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Wednesday, September 25, 2013
Ind. Courts - State Constitutional Twilight Zone: Judges and Prosecutors are Arguing Statutes are Unconstitutional
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
Appointed counsel in criminal appeals frequently challenge the constitutionality statutes — and, on rare occasion, succeed. Such challenges offer all sorts of opportunity for creativity — and are far more interesting than a mundane challenge to the sufficiency of the evidence.
But the bar to success in challenging the constitutionality of a statute is a very high one. As the Indiana Supreme Court recently reiterated in finding the school voucher statute constitutional:
"When a party claims that a statute is unconstitutional on its face, the claimant assumes the burden of demonstrating that there are no set of circumstances under which the statute can be constitutionally applied." Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind. 1999). Moreover, in reviewing the constitutionality of a statute, "every statute stands before us clothed with the presumption of constitutionality unless clearly overcome by a contrary showing." Id. at 338; see also State v. Rendleman, 603 N.E.2d 1333, 1334 (Ind. 1992) ("The burden is on the party challenging the constitutionality of the statute, and all doubts are resolved against that party.")I’ve been especially surprised in the past few months to see those who are usually stalwarts of the constitutionality of statutes to be arguing otherwise.
First, the judges in Lake County declared on their own, without any arguments from counsel in a case, that the statute prohibiting the transfer of a non-merit-selected judge to a vacancy created by the departure of a merit-selected judge was unconstitutional.* It took the Indiana Supreme Court little time to hold otherwise in a per curiam (usually used for pretty basic matters) opinion:
The Indiana Constitution gives the Legislature the power to create superior courts. Monford,[sic] 723 N.E.2d at 410; see Ind. Const. art. 7, § 1 (“The judicial power of the State shall be vested in one Supreme Court, one Court of Appeals, Circuit Courts, and such other courts as the General Assembly may establish.”). The Judges identify no authority precluding the Legislature from also providing a method for selection of the judges for the courts it creates.Now, it appears State of Indiana (through the Morgan County Prosecutor’s office) is joining the unconstitutional statute bandwagon. Last week I read a response to a defendant’s petition to expunge a criminal record that requested the motion be denied because the expungement statute is unconstitutional. The State asserts the statute violates Article 1, Section 24 (“obligation of contracts”) and Article 1, Section 13(a) (“victims of crimes”) of the Indiana Constitution.
The Indiana Supreme Court recently held in a sex offender registry case that "'the State is the State,' whether it acts through a deputy prosecutor or through the Department of Correction." The Attorney General, the State official charged with defending the constitutionality of state statutes, cannot be too pleased that the State (through a deputy prosecutor) is alleging a statute unconstitutional. What is more, the argument is not a strong one. Yes, a plea agreement is a contract, but I have never seen a plea agreement that says anything about expungement. Since the Indiana Supreme Court’s 2008 opinion in Creech v. State, many plea agreements [such as this one in a 2008 opinion] include terms prohibiting a defendant from challenging a sentence on appeal, for example. If the agreement does not include a provision prohibiting a later expungement petition, though, how is the statute interfering with a contract?** Under the prosecutor’s rationale the Governor would violate a contract if he grants a pardon after a plea agreement.
If judges and prosecutors are so easily convinced that statutes are unconstitutional, we might expect a spike in challenges from criminal defendants and others who usually raise the challenges.
*Earlier this month a Lake County judge found the right-to-work statute unconstitutional. At least parties had initiated a lawsuit in that case, although declaring victory for the plaintiffs in response to a defendant’s motion to dismiss is unusual.
**I am not suggesting such a plea term would be enforceable. As the court reiterated in Creech: “Provisions in plea agreements that waive a defendant’s right to seek post-conviction relief remain void and unenforceable. See Majors v. State, 568 N.E.2d 1065 (Ind. Ct. App. 1991).”
Posted by Marcia Oddi on September 25, 2013 12:27 PM
Posted to Schumm - Commentary