Wednesday, February 19, 2014

HJR-3 Proponents Ponder Lawsuit To Place Amendment On 2014 Ballot

A political action committee pushing approval of HJR-3 may go to court to force lawmakers to place the amended version of HJR-3 on the ballot this November according to WRTV. The National Organization for Marriage tells WRTV that they have met with House Speaker Brian Bosma concerning the possibility of a court challenge.
"We are building a coalition of the willing and looking for legislators who are willing to join in this task," said Chris Plante, regional director of NOM.
"We understand it will be heavy lifting, but if we all work together, we believe we have the law on our side. And we believe HJR-3 should go to the people in November 2014 as was promised by legislature on multiple occasions," said Plante.
The issue revolves around the amendment that removed the second part of HJR-3 this year before its passage, which would have extended Indiana's ban on same-sex marriages to include civil unions and other forms of legal recognition that equate to marriage-like benefits for same-sex couples. The Indiana Constitution requires that a proposed amendment be approved by two consecutive sessions of the General Assembly before being placed on the ballot. The prevailing legal view is that the amendment must be approved in the same form both times; otherwise, the process begins anew, which is what the legislature purported to do with passage of HJR-3 this year. The version passed by both the House and Senate this year expressly states that it is to be "referred to the next General Assembly for reconsideration and agreement."

There is apparently precedent for constitutional amendments being placed on the ballot after minor, non-substantive changes were made when the proposed amendment was approved by the second General Assembly. The question becomes whether the substantive change from the removal of the second sentence was enough to be considered more substantive in nature rather than a technical change. My guess is that a court would defer to the legislative determination that removal of the second sentence significantly changed the proposal so that it requires approval by the next General Assembly, but anything is possible I suppose. The view is that Gov. Mike Pence doesn't want HJR-3 to be on the ballot in 2016 when he runs for re-election. Perhaps he's supportive of this effort to get it on the ballot this year instead.  

13 comments:

Paul K. Ogden said...

This would be a lawsuit whose chance is not slim and none but none and none. Obviously eliminating a whole sentence is a substantive change.

Anonymous said...

Wouldn't the addition of the "referred to the next General Assembly for reconsideration and agreement" language itself qualify as a substantial change?

LamLawIndy said...

I'd argue that the judiciary doesn't have the power to put the proposed amendment on the ballot. Article 16 states that "the General Assembly shall submit the amendment to the electors of the State at the next general election." The judiciary - just like the executive branch - simply isn't mentioned.

Gary R. Welsh said...

Here's the text of the constitutional provision for amending the constitution. It mandates with the use of the word "shall" that the General Assembly submit the amendment to voters if it is approved by a majority of the members elected to both Houses. It's silent on changes in the form of the amendment from one General Assembly to the next. The courts will construe the meaning.

"Section 1. (a) An amendment to this Constitution may be proposed in either branch of the General Assembly. If the amendment is agreed to by a majority of the members elected to each of the two houses, the proposed amendment shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election.
(b) If, in the General Assembly so next chosen, the proposed amendment is agreed to by a majority of all the members elected to each House, then the General Assembly shall submit the amendment to the electors of the State at the next general election.
(c) If a majority of the electors voting on the amendment ratify the amendment, the amendment becomes a part of this Constitution."

Anonymous said...

Don't both versions of the amendment have the identical first sentence? Aren't the two sentences independent of each other, ie can't they stand alone? If so, it could be argued that two successive GAs passed the first sentence which then should be put on this year's ballot. Neither sentence, as I understand it, is dependent on the other. So I don't think it's a bad faith argument to make. I also believe that were it an issue of great importance to the Left, such an argument would carry the day.

Gary R. Welsh said...

I don't dismiss the argument out of hand. What I can say for certain is that the legislature cannot alter the process for amending the constitution. I understand they are interpreting it one way, but the courts could interpret it differently and force the issue to be placed on the ballot if they agree with the proponents' argument.

Gary R. Welsh said...

Yes, the first sentence is the same in both versions passed by the legislature.

LamLawIndy said...

The argument is not a bad faith argument, but I do think the courts should refrain from addressing the issue on grounds that Article 16 itself does not provide for court enforcement. In the federal system it would be akin to the political question doctrine.

Gary R. Welsh said...

I disagree, Carlos. There has to be an enforcement mechanism for placing an amendment on the ballot. What if the legislative leaders decided not to certify a duly passed amendment, or used specious reasoning for not certifying it for the ballot? The constitution commands the legislature to place the issue before voters upon the satisfaction of the constitutional legislative approval process. Without a judicial remedy, legislative leaders could thwart the will expressed by a majority of the legislators.

Anonymous said...

I'm so sick of hearing about this subject, many other things to worry about, jobs, taxes, unemployment, but no, it's this stupid shit!!!!!!

Anonymous said...

Mitch said to avoid Social issues before the election...Ponder that. Jobs #'s, DCS, FSSA, highways, Bridges, Tif's, and more ignored of late too..Child care issues...MHH, Mainstreet, ASC, lobbying registrations, smoke detectors, Marion, IN Mayor, Indy Mayor with pay to play...and on an on it goes behind our backs...deals being made to divert our attention while we succumb to this drama...Really proud of two stations and blogs staying point on...

Anonymous said...

Pence doesn't want it on the ballot in 2016, when he'll run for re-election.
This annoys me. The proponents speak of putting it up to the people, but they want to game it to an election with lower turnout. So much for their high mindedness.
And Pence, so much in favor, doesn't want it on the ballot with him. It should be glued to him! He's made it one of his priorities!

timb said...

Pence running for which office in 2016? I can't believe he would screw Indiana's poor and sick out of Medicaid just to pick prince of Indiana. Mike-y has always wanted to be King and he's not shy about stepping on people why he's doing it.