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Monday, January 13, 2014

Ind. Law - Still more on the concept of using a "companion" bill to spell out legislative intent behind a constitutional amendment [Updated]

Updating this post from this morning, and referencing this story posted this afternoon on the IndyStar website, a reader writes:

The Star does not report that Peter Rusthoven testified. With his R credentials, it would be interesting to know what position he took. Your citation of his quotes appear to oppose HJR-3. That would be newsworthy. Just asking -- if you observed the hearing.

Ted A. Waggoner
Peterson Waggoner & Perkins, LLP

Thanks for pointing that out. Mr. Rusthoven, a noted Indiana Republican and litigator, spoke against HJR 3, and specifically the second sentence, for the reason that it would leave the decisionmaking to the courts. He called his concern a republican point of view. He also spoke against the companion bill, and pointed out that case law was against such a legislative approach, as the Constitution is the organic law of the State. [More about that in this earlier post.]

[More] More, with the help of notes from a reader. Key takeaways include: A constitutional amendment is “not an exercise of legislative power per se,” and what the legislature has to say about a constitutional amendment is not dispositive and has actually been explicitly rejected in two cases in Indiana. [See earlier post]

Rusthoven cited the statutory interpretative doctrine that the expression of the one is the exclusion of the other, and warned lawmakers that an argument at least will be made that anything not included in HB 1153 is rejected.

Posted by Marcia Oddi on January 13, 2014 03:37 PM
Posted to Indiana Law