« Environment - Senate committee chair kills "no more stringent" bill | Main | Ind. Decisions - 7th Circuit decides one Indiana case today, a reversal re hair length »

Monday, February 24, 2014

Ind. Law - More on: The mysterious LSA memo on amending the Indiana Constitution

From the Feb. 2, 2014 ILB post:

Back on the November 26, 2013 edition of Indiana Week in Review I heard a mention that Senator Long had received an LSA memo addressing whether a constitutional amendment had to pass two General Assemblies in the same form and that the memo cited two authorities, presumably cases, that said no. I tried but couldn't turn up a copy of the memo. * * *

The Sunday issue of the now $$ Evansville Courier & Press boasts of a story by Chelsea Schneider titled "Amendment process not always by the book." Because of the paywall, all I can access of the story is:

Amending Indiana’s constitution is a multi-year process. But twice in the state’s history the General Assembly cut that process short.
After HJR 3 passed the Senate without the second sentence, there was talk, by a disabused out-of-state group, of an effort to put HJR 3, with both sentences, on the ballot this year through court action. They said they believed they had the law on their side. Most recent reports are that the effort has been abandoned. As Dan Carden reported today in the NWI Times:
In one of several bizarre postscripts to the Indiana marriage debate, the Washington, D.C.-based National Organization for Marriage announced last week it was considering legal action to force the marriage amendment on the ballot in 2014, and was looking for Hoosier lawmakers to help. * * *

Brian Brown, president of the National Organization for Marriage, backed down Friday and instead vowed to punish lawmakers who refused to support putting the marriage amendment on the ballot this year.

"While we believe a strong legal case can be made that the amendment could appear on the ballot this year, we think that the time and expense of such an effort would be better devoted to holding legislators accountable for their votes, and to preparing to elect a strong pro-amendment Legislature to pass the pending amendment in 2015," Brown said.

Recently, the ILB has obtained, not the actual LSA memo, but the $$ story reported by Chelsea Schnieder. A few quotes:
Amending Indiana’s constitution is a multi-year process. But twice in the state’s history the General Assembly cut that process short.

Indiana’s constitution requires two, separately-elected state Legislatures to approve the same wording of a constitutional amendment before the measure goes to voters. If the General Assembly changes the wording as will be the case if the Indiana Senate agrees to the House’s decision to strike the proposed civil unions ban from House Joint Resolution 3 the process restarts.

Yet in 1965 and 1969, the General Assembly changed the wording of proposed constitutional amendments, and sent the proposals to voters on the following year’s ballot anyway. In both cases, no records exist that court challenges took place.

Because they were never challenged, no precedent exists for what would happen if the General Assembly decided to skip the process and send the amended HJR-3 to voters in 2014. * * *

The 1965 amendment eliminated the household goods and intangible tax and provided for an excise tax on motor vehicles. The General Assembly first approved the changes in 1963, but the House Ways and Means Committee deleted a part of the proposal dealing with income tax in 1965.

The later amendment overhauled Article 7 of Indiana’s constitution establishing the state’s judicial branch. The General Assembly first approved the amendment in 1967, and the only changes lawmakers made in 1969 were for misspellings and minor copy editing errors.

Both amendments won the approval of Indiana voters in 1966 and 1970.

The tax amendment. Well, after researching the Acts of Indiana for 1963(SS) and 1965, it turns out that in fact, an amendment to Article 10 of the Indiana Constitution did pass in two different General Assemblies in two different forms. Here is the 1963(SS) version; it amends Art. 10, Section 1 (re exempting certain property from the property tax), and then continues on in another section to amend Art. 10, Section 10, to prohibit a graduated income tax.

In the 1965 session, the amendment to Art. 1, Sec. 1 was again adopted, but the second provision, the amendment to Art. 10, Section 10, was dropped from the resolution.

The proposed constitutional amendment, as it passed in 1965, was presented to the voters on the 1966 ballot and it was adopted. There was no court challenge at the time.

Since the 1965 change to Art. 10, Section 1, the provision has been amended by the voters two additional times, in 2004 and 2010.

What are the differences between this 1965 tax amendment, and the 2014 marriage amendment?

The judicial article. The second example cited in the Courier & Press story involves the Judicial Article, Article 7. As the story reported: "the only changes lawmakers made in 1969 were for misspellings and minor copy editing errors."

Although the story reports that the changes to Article 7 were not challenged, in fact they were. As the ILB reported on Dec. 15, 2013:

I've just looked at our Supreme Court's 1972 opinion in Roeschlein v. Thomas (Feb. 24, 1972). The new Judicial Article had been challenged, and the Supreme Court in Roeschlein upheld it (granting transfer and adopting the COA opinion), despite challenges to the procedures followed by the House and Senate in passing it. The challengers' assertions included: "the House and the Senate in voting upon the proposed Judicial Amendment did not vote upon the same 'proposed amendment or amendments' as required by the language of Article 16, § 1." However, the Court said:
In view of the decision we reach, the character of the changes does not constitute a material issue of fact and therefore we do not need to determine whether the changes are substantial or unsubstantial.
The Court's reasoning was that the resolutions had been authenticated by the presiding officers of the House and Senate, and the Court, deferring to the separation of powers, would not look beyond this.
Finally, in this Feb. 13, 2014 post, the ILB pointed out that neither the implementary language in the version of HJR 3 passed by the House, nor that passed by the Senate, would permit the amendment to be submitted to the voters. Rather, it reads:
SECTION 1. The following amendment to the Constitution of the State of Indiana is proposed and agreed to by this, the One Hundred Eighteenth General Assembly of the State of Indiana, and is referred to the next General Assembly for reconsideration and agreement.
In sum, it does not appear that the law is at all on the side of those who would attempt to obtain a court mandate to send the original language (or even the amended language) of HJR 3 to the voters in 2014.

Posted by Marcia Oddi on February 24, 2014 04:17 PM
Posted to Indiana Law