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Saturday, January 25, 2014

Ind. Courts - "Constitutional amendments and companion bills: What to make of House Bill 1153?"

That is the title to this article by Michael Limrick of Bingham Greenebaum Doll, posted last evening to the firm's website. Here are some quotes from the article:

The role of intent in constitutional interpretation

The scenario isn’t difficult to imagine. HJR-3 is adopted by statewide election. Shortly after, a lawsuit is filed to determine whether an employer may continue offering health benefits to same-sex partners. What does the court do?

When it comes to constitutional interpretation, the Indiana Supreme Court describes the process this way: “[T]his Court looks to the common understandings of both those who framed it and those who ratified it.” But figuring out that “common understanding” is more of a challenge that one might expect—especially when it comes to constitutional amendments.

Before an amendment goes into effect, it must:

(1) be approved in one General Assembly;

(2) be approved in the next-elected General Assembly; and

(3) be ratified by a majority of voters in a general election.

So, a court discerning the “common understanding” of an amendment has to sort out the intent of two separate groups of framers as well as the voters who ratified it.

The intent of those who “frame” the amendment

It’s safe to say a court would accept HB 1153 as describing the intent of a particular group of “framers”—the 118th General Assembly. But it’s far from certain that the intent in HB 1153 would be attributed to the 117th General Assembly, which took up the amendment in 2011. The reason is simple: the circumstances under which each body has addressed the issue are different.

As of 2011, the Michigan Supreme Court had already decided that language similar to HJR-3 (concerning “similar union[s]” to marriage) barred public employers from providing insurance benefits to employees’ same-sex partners. It’s not difficult to imagine that the 117th General Assembly had that ruling in mind when it approved HJR-3. And a court would not be required to choose the 118th General Assembly’s viewpoint over that of the 117th General Assembly, if the court decides the latter had something different in mind.

The intent of those who “ratify” the amendment

That leaves the intent of the voters, and this is where the issue gets complicated. If HJR-3 is on the ballot, voters will not be asked to adopt or reject the language in HB 1153. Voters will be presented the two sentences of the proposed constitutional amendment, and a single question: Yes or no?

Some who vote “yes” might think HB 1153 is a good idea, and assume it will apply. Others might oppose HB 1153, but vote “yes” thinking the amendment itself is the only language that matters. Or, the “yes” voter might not know HB 1153 even exists. What then?


Most likely, the court in our hypothetical case will resort to the default setting for constitutional interpretation—largely ignoring HB 1153 and focusing on the literal text of the amendment. As the Indiana Supreme Court has explained, “The actual language … is particularly valuable because it tells us how the voters who approved the Constitution understood it, whatever the expressed intent of the framers in debates or other clues.” If a court thinks HB 1153 is consistent with the text of the amendment, it would likely apply the current legislature’s stated intentions. But a court that thinks HB 1153 is inconsistent with the literal text is just as likely to disregard it.

Ultimately, the question for the legislature is whether it’s comfortable with the literal text of HJR-3—divorced from the statements in HB 1153—because HB 1153 is likely to have little value in determining the amendment’s scope.

Sources for the above portion of the article:
2. Snyder v. King, 958 N.E.2d 764, 772 (Ind. 2011).

3. Ind. Const. Art. 16, § 1.

4. Nat’l Pride at Work, Inc. v. Governor of Mich., 748 N.W.2d 524 (Mich. 2008).

5. FGS Enters. v. Shimala, 625 N.E.2d 1226, 1229 (Ind. 1993).

6. Bonner v. Daniels, 907 N.E.2d 516, 519-520 (Ind. 2009).

ILB: See also this ILB post from Jan. 24th, quoting an op-ed by former Indiana supreme Court Justice Ted Boehm.

Posted by Marcia Oddi on January 25, 2014 10:23 AM
Posted to Indiana Courts