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Wednesday, February 13, 2013

Ind. Law - Constitutional issues with proposed special license plates plan?

This morning Dan Carden reported in the NWI Times:

INDIANAPOLIS | It took an extra year, but the Indiana House on Tuesday voted 92-6 for a plan by state Rep. Ed Soliday, R-Valparaiso, intended to bring order to the state's special group license plates.

House Bill 1297, which now goes to the Senate, sets new standards for obtaining a group license plate, caps the total number of plates at 150 and requires groups with plates disclose their financial records.

Under the plan, a panel of four Republicans and four Democrats from the House and Senate would review applications for group plates and advise the Bureau of Motor Vehicles on whether to issue a new plate.

While the BMV would not be required to follow the committee's recommendation, it couldn't create a new plate until the committee weighed in.

Here, from the most recent version of HB 1279, is the operative provision:
Sec. 2.5. (a) The license plate committee shall meet at least two (2) times a year at the call of the chairperson to review applications for special group recognition license plates that have been forwarded to the license plate committee by the bureau under section 2.3(b) of this chapter.
(b) After reviewing the applications, the license plate committee shall:
(1) compile a list recommending new special group recognition license plates; and
(2) forward to the bureau by written means the list of recommended special groups that meet the suitability for issuance of a special group recognition license plate.
The license plate committee may not recommend more than five (5) new special group recognition license plates to the bureau under this subsection in a calendar year.
(c) After receiving the list forwarded under subsection (b)(2), the bureau shall conduct an independent review of the applications, taking into consideration the recommendations of the license plate committee. The bureau may issue a special group recognition license plate in the absence of a positive recommendation from the license plate committee. However, the bureau may not issue a special group recognition license plate, unless the license plate has first been reviewed by the license plate committee and has been given a positive or negative recommendation to the bureau regarding that special group.
(d) The bureau may not issue more than five (5) special group recognition license plates for the first time in a year.
In other words, the action of the BMV is contingent upon the review of the legislative license plate committee.

There are two obvious issues: (1) What if the legislative group just sits on an application? Then the BMV cannot act, because the statute requires that it receive a positive or negative recommendation. (2) How likely is it that the BMV will act when this 8-member legislative group, which represents the power of the branch of government that controls both its statutes and its funding, gives a negative recommendation? Perhaps to prevent this kind of conundrum, the doctrine separation of powers is set out in our Constitution.

In a case, Book v. State Office Building Commission (1958), the Indiana Supreme Court looked at the question of whether the act creating the State Office Building Commission, to be made up of both executive and legislative members, violated Article 3, Section 1 because it permitted persons charged with official duties under one department of state government to exercise functions of another.

The Court wrote that Article 3, section 1 “is the keystone of our form of government and to maintain the division of powers as provided therein, its provisions will be strictly construed.” Further, “Legislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement,” and continued:

The Legislature may enact, but it cannot execute laws. That is the duty of the executive department. The Legislature here has at-tempted to confer executive power upon a Commission, the majority of which is composed of its own members, and to impose upon the legislative members thereof duties which they cannot constitutionally exercise. … If members of the Legislature may be appointed as members of Boards which exercise functions within the executive-administrative department of government, the door is then open for the Legislature to enter and assume complete control thereof.
For more, see p. 14 of this 2003 paper, "Maintaining the Balance of Power between the Legislative and Executive Branches of Indiana State Government post 1941," The Indiana Law Blog (2003) [background here].

Posted by Marcia Oddi on February 13, 2013 11:17 AM
Posted to Indiana Law