The Indiana Supreme Court recently issued a ruling in a case that threatens to undermine hundreds of laws passed by the Legislature for local government. Laws such as food and beverage taxes, Airport authorities, special development districts, flood control districts, and many other laws passed to allow one community or another to deal with their various, unique problems could suddenly be found unconstitutional.
The Court decided to undo decades of precedent by determining that the way the Legislature wrote laws for local government violated the Indiana Constitution. The specific provision of the Constitution, Article 4, Section 23, says that in all cases where a general law can be made applicable, all laws must be made general, and apply uniformly throughout the State. Translated, that means if the law could in any conceivable way work for the entire state, you can’t write one that would work only for, say, Allen County or the City of Fort Wayne.
Yet throughout the past fifty or more years, the Supreme Court has said that, if certain language was used, then you could write a special law for a county or city. The way it was done was by using population parameters for an area in defining to whom the law would apply. For instance, a county having a population of more than 225,000 but less than 325,000 would apply only to Allen County. The law would be written to say that this law only applies to a county with these population figures. That certainly made the law special for Allen County residents only, but the Supreme Court reasoned that the populations of other counties could potentially grow and thus qualify to have this law apply to them, so that made it general legislation and not special legislation. There have been many laws passed that apply only to Allen County, or only to St. Joseph County, or Lake County, or Marion County, and all of these have been found to be constitutional by the Supreme Court. Until now.
With this recent ruling, the Court has thrown all of these laws, at least 560 or more, into chaos. No one knows if their local law is constitutional or not. And because of this, the courts will now be opened up to all sorts of predatory litigation by groups or lawyers who seek either to profit by the challenge to the law or undermine something they oppose. How about the food and beverage tax in Allen County, or the Airport Authority, or the special sports development zone in downtown, or the tax recapture law for Southtown Mall? Any of these laws could now be challenged in court, and if successful, the result would be utter chaos. If the food and beverage tax is unconstitutional, the Coliseum financing comes unglued. That would mean property taxes, or some other form of revenue, might have to be raised to pay for the structure. And so on, and so on.
Whether you agree with the Supreme Court or not, I question the sense of such a constitutional clause that tries to homogenize our counties and cities into one set of needs. After all, the needs and requirements of the people of Jay County are much different from those of Allen County. Rural areas have their own set of problems that often do not parallel the problems of urban areas. We don’t need an Urban Enterprise Zone in Ohio County, nor an Airport Authority, nor additional judges for busy courts, nor special assessments to build a new jail. Ohio County is small and rural. Allen County is large, has significant urban and suburban areas, as well as much rural area remaining.
Cities are also different, depending upon their location, what businesses have been lost recently, the level of poverty in their area, their infrastructure needs, etc. Laws written for Fort Wayne are not necessarily needed in Terre Haute, or Richmond, or Evansville, or Peru. Yet the constitution, and the Supreme Court ruling, would have us believe that except in highly unusual circumstances, we cannot pass laws that deal with the special, unique needs of our various communities throughout the state. I find preposterous.
Whatever one thinks of the Supreme Court’s decision, the result of their ruling is potentially very dangerous to local governments. Revenue streams that everyone believed were constitutionally appropriate, based upon all those years of Supreme Court rulings, would disappear. The only option would be for new revenues to be found, and that means you and I pay the price. If those revenues couldn’t be found, its big trouble. Local governments often bond to pay for services or structures, knowing that a certain revenue stream from a specific income source will be there to pay for that service. Take that away, or make revenue resources uncertain, and bonding companies will not do business with the local government. This, again, could be very costly both in terms of creating poorer service as well as potentially higher personal taxes.
I think the decision of the Supreme Court was wrong, simply because the precedent had been set for so long by the Court that writing these local laws a certain way was Constitutional. Suddenly, the rug is pulled out from under all of us, and everyone is left floundering.
There is only one effective remedy out there, and that is a constitutional amendment. Unfortunately, the Constitution requires that such an amendment must pass two separate general assemblies, which are each two years in length. That means that if a proposed amendment is passed this year ( which is the first year of a new two year assembly ) we will have to wait until 2005 to pass the proposed amendment again. And once that occurs, we must then wait for the next general election so that the people of the State have a chance to vote on the matter. If the amendment passes this test, it then becomes law. But the next general election after the 2005 session won’t be until November 2006! That means we will have to wait four and a half years for the amendment to be passed.
The Supreme Court knew this. They knew the timing required to pass an amendment in order to overcome their ruling. They openly encouraged the Legislature to pass an amendment in their decision, but the timing of their ruling was horrendous.
Such a ruling could have been made last year, in time for the Legislature to pass an amendment during last year’s Session ( the 2nd year of the 2001-2002 Assembly). We could have then passed the amendment again this year, and be ready for a vote by the people in November 2004, a full two years earlier. As it stands now, the timing of the ruling opens up the door to all sorts of litigation, and each local law that is now in question will have to be litigated one law at a time. That has the potential to tie up the courts, as well as place a great deal of local government funding in question.
I have begun the constitutional amendment process, by introducing Senate Joint Resolution 1. SJR 1 is now ready for passage in the Senate, and, if successful, will be sent to the House for further consideration. I believe the resolution will pass both the Senate and House, both this year and in 2005, and that the people of this State will agree that passing laws that recognize that different cities and counties have different problems just makes sense.
Until November 2006, however, its going to be a bumpy ride.