« Ind. Decisions - Court of Appeals issues 2 today (and 6 NFP) | Main | Ind. Decision - Supreme Court, 5-0, upholds Marion County redistricting »

Wednesday, May 07, 2014

Ind. Law - Shouldn't Unconstitutional Statutes be Repealed?

Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law

According to a recent USA Today article, more than a decade after the U.S. Supreme Court held it was unconstitutional to prohibit consensual sex between adults in Lawrence v. Texas, anti-sodomy statutes remain on the books in a dozen states. Last year police arrested men for violating the unconstitutional Louisiana statute, but the district attorney refused to file charges. Earlier this year a state legislator proposed repeal of the statute, which failed by a large margin. A leader of a group opposing the repeal told the newspaper: "It's not a Louisiana value."

Regardless of one’s views on whatever statute has been declared unconstitutional, shouldn’t it be a Hoosier value that our statutes—the most readily available and most easily accessible source of law—reflect the governing law? That would mean the repeal or revision of statutes held unconstitutional by courts—something that occurs, albeit infrequently. For example, after the Seventh Circuit struck down the statute banning certain sex offender access to social media on First Amendment grounds in January of last year, the General Assembly quickly held hearings to amend the statute. That same session the Previously Uninsured Motorist Registry (Indiana Code 9-25-10) was repealed after a successful legal challenge by the ACLU of Indiana. There, the BMV agreed the law was unconstitutional and presumably sought or at least supported its repeal.

In many other instances, no governmental agency or apparently anyone at the General Assembly takes any action to repeal statutes that have been declared unconstitutional and cannot be enforced. Beyond tidying up things for citizens, lawyers, and judges, repealing an unconstitutional statute would seemingly reduce the likelihood of it continued enforcement, which could lead to costly liability. Consider, for example, the recent Seventh Circuit opinion in Mulholland v. Marion County Election Board, which noted that a decade earlier a plaintiff challenging the anti-slating statute, Ind. Code § 3-14-1-2(a)(2)–(3), “won a federal injunction against the statute’s future enforcement and a consent decree in which all parties stipulated and the court declared that the law was facially unconstitutional. Ogden v. Marendt, No. 1:03-cv-415 (S.D. Ind. Aug. 29, 2003), EFC No. 40.” In a footnote, Judge Hamilton made the gravity of continued enforcement clear: “If Board members or their agents were to try to enforce the anti-slating statute against other parties at this point, such as in the May 2014 primary elections, we expect that this opinion and the Ogden judgment would make it difficult to invoke the defense of qualified immunity to a damages action under 42 U.S.C. § 1983.”

Unconstitutional, but not repealed, Statutes

What follows is a partial list of Indiana statutes that remain on the books years after being declared unconstitutional.* Please send me an email with the details of any others, which I will include in a follow-up post.

Nine years. Indiana Code section 35-36-9-4 places the burden on a defendant seeking to avoid the death penalty to “prove by clear and convincing evidence that the defendant is a mentally retarded individual.” In Pruitt v. State (Ind. 2005), the Indiana Supreme Court held, applying U.S. Supreme Court decisional law, that the burden on a defendant must instead be preponderance of the evidence.

Seven years. Indiana Code section 35-42-3-3 (criminal confinement, a class D felony) occurs when a person “removes another person, by fraud, enticement, force, or threat of force, from one (1) place to another.” In Brown v. State (Ind. 2007), the Indiana Supreme Court found the terms “fraud” and “enticement” were unconstitutionally vague, although the remaining language could be enforced.

Five years. Legislation passed in 2008 requires that persons who intend to offer for sale or sell sexually explicit materials must register with Indiana’s secretary of state, pay a fee, and provide a statement detailing the types of materials they intended to sell. The specific affected statutes include:

One year. Indiana Code section 35-33-8-2(b) provides: “A person charged with murder has the burden of proof that he should be admitted to bail.” Last summer, a majority of the Indiana Supreme Court overruled nearly 150 years of precedent and held under Article 1, Section 17 of the Indiana Constitution that the State—not the defendant—bears the burden of proof. Fry v. State, 990 N.E.2d 429 (Ind. 2013).

Indiana Code section 35-33-1-1 provides that: (a) A law enforcement officer may arrest a person when the officer has: *** (11) a removal order issued for the person by an immigration court; (12) a detainer or notice of action for the person issued by the United States Department of Homeland Security; or (13) probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. 1101(a)(43)).” Attorney General Zoeller refused to defend parts of the statute after the U.S. Supreme Court struck down a similar Arizona statute. Not surprisingly, last year Judge Barker held the quoted statute violated the Fourth Amendment because it “authorizes the warrantless arrest of persons for matters and conduct that are not crimes.”

Timing and Practical Concerns

The part-time General Assembly meets at most a few months each year, so some lapse of time can be expected between an opinion declaring a statute unconstitutional and the legislative response. The General Assembly will understandably want to wait until a case has worked its way through the appellate process before repeal or revision. The right-to-work statute, for example, was declared unconstitutional by a Lake County judge last year but will very likely be upheld when the Indiana Supreme Court decides the matter later this year.

The General Assembly obviously keeps abreast of case law developments, often making changes to statutes when suggested by the Indiana Supreme Court, as with school resources officers in response to K.W. v. State last year. In addition, it sometimes assert its legislative prerogative over issues where it disagreed with a recent non-constitutionally-grounded opinion—as with the changes to the self-defense statute in response to the Barnes v. State opinion or the public intoxication statute in response to Moore v. State. But when a court declares a statute unconstitutional, the legislative response—at least in many instances—seems to be to do nothing. And confusion for citizens, police officers, and lawyers will often be the result.

An alternative approach might be an annual bill, proposed by leadership of both parties, conforming the Indiana Code with any fully-appealed court opinions that found a statute unconstitutional. Voting for the bill should not be seen as agreement with the court decisions but instead a step toward making often complicated legal matters a little clearer for citizens, lawyers, and judges.**

The annual bill would also offer an opportunity for reflection—and perhaps even self-congratulation. Some years no statutes may have been declared unconstitutional. Even in years where two or three are shot down, chances are the flaws were with only some part of a much larger bill. Considering the hundreds of bills that pass each year, the General Assembly could still claim something like a 0.999 batting average.


* Because the focus is on unconstitutional statutes, I have not included statutes preempted by federal statute, such as Indiana Code section 5-22-17-5.5(b), which prohibits state agencies from providing state or federal funds to “any entity that performs abortions or maintains or operates a facility where abortions are performed.” The Seventh Circuit held in 2012: “Because Indiana’s defunding law excludes a class of providers from Medicaid for reasons unrelated to provider qualifications, we agree with the district court that Planned Parenthood is likely to succeed on its claim that Indiana’s defunding law violates § 1396a(a)(23).”

I have also excluded statutory language that might be constitutional under even some remote set of circumstances. For example, as last week’s Indiana Supreme Court opinion in Brewington explained regarding Indiana’s intimidation statute: “Only where a purely-private figure is involved, and the alleged ‘threat’ involves no colorable issue of public concern, may subparts (c)(6) and (7) be applied as written; and otherwise, the actual malice standard will preclude most prosecutions.”

** The genesis for this post was an email from a law professor at an out-of-state school asking: I understand that Pruitt v. State (2005) ruled the statutory clear and convincing standard unconstitutional and imposed preponderance. However, I see the statute §35-36-9-4 still has C&C, even after they amended the language in 2007, changing "mentally retarded" to "an individual with mental retardation." So my question is, what's the status? I can only assume Pruitt is the law, but I don't understand the continued existence of the statute containing C&C.

Posted by Marcia Oddi on May 7, 2014 11:32 AM
Posted to Indiana Law | Schumm - Commentary