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Saturday, October 23, 2010

Ind. Law - What's happening with fixing the Indiana Code? Part 2

Part 1, posted on Oct. 20th, concluded that after three years there is still no overall plan for successfully handling the outstanding 25-years worth of noncode provisions, once and for all. Although a number of proposed bill drafts were made available to the Code Revision Commission at the September meeting, Commission staff said that the current collection of subject matter bills is not necessarily comprehensive, that there were subjects still not covered.

But even with those bills prepared so far, numerous noncode sections within the subjects covered are not accounted for. Specific examples of these omissions will be detailed in Part 3 of this series.

Is it essential that every section of every law enacted from 1985 to the present be accounted for in the new recodification. As I ended Part 1, as of today:

[T]here is no "key," no comprehensive list of every section of every law enacted since 1985, along with its disposition. Without this, there is no way to assure that a blanket repealer would not have unexpected effects. And, at the same time, without the blanket repeal there is no real recodification, no assurance that the Indiana Code contains all the statute law that is not specifically exempted.
This Res Gestae article from November 2008, "Recodifications, legislative histories and tables," began:
Imagine that you had copies of all the volumes of the Acts of Indiana, going back to the 1852 Revised Statutes, each volume containing the laws passed during one session of the General Assembly. Now imagine that someone had noted in the margins of each page what had happened to each section of each act in the volume – was it repealed and by what law, is it part of the Indiana Code and what is its citation, etc.

That exercise actually was done in creating the original 1971 Indiana Code. Further, those marginal notes were compiled to form a “Session Law Disposition Table” that was published as part of the initial Code edition.

This Table was updated and republished with each subsequent edition of the Indiana Code, up through the 1998 edition, where the “Session Law Disposition Table – Acts 1852-1998” ran from page 273 to 1,347 of the Tables volume.

Shortly after the article was published, a "Session Law Tables 1852-2001" document was added by the LSA staff to the General Assembly's website. This was helpful. But the Table is not being maintained, it stops at 2001. That means it not only does not include statutes enacted after 2001, but the provisions through 2001 listed in the Table do not reflect any post-2001 actions.

Quoted in the Res Gestae article is the prefatory language accompanying the Table back when it was published as part of the Indiana Code. Here is some of it:

The following table lists each section of all laws enacted by the Indiana General Assembly from 1852 through 1982. The sections are displayed chronologically in the left column and the disposition for each in the right column. The disposition will be an Indiana Code citation, a repeal note or a categorization. Code citations are to provisions in the Indiana Code that correspond to the session law provision involved. A repeal note indicates that the session law provision was specifically repealed; for example, “Rep. 1969; 284; 30” indicates that the listed session law provision was repealed by Acts 1969, chapter 234, section 30. Session law provisions with corresponding code citations that have been repealed are listed with the repeal note and the Code citation in parentheses.

A session law provision with no corresponding Code citation indicates that it is neither a permanent law of general application nor current law concerning its subject matter; in such instances, one of the following categorizations explains its omission from the Code: Appropriation; Construction; Effectiveness; Legalizing; Obsolete; Purpose; Repealer; Savings; Severability; Special; Superseded; Temporary; Title Amendment; Unconstitutional.

A session law provision so categorized, although not part of the general and permanent statute law of Indiana, may be in effect despite its omission from the Code; see, for example, IC 1-1-1-2.

These categories themselves should be reconsidered before the post-1985 provisions that might fall under each of them are addressed by the recodification effort. Considerations should include: Finally, how should the current 25-years worth of acts or parts of acts that fall into each of the non-code categories be handled? Questions to ask for each category:
1. Is there an acceptable rationale for not including provisions in this category in the Indiana Code? "Acceptable rationale" should NOT include: (a) we don't want to clutter up the Code with all this; (b) not too many people are interested in this: or (c) this law will only be in effect for a few years; or (d) this will confuse people; or (e) it will make it too expensive to print the Code (How many copies of the Indiana Code are printed each year, how many actually exist outside the Statehouse? I know the public can't buy the printed Code and hasn't been able to for many years.)

2. If no, the current provisions in the category should be amended into the Indiana Code, and in the future provisions in such category should not be enacted as "noncode."

3. If yes, should provisions in this category be covered by the blanket repealer?

4. If no, how should these provisions of the Indiana statute law that are not part of the Indiana Code be treated? Should they continue to exist in a noncode "limbo" as they are now, active law but both unknown and inaccessible to nearly everyone?

"Active law, but both unknown and inaccessible to nearly everyone" seems far worst than "non-transparent." And this problem is aggravated and compunded every session for several reasons.

For one, the physical volume of the statutes passed each year keeps increasing -- compare a one-volume set of the Acts from the 1980s with the mega-volume annual Acts of today.

That is, if you can find the Acts of this decade in a printed form other than in the Statehouse.

And if you do find them, you will quickly discover that they are no longer usable. Until recent years, the Acts of Indiana were valuable reference books, they had a comprehensive index, they had all sorts of tables, etc. But today's sets of volumes are simply bound collections of the session laws, useless for research unless you already know what you are looking for. (Equally useless are the past decade's online versions of the Acts of Indiana - try using them for research.)

A second reason -- the annual or biennial appropriations bill has moved from being just that, the state's budget bill, to a monster document hundreds of pages in length cobbling together, and often hiding, just about everything. Much of it is noncode. After every session, when the legislators have long gone home, the Indiana Law Blog is full of stories of "surprises" found to have been passed in the "budget" bill. There are decades worth of these budget bills outstanding, replete with noncode provisions.

In short, to be noncode in today's times is to be invisible.

In Part 3 we will be looking at the proposed bill drafts made available to the Code Revision Commission at the September meeting, and the issues they raise.

Posted by Marcia Oddi on October 23, 2010 01:03 PM
Posted to Indiana Government | Indiana Law