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Saturday, February 21, 2009

Ind. Courts - Judicial Center's Legislative Update #6; and more about the increase in the automated record keeping fee

[Note: Several readers have expressed to me an interest in how to research legislative history. This is a start. If there is enough interest, I may do more on this.]

Here is the Indiana Judicial Center's Legislative Update, current through Feb. 20th -- this is a way to keep on top of court bills, and bills impacting criminal and civil matters, although, as noted in this entry from Feb. 13th, it does not appear to be entirely comprehensive.

For instance, not mentioned this week is HB 1435, about which Patrick Guinane reported in the NWI Times on Feb. 19th:

The Indiana House voted 53-41 Thursday to add a $10 filing fee to Lake County court cases, a proposal that would generate nearly $800,000 a year to build a consolidated courthouse in Crown Point.

House Bill 1435, sponsored by Rep. Linda Lawson, D-Hammond, follows a 2006 recommendation of the Good Government Initiative, an efficiency study sponsored by the region's largest employers.

"They wanted us in Lake County to consolidate our courts into a central area," Lawson told the House colleagues.

Rep. Charlie Brown, D-Gary, objected to the proposal, arguing it would disenfranchise Gary residents who lack adequate transportation to make the 13-mile trip south to the county seat. Lawson said county courthouses likely would remain open in Gary and Hammond, but that assurance did not satisfy Brown.

"This is too vague," he said. "I can't go on a wing and a prayer."

The $10 fee would be paid by those who file civil cases, such as divorces, along with convicted criminal defendants and those who enter pretrial diversion programs.

The legislation, which would generate an estimated $768,000 a year, now moves to the Senate.

The automated record keeping fee. As noted in Legislative Update #5:
The Senate Appropriations Committee heard SB 121 concerning the automated record keeping fee authored by Sen. Bray. This bill would increase the fee from $7 to $10 between July 1, 2009 and June 30, 2013 and reduce the fee back to $7 after June 30, 2013. Mary DePrez, Director and Counsel for Trial Court Technoloy, Division of State Court Administration, spoke in favor of the legislation. Representatives from the Indiana Clerk’s Association testified that they would prefer the fee increases be retained locally. The Committee held action on this bill.
The County Clerks' rationale, the ILB found out with some inquiries, was:
The clerk’s would rather see the $3 stay local to help with their record preservation. The increase in case load, especially with small claims, civil collections and mortgage foreclosures, has gone up substantially with the bad economy. This would help counties at the local level with their record preservation as well as keeping their current case management system as long as it complies with state standards.
That confirms my thoughts, that: "If you are one of the more than 80 counties that is not part of the JTAC network, then why would you want your fees to go out to support it, when you have your own expenses that you need to pay for."

However, the County Clerks' success appears to be short-lived. As Update #6 reports this week:

The House Ways and Means Committee heard HB 1001, the budget bill, authored by Rep. Crawford. In addition to providing for a one year state budget, the bill also includes amending the automated record keeping fee from $7 to $10 between July 1, 2009 and June 30, 2013, and reduces the fee back to $7 after June 30, 2013. The bill passed as amended 14-9.

Here is the legislative history part, which I developed because I wanted to trace how the fee had increased over the years.

HB 1001 passed the House yesterday. Here is the language of the provision:

SECTION 81. IC 33-37-5-21, AS AMENDED BY P.L.234-2007, SECTION 69, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect a seven dollar ($7) an automated record keeping fee in the following amounts:
(1) Seven dollars ($7) after June 30, 2003, and before July 1, 2011. 2009.
(2) Four Ten dollars ($4) ($10) after June 30, 2011. 2009, and before July 1, 2013.
(3) Seven dollars ($7) after June 30, 2013.
The same section was also amended two years ago, by the 2007 budget bill. Here were the changes:
SECTION 69. IC 33-37-5-21 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2007]: Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect the following a seven dollar ($7) automated record keeping fee.
(1) Seven dollars ($7) after June 30, 2003, and before July 1, 2009. 2011.
(2) Four dollars ($4) after June 30, 2009. 2011.
IC 33-37-5-21 was enacted in 2004 - its current history line reads:
As added by P.L.98-2004, SEC.16. Amended by P.L.234-2007, SEC.69.
However, this is somewhat misleading, because PL 98-2004 was the recodification of Title 33 and SECTION 16 added the entire Article 37 on Court Fees.

In other words, the automated record keeping fee did not start in 2004, but sometime before.

To do further research, we need to go behind the recodification and find the derivation of IC 33-37-5-21. The Table provides:

"33-37-5-21 . . . . . . . . . . . . . . . . . . . . . . . 33-19-6-19."
So how to know what the history of IC 33-19-6-19 was? That is not easy to ascertain and in fact was the subject of one of my Res Gestae articles, where I wrote:
Except for a few original provisions necessary to implement the new Code, every section of the 1971 Indiana Code was followed by a line identifying what provision of the former law had been its source. * * *

Subsequent changes to a provision were indicated by “history lines,” making it relatively simple to trace the evolution of the law. * * *

If you look through the Indiana Code today, you will learn that relatively few source lines continue to exist. The reason is that whenever a recodification of an area of law is enacted by the General Assembly, neither the source line nor the existing history line are retained, making understanding the genesis of a provision much more difficult.

What to do now? If the General Assembly kept the older editions of the Indiana Code online, rather than replacing each edition with the new edition, it would be easy -- look for IC 33-19-6-19 online in the 2003 Indiana Code. Lacking that option, one would need to look at actual books - replacement volumes of West or Burns, for example.

I was able to locate the language from the 2003 Indiana Code:

IC 33-19-6-19 Automated record keeping fee
Sec. 19. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect an automated record keeping fee of:
(1) five dollars ($5) before July 1, 2003;
(2) seven dollars ($7) after June 30, 2003, and before July 1, 2009; and
(3) four dollars ($4) after June 30, 2009.
As added by P.L.183-2001, SEC.12. Amended by P.L.141-2002, SEC.3.
When the 2004 General Assembly recodified Title 33, this language of IC 33-19-6-19 should have become 33-37-5-21, with no substantive change. And that looks to be the case - "(1) five dollars ($5) before July 1, 2003;" was dropped off because it was no longer relevant. Here is the recodified provision on p. 319 of the SEA 263-2004:
Sec. 21. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect the following automated record keeping fee:
(1) Seven dollars ($7) after June 30, 2003, and before July 1, 2009.
(2) Four dollars ($4) after June 30, 2009.
But we are also interested in the history line to the 2003 Indiana Code section, the pre-recodification version. It shows:
As added by P.L.183-2001, SEC.12. Amended by P.L.141-2002, SEC.3.
So, finally, we see that that the automated record keeping fee originated in 2001 - here is that 2001 language of the new IC 33-19-6-19, from PL 183-2001, SECTION 12 (HEA 1130-2001):
Sec. 19. (a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect an automated record keeping fee of two dollars ($2).
The section was amended the following year by PL 141-2002, SECTION 3 (SEA 315-200):
(a) This section applies to all civil, criminal, infraction, and ordinance violation actions.
(b) The clerk shall collect an automated record keeping fee of:
(1) two five dollars ($2). ($5) before July 1, 2003;
(2) seven dollars ($7) after June 30, 2003, and before July 1, 2009; and
(3) four dollars ($4) after June 30, 2009.
Essential in doing the above research quickly, without the need for constant backtracking through dozens of web pages, was this web tool I've developed, The Indiana Law Blog's Legislative Research Shortcuts.

With this information, it is possible to chart the increases in the automated record keeping fee from its origin to the present day:

Increases in Annual Automated Record Keeping Fee Through the Decade
2001 $2 annually
2002 $5 annually until 7-1-03, then $7 annually until 7-1-09, then $4 annually thereafter.
2004 $7 annually until 7-1-09, then $4 annually thereafter.
2007 $7 annually until 7-1-11, then $4 annually thereafter.
2009 $7 annually until 7-1-09, then $10 until 7-1-13, then $7 annually thereafter. [proposed]

See also this ILB entry from Nov 6, 2008 - "Making Sense of Court Fees."

Posted by Marcia Oddi on February 21, 2009 11:36 AM
Posted to Indiana Courts