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Sunday, August 30, 2009

Ind. Law - Continuing on with: "Apparently there are all sorts of surprises in the special session budget"; my thoughts

This week's issue of the highly-respected, subscription-only newsletter, Indiana Legislative Insight, includes this story:

The Indiana Law Blog points out some complications and unexpected and sometimes unintended consequences that language inserted in the special session budget bill have caused with other laws.

We're even hearing that some veteran lobbyists are feeling blindsided by how some seemingly innocuous provisions have adversely impacted legislation that they worked successfully to pass as recently as late April.

The litany includes such matters as the language limiting use of golf carts to cities and towns which have passed authorizing ordinances – with no equivalent authority for counties. This has reportedly caused havoc with some long-time practices, and may require corrective amendments, according to the Indiana Law Blog.

Other unexpected provisions causing controversy include changes in Department of Child Services [IDCS] practices that afford the director sole authority to approve out-of-state placement of youths with special treatment needs.

And lest you be too dismissive of the golf cart issue, you should understand that it is important in many communities. The Decatur Daily Democrat reports on a town hall meeting hosted in Monroe by Sen. Travis Holdman (R) and Rep. Matt Lehman (R), where the first-term lawmakers discovered that „the majority of the 50 area residents in attendance were there to talk about golf carts and their regulation ....

"What became the argument was, did we exclude counties (from the list of governmental bodies which legally can regulate golf cart use)" said Lehman. "The law says local governments can control golf carts, but it only specifically mentions towns and cities. The General Assembly's intent was never to take away the authority of the counties .... The problem is that, outside of this rural community, you have a lot of people who hate golf carts. And several of them hold seats in the state legislature," said the Berne lawmaker.

Holdman cited one such example, noting that "committee chairman in my own party" refused to allow debate on the golf cart legislation in its early stages. "Sometimes you've got to work around those kinds of people," Holdman said.

Lehman said conversations are currently under way between various legal experts across the state in an attempt to reach a final interpretation of the new state law "that will allow county commissioners to pass an ordinance" addressing golf cart regulation. "And I think you [they] have that right."

For essential background about "the IDCS budget surprise", see this ILB entry from April 30th, re the Supreme Court's April 17th decision in In re T.S. on April 17th -- the date is important. In a report in the IndyStar, Tim Evans wrote:
The state Supreme Court has issued a decision that should make it easier for judges to defend rulings that clash with Department of Child Services recommendations. It is an important decision, legal experts and child welfare advocates agree, because a law that went into effect Jan. 1 seemed poised to discourage such rulings. The new law, which was included in a property tax measure, shifts the cost of providing care for children in DCS custody from the counties to the state. But there's a catch: If a local judge disagrees with the DCS recommendation, the county must pick up the tab unless the judge can prove the agency's recommendation is unreasonable or contrary to the welfare and best interests of the child. The fear among some is that the requirement would pressure judges to go along with DCS to avoid costing the county money. A LaPorte County judge's decision to overrule DCS was the first case challenged since the law went into effect. An appellate court agreed in March with the judge's recommendation, and now so has the Indiana Supreme Court. But perhaps more importantly, the court said in its April 17 decision that the proper test for the appellate court in such disputes is that it must find the judge's decision was "clearly erroneous" and not merely assume a DCS recommendation is correct.
What happened next was the change to IC 31-40-1-2(f) inserted in the special session budget [via PL 182-2009(ss), SECTION 387], passed June 31st and effective July 1st. See this Aug. 13th ILB entry, which quotes from a Fort Wayne Journal Gazette editorial:
DCS has come under fire from a St. Joseph County juvenile court judge for an 11th-hour addition to the state budget that gives [Director James] Payne alone the authority to approve out-of-state placements of children and teenagers. Previously, judges could order placement out of state if they determined that was the most appropriate setting. * * *

The General Assembly allowed judicial discretion to be further eroded with the budget provision. It should reconsider the issue in its upcoming session.

Court of Appeals Judge May also discovered the special session surprise and referenced it in a footnote in her Aug. 10th opinion in D.S. v. State - see this ILB entry. The Supreme Court, via an expedited review, denied the IDCS petition to transfer D.S. on Aug. 26h -- see ILB entry here. (Chief Justice Shepard added his own statement -- including "In this case, the trial judge has been appealed for choosing the least expensive placement" -- to the end of the Supreme Court's unanimous denial of the IDCS's petition to transfer.)

Finally, see the ILB summary of this Friday's (Aug. 28th) Court of Appeals decision in T.D. v. State of Indiana here (2nd case), along with the links in the ILB's introductory paragraph. In this opinion, which also happens to have been written by Judge May, the special session change is noted in footnote 2, which observes in part:

This amendment shifts from IDCS to the counties the burden of payment for housing and services provided to or for the benefit of a child placed in a facility located outside of Indiana without prior approval by the IDCS director or the director’s designee, notwithstanding the court’s determination regarding the best interests of the child.
Now, for more on the golf cart budget surprise, see this July 15th ILB entry, which indicates re the Indiana State Police:
ISP asked for corrective language in the budget, which basically added IC 9-21-8-57, the statute barring golf carts on highways unless permitted by ordinance.
Subsequent ILB entries indicate the issues that this unannounced special session budget alteration to the law crafted and adopted during the regular 2009 session has occasioned. See: this Aug. 5th entry, headed "New golf cart law, as amended, may work a hardship on those outside Culver town limits;" and this Aug. 9th entry, headed "New golf cart laws may need corrective amendments."

My Thoughts: More surprises are certain to be discovered in the 2009 budget, language added in at the last moment without opportunity for most members of the General Assembly, much less others, to review and understand, what with no committee reports or 2nd and 3rd reading floor debates in each house.

And these changes are often made via non-code language, intentionally buried somewhere within the mega-page bill, intended by their writers to surface only after they have become law.

Of course the constitutional "one subject" requirement was intended to protect against the type of action. These is at least one case currently pending before our Supreme Court involving similar last minute additions to the "budget bill" in an earlier year. But the courts have consistently avoided addressing this problem, claiming that "separation of powers" ties their hands.

Posted by Marcia Oddi on August 30, 2009 12:01 PM
Posted to Indiana Courts | Indiana Government | Indiana Law