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Friday, March 04, 2005

Ind. Law - Part II. What might the Senate (and/or the House) do about the "dead" bills?

Options in the House.

In House Committee. The committee could insert "related matters" into a Senate bill. House Rule 80 would apply:

Germane. No motion or proposition on a subject not germane to that under consideration shall be admitted under color of an amendment.
Speaker Bosma stated early in the session that he would be applying this rule more strictly than had been the case in the past.

The House Committee could "strip" the Senate bill and substitute different subject matter via a motion to "Strike everything after the enacting clause and insert in lieu thereof the following ...". This would require written consent of the Senate author and co-author and the House sponsor and co-sponsor.

On Second Reading. Either of the above actions also could be attempted on second reading. However, the "bill pending" rule might be brought into play at second reading. (I'm told this is not as much an issue in House committee.)

118. Substituting another bill. No bill may be amended by annexing to it or incorporating with it any other bill pending before the House.
Senate Responses to House amendments to Senate bill. After the House passes a Senate Bill with House changes, the bill returns to the Senate. The Senate may concur in the House revisions, or the bill may go to conference committee, where efforts are made to reach an accord. It is here that the Senate germaneness rule would come into play:
50. No motion to amend, committee action, concurrence or conference committee action which seeks under color of amendment to substitute or insert subject matter not germane to that of the bill or resolution under consideration shall be in order. However, this rule does not apply to House bills raising revenue and relating to other taxation matters.
We will talk about Conference Committee Reports in more detail later on in the session. Suffice it to say for now, this language would allow/require the Senate to refuse to concur with House changes to a Senate bill that are not "germane" to the bill as it passed the Senate.

Senate President Pro Tem Bob Garton reiterated in a press availability Wednesday that he has applied the germaneness rule strictly for over 20 years. However, he also said “we don’t vary on our germaneness rules for speakers, for governors, lt. governors.... we vary with the caucus. If the caucus tells me I am wrong.... and the caucus so far has, I think, backed me up on every single judgement call.”

“I represent the caucus in interpreting those standards ... to date the caucus has told me – and they can confirm – we want a strict interpretation of the constitution.”

Options in the Senate.

In Senate Committee. The Senate Committee could insert "germane" matter into a House bill. Asked whether a Senate committee could hear daylight savings time and other bills, Senator Garton said Wednesday: “I have never made a germaneness call to block a vote. I never have and never intend to do so. And I will not use the germane rule for that purpose.”

So what does "germane" mean? As I understand it, it is not a strict test, but a flexible one.

Using the daylight savings time (DST) proposal as an example:

HB 1034, as introduced and as passed out of House committee, had one section. The bill simply repealed IC 1-1-8.1.

On second reading in the House, the bill was amended to add two new sections to to the bill, concerning Title 8 (highways) of the Indiana Code. The new provisions require the Indiana department of transportation to erect and maintain where appropriate signage indicating a change in the time zone line in each direction on a tollway and on the state highway system.

This addition apparently did not run afoul of the House's Rule 80 germaneness test -- provisions about highway signage could properly be added to a bill repealing daylight saving time because the additions simply expanded the concept of the original matter.

Now, in a Senate Committee, say there is a bill relating to an economic development matter. Say a Senator moves to insert the DST bill content, or part of it, into the economic development bill. Could it be successfully argued that the additions simply expanded the concept of the original economic development matter and so did not run afoul of Senate Rule 50 - which says in effect that no committee action shall be in order which seeks to insert subject matter (here time) not germane to the bill under consideration (here economic development)?

Quoting again from Senator Garton's statements Wednesday: [Re would he allow the Senate to hear DST and other bills?] "[A]s long as it is germane and as long the committee chair doesn’t object."

In General.

Unlike the U.S Congress, where precedents are recorded and codified, the application of House and Senate rules may vary by session, or by leader. In the end, if there is a controversy, it is the majority that prevails -- see, for example, Senate Rule 11 re appeal of a ruling of the chair.

The House and Senate, within the constraints of the Constitution, make their own rules and procedures. The Indiana Supreme Court has said time and again that it will not look beyond the Enrolled Act in a challenge to legislation -- it will not look at whether or not the General Assembly followed its own internal procedural rules, to do so, according to the Court's opinions, would be to violate the separation of powers.

On the other hand, unlike some, I do not equate the General Assembly's internal procedural rules regarding germaneness with the Indiana Constitution's requirement that an act "shall be confined to one subject and matter properly connected therewith." In my opinion, Art. 4, Sec. 19 is a substantive requirement. In applying this requirement, the Court needs only to examine the face of the Enrolled Act and decide whether it is limited to one subject.

In recent times, the Court has not followed this view; it has instead viewed Art. 4, Sec. 19 as an internal procedural limitation on the General Assembly, from which it will keep "hands off." The result has been "budget" bills which, as a result of last-minute compromises, may contain everything else various interests have been unsuccessful in getting passed through individual bills. The Governor, faced with signing such an amalgamation, may call for the line-item veto. But the answer, as I have posited before, is application by the Courts of the substantive requirements of the existing constitutional provision.

[Please do not hesitate to comment - and be sure to tell me if I can use your name.]

Posted by Marcia Oddi on March 4, 2005 07:19 AM
Posted to Indiana Law