Wednesday, December 16, 2009
ASUN Revised Statutes: An interesting idea, but poorly executed
Tonight, the ASUN Senate is set to take up Sen. Sean Hostmeyer's ASUN Revised Statutes bill. The bill is an attempt to create a single volume codification of ASUN law of a general and permanent nature. The bill, while an interesting and even anticipated idea, is poorly executed.
My initial remarks about why the Open Meeting Law will be violated in relation to this bill still stand. Item 18(d) on tonight's Senate agenda suffers from exactly the same deficiencies I pointed out to Sen. Brandon Bishop in a personal e-mail, and if the Senate acts tonight, it will do so in violation of the OML. Fair warning. By the way, the penalty for OML violations, if found, is removal from office by the University, so it's kind of a big deal.
Quickly, my remaining concerns about the bill are below. I have shared all of these concerns with Sen. Hostmeyer in a personal e-mail.
The codification makes substantive changes to existing law. This is the biggest reason it violates the OML. Making substantive changes to existing law in a codification bill is not appropriate. It denies the Senate, its committees, the public, and the President from having a meaningful opportunity to exercise their powers.
The codification, as executed in its implementing legislation, opens a reasonable door that the codification itself is not the law, while at the same time repealing all the general and permanent law already in force. The end result: no law at all in ASUN. Codification is a complicated process. You need to very carefully transition from the "old" law to the "new" codified, compiled, restated law. This bill does not do that. This is probably the single most dangerous flaw.
The codification is duplicative of other "codes." The Code of Elections is already a code. The Rules of the Senate and of the Judicial Council, while not law in the traditional sense, are also "codes" in that they are the rules codified into a single document that can be amended directly.
The style of the Revised Statutes Sen. Hostmeyer has presented departs from the intended (and used) style of choice for ASUN legislation, which is the style the Congress uses for its legislation. If you look at a lot (but certainly not all) of the stuff drafted in the 75th Session, it adheres to this stylistic choice. Arbitrarily departing from this style could create confusion later on. As one example, each section of a bill is intended to become part of a "code" without needing to reorganize the subordinate sections. The ARS style necessitates changing all the cross references within a single bill.
Codification isn't going to solve the problem of officials not reading, knowing, or following the law. Compilation of the laws by official might be a better intermediate step so this codification effort can be fully hashed out, and it's a step that won't require any Senate action. Anyone can make a compilation.
The bill "creates" several departments in ASUN which until this bill have never had any implementing or authorizing legislation under the new constitution (e.g. Inkblot, Sound and Lights, etc.). Creating this new law in a codification bill is inappropriate.
In sum, I think this codification idea has merits, as I told Sen. Hostmeyer, but the Senate would benefit greatly from some informed criticism. Acting without knowing the difference between a codification, compilation, and restatement is just asking for trouble.
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