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Tuesday, January 17, 2012

Ind. Law - Are binding referendums constitutional in Indiana?

Years back, I learned that only a non-binding, or advisory, referendum was likely constitutional in Indiana, because Art. 1, Sec. 25 of the Indiana Constitution reads:

Section 25. No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.
However, this morning I checked the current version of the Bill Drafting Manual on the General Assembly's website. Here are some quotes from Chapter 3. Bills, L. Effective Dates:
(12) Contingent on Some Event

It is possible to draft legislation that will be applicable upon the occurrence or nonoccurrence of some future event. In drafting such a provision, comply with Article 1, Section 25 of the Constitution of the State of Indiana, which voids any act taking effect on any "authority outside that provided in the Constitution".

Example: If a majority of the votes cast in the referendum favor the election of the members of the governing body, then IC 20-3-19 applies to the school corporation.

Provisions that might fail to comply with the constitutional requirement are as follows:

Don't say:

This act becomes effective when the Association of Electricians adopts standards to govern the installation of wiring.

or

This act becomes effective when the United States Drug Enforcement Agency adds the substances listed in this article to its list of controlled substances.

The same discussion appears in the 1999 Bill Drafting Manual, at pp. 49-50.

Here is what the 1971 Draftsman's Manual* provided, at p. 66:

The Act Which is Effective Upon Some Event

In addition to fixed or ascertainable dates, it may be possible to draft legislation which will be effective upon the occurrence or non-occurrence of some future event.

However, beware of the provisions of Article 1, Section 25 of the Constitution, which void any act made effective upon any "authority" outside of that provided in the Constitution itself.

A bill ordinarily becomes law when it is signed by the Governor. It ordinarily takes effect when the Acts are promulgated. A bill which provides that it will take effect and be operative only in those cities where the voters approve it in a referendum, for example, is of questionable validity.

In every case, the matter of which is an "authority" outside of the Constitution must be determined by a review of the relevant Supreme Court decisions.

My take in 2012? I'm not sure this is now a settled area. I am unaware of any relevant Supreme Court decisions, but would welcome more information.
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*The 1971 Manual, which I co-authored, is not currently online.

Posted by Marcia Oddi on January 17, 2012 07:58 AM
Posted to Indiana Law