Monday, April 02, 2007

Bosma's Resolution Proposal A Bad Idea

House Minority Leader Brian Bosma, a leading advocate for enshrining discrimination against unmarried persons in Indiana's Bill of Rights, has proposed drafting a separate resolution to head off opponents' claims SJR-7 could have "unintended" consequences. Bosma intends to offer a "statement of legislative intent", declaring the General Assembly seeks only to ban court-ordered same-sex marriage or civil unions. In other words, Bosma would rather pass a flawed amendment to our constitution than risk delaying the process of submitting the amendment to the state's voters.

A major problem with Bosma's proposal is that it's an empty promise. Indiana courts interpret constitutional provisions the same way they interpret statutory provisions. When interpreting a statute, the foremost objective is to determine and effectuate legislative intent. The courts consider the goals of the statute and the reasons and policy underlying the statute's enactment. A statute's meaning and interpretation are to be ascertained not only from the phraseology of the statute but also by considering its nature, design, and the consequences that flow from the reasonable alternative interpretations of the statute. Indiana courts, unlike the federal courts and those of other states, refuse to review the legislative record of the General Assembly for a particular law to ascertain legislative intent. Indiana courts have even declined to rely on the language in a preamble of a statute to ascertain legislative intent. Why would they rely on an independent resolution passed by one chamber and ignore the plain meaning of the words contained in the second paragraph of SJR-7?

When you add new language to the constitution, a court is going to search for meaning to all the words of the provision. Bosma pretends a court can just simply ignore the plain meaning of SJR-7 because a separate resolution passed by one chamber of the General Assembly declared a different intent. As Judge Robert Bork told Congress about a nearly identical version of the federal marriage amendment, it is poorly drafted and unnecessarily creates controversy. He appropriately recommended amending the language he helped draft. As an attorney, Bosma should apply a higher standard to the wording of a constitutional amendment proposed to be added to our state's Bill of Rights. Instead, he's only concerned with making sure the discriminatory amendment appears on the ballot in 2008 so he can once again bash gays in the election in hopes of winning back control of the Indiana House. Democrats should see Bosma's resolution idea for the political smokescreen it truly is.

Doug Masson, an attorney who formerly worked for the Legislative Services Agency, shares his well-informed thoughts on the issue here.

11 comments:

Anonymous said...

Bush issues letters of executive intent.

Bosma wants to issue letters of legislative intent.

Is this a new Republican trend--thinking that your branch of government is uber-powerful and all-knowing? Just issue aletter, and you become God.

Pardon my French, but eff the intent if it's mean-spirited or conflicts with existing law. I know their "intent." It is, in Sen. Herschman's words, to usurp the courts' potential future influence.

They have no right to do so, if you believe in the original intent of the federal and state constitutions--three equal and separate branches of government.

Will Brian Bosma just get off my TV already?

Doug said...

Indiana doesn't have any legislative histories. I don't know that I've seen an occasion where a court has gone to a resolution of a General Assembly for help in interpreting a Constitutional Amendment.

I do know that the first step in statutory (or Constitutional) construction is to read the plain language of the provision. If the provision itself says "up," then a Court is not going to care if another document says it really means "down." They'll never go to the second document for assistance.

Seems to me that proposing a clarifying resolution is basically admitting that the General Assembly did not do its job in the first place. It didn't clearly articulate the law it was seeking to impose. I'm fairly certain this is a feature, not a bug, for certain politicians -- if they stated their intent clearly, the electorate would run screaming.

The drafting manual used by Legislative Services when drafting legislation for the Indiana General Assembly says, with respect to "purpose provisions":

"(2) Purpose Provisions [see also BILL PREAMBLE, Page 25]

A well-drafted act requires no statement of what it seeks to accomplish or the reasons prompting its enactment. Do not include language stating the purpose of an act or reciting the facts upon which an act is predicated unless the included language would be useful in upholding the act against constitutional attack or is necessary to give meaning to a provision for liberal construction."

There will be no "constitutional attack" here -- after all this will *be* the Constitution. If clarity in drafting is a priority in creating ordinary legislation, seems to me it should be doubly so with respect to Constitutional draftsmanship.

Advance Indiana said...

Thanks, Doug, for sharing your expertise in this area. The folks in LSA had to be just shaking their heads when Bosma asked for this resolution. I've never witnessed such bad lawyering as I've seen with the proponents on this particular constitutional amendment. The words "snakeoil salesmen" keeps coming to my mind every time they utter another one of their absurdities.

Advance Indiana said...

You make a good point on the fact that there is no "legislative history", such as the Congressional Record maintained by the General Assembly. I'm wondering if anyone will try to access the archived videos of the General Assembly to ascertain legislative attempt.

A state statute on the subject provides (2-5-1.1-14):

Audio or video coverage provided under section 12.1 of this chapter is not part of the legislative history of an act enacted or resolution adopted by the general assembly unless:
(1) the content of audio or video coverage provided under section 12.1 of this chapter is:
(A) incorporated by resolution contemporaneously adopted by the chamber in which the coverage originated into the house or senate journal required under Article 4, Section 12 of the Constitution of the State of Indiana; or
(B) declared to be part of the legislative history of a bill or resolution in a bill contemporaneously enacted by the general assembly; and
(2) the content of the incorporated audio or video coverage is certified for accuracy and completeness by the principal clerk or principal secretary of the chamber in which the coverage originated.

Another provision reads: It is not the intent of the general assembly in enacting section 12.1 of this chapter to have the content of the audio or video coverage provided under section 12 of this chapter (repealed) used as evidence of the legislative intent, purpose, or meaning of an act enacted or resolution adopted by the general assembly.

Anonymous said...

In other words, we don't know what we're doing, so don't pay attention to any recordings.

As in, pay no attention to the main behind the curtain.

The Great and Powerbul Boz.

What a complete goof.

Fed Up in Fort Wayne said...

"Instead, he's only concerned with making sure the discriminatory amendment appears on the ballot in 2008 so he can once again bash gays in the election in hopes of winning back control of the Indiana House."

That is the entire legislative intent of SJR 7. Gary, just send the URL of your blog to the Supreme Court and they will have it very succinctly stated for them.

There is no other intent here. If Brian Bosma gave a flick about anybody's marriage he'd be a minister or a marriage counselor.

As it is, I wish he'd just stay the heck out of my life.

Wilson46201 said...

Statehouse interns are well aware of Brian Bosma's concern for the sanctity of the marriage vows...

Anonymous said...

Doug's posting gives the perfect reason for letter of intent:

"...unless the included language would be useful in upholding the act against constitutional attack or is necessary to give meaning to a provision for LIBERAL CONSTRUCTION." (emphasis added)

Anonymous said...

ugh, 11:43, stop alreadyb with thye broad brush. Liberal does not always equal bad, nor does conservative.

Try to think a little outside the box, huh?

Anonymous said...

Ugh, yourself, 11:43. If you could get your head out of your behind for a minute, you'd know that the use of the word "liberal" in this sentence has nothing to do with political ideology. Geezzz, what an idiot. I thought Wilson usually signed his posts.

Wilson46201 said...

Which I always do, unlike the anonymous nobodies that exist to sling slurs cravenly hiding behind the false faces of TCP/IP.