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Monday, July 30, 2007

Ind. Law - Daniels suggests rewiting the entire 1851 Indiana Constitution

Bryan Corbin writes today in the Evansville Courier & Press:

[T]he 1851 Indiana Constitution has been the basic operating manual for state and local government for a century and a half. To restructure the multiple layers of local government contributing to high property taxes, Gov. Mitch Daniels is asking whether — after 156 years — the system established by the constitution ought to be replaced.

The Republican governor has more in mind than just amending the state constitution, which has happened regularly in Indiana's history. Daniels has floated the idea of calling a constitutional convention, where delegates would rewrite the constitution from square one. Although parts of the current document could be retained, anything dealing with the structure of government and the legal rights of Hoosiers could potentially be changed.

Daniels has said he likes "big, bold solutions" and that dealing with high property taxes will involve modernizing what he calls Indiana's "antique system" established in 1851. He has appointed a panel of experts, led by his predecessor, former Democratic Gov. Joe Kernan, and Indiana Chief Justice Randall Shepard to study and recommend local government reforms.

Besides possibly consolidating schools or libraries and abolishing township-level and county-level assessors, the Kernan-Shepard commission was asked to find out whether a constitutional convention is "necessary or desirable as a means to achieve significant reforms in the structure and organization" of government.

"My point was, everything needs to be on the table, everything needs to be looked at," Daniels said recently. * * *

The idea of repealing the state constitution and starting over has been greeted with skepticism by legislators of the governor's own party.

For all its flaws, the 1851 state constitution has held up well in protecting individual rights, legal experts say. * * *

Delegates to a constitutional convention could alter basic features of government — not just the number and duties of state, county and township offices, but also the lengths of terms that officials serve — and they could change redistricting.

As a public defender in Vanderburgh County courts, Banks wonders about wholesale changes to the judicial system. Legal precedents may no longer apply, and the powers and six-year terms of circuit and superior court judges might change.

"A constitutional convention could cause the courts to be run on a state basis as opposed to a local basis, which might be good in some ways and bad in other ways," Banks said. * * *

[T]he risk of unintended political consequences concerns state Rep. Dennis Avery, D-Evansville.

"If we have a constitutional convention, there's no guarantee (the delegates) would do the things the governor wants," Avery said. "You're creating an unwieldy animal that could do what it wants to do, as long as the public supports the final project."

Avery recalled controversial social issues that special-interest groups have tried to amend into the state constitution in recent years. Much of this year's Legislature was consumed by debate on one proposed constitutional amendment, SJR 7, the same-sex-marriage ban, which was approved in the state Senate but did not pass in an Indiana House committee.

A constitution rewrite would open the door to adding SJR 7 while bypassing the time-consuming amendment process. But one of the most vocal supporters of SJR 7, lobbyist Eric Miller of the conservative group Advance America, said he opposes a convention. * * *

By year's end, the Kernan-Shepard commission will recommend ways of changing local government, which might involve changes to the state constitution. Its findings would be non-binding on the Legislature.

Concerns about a convention are "very legitimate," Daniels said. "I'm just framing questions that we'd like these very wise people (the Kernan-Shepard commission) to speak to the state. They could easily come back with exactly that point of view."

I will review later this morning a copy of the 1969 Indiana Constitutional Revision Commission, on which I served as a lead staffer. This Commission, working in conjunction with the Judicial Revision Commission, which concentrated on Article 7, recommended significant revisions to the 1851 Constitution, most of which were approved by the General Assembly and ratified by the voters over the next few years. An important initial question addressed by the Commission was: "Amendment or Constitutional Convention?"

Posted by Marcia Oddi on July 30, 2007 06:31 AM
Posted to Indiana Law