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Wednesday, September 23, 2009

Ind. Law - Words matter, regardless of a legislator's, or legislature's, intent

An important editorial today in the Fort Wayne Journal Gazette:

Controversy over two key state laws adopted in recent years serves as a reminder that the language in a given law is everything, regardless of the legislature’s intent.

In the end, state legislators themselves are responsible for being precise in the language they place into the law.

Such precision is even more important when the bills are highly controversial or deeply affect many Hoosiers.

The recent controversies concern:

The voter ID law. When the Indiana Court of Appeals struck down the law last week, Republican Gov. Mitch Daniels was livid, and Republican state Rep. Brian Bosma – the House Republican leader – said the law was a model for the nation.

Debate in the legislature rightly concerned whether the law would harm certain voters – particularly poorer voters who might not easily be able to obtain their birth certificates. But, it is now clear, someone should have asked whether it was right to require voters going to polls to have IDs while those casting absentee ballots got a pass.

The Court of Appeals said, no, it isn’t right. Or, more importantly, it isn’t constitutional.

Knowing that this law was destined to end up in court, its Republican sponsors should have scrutinized every line of that bill. Now, unless cooler heads prevail and the unneeded ID requirement is tossed, it seems likely that its proponents will pass a new law, establishing ID requirements for absentee voters.

Property tax caps. Some Republicans were extremely upset when they learned that their generous homestead deductions and the property tax caps they adopted – which apply only to the homestead property – do not apply to pools, gazebos and other property add-ons.

State Rep. Jeff Espich, the Republicans’ chief budget expert in the House, blamed the Department of Local Government Finance, saying it “acted casually and without regard to our intent. … It’s terrible.”

In fact, the department – headed by a Daniels appointee – did exactly as the legislature directed in the words lawmakers placed into state law. If those words did not accomplish what the legislative advocates wanted, it is their own fault for overlooking the definition of a homestead – which, after all, the legislature defined.

Sometimes, government workers, constituents and lawmakers themselves discover technical problems in legislation that they can easily fix on Organization Day. But the voter ID and property tax issues are fundamental policy questions that were overlooked, and it isn’t the first time. Much property tax legislation in recent years, for example, has addressed the unintended consequences of previous property tax legislation.

The recent controversies should prompt more lawmakers to more often contemplate not only whether the words they place into the law accomplish what they want but also what other possible consequences will arise.

Of course, that is easier said than done. Lawmakers cast votes on dozens and dozens of bills and amendments in a short time frame, and no one can read all the words. And, in many cases, it is staff members, not lawmakers, who actually write the bills.

But the sponsors of bills should take special responsibility in making sure all the i’s are dotted, and committee chairs should also ask big-picture questions.

Some examples from earlier years include:

• "New seat belt law may not cover occupants of truck bed," is the heading of this July 8, 2007 and this July 10, 2007 ILB entry.

  The latter entry includes quotes from another JG editorial that concluded: "The disagreement is the latest that shows how important it is for legislators and their legal advisers to scrutinize the precise language of the bills they author and shepherd through the legislative process."

  The ILB added: "This brings to mind a recent Supreme Court ruling, Utility Center, Inc., d/b/a Aquasource v. City of Fort Wayne, where the Court wrote, re the wording of the law as passed and the intent of a legislator:

  Finally, we make note of the fact that Senator David C. Long, the author of chapter 30 when it was enacted by the Legislature in 1999, filed an affidavit and supporting exhibits with the trial court in this matter, explaining his “intent as the author” of the statute. The trial court declined to consider the affidavit and the Court of Appeals affirmed, reflecting this Court’s policy that “[i]n interpreting statutes, we do not impute the opinions of one legislator, even a bill’s sponsor, to the entire legislature unless those views find statutory expression.” * * * We respect Senator Long’s work in this field but, for the reasons set forth above, are unable to conclude that his intent in this regard was enacted into law.

• "Another case of intent of legislator foiled by the law itself" is the heading of this July 17, 2007 ILB entry which quotes an Indy Star story headed "New health insurance law won't help all: Many Hoosiers, including lawmakers, surprised by loophole for some employers."

• And of course there is the recent series of ILB entries under the heading "Apparently there are all sorts of surprises in the special session budget." And the continuing surprise of the many substantive provisions of law not included in the Indiana Code, a practice that continues unabated.

Posted by Marcia Oddi on September 23, 2009 03:03 PM
Posted to Indiana Law