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Tuesday, October 26, 2010

Ind. Law - What's happening with fixing the Indiana Code? Part 3

In Part 3 we will be looking at some of the proposed bill drafts made available to the Code Revision Commission at the September meeting, and the issues they raise. These drafts are on the agenda for the Commission's meeting this Wednesday, Oct. 27, 2010. It is unclear whether additional meetings are planned.

[Here are links to Part 1 and Part 2 of the ILB discussion of "What's happening with fixing the Indiana Code?"]

Introduction. The Commission's 17 bill drafts include:

I began my review of the drafts with Environment [PD 3099], thinking: How much trouble can it be to analyze a 3-page bill covering laws you are already familiar with? But in the case of the Code Commission draft on the environment laws, it took me many hours, plus a long trip to the library.

To help people looking at the bill, the Commission staff prepared for each subject area a "chart" listing in reverse order all the noncode laws from 1985 through 2009.

(1) I found many noncode environmental provisions not listed or dealt with by the draft

The first thing I set about to do was to see if all the live noncode laws on the environment were in the chart. Any live noncode provision not on the chart would not be dealt with. If there was to be a blanket repeal, as in earlier recodifications, of all laws not amended into the Indiana Code or specifically identified as exceptions, then those not on the chart would be unknowingly impacted by the blanket repealer or, if there was not blanket repealer, they would continue to be floating around as live, non-code law.

The problem was, how could I locate all the noncode laws on the environment from the period of 1985-2010? I don't know how anyone checking one of the other subjects has done it -- in my opinion by deciding to go by "subject" rather than by year, the Commission staff has made this task impossible. The very reason we are trying to get a handle on the noncode problem is that right now no one knows ....

Fortunately, however, in the environmental area I was at an advantage. For many years, I have edited and published each year an updated edition of the Indiana Environmental Statutes.

For the past decade or so, each year's volume has included in the back the text of every noncode provision enacted relating to the environmental law, plus a Table of Contents.

Furthermore, when one of these noncode provisions was repealed, or expired by its own terms, it was and is still carried in the collection of noncode environmental provisions. Why? Because otherwise there would be no way to ever find it in the future, unless you knew precisely what you were looking for. Questions often come up in the environmental and I'm certain other areas of the law, such as: When was IDEM supposed to have concluded that study?" "Didn't the General Assembly say this rule was invalid?" "What did the law say when that permit was issued?"

But for this project, I was only interested in the still live noncode provisions. I compared my list to the Commission staff's chart. Many of my "Still live" noncode provisions were not listed on the Commission's chart. A bad sign.

To make sure it was not my mistake, I also compared my list to the only other resource available, the collection of noncode acts on the General Assembly website. I have noted in earlier papers that this collection is not comprehensive, and is unusable for most purposes, but it served a purpose here -- I could check to see whether a noncode provision identified as "live" in the 2010 Environmental Statutes, but not listed on the Commission's chart, was included among the General Assembly's noncode acts.

Note that this part of this difficult exercise, the effort to cross-check with the online noncode listings, would not have been necessary if, as noted in Part 2, the Commission staff had continued to maintain the Session Law Tables. But my results did confirm my initial findings, there remain many noncode environmental provisions that are not listed or dealt with by the Commission's draft.

(2) Secondly, I found that amendments proposed to add noncode provisions to the Indiana Code actually forced the reader to go back and look at the old Acts to understand the change.

Here is an example. A 2008 amendment to the marketable title law is addessed in the Commission's draft bill on "Property."

This amendment is of great interest to environmental lawyers. In addition, and ironically, the 2008 amendment was one of the examples used in my 2008 Res Gestae article, "Can you rely on the Indiana Code? Part I -- Noncode sections," pp. 20-28. It is Example II on p. 24 (p. 5 of the pdf).

This is the noncode language that accompanied the 2008 amendment to IC 32-20-3-2:

(a) IC 32-20-3-2, as amended by this act, applies only to determinations of marketable record title (as defined in IC 32-20-2-2) after June 30, 2008.

(b) Under IC 32-20-3-2, as amended by this act, marketable record title (as defined in IC 32-20-2-2) is subject to all interests of the department of environmental management arising from the recording of a restrictive covenant under IC 13, regardless of whether the recording occurred before July 1, 2008.

The problem: A reader of IC 32-20-2-2 today will have no idea that this language exists, or of what IC 32-20-2-2 looked like before its 2008 amendment.

The amendment was to IC 32-20-3-2(6). The way to address this in 2008 should have been to write subdivision 6 with two parts, the first (with the provision as it existed before the 2008 amendment) beginning: "Before June 30, 2008 * * * " and the second (with the provision as changed the 2008 amendment) beginning "After June 30, 2008 * * *." The same approach should be used today. Instead, the Commission's bill draft provides:

SECTION 11. IC 32-20-3-0.1 IS ADDED TO THE INDIANA 15 CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 0.1. The amendments made to section 2 of this chapter by P.L.18-2008 apply only to determinations of marketable record title after June 30, 2008.
In short, the amendments proposed to add noncode provisions to the Indiana Code actually force the reader to go back and look at the old Acts to understand the change. This is no answer to the problem of noncode laws.

(3) Intervening recodifications of individual titles such as Title 13, environment, make much of the language proposed in the Commission staff's draft completely incomprehensible -- referencing law since repealed and no longer accessible without great effort.

Greatly compounding the already difficult problem discussed in (2) above is the impact of intervening recodifications of individual Indiana Code titles. Remember, it has been 25 years since the noncode provisions were last addressed. During that time many individual Titles have been rearranged and renumbered and reenacted -- this was done with Title 13, Environment.

Unfortunately, these recodifications did not, as they should have, address the relevant noncode provisions that were outstanding at the time. As the noncode provisions were neither incorporated into the new recodifications, or repealed, they remain to this day. (An example, a noncode provision on adverse possession that was not addressed in the 2002 recodification of Title 32, property, is discussed in this Oct. 2008 Res Gestae article on the first page.)

When you put the two problems together, here is what can result. This is from the beginning of the Commission's draft on the environmental laws, SECTION 1. This SECTION adds a new Sec. 0.2 to IC 13-11-2. The new Sec. 0.2 provisions begin:

(a) The amendments made to IC 13-7-8.7-8(a) and IC 13-7-8.7-8(b) (before their repeal, now codified at sections 48 and 81, respectively, of this chapter) by P.L.25-1991 apply to an action for which a final determination of liability is made after June 30, 1991.
What does this "(before their repeal)" mean? Again, twenty-five years have passed since the laws were last recodified. During that period the General Assembly "recodified" the environmental laws and assigned them all new numbers. Here is the "Disposition Table for Title 13" from the General Aseembly's website. Here is the "Deriviation Table." Nothing in the tables tells you WHEN this renumbering happened, but IC 13-12-1-1 makes clear it was 1996.

I did not have time to more than briefly try to trace these two provisions (now IC 13-11-2-48 and 81) through their circuitous route. They were amended in 1991 and the noncode language at issue was part of the 1991 bill. Then they were recodified and renumbered in 1996, but the noncode language was not addressed. And it was not just a simple renumbering -- other provisions were added into the two new sections. Finally, since the recodification and renumbering, the provisions have been amended again.

Hence the conclusion with which I began this third point: Intervening recodifications of individual titles such as Title 13, environment, make much of the language proposed in the Commission staff's draft completely incomprehensible -- referencing law since repealed and no longer accessible without great effort.

Posted by Marcia Oddi on October 26, 2010 12:08 PM
Posted to Indiana Law