Monday, April 13, 2009

How a Bill Becomes a Law - Indiana

I have been asked what do I actually do to get a legal idea to become a law. The process isn't as simple as what you may have seen presented on television at some point; legislators talking to lobbyist and then speaking ad nauseum on the chamber floor about the bill before it comes for a vote and then gets sent to the president or governor if it passed.

The first part of passing laws is the Constitutional and statutory requirements. The Indiana Constitution requires that "The style of every law shall be: "Be it enacted by the General Assembly of the State of Indiana"; and no law shall be enacted, except by bill. Bills may originate in either House, but may be amended or rejected in the other; except that bills for raising revenue shall originate in the House of Representatives" Art. 4. Sec. 1; Art. 4, Sec. 17

The requirements are that "Every bill shall be read, by title, on three several days, in each House; unless, in case of emergency, two-thirds of the House where such bill may be pending shall, by a vote of yeas and nays, deem it expedient to dispense with this rule; but the reading of a bill, by title, on its final passage, shall, in no case, be dispensed with; and the vote on the passage of every bill or joint resolution shall be taken by yeas and nays" Art. 4. Sec. 18.

To become a law a bill must first get a sponsor, or author, who will introduce it to be considered. Each year at least a thousand bills are read, by title, into the record. This is the first reading. This does not mean that legislators will get a chance to vote on the bill as many are bills that did not get voted on the previous year. At this point, either the speaker of the House or the president pro tempore of the Senate refers the bill to a committee.

This is the point where the process can become very disenfranchising to those who put forth so much effort into getting a bill introduced. The majority party, either Republican or Democrat, chairs the committee. The chair wields the power to kill the bill at this point. If the Chair does not set the bill for a hearing then it dies in committee and will not be heard. Lobbying efforts come alive at this point with negotiations being made to get amendments to a bill to either strengthen or weaken it to satisfy the Chair. If the bill can survive this process it moves forward.

Now, additional legislators may add themselves as co-sponsors and the Chair can set it for a hearing which includes a second reading and testimony by lobbyist and the public. Amendments may also be added to the bill at this time. The committee’s final action is to report the bill back to the legislative body with the Committee Report. Most often I appear and testify at these hearings providing relevant testimony about the bill related to my area of expertise.

Upon conclusion of the committee hearing a vote can be taken or the bill can be tabled for further consideration. Here is another point at which a bill can die if it is tabled indefinitely and not set for further hearing or a vote. If the bill passes committee then the engrossed bill is again called up to be read after which legislators have an opportunity for debate on its merits before the final vote is taken. Here is another opportunity where a bill can be amended which is called a floor amendment. Lobbying efforts again are in full swing. This is the point where I will wander the halls of the Statehouse making sure I have contact with those legislators who will be voting which I feel need last minute encouragement. The bill must receive a constitutional majority, meaning 51 “aye” votes in the House or 26 “aye” votes in the Senate before it can be adopted.

If the bill passes the full chamber then it is referred to the other chamber where the process starts again. If the other chamber amends the bill then it goes to the originating chamber for approval. Should the first chamber dissent (refuse to agree to the changes) a conference committee of two members from each house is appointed to work out a version of the bill that will be satisfactory to both houses. All four must sign the conference committee report and it must be favorably voted on in both houses. Once this has been accomplished, the bill goes to the governor for signature. The constitutional requirements follow:

"A majority of all the members elected to each House, shall be necessary to pass every bill or joint resolution; and all bills and joint resolutions so passed, shall be signed by the Presiding Officers of the respective Houses" Art. 4, Sec. 25

"Every bill which shall have passed the General Assembly shall be presented to the Governor" Art. 5, Sec. 14

"Every bill presented to the Governor which is signed by him or on which he fails to act within said seven days after presentment shall be filed with the Secretary of State within ten days of presentment. In the event a bill is passed over the Governor's veto, such bill shall be filed with the Secretary of State without further presentment to the Governor" Art. 5, Sec. 17

"No act shall take effect, until the same shall have been published and circulated in the several counties of the State, by authority, except in case of emergency, which emergency shall be declared in the preamble, or in the body, of the law" Art. 5, Sec. 17

Friday, April 3, 2009

Public hearing on possible Trial Rules change affecting child custody

The Indiana Supreme Court Committee on Rules of Practice and Procedure has posted a request for public comment on a proposal to abolish the right to an automatic change of judge in divorce and paternity cases. Indiana Trial Rule 76 currently allows for any party to seek a change of judge in any hearing to modify a final decree in a divorce and paternity case. This change of judge is allowed one time and is a right. The Committee is seeking to change the rule to disallow this right.

The Committee has posted information about providing public input on this proposal.

I first want to encourage any litigant who has taken a change of judge or been through a drawn out proceeding and then sought a modification to write to the Committee and express his or her feelings.

Here is why I feel this is an important rule and should be preserved.

In most civil proceedings a change of judge can only be had for cause.  That is a litigant requesting the change must show a reason why the judge is biased or has a conflict that would prevent that judge from fairly hearing the matter.  Trial Rule 76 provides that at any time after a final decree is issued in a divorce or paternity action that a litigant is entitled to one change of judge.

Considering that in child custody proceedings that the best interest of the child is to be maintained then I believe this rule is a procedural safeguard to preserving that interest.  There are many reasons why a change of judge should be granted but few are addressed by rule or statute.

In Indiana a the judges of the Superior and Circuit Courts are elected.  State law requires that the judge have previously been admitted to the practice of law but considering what we have seen some attorneys admitted to the practice of law in Indiana do are we safe to assume this qualifies one to be judge?  Contentious child custody proceedings may be trying for a judge with little experience.  There is something to be said for wisdom that simply cannot be attained from reading books.  Through no fault of his own an inexperienced judge may not possess the skill or experience to interpret the nuances that permeate child custody proceedings and can affect the children's best interest.

You may select a checkout line at the grocery store, a bank teller or any one of numerous people performing the same tasks based upon your preference for that person.  As people we develop a comfort zone with people that we are familiar with.  As I roam the halls of the Statehouse I naturally gravitate to the legislators whom I share a common interest and have had past experiences with.  We expect that to be different with judges, but should we?  In the fine nuances of child custody decisions a casual familiarity with counsel may be to the disadvantage of the opposing counsel who visits the courtroom for the first time and ultimately to the child, whose best interest is to be protected.

It is for these reasons that this rule should be maintained as written.

Thank you to the Indiana Law Blog and Sam Hassler for their previous postings on this issue.

Thursday, April 2, 2009

My amendment to HB1511 may get added on the floor

House Bill 1511 came on for hearing April 1, 2009 before the Senate Judiciary Committee chaired by Senator Bray.  HB1511 would create a statutory set of factors to be considered by judges in deciding legal custody in paternity actions.  Currently only mothers have legal custody of children born out of wedlock.

This bill, which was sponsored by Shared Parenting advocate Matt Bell [R-Ft Wayne], seeks to adapt Indiana custody laws to the realities of the demographics of our society. Many couples now choose to live together and plan a family but not marry.  Additionally, there is the large number of out-of-wedlock births that are a result of unplanned pregnancies.

Senator Steele [R-District 44] expressed concern that bringing out-of-wedlock births into parity with those from couples who have solemnized a commitment through marriage would be a disincentive to marry.  I do agree with Senator Steele that marriage should be valued and encouraged but the proper way to do that is not to deprive the children of access to a parent.  Instead, Indiana should show that it respects the institution of marriage by repealing our no-fault divorce statute which encourages couples to live in an antagonistic state rather than cooperative.

The factors in this bill to be considered by a judge when making a legal custody determination in a paternity action would mirror those of the dissolution statute at 31-17-2-15.  My concern is with factor number four which states that "whether the child has established a close and beneficial relationship with both of the persons awarded joint legal custody".  During my testimony I provided an anecdotal reason why this provision should be stricken.  It concerns a father in Lebanon, Indiana who is the de facto primary legal custodian of his son although he actually shares custody.

This man did not learn that he had a son until he was contacted by the sister of the mother and told he should check into it.  A paternity test was performed and he established paternity.  As he says it his son was conceived as a result of the proverbial one-night-stand.  He has no interest in the mother but was very excited to learn he had a young son.  Although he had missed the first three years he was eager to actively participate in his child's life.

Indiana relies on an ad-hoc compilation of statutes to determine custody in paternity actions.  Had HB1511 been in place at the time this man sought custody factor four would have required a judge to consider that he had no involvement in his child's life for nearly three years.  I believe this is a disincentive to fathers to seek to establish paternity.  I have already heard from some who say this bill will do no good because all they will get us a support order and told they can't share in the legal decisions regarding their child because they did not know of their child's existence.

Factor four also makes no consideration to who caused the child to not develop a relationship with both parents.  Senator Taylor [D- Indianapolis] told about a case he was personally involved with where this would apply.  The mother of his brother's child moved three times in an effort to keep the court and the father from knowing the whereabouts of the child.  By the time the paternity issue was settled the mother had kept the child from seeing his father for four years.  Logic would tell us that a judge would admonish the mother for her evasive and alienating actions.

Senator Taylor was instead told by the judge that he shall consider those factors including number four.  Shall is a requirement under Indiana law.  The judge continued that in considering that the father had no relationship with the child for four years that the father had failed to demonstrate that he should have joint legal custody.  This is the crux of the problem.  A parent who has possession of the child can manipulate the factors to be used against the challenging parent without any repercussions.  Senator Taylor was passionate about the need to balance the factors equally among both parents.

My testimony brought about a lively and meaningful discussion that lasted about 15-20 minutes before a vote was taken.  The bill passed out of committee with a vote of 9-1.  Senator Taylor was the one vote in opposition to the bill as introduced.  The bill will now head to the full Senate for a vote.

I had not drafted an amendment prior to the hearing because of time considerations and other obligations I had.  However, in my discussions with the legislators following the hearing I was told that I may get my amendment proposed on the floor when it comes time for the Senate to vote on the bill.