« Ind. Decisions - Court of Appeals issues 0 today (and 4 NFP) | Main | Ind. Courts - Marion County reportedly suspends bench warrants for delinquent parents »

Monday, February 02, 2009

Ind. Law - Can you rely on the Indiana Code? Where are we with the Indiana Code issues?

In 2008 I published two articles in Res Gestae titled "Can You Rely on the Indiana Code?" Here is Part I from May, 2008, and here is Part II from October 2008.

The point of the articles was that all the state's substantive statute law was not included in the Indiana Code, that this fact was not general knowledge, and that the General Assembly should act to make all its statutes available in the Indiana Code.

At the second meeting of the 2008 legislative interim Code Revision Commission, held on December 9, the Legislative Services Agency staff presented to the Commission members the draft of a bill (PD 3770) to begin to address the issue of statutes not complied in the Indiana Code. The staff referred to this as "Phase I." The staff also unveiled its plans for "Phase II," to be accomplished during the interim between the 2009 and 2010 sessions.

These plans were not reduced to writing and no minutes of the December 2008 meeting have been posted. However I attended the meeting and took extensive notes, and they are the focus of my latest article on the Indiana Code, that will appear in the January/Feburary 2009 issue of Res Gestae. An advance copy is available here.

The article, titled "Resolving issues of statutes not compiled in the Indiana Code," is in three sections - (1) an introduction and background; (2) my notes of LSA presentation (printed against a gray background); and (3) my concerns about some aspects of the planned approach, which is in some ways unlike that taken with the prior recodifications. These are found in the final two pages of the article.

The Phase I bill, introduced as SB 346, is scheduled to be heard Wednesday by the Senate Committee on Judiciary. SECTIONS 9-33 of the bill add 25 noncode acts or parts of acts to the Indiana Code and SECTION 34 repeals their noncode versions. This is all to the good, although, as the LSA staff indicated in their December presentation, there remain many hundreds of provisions to be dealt with.

SB 346 is definately a step in the right direction and should be enacted. My issue with SB 346 is with SECTIONS 1-7. I would urge that these SECTIONS be eliminated from the bill. These sections rewrite Indiana Code, Title 1, Article 1, Laws Governing the State, to make the expiration of an effective date the equivalent of a repeal. For instance, SECTION 7 would add a new IC 1-1-5-10 to read:

Sec. 10. The expiration of a statute has the same effect that the repeal of the statute, effective on the date of the expiration of the statute, would have had.
My concern is set out in the article:
SECTIONS 1-7 of the 2009 bill draft appear to be unnecessary in light of the LSA staff’s announced plan to include a blanket repealer in the 2010 bill draft, that would repeal all past, expired noncode provisions. Expiration provisions in the future could be drafted as self-repealing provisions.
For example, rather than:
This SECTION expires July 1, 2015.
The provision would be drafted:
This SECTION is repealed July 1,2015.
This would alleviate potential unanticipated consequences resulting from making the major changes currently proposed by SECTION 1-7, which adds an entirely new class, “expiration,” to statutes historically dealing only with the interpretation of the repeal of laws. The proposal has no definitions and gives no indication of whether the change is to operate only prospectively.
These was no discussion at the December meeting of what other states have done, research undertaken, etc. My concern was only enhanced in this past week when I researched the statute involved in the Redmond v. State decision (see today's entry here) -- an example of the ramifications of seemingly harmless language added to the Indiana Code without adequately looking into potential consequences. I do not think a change of this magnitude should ever be made unless: "(1) it is clear that there is a problem; (2) there is only one way in which the problem can be corrected; and (3) correcting the problem will not result in a substantive change in the law." These are the same rules the LSA staff uses in making decisions about technical Code corrections.

I also have concerns about SECTION 8 of the bill, as there was no discussion or explanation of SECTION 8 at the meeting and it appears to have nothing to do with recodification.

As for the Phrase II bill, I have concerns which you may share after reviewing the minutes of the December meeting. Much of the decisionmaking appears to be subjective, rather than objective. As I conclude in the new article, implementing the goal of putting the 24-years' worth of uncodified but still operative, substantive Indiana statute law into the Indiana Code would require adding back:

statutes that the LSA staff has indicated in its testimony it likely would exclude from recodification, including: provisions that may not be anticipated to be used by a large number of people; statutes with future expiration dates; applicability sections; and statutes that one or several legislators might not want made a part of the Indiana Code.

Posted by Marcia Oddi on February 2, 2009 02:25 PM
Posted to Indiana Law