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Wednesday, January 18, 2012

Ind. Law - Following on: Are binding referendums constitutional in Indiana?

Updating yesterday's ILB entries, a tweet seen this morning:


See Niki Kelly's story this morning in the Fort Wayne Journal Gazette. Some quotes:
Last week, both sides agreed to handle House Bill 1001 amendments Tuesday.

Democrats are pinning their hopes on an amendment requiring a statewide public vote on right to work. But Bauer said he didn’t learn until about 10 p.m. Monday – a holiday – that there were constitutional concerns about the amendment.

He called it a “last-minute attempt to diminish the amendment” and “the next dodge of the public.”

Bauer doesn’t think his caucus members will be present at 9 a.m. today when the session reconvenes as lawyers are researching the matter. * * *

House Democrats have conceded they don’t have the votes to stop the bill. Instead, Rep. Win Moses, D-Fort Wayne, offered an amendment for a statewide referendum on the law.

But Legislative Services Agency – the non-partisan legal branch of the legislature – said the provision making a law contingent on a statewide public vote might violate Article 1, Section 25 of the Indiana Constitution.

That provision says, “No law shall be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution.”

A Legislative Services Agency memo says legislative authority is given solely to the Indiana General Assembly, not the public.

“It is unlikely that the effectiveness of a statewide law could be made contingent on approval of the voters,” the memo said. “The current Indiana Constitution provides a framework for enactment of legislation that does not include a referendum option.”

Marcia Oddi, writer of the Indiana Law Blog, said it is likely that only an advisory or non-binding referendum is constitutional in Indiana.

But she also quoted the current version of the Legislative Services Agency’s bill-drafting manual, which said it is possible to draft legislation that is applicable upon the occurrence or non-occurrence of some future event.

The manual also provides examples.

There appears to be no case law on the question, and Bauer is looking for a way to draft the amendment so it would not be a concern.

In 2008, legislators provided for a public question on whether to retain township assessors that was not challenged.

It was not statewide, though, affecting only the largest townships in the state.

Eric Bradner reports in the Evansville Courier & Press:
The idea of putting right to work to a statewide referendum has been Democrats' proposal to get all Hoosiers involved in an issue that was not debated in most 2012 legislative races.

That's a much different tack than Indiana takes in most cases. While lawmakers have allowed for local referendums on issues such as school funding and abolishing township assessors, and they've placed constitutional amendments on the ballot, they've not allowed voters to decide on whether to enact a state law.

There's a reason for that. Unlike those of states such as California and Ohio, Indiana's constitution does not provide for such a referendum.

A Legislative Services Agency analysis on Jan. 13 said, "In short, it is unlikely that the effectiveness of a statewide law could be made contingent on approval of the voters."

Bosma said while he would have allowed a vote on the Democratic amendment anyway, he believes it should be up to lawmakers to decide the issue.

"Our state constitution very clearly holds our General Assembly responsible for statewide enactments," he said. "Apparently Rep. Bauer came to that realization that it might put their pet amendment in jeopardy, and decided that was enough to walk away."

From a story this morning in the Indianapolis Star by Mary Beth Schneider:
[Bauer] said Democrats only learned last night that the nonpartisan Legislative Services Agency had been asked -- Bauer believes by Republicans — to research the constitutionality of a referendum and had decided it was not.

Bauer said Democrats assumed when LSA drafted both their amendment and an identical one sought by a Republican that it would meet constitutional muster. He believes Republicans raised the issue in order to block it from passage.

“I don’t know, but I suspect that the people who asked for it (the LSA analysis of the amendment’s constitutionality) were the same people now protesting innocence,” Bauer said. “We cannot know that LSA is giving us something that they would later rule is possibly unconstitutional. We need time to perfect it.”

Posted by Marcia Oddi on January 18, 2012 09:24 AM
Posted to Indiana Law