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Friday, January 24, 2014

Ind. Courts - Wonder what former Justice Ted Boehm thinks of HJR 3's companion "clarifying bill," HB 1153?

Well, wonder no more. Boehm wrote a Jan. 20th opinion piece for INforefront, which is "an online community hosted by Indianapolis Business Journal for thoughtful conversation about politics, policy and government." Some quotes:

The legislature seems poised to enact a statute that purports to explain what is and is not intended by the constitutional amendment. Maybe something like that can work for a bill enacted by the same general assembly, but amending the Indiana Constitution requires more than one legislature’s approval.

The first General Assembly to pass what was then HJR-6 was elected in 2010. We know what the language adopted by that General Assembly says. But introducing legislation in 2014 purporting to explain the amendment three years later is a not very tacit admission that there are some significant issues in interpreting that language.

Who knows whether the first General Assembly thought it was doing what the folks elected in 2012 now say they believe the language should be understood to mean?

The net effect of this latest maneuver is to create a question for the courts whether this amendment, whatever its merits, was adopted in a process consistent with the state constitution, which requires that the same amendment be adopted by two different sessions of the legislature.

Finally, actions by subsequent legislatures can of course amend a statute. But the cases discussing interpretation of statutes do not suggest that actions by subsequent legislatures backdate actions of prior sessions. That’s what this clarifying statute apparently attempts to do.

ILB: Recall also that the author of HJR 3, the marriage amendment, and HB 1153, the marriage amendment ballot language plus "clarifying language," Rep. P Eric Turner, during his testimony before the House Judiciary Committee, cited as authority for the concept of a "companion" bill to spell out legislative intent behind a constitution amendment, a 2000 opinion by then-Indiana Supreme Court Justice Ted Boehm. Even had it been on point, the opinion was a somewhat unlikely choice, as Dickson and Rucker (the only two justices still on the Court) were in dissent.

Both Indiana University general counsel Jackie Simmons and Barnes & Thornburg partner Peter Rusthoven, on the other hand, cited the 1964 Supreme Court opinion in Hendricks v. State for the proposition that "a legislative intention as to how the Constitution is to operate is of little value in determining the intention of the drafters."

Posted by Marcia Oddi on January 24, 2014 03:54 PM
Posted to Indiana Courts