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Saturday, June 17, 2006

Ind. Decisions - While the Supreme Court considers its decision in the toll road case . . .

"Court shouldn’t let itself be rushed" opined the Fort Wayne News-Sentinel in an editorial brief Thursday:

We think the 75-year lease of the Indiana Toll Road to a Spanish-Australian consortium for $3.8 billion is a good idea. We think it took courage for Gov. Mitch Daniels to propose it and a lot of political savvy to get it through the General Assembly. Many of the criticisms about the deal seem unfounded.

But the Indiana Supreme Court should not let itself be rushed through its consideration of the deal’s constitutionality because of the June 30 deadline for the state to close the deal, and the state should stop trying to put pressure on the court for a quick decision. The lease is a complicated document that was creatively designed and sold to the legislature, and it will affect all Hoosiers for a long time to come. The court’s job is to run all those details by the state constitution, and no one should want it to do a shoddy job.

Yes, the consortium has the option of backing out of the deal if litigation is still pending on June 30. But if this deal is as good as everybody keeps saying it is, the company will not be in a hurry to opt out. If it does, maybe we should have second thoughts, too.

Discussion of the possible outcome of the case opened Indiana Week in Review last evening. There was talk of a 2-2 split, but the consensus seemed to be that the Court would decide all the issues, paying special attention to questions concerning special legislation and legislative log-rolling.* (I'll rewatch the program Sunday at noon when it re-airs to check my observations. The show will also be available online beginning Monday.)

How much stock to put in the pundits' observations? Here is the ILB entry from Jan. 23, 2006, reporting that the talking heads on that week's edition of Indiana Week in Review had dismissed the importance of the legislative "health-care for life" issue, when the issue was already on many radar screens.

(Interestingly, on this Friday's show, former House speaker John Gregg sat in for regular demo party representative Ann Delaney. As the same Jan. 23, 2006 ILB entry reports, it was Gregg, along with Pro tem Bob Garton and LSA Director Phil Sachtleben, who conceived the taxpayer-funded life-time supplement for "retired" legislators, their families and staff several years back and all are now eligible to benefit from the plan, for life.)
*Legislative log-logging was the subject of my 29-page 2001 Res Gestae article, "Enforcing Indiana's Constitutional Requirement that Laws be Limited to One Subject," 44 Res Gestae 9. The article began with a quote from Logrolling: how bad laws get passed, the lead editorial in the Indianapolis Star, Sunday, January 7, 2001:

For years now, Indiana lawmakers have blithely ignored a section of the Indiana Constitution that bluntly mandates that every bill passed into law be “confined to one subject.”

Despite this admonition lawmakers passed a bill in 1991 that combined hold-your-nose legislative redistricting with the school funding formula, a bill that absolutely had to be passed. That’s how Indiana got such heavily gerrymandered districts that favor Democrats in the House and Republicans in the Senate.

In 1993, lawmakers again used the budget and school funding formula to pass a riverboat gambling that would never have passed on its own merits. And in 1995, Republican lawmakers rammed through a repeal of the state’s prevailing wage law by stuffing it into a bill cutting auto excise taxes. It was a hard-to-swallow sandwich for many lawmakers, but they didn’t have much choice. Who wants to vote against a tax cut?

The constitutionality of these efforts has often been challenged in lawsuits, but the Indiana Supreme Court has been reluctant to strike down laws solely because they originated in multi-subject bills.

. . . [L]ogrolling has reached such outrageous levels that lawmakers might as well just stuff everything they do into one giant bill each session and send the entire mess to the governor in a wheelbarrow with a take-it-or-leave-it note.

Then on to the article itself:
Legislative logrolling involves combining together into one bill several unrelated proposals, in order to accumulate the requisite number of votes for the combined measure to pass. This practice may occur during the initial drafting of the bill, or at any point after introduction. A subset of logrolling involves the addition of an unrelated rider to an essential piece of legislation, such as a budget or appropriations bill, generally in the last days of a legislative session, so that it may “ride” to approval.
The primary and universally recognized purpose of the one-subject rule is to prevent log-rolling in the enactment of laws — the practice of several minorities combining their several proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority approval separately.

Another stated purpose of the provision is to prevent “riders” from being attached to bills that are popular and so certain of adoption that the rider will secure adoption not on its own merits, but on the merits of the measure to which it is attached. This stratagem seems to be but a variation of log-rolling.2

A law containing more than one subject would appear to be prohibited by the Indiana Constitution. But the last time the Supreme Court of Indiana used the one subject matter limitation to invalidate a law was thirty years ago, in 1971. Although a number of legislative acts have been challenged on the same basis since 1971, including those described above in the Indianapolis Star editorial, none has been held by the Court to violate the one subject matter prohibition.

The direction the Court has taken in recent years is one of reluctance to intervene in the activities of a co-equal branch of government. But is judicial deference the proper response? This paper attempts to answer that question by first examining the genesis of the current constitutional requirement. Although the one subject limitation contained in Article 4, section 19 has been a part of the Indiana Constitution since 1851, there have been three different versions of Article 4, section 19 during that period. Interpretations of Article 4, section 19 by the Indiana Supreme Court led to two constitutional amendments to that provision in the twentieth century, in 1960 and in 1974.

Next, this paper examines the Court’s decisions interpreting the 1851 and 1960 versions of the one subject matter limitation. These versions required that an act shall contain but one subject, “which shall be expressed in its title.” The “title-body” test the Court applied in many of its holdings involved a parsing of the title of the act to determine whether it was broad enough to encompass all the provisions of the act itself.

Third, this paper examines the Court’s decisions since 1974. Although the requirement that the subject of the act be expressed in its title no longer exists in the current version of Article 4, section 19, this paper finds that initially the post-1974 Court holdings continued to rely on the title-body reasoning of earlier decisions. More recently, the Court has adopted the position that the one subject matter limitation is one that the General Assembly itself must police.

Finally, this paper looks at the ramifications of the current Court’s “hands-off” position, concluding that this position of judicial deference to a co-equal branch of government may unfavorably impact both the executive branch and the judiciary itself.

Posted by Marcia Oddi on June 17, 2006 09:36 AM
Posted to Ind. Sup.Ct. Decisions