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Wednesday, March 21, 2007

Ind. Law - Some initial thoughts on House hearing on SJR 7

I was able to watch the entire House Committee hearing on SJR 7 this morning. I thought it was a very well-run hearing and thought the opponents of the measure made a particularly powerful case.

One of the supporters of the amendment, I believe it was a legislator, referred to "a case from the 1970s" that, I heard him say, upheld the proposition that a constitutional amendment must pass two General Assemblies with exactly the same wording. He referred to a legal memorandum from, I believe, the Legislative Services Agency. He called the case "Reissline v. Thomas."

I'd like to review a copy of the memo. I hope one of you readers will be able to send it to the ILB.

Roeschlein v. Thomas 258 Ind. 16, 280 N.E.2d 581 (1972) is the case where the Indiana Supreme Court upheld the new Article 7, the new judicial article making the Supreme and Appellate Courts appointive, rather than elective. The per curiam opinion began:

PER CURIAM.---This is an original class action in which the plaintiff seeks to have the amendment revising Article 7 (the Judicial Article) of the Indiana Constitution which was ratified in the general election of November 3, 1970, declared illegal and void, and seeks an injunction restraining the Governor from acting until such amendment has been constitutionally adopted.
Plaintiffs in the case argued about the internal legislative process that produced the two Joint Resolutions (which did not even have the same number in the two General Assemblies and which in at least one session passed the two houses in different forms and had to go to conference committee):
There is no hint in the case at bar that House Joint Resolution No. 6 or House Joint Resolution No. 12 were not duly and lawfully attested by the signatures of the presiding officers nor is there any suggestion the attestation on the Joint Resolutions was due to fraud or mistake of fact. No question is raised as to the legislative intent of the respective Joint Resolutions, so no reason is presented by plaintiff why we should not be bound by the firmly established general rule preventing courts from looking behind the authentication of the act or joint resolution to the journals of the houses. * * *

We now reaffirm the repeated stand taken by our Supreme Court that courts should not look beyond the authentication of the presiding officers of the legislature to determine from their journals whether there has been a defect in following the constitutional directives of Article 16, § 1.

A second claim made was also given short shift (shrift?) by the Court:
Thus plaintiff is arguing that the Judicial Amendment is invalid because of the failure of the Secretary of State to certify the Judicial Amendment and the additional failure of some county clerks to include it in the notice of the General Election of November 3, 1970. This, he contends, breaks the chain of steps necessary to properly submit a constitutional amendment to the electorate.

This argument comes to us singularly unencumbered with applicable authority. It amounts to nothing more than a bald assertion that the Judicial Amendment is invalid because certain details of the election laws were not followed verbatim.

Plaintiffs also challenged the language used to describe the proposed constitutional amendment on the election ballot. The Court said:
This precise question has been previously litigated in this jurisdiction. In Oviatt v. Behme (1958), 238 Ind. 69, 147 N. E. 2d 897, the Indiana Supreme Court analyzed the adequacy of language describing a constitutional amendment which extended the terms of certain county officials from two to four years. After pointing out the absence of any mandatory language in the constitution concerning this subject, the court held that even though an important limitation was omitted in the ballot description, the language used was adequate. The specific rule laid down in Oviatt v. Behme, supra, is:
"So long as the amendment is sufficiently identified and is not confused with any other amendments, submitted at the time, we, as a court, do not have the right to strike it down on any theory that the legislature failed to use good judgment in the method of submitting the amendment. Some amendments may be so lengthy that it would create a physical and mechanical problem in setting them forth on a ballot or voting machine. Appellees further point out that the Constitution of 1852, when it was submitted to the voters of this State for approval, was not printed in full or even the substance thereof set out on the ballots. Acts 1851, ch. 29, § 3, p. 54. The amendment in question was sufficiently identified and properly ratified." (Emphasis supplied.)
The Court also, in dicta of course, references a case identified as State ex rel. Thompson, Attorney General v. Winnett et al. (1907), 78 Neb. 379, 110 N. W. 1113, saying "The court in this case relied on the principle of substantial compliance to uphold the amendment."

Remarkably, this same Nebraska opinion is cited approvingly in a recent Indiana Supreme Court opinion, D&M Healthcare v. Kernan (2003):

Over a century ago, this common sense approach prevailed over formalism. Election by voting machines was constitutional because the machines served the purpose and form of written votes, though not literally compliant. Id. Similarly, the Supreme Court of Nebraska upheld constitutional amendments even though the procedures used to enact the amendments did not follow the letter of the state constitutional requirement that proposed constitutional amendments be published regularly in newspapers. State ex rel. Thompson v. Winnett, 110 N.W. 1113, 1115-17 (Neb. 1907). Because there was substantial compliance with the constitution, albeit incomplete compliance, the Supreme Court of Nebraska upheld the amendments. Id. at 1116.

In short, I find nothing in the Roeschlein v. Thomas opinion, or any other Indiana opinion, upholding a proposition that a constitutional amendment in Indiana must pass two General Assemblies in precisely the same form. To the contrary, it appears that our Court has endorsed the doctrine of substantial compliance. I would like to review a memo that comes to a different conclusion, based on these cases.

Posted by Marcia Oddi on March 21, 2007 03:18 PM
Posted to Indiana Law