal air quality compliance, and so far in 2005, only one monitor (Noblesville in Hamilton County) has exceeded the ozone standard.

    Commissioner Easterly also reported on progress in the confusion surrounding enforcement reporting. Saying, “we have a data management mess,” he acknowledged the public’s frustration and said improvements were being made to their internal systems to ensure transparency.

    IDEM will also be seeking legislative support for a statutory implementation of the “Performance Track” program (which is currently in rulemaking), and some solution to the mercury switches issue.

    Mercury switches were discussed by EQSC earlier this summer. Essentially, the problem is that car manufacturers included motion-activated switches in automobiles (like the switches under your hood and trunk that turn on lights when you lift them) for many years. Although most of these switches are no longer included in cars, the mercury from them ends up in scrap steel. This scrap steel is melted down by steel manufacturers, and pumped back in to the atmosphere.

    Many other states are dealing with this problem, and the issue always comes down to who covers the cost of reclamation from the scrap yards – car manufacturers, steel recyclers, the scrap yard operator, or the state taxpayers.

    The EQSC will likely endorse addressing this problem generally, but the specific solution will have to be hammered out in the next legislative session.

    IDEM also made a report on the 16 largest dedicated funds they administer. These range from lead and asbestos abatement, to waste tire management and underground fuel tank clean-up.

    The report was about 100 un-numbered pages of fairly detailed accounting. I requested that IDEM make a copy available to the public on their website – so you may eventually be able to find a copy there.

    The EQSC has only one meeting remaining, at which we will discuss potential policy recommendations to the Legislature.

    Add comment October 13th, 2005

    Ivy Tech, the IEDC, and growing small businesses

    ivy tech lunchYesterday I attended the annual Ivy Tech Legislative Luncheon in South Bend along with fellow legislators Rep. Tom Kromkowski (D-South Bend), Rep. B. Patrick Bauer (D-South Bend), Sen. Marvin Riegsecker (R-Goshen), and Sen. John Broden (D-South Bend).

    We heard updated information on Ivy Tech’s continually improving programs and increasing enrollment. Some of their new courses at the campuses in South Bend, Warsaw, and Elkhart include paramedic science, paralegal, biotechnology, and an AA degree for liberal arts students.

    I had a good conversation with attendees about the changing role of the community college in Indiana. Ivy Tech administrators want to know if there are better ways they can increase opportunities for our underprivileged population (who might not otherwise attend a post-secondary school), while continuing to provide valuable vocational skills training.

    I told some of them about the meeting I attended before the luncheon. That morning I had met with David Behr, a project manager at the Indiana Economic Development Corporation (IEDC) North Central Region office in South Bend.

    The main focus of my conversation with Mr. Behr was the problem of providing service to the smaller companies that need help, but don’t have the resources to find it. For example, a small machine shop with 30 employees may not have a human resources director who can apply for grants to pay for half of their training costs. An injection mold company may not even be aware of the people waiting to help them with export assistance, or the team that can help with modernization from the Purdue Technical Assistance Program.

    The large companies with support staff know all about the many benefits that Indiana offers, but small businesses – the backbone of our economy – are hard to reach.

    My suggestion to the IEDC and to the folks at Ivy Tech was to focus on serving these small business better. It may take more effort and energy to accomplish, but most new job growth in the state comes from existing small businesses. The drive to help our small businesses must be at least as strong as the effort to bring new companies to Indiana.

    Some possible solutions may involve further streamlining paperwork requirements for grant applications, or even a more proactive outreach strategy from agencies like the IEDC. If you have any ideas that can help streamline assistance programs for small businesses, please feel free to let me know.

    Add comment October 12th, 2005

    It’s official…

    The invitations are in the mail, and the announcement is in the paper.


    That means there are only six weeks to go until the big day!

    Add comment October 11th, 2005

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