ATTORNEY FOR APPELLANT
Aladean M. DeRose
South Bend, Indiana
ATTORNEYS FOR APPELLEES
Don G. Blackmond
Lynn M. Butcher
South Bend, Indiana
SUPREME COURT OF INDIANA
THE MUNICIPAL CITY OF )
SOUTH BEND, INDIANA, )
Appellant (Defendant Below), )
) Indiana Supreme Court
JOHN KIMSEY and DENISE KIMSEY; ) Cause No. 71S03-0203-CV-183
BRADLEY HALL and CAROLE HALL;)
TERRY TRETHEWEY and CHERYL ) Indiana Court of Appeals
TRETHEWEY; together with the ) Cause No. 71A03-0101-CV-13
remaining property owners who are )
signatories hereto and who are too )
numerous to be included in the caption )
of this remonstrance complaint, )
Appellees (Plaintiffs Below). )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable William C. Whitman, Judge
Cause No. 71D03-9609-CP-909
ON PETITION TO TRANSFER
January 15, 2003
Article IV, Section 23 of the Indiana Constitution prohibits special legislation where a
general law can be made applicable. We hold that this provision is
violated by a 1993 law applicable only to St. Joseph County and permitting
a majority of landowners in an affected area of that county to block
annexation by a municipality.
Factual and Procedural Background
Until 1993, if a municipality sought to annex adjacent territory, it needed to
satisfy only the requirements of Indiana Code section 36-4-3-13. That section, which
remains the law today, set forth a list of conditions ranging from the
population and geographic makeup of the area to be annexed to the details
that must be included in a fiscal plan prepared by the annexing municipality.
If these requirements were met, opposition by a given percentage of landowners
was not enough to block annexation.
In 1993, the Indiana General Assembly added a new subsection (g)
13. That subsection applied only to counties with a population between 200,000
and 300,000, and granted the right to challenge and defeat annexation if, inter
alia, a majority of the landowners in the affected area opposed it.
Ind. Code § 36-4-3-13(g) (2002). At the time this provision was enacted,
and ever since then, only St. Joseph County fell within these population parameters.
As a result, at the time relevant to this lawsuit, only in
St. Joseph County could a given number of affected landowners block an annexation
simply by opposing it. In 1999, a new subsection was added affecting
every county except St. Joseph and requiring opposition of sixty-five percent, not just
a simple majority, to defeat annexation. The net result is that today
the statute requires opposition of sixty-five percent of the affected landowners to defeat
a municipal annexation in ninety-one of our ninety-two counties, but in St. Joseph
County a simple majority is sufficient.
On July 22, 1996, the City of South Bend, acting through its Common
Council, adopted an ordinance providing for the annexation of the Copperfield Annexation Area
in St. Joseph County. Copperfield area residents filed a remonstrance and presented
a petition in opposition to annexation purporting to contain the signatures of a
majority of Copperfield landowners. After the trial court denied the Citys motion
to dismiss the remonstrance, the City filed a counterclaim seeking a declaratory judgment
that subsection (g) was unconstitutional special legislation in violation of Article IV, Section
23 of the Indiana Constitution. That section provides, in relevant part: [I]n
all . . . cases where a general law can be made applicable,
all laws shall be general . . . .
The trial court denied the Citys motion, holding that subsection (g) was constitutional
general legislation concerning [t]he loss of rural land and [a]rguably . . .
reflects a political decision by the General Assembly that urbanization in this state
should be restricted and that: (a) counties of more than 300,000 people have
already lost their rural character and (b) that counties of less than 200,000
people are not at risk. Because the trial court viewed subsection (g)
as general legislation as that term appears in Article IV, it did not
address the question whether, if this were a special law, a general law
can be made applicable.
The City subsequently filed a unilateral stipulation of facts, to which the remonstrators
did not object, and the trial court proceeded to address the merits of
the case without trial. Having determined that the remonstrators petition was sufficient,
the trial court blocked the annexation. The Court of Appeals affirmed the
City of South Bend v. Kimsey, 751 N.E.2d 805, 812
(Ind. Ct. App. 2001). This Court granted transfer.
I. Origins of the Ban on Special Legislation
Limits on special legislation are found, in some form or other, in most
state constitutions. Osborne M. Reynolds, Local Government Law 85-86 (1982). Their
purpose is to prevent state legislatures from granting preferences to some local units
or areas within the state, and thus creating an irregular system of laws,
lacking state-wide uniformity. Id. at 86. This irregularity is not in
itself the only perceived evil. In the view of the proponents of
these provisions, if special laws are permitted, the result is perceived to be
a situation in which it [becomes] customary for members of the legislature to
vote for the local bills of others in return for comparable cooperation from
them (a practice often termed logrolling). Id. In simple terms, these
anti-logrolling provisions are grounded in the view that as long as a law
affects only one small area of the state, voters in most areas will
be ignorant of and indifferent to it. As a result, many legislators
will be tempted, some would say expected, to support the proposals of the
legislators from the affected area, even if they deem the proposal to be
bad policy that they could not support if it affected their own constituents.
In fact, the drafters of the 1851 Indiana Constitution saw one of their
principal challenges to be reining in a large and constantly increasing number of
special laws. At the Constitutional Debates, John Pettit, of Tippecanoe County, described
special legislation as the whole errorthe whole incongruitythe whole oppression of our law,
and almost the whole necessity of calling this Convention. 2 Reports of
the Debates and Proceedings of the Convention for the Revision of the Constitution
of the State of Indiana 1771 (1850). Others complained of the diversion
from matters of statewide concern generated by an excessive volume of local legislation.
Governor Paris Dunning addressed the General Assembly on this note:
Special legislation is a growing evil which has attracted much attention amongst the
masses of the people, and to which much well founded opposition exists in
the public mind. Indeed, it has for years past engaged full three-fourths
of the time of the General Assembly, to the exclusion (from their due
consideration) of many other questions of great importance to the people of the
1 Charles Kettleborough,
Constitution Making in Indiana 195 (Ind. Historical Bureau ed. 1971)
(1916). The drafters responded to these concerns by adopting Sections 22 and
23 of Article IV. Article IV, Section 22 prohibits the General Assembly
from passing local or special laws to accomplish certain enumerated results, none of
which is relevant here.
In addition to Section 22s prohibition of special
legislation on specified topics, Article IV, Section 23 added a residual demand for
general legislation: In all the cases enumerated in the preceding section, and in
all other cases where a general law can be made applicable, all laws
shall be general, and of uniform operation throughout the State.
II. Earlier Judicial Review of Special Legislation
Although the text of Section 23 has remained unaltered since it was placed
in the Constitution in 1851, it has been subject to a variety of
interpretations over the intervening 151 years. It was initially thought that Article
IV presented no justiciable issue. This view was first articulated in Gentile
v. State, 29 Ind. 409 (1868), and continued through the nineteenth century and
into the early part of the twentieth. As this Court put it
in Bd. of Commrs v. Fetter, 193 Ind. 288, 296, 139 N.E. 451,
Upon the authority of numerous decided cases from this court, and from the
courts of other states which have constitutional limitations akin to the one here
in question, the rule is firmly fixed that the question whether or not
a general law can be made applicable, or that a special law is
in violation of said section of the constitution because a general law can
be made applicable, is necessarily one of legislative discretion, and not one of
Groves v. Bd. of Commrs, 209 Ind. 371, 199 N.E. 137 (1936),
this Court moved from the view that Article IV, Section 23 presented no
justiciable issue to the doctrine that statutes general in form were general for
purposes of Article IV even if they applied in practical terms to only
one or a few counties. The Court addressed a statute applying only
to counties having a population of not less than 250,000 nor more than
400,000, and having three or more cities, each with a population of 50,000
or more. Id. at 375, 199 N.E. at 139. Lake County alone
met those criteria. The Court held: If the act is broad enough
to apply to all counties of the state under the same circumstances, it
cannot be condemned. Id. at 376, 199 N.E. at 140. Whatever
the realistic prospect that another county might ever meet these parameters and also
contain three cities, each of 50,000 population, there remains at least the theoretical
prospect that smaller counties could over time grow to meet these criteria.
Similarly, Lake County might lose one of its three cities of 50,000, or
fall outside the 250,000-to-400,000 bracket. Based on these logical if practically remote
possibilities, this Court held that [u]nder such circumstances, the law is general in
its application and not local or special, id., and inquired no further.
III. Judicial Review of Special Legislation Today
A variation of complete deference to classification by population upheld several statutes against
Article IV attack on the basis that singling out the affected areas was
Long v. State, 175 Ind. 17, 20, 92 N.E. 653,
654 (1910), this Court stated, Many of our penal statutes have exclusive application
to special localities or objects, and are nevertheless general and unquestionably valid, because
they rest upon an inherent and substantial basis of classification. Similarly, in
Kelly v. Finney, 207 Ind. 557, 579, 194 N.E. 157, 166 (1935), this
Court cited Long for the proposition that [t]he fact that a statute exempts
from its operation certain classes does not render the act local or special
as long as the classification is not unreasonable or arbitrary. Reflecting the
similarity of equal protection doctrine to this line of reasoning under Article IV,
Section 23, the Kelly Court also cited Continental Baking Co. v. Woodring, 286
U.S. 352 (1932), and Schwartzman Serv., Inc. v. Stahl, 60 F.2d 1034 (W.D.
Mo. 1932), for that proposition. Neither of these federal court decisions addressed
Article IV, or indeed any state constitutional provision. Continental Baking dealt with
state regulations on commercial highway hauling, and involved only constitutional challenges under the
federal Due Process, Equal Protection, Privileges and Immunities, and Commerce Clauses. 286
U.S. at 357. Schwartzman addressed the constitutionality of similar regulations, and although
it did not specify the constitutional provisions on which it based its decision,
it presumably was also decided under federal constitutional law.
The approach of Long and Kelly also appeared in Evansville-Vanderburgh Levee Auth. Dist.
v. Kamp, 240 Ind. 659, 168 N.E.2d 208 (1960), where a statute allowed
the creation of a joint city-county levee authority district in any city within
a county having a population between 160,000 and 180,000. At the time
the statute was enacted, only Vanderburgh County fell within this population bracket.
A Vanderburgh County taxpayer filed suit contending, inter alia, that the statute was
unconstitutional special legislation. This Court upheld the statute, stating, [T]he presence of
[some arbitrariness due to the use of population classifications] does not make the
legislation special if there still remains some relationship between such classification and the
objective of the law which the legislature could have considered to exist.
Id. at 663, 168 N.E.2d at 210.
Finally, adopting the same view,
Dortch v. Lugar, 255 Ind. 545, 266 N.E.2d
25 (1971), relied on Kamp and Kelly in upholding the Unigov statute for
Marion County. That statute reorganized local municipal and county government in all
counties containing a city of the first class and included a stated purpose
to enable the consolidation of governmental functions in densely populated metropolitan communities.
Id. at 550, 266 N.E.2d at 30. Unigov, then and now, applied
only to Marion County, which contains Indianapolis, the only Indiana city of the
first class. In upholding the statute, this Court stated, As a general
proposition . . . it is sufficient for purposes of §§ 22 and
23 of Art. 4 [i]f . . . the classification is reasonable and
naturally inherent in the subject matter. Id. at 552-53, 266 N.E.2d at
31. Although these cases were consistent in their view that reasonableness of
the classification validated a law under Article IV, none of these holdings addressed
the history behind Article IV, Section 23. More importantly, none explained at
any length whether the reasonableness of the classification is a touchstone in determining
whether a law is general or special, or whether it otherwise preserved a
statute attacked under Article IV.
The reasonableness approach to Article IV issues is strongly reminiscent of concepts derived
from the equal privileges and immunities clause of Article I, unfortunately also numbered
Section 23. That provision of Article I states, The General Assembly shall
not grant to any citizen, or class of citizens, privileges or immunities, which,
upon the same terms, shall not equally belong to all citizens. To
comply with that section, legislation that singles out one person or class of
persons to receive a privilege or immunity not equally provided to others must
meet two requirements. First, it must be based upon distinctive, inherent characteristics
which rationally distinguish the unequally treated class, and the disparate treatment accorded by
the legislation must be reasonably related to such distinguishing characteristics.
Day, 644 N.E.2d 72, 79 (Ind. 1994). Second, any privileged classification must
be open to any and all persons who share the inherent characteristics which
distinguish and justify the classification, with the special treatment accorded to any particular
classification extended equally to all persons. Id. Although Collins v. Day
reformulated the Equal Privileges Clause in 1994, the Collins test is reminiscent of
many earlier decisions under the Special Legislation Clause, including Long, Kelly, and Dortch.
Under this line of cases, and in light of
Collins restatement of the
Equal Privileges Clause test, there seemed to be little difference between Article IV
special legislation and Article I unequal privileges. So viewed, the Article IV
restraint on special laws becomes the reasonable classification focus imposed by Article I.
In other words, for a special law to be imposed, it must
be reasonably related to inherent characteristics of the territory in which it is
applied, and apply equally to those who share those characteristics. Thus, legislation
that applies in less than the entire state would pass both Article I
and Article IV muster by the same standard.
In the meantime, however, in 1986 this Court returned to complete deference to
population ranges as ipso facto general statutes. In
N. Twp. Advisory Bd.
v. Mamala, 490 N.E.2d 725, 726 (Ind. 1986), the Court upheld a statute
affecting the operation of parks located in each township having a population of
not less than one hundred eighty thousand (180,000) nor more than two hundred
four thousand (204,000) that is located in a county having more than two
second class cities. Only one township in the state fell within that
classification. This Court held the law was general because the statute did
not contain any provision which would either preclude other townships from eventually qualifying
under the statute or would prevent North Township from falling outside the parameters
of the statute. Id. Only the most generous deference to legislative
judgment could uphold this quite particularized legislation, which presented a classic example of
the perceived local legislation that gave rise to Article IV. Indeed, virtually
any geographic area can be uniquely defined with such very specific population parameters
in concert with other characteristics. Mamala thus represented in practical terms a
return to the view that Article IV presents no justiciable issue at all.
A. Identifying General or Special Legislation
It is now clear that although the reasonableness of a population classification remains
relevant under Article I, neither the per se nor reasonableness view of population
categories is determinative of constitutionality under Article IV. Rather, the text of
Article IV, Section 23 is controlling here. The terms general law and
special law have widely understood meanings. A statute is general if it
applies to all persons or places of a specified class throughout the state.
Blacks Law Dictionary 890 (7th ed. 1999). A statute is special
if it pertains to and affects a particular case, person, place, or thing,
as opposed to the general public. Id. Most recently, in Williams
v. State, 724 N.E.2d 1070, 1085 (Ind. 2000), this Court reiterated the view
that the text of Article IV, Section 23 requires a two-step test that
addresses concerns unique to that section: In analyzing a law under [Article IV,]
Section 23, we must first determine whether the law is general or special.
If the law is general, we must then determine whether it is
applied generally throughout the State. If it is special, we must decide
whether it is constitutionally permissible.
Williams followed Ind. Gaming Commn v. Moseley, 643 N.E.2d 296, 299-301 (Ind. 1994),
and State v. Hoovler, 668 N.E.2d 1229 (Ind. 1996), on this point.
Williams found that the specific needs of Lake Countya large county with a
larger case docketsupported special legislation providing for the appointment of magistrates only in
Lake County courts. Moseley upheld a statute that applied only to counties
eligible to vote to adopt riverboat gambling, and provided for city-by-city voting in
counties bordering Lake Michigan with more than 400,000 people, i.e., in Lake County,
while other counties eligible to adopt dockside gambling did so on a countywide
basis. 643 N.E.2d at 301. This Court found this different treatment
for Lake County to be justified:
In Lake County, the whole of the waterfront is covered by substantial cities,
whose residents have the greatest interest in how the shore is used.
In all other counties, however, the shore contains both incorporated and unincorporated territory.
It thus seems sensible to stage a vote of all persons in
In Hoovler, this Court followed Moseley and pierced the claim that a population
criteria based statute was general legislation, but again nevertheless found the statute valid.
Hoovler dealt with the legislatures attempt to help Tippecanoe County handle the
financial burden of cleanup costs at a Superfund landfill site. 668 N.E.2d
at 1234. The statute permitted the county council of a qualifying county
to impose a higher county income tax rate than was permitted in other
counties in the state. Only Tippecanoe County qualified under the legislation, but
the statute did not identify Tippecanoe County by name. Rather, it applied
only to counties having a population of more than one hundred twenty-nine thousand
(129,000) but less than one hundred thirty-thousand six hundred (130,600). Id. at
Rather than validating this legislation on the ground that population categories per se
create general statutes, this Court examined the circumstances surrounding [the Act], including language
in the Act itself.
Id. at 1234. The Court held that
because the legislature intended the statute in that case to apply exclusively to
Tippecanoe County, the statute was indeed special legislation governed by Article IV.
Id. at 1235. In reaching this conclusion, the Court pointed to the
narrow population range in the statute, the fact that Tippecanoe County was the
only Indiana county with a Superfund site for which local government entities were
designated Potentially Responsible Parties by the EPA, and the statutes intent to provide
relief to Tippecanoe County from its potential Superfund liability, reflected in its requirement
that the county council find that money is needed to fund substance removal
and remedial action. Id. at 1234-35. All of these factors were
signs that the legislature had indeed enacted a special law authorizing Tippecanoe County
to enact and administer a special tax rate increase not available to any
other county. Id. at 1235.
Defining Characteristics and Justifying Characteristics
We agree with the view that a statute with a population category is
a special law if it is designed to operate upon or benefit only
particular municipalities and thus is essentially no different than if the statute had
identified the particular municipalities by name. City of Miami v. McGrath, 824
So.2d 143, 148 (Fla. 2002). Moseley, Hoovler, and Williams clearly implied that
those pieces of legislation would have been permissible under Article IV if they
had identified the affected counties by name. Indeed, Article IV issues will
be simplified if that is done, accompanied by legislative findings as to the
facts justifying the legislations limited territorial application. Legislation applying by its terms
to areas with identified characteristics would be equally permissible under Article IV.
The statute in
Hoovler defined the class of counties to which it applied
in terms of population. The opinion justified the classification in terms of
the presence vel non of a countys exposure to Superfund liability. Moseley,
on the other hand, addressed a statute whose defining characteristics were in part
those justifying the classification (bodies of water) and in part population parameters that
only Lake County met. Thus its defining characteristics were only partially those
that justified the classification, and, like Hoovler, judicial notice of the geography and
municipalities in Lake County was necessary to justify the classification. Finally, in
Williams, Lake County was identified by name, and its characteristics justifying the legislation
were judicially noticed.
In some other legislation that has been challenged under Article IV, the characteristics
defining the applicable counties are also those that justify the legislation. Thus,
Dortch, a city of the first class in a county was properly
thought to justify countywide government. This form of classification is more elegant
because it avoids the messiness created by potential entrants (new Superfund sites) or
exits (park districts in counties growing out of population parameters) over time.
Despite these potential issues, Hoovler made clear that a defining characteristic (a population
category) that is theoretically unrelated to the justifying characteristic (Superfund liability) is nevertheless
permissible if, under the facts as they are at the time of passage,
only justified areas are defined into the class. This is defensible because
the perceived evils of special legislation in the absence of special circumstances are
largely avoided if the affected area is indeed the only part of the
state where the statute has practical effect.
In sum, if there are characteristics of the locality that distinguish it for
purposes of the legislation, and the legislation identifies the locality, it is special
legislation. The identification of the locality may be by name (Tippecanoe County),
by the characteristic that justifies special legislation (a unique Superfund liability), or otherwise
(population parameters that include only the locality).
C. Determining Whether a General Law Can Be Made Applicable
Moseley, Williams, and Hoovler, were not revolutionary in viewing the threshold issue as
identifying a law as special or general. Gentile v. State, 29 Ind.
409 (1868), which was decided seventeen years after Article IV was adopted, included
some useful insight on that point:
[Article IV, Section 23] was intended to prohibit the passage of any law
applicable only to one or more counties, or other territorial subdivisions of the
State, where a general law on the same subject could be made which
would properly apply to the entire state. . . . It is clearly
implied by that section, and we know it to be true in fact,
that in many cases local laws are necessary, because general ones cannot, properly
and justly, be made applicable. There are cases where a law would
be both proper and necessary in a given locality or part of the
state, where its subject is local, or where, from local facts, it is
rendered necessary; but which, if made general, would either be inoperative in portions
of the state, or from its inapplicability to such portions, would be injurious
Id. at 411-12. As Gentile reveals, legislation must be classified as general
or special before the focus turns to whether a general law can apply,
i.e., whether there are inherent characteristics of the affected locale that justify local
Thus, the reasonableness of a classification does not answer whether the law is
general or special in the first place. Nor does it provide a
complete answer to the question whether a general law can be made applicable,
although one branch of that inquiry may resemble an Article I analysis.
A statute general in form can be made applicable only if it does
not violate Article I, Section 23. Thus, if population classifications are arbitrary
or unrelated to the characteristics that define the class, a statute general in
form is nevertheless unconstitutional as a violation of Article I. This can
be true under
Collins either because there is no defining characteristic of the
classified area, or there is such a characteristic but it is shared with
areas not in the class.
A second consideration in whether a general law can be made applicable is
whether in fact it is meaningful in a variety of places or whether
relevant traits of the affected area are distinctive such that the laws application
elsewhere has no effect. This second consideration turns on whether local facts
exist, not on whether those facts are reasonably related to the particular legislation
that is actually imposed, a question that is left to Article I.
Article IV issues, though distinct from Article I considerations, remain closely related to
them. If special legislation passes the first test of
Collins, i.e., the
legislation is reasonably related to inherent characteristics of the affected locale, and it
also passes the second by applying wherever the justifying characteristics are found, then
the statute necessarily passes Article IV muster because the presence of those inherent
characteristics means a general law cannot be made applicable. Otherwise stated, if
the conditions the law addresses are found in at least a variety of
places throughout the state, a general law can be made applicable and is
required by Article IV, and special legislation is not permitted. Applying these
principles, assuming the facts of the affected area are distinct, Long, Dortch, and
other cases relying on the proposition that Article IV, Section 23 challenges are
resolved by addressing the reasonableness of the classification embodied in the statute are
nevertheless correct in their ultimate result.
IV. Applying Article IV, Section 23 to Subsection (g)
A. Subsection (g) is Special Legislation
The decisions of the trial court and Court of Appeals in this case
reflected both the reasonable classification approach and the view that population classifications are
per se permissible under Article IV as general legislation. As both courts
pointed out, any county could theoretically move into the 200,000-to-300,000 person population category
defined by subsection (g), from above or below those points, and thus the
statute, being susceptible of uniform application to any county in the State meeting
the population criteria, was general, not special, legislation. Kimsey, 751 N.E.2d at
811-12. The Court of Appeals also stated: Notwithstanding Section 23, the legislature
may make classifications of subjects of legislation, provided the classification is reasonable and
the statute operates equally on all within the class. The statute is
then considered to be general. Id. at 810 (citations omitted). As
explained in Part III, these considerations are relevant if not controlling on the
issue of whether a general law can be made applicable. But neither
of these points addresses the threshold issue whether subsection (g) is general or
special under Moseley, Hoovler, and Williams.
As in Hoovler, the circumstances surrounding the enactment of subsection (g) leads to
the conclusion that this statute is special legislation. State v. Hoovler, 668
N.E.2d 1229, 1234-35 (Ind. 1996). Public Law No. 257 was introduced as
amendatory legislation in 1993 by a Representative from St. Joseph County, and sponsored
in the Senate by a Senator whose district included both St. Joseph and
Elkhart Counties. The bill declared an emergency requiring immediate effect. 1993
Ind. Acts 257 § 4. Because Section 3 of the bill applied
only to St. Joseph County at the time of its enactment and for
the foreseeable future, and immediate effect was required, the legislature necessarily intended it
to address some issue peculiar to St. Joseph County. Thus the evidence
is clear that, at the time it was enacted, subsection (g)s population classification
served no purpose other than to identify St. Joseph County. This is
no different than had the legislature simply named St. Joseph County in the
statute, as was the case in Williams, where the statute specifically stated that
it governed the courts of Lake County. Moreover, later amendments did not
change the special status of St. Joseph County. In Moseley, it was
apparent that the statute at issue was special legislation because it affected Lake
County differently from other counties allowed to permit dockside gambling, and also rendered
most Indiana counties unable to participate in dockside gambling. Ind. Gaming Commn
v. Moseley, 643 N.E.2d 296, 301 (Ind. 1994). Here, the singling out
of St. Joseph County is just as severe. Section 36-4-3-13 now requires
the opposition of sixty-five percent of landowners to defeat annexation in every other
county in the State, but retains the majority requirement for St. Joseph County.
Ind. Code § 36-4-3-13(e) (2002).
B. Subsection (g) Addresses Conditions Where a General Law Can be Made
We agree with the Court of Appeals that the statute is presumed constitutional.
The Court of Appeals noted the general principle that [a]ny reasonable interpretation
of a statute is sufficient if it evokes a finding of constitutionality.
751 N.E.2d at 812. This doctrine calls for adopting one among multiple
meanings of the statute if that interpretation renders the legislation valid. Here
there is no issue as to what the subsection means. More relevant
is the point that the challenging party must negate every conceivable basis which
might have supported the classification. Id. (quoting Am. Legion Post #113 v.
State, 656 N.E.2d 1190, 1192 (1995)). This may be done by presenting
evidence establishing the lack of distinct characteristics, or, as in Williams, the relevant
facts may be subject to judicial notice.
In this case, several different explanations were offered to justify the subsections application
only in counties of 200,000 to 300,000 population. But these reasons were
all couched in terms of characteristics of St. Joseph County, not necessarily those
possessed by a county of this population size. They ranged from the
need to preserve rural land around urban areas (South Bend), which the trial
court judicially noticed, to preventing competing cities (South Bend and Mishakwaka) within the
same county from annexing each others land, which the Attorney General advanced in
the trial court. But none of these justifications are inherent in the
population range and none turn on facts unique to St. Joseph County.
Preserving rural land near urban areas or preventing competing annexation by different municipalities
may indeed be legitimate concerns, but there is no basis to conclude they
are unique to St. Joseph County. Although the trial court took judicial
notice of the fact that St. Joseph County is largely urban but contains
significant rural areas, the same is true of Lake and Allen Counties.
Several counties have multiple municipalities capable of exercising annexation powers. In short,
we are directed to nothing in the record and no relevant facts susceptible
of judicial notice that are unique to St. Joseph County. Accordingly, this
legislation is unconstitutional special legislation.
In contrast to this record, in
Hoovler, Tippecanoe Countys unique Superfund site needs
were well-documented. Thus, the proponents of that special legislation had a factual
basis upon which to rest their assertion that a general statute could not
In Moseley, the makeup of Lake County, where most of the
land contiguous to Lake Michigan is occupied by cities of significant size, justified
a voting procedure different from that employed in other counties eligible to adopt
Similarly, in Williams, the specific judicial needs of Lake County
supported specific legislation providing for the appointment of magistrates in that county alone.
Thus, the statute in each case was constitutional special legislation by reason
of facts of record or judicially noticeable.
Justice Sullivan is mistaken in claiming that we apply an Article I, Section
23 equal privileges test to this case. We have noted the historical
similarity of some but not all aspects of Article IV issues to Article
I analysis, but our decision is based on Article IV alone.
also disagree with Justice Sullivans description of this Courts Article IV, Section 23
precedent as uniformly deferring to the legislatures judgment. Although the cases described
by Justice Sullivan all upheld the legislative action, they did so on the
merits. They also plainly found that the issues presented by an Article
IV, Section 23 challenge were within the province of the judiciary to decide.
Indeed that is what judicial review means.
Justice Sullivan in substance argues for a doctrine of nonjusticiability of Article IV
issues. But for over seventy years precedent has uniformly rejected that view.
We think Article IV presents a powerful case for judicial enforcement of
a constitutional provision. Forty years ago, judicial intervention was necessary in the
area of legislative reapportionment to correct massive imbalances in representation occasioned by the
legislatures inability or unwillingness to recognize the need to redistrict.
terms, the legislators and their constituents who were overrepresented had no interest in
remedying the situation. Special legislation presents a similar issue because it eliminates
the normal pressures of constituent objection to unwise policy. This is less
debilitating than the paralyzing effect of unremedied malapportionment. But the appropriateness of
entertaining claims of unconstitutional special legislation is fortified by the express constitutional provision
found in Article IV, Section 23. Moreover, both the 1816 and 1851
constitutions were adopted at a time when judicial review of legislation for conformity
to constitutional text was well established. As we held in Dawson v.
Shaver, 1 Blackf. 204, 206-07 (1822), citing Marbury v. Madison, 5 U.S. 137
(1803): The task is delicate and unpleasant, but the duty of the Court
is imperative, and its authority is unquestionable, to declare any part of a
statute null and void that expressly contravenes the provisions of the constitution, to
which the legislature itself owes its existence. This case adds no new
doctrine to the analysis of Moseley, Hoovler, and Williams, and the legislature has
taken no steps to eliminate Article IV, Section 23 in the years since
those cases were decided. Because special legislation doctrine derives solely from Article
IV, Section 23, it can readily be repealed if two sessions of the
General Assembly approve that decision and the voters ratify it. We neither
advocate nor oppose the wisdom of Section 23. Rather, the Constitution makes
that decision for us.
Public Law No. 257, which contained subsection (g)at the time, subsection (e)did not
include a severability clause, i.e., a provision that keeps the remaining provisions of
a . . . statute in force if any portion of that .
. . statute is judicially declared . . . unconstitutional. Blacks Law
Dictionary 1378 (7th ed. 1999). Thus we are given no guidance from
the legislature as to what portions of Public Law No. 257, if any,
survive subsection (g)s violation of Article IV. This Court applies the test
for severability stated by the United States Supreme Court in Dorchy v. Kansas:
A statute bad in part is not necessarily void in its entirety.
Provisions within the legislative power may stand if separable from the bad.
But a provision, inherently unobjectionable, cannot be deemed separable unless it appears both
that, standing alone, legal effect can be given to it and that the
legislature intended the provision to stand, in case others included in the act
and held bad should fall.
State v. Monfort, 723 N.E.2d 407, 415 (Ind. 2000) (quoting Dorchy, 264 U.S.
286, 289-90 (1924)). The issue is whether the legislature would have passed
the remaining parts of Public Law No. 257 had it been presented without
the invalid features. Id.
A. Subsection 36-4-3-13(g)
The offending portion of Ind. Code § 36-4-3-13(g) is the 200,000 to 300,000
population category. In order to save the remainder of the subsection, its
provisions would have to apply statewide such that any annexation by an Indiana
municipality could be defeated by a majority vote of landowners in the affected
area. We reject that conclusion for two reasons. First, applying subsection
(g) statewide would conflict with subsection (e), which provides for the defeat of
annexation by a sixty-five percent vote in every other county in the state.
Second, it seems clear to us that the legislature would not have
passed subsection (g) as appropriate for the entire state.
Other Amendments Provided by Public Law No. 257
Public Law No. 257 included two other sections, in addition to Section 3
that enacted subsection (g) and Section 4 declaring an emergency. Section 1
included a minor revision to Indiana Code section 36-4-3-4, and Section 2 amended
section 36-4-3-9. This case presents no challenge to either provision and we
do not address the validity of either today.
Despite its facial generality, this Court finds that subsection (g) does, and was
intended to, specifically target St. Joseph County. Thus, subsection (g) is special
legislation. Although reasons have been advanced to explain why annexation in St.
Joseph County must be handled differently than it is in every other county
in the state, no facts supporting those reasons have been set forth in
the record by the proponents of the special legislation, and we are directed
to judicial notice of none. Therefore, under Article IV, Section 23, the
application of subsection (g) to prevent the City of South Bend from annexing
the Copperfield area is unconstitutional.
The judgment of the trial court is reversed.
SHEPARD, C.J., and DICKSON and RUCKER, JJ., concur.
SULLIVAN, J., dissents with separate opinion.
SULLIVAN, Justice, dissenting.
I dissent. I believe the Courts decision is wrong for the following
1. Both precedent and established constitutional jurisprudence counsel upholding the challenged statute.
As the Court observes, we rejected challenges to the constitutiona
lity of statutes under
art. IV, § 23, of the Indiana Constitution as non-justiciable prior to 1936.
While it is certainly true that since that time, this Court has
adopted different formulations or tests for analyzing such challenges, each result has been
the same: the Court has deferred to the Legislatures judgment. In
recent years, this has been especially apparent:
Evansville-Vanderburgh Levee Authority District v. Kamp, 240 Ind. 659, 168 N.E.2d 208
(1960), we affirmed the constitutionality of the Legislatures decision to allow Vanderburgh County
to have a unique city-county levee authority.
Dortch v. Lugar, 255 Ind. 545, 266 N.E.2d 25 (1971), we affirmed
the constitutionality of the Legislatures decision to allow Marion County to have the
unique Unigov system of government.
Indiana Gaming Commission v. Moseley, 643 N.E.2d 296 (Ind. 1994), we affirmed
the constitutionality of the Legislatures decision to allow Lake County to have a
unique system for gambling referendums.
State v. Hoovler, 668 N.E.2d 1229 (Ind. 1996), we affirmed the constitutionality
of the Legislatures decision to allow Tippecanoe County to have a unique environmental
Williams v. State, 724 N.E.2d 1070 (Ind. 2000), we affirmed the constitutionality
of the Legislatures decision to allow Lake County to have a unique system
for the appointment of Superior Court magistrates.
Each of these cases used a somewhat different formulation or test for an
the claim but reached a uniform result: that the Legislature was acting
within the bounds of its constitutional authority. In my view, the precedent
here has not been established so much by the particular words different judges
have used in their opinions as by the uniform results those opinions have
These results have been correct and highly appropriate for, as we frequently o
Presuming [a] statute to be constitutional, courts place the burden upon the challenger
to negative every conceivable basis which might have supported constitutionality. Collins v.
Day, 644 N.E.2d 72, 80 (Ind. 1994) (upholding the constitutionality of a statute
that denied worker's compensation benefits to farm workers) (quoting Johnson v. St. Vincent
Hosp., Inc., 273 Ind. 374, 392, 404 N.E.2d 585, 597 (1980) (upholding the
constitutionality of the Indiana medical malpractice act)).
Such reasoning is deeply grounded
in the jurisprudence of judicial review that recognizes peoples elected representatives in a
democracy, not unelected judges, are entrusted with the lawmaking power. Judicial review
of the legality of such laws poses a countermajoritarian difficulty.
challenged statute is within the scope of the Bill of Rights, is directed
against discrete and insular minorities, or restricts those political processes that can ordinarily
be expected to bring about repeal of undesirable legislation, American courts presume constitutionality.
United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 & n.4
The legislation at issue here represents a political struggle between subu
rban and urban
interests. While the geographic focus of this particular law was St. Joseph
County, the legislative history shows a hard-fought battle in which the suburban interests
narrowly prevailed. The vote in the House of Representatives on the bill
was 51-49 the minimum number necessary to pass.
The vote in
the Senate on the bill was 27-19 one more than the minimum.
Such close votes indicate that this was a bill with significance well
beyond St. Joseph County. It is a classic case of the countermajoritarian
difficulty when a court intervenes to turn those who lost a close fight
in the Legislature into winners.
2. The Court gives little guidance to the General Assembly for the
In the future, the Legislature will need to contend with todays decision when
it attempts to address such questions as flood control in Va
nderburgh, Unigov in
Marion, riverboat gambling or selection of magistrates in Lake, environmental taxes in Tippecanoe,
or annexation in St. Joseph Counties. The Court gives little guidance to
the Legislature in how it will answer that question.
The test announced by the Court today is that special legislation will pass
constitutional muster only if the co
nditions the law addresses are unique to the
county to which the legislation applies: if the conditions the law addresses
are found in at least a variety of places throughout the state, a
general law can be made applicable and is required by Article IV, and
special legislation is not permitted.
But how will this work? Let us take what appears to the
Court to be the easiest case, the Tippecanoe County environmental tax at issue
Hoovler. The Court tells us that the unique condition the law
addresses is that Tippecanoe County has unique Superfund site needs. But this condition
is found in a variety of other counties throughout the state: at
least fifteen other Indiana counties have Superfund sites on the U.S. Environmental Protection
Agencys Superfund National Priorities List.
That is, the law in Hoovler clearly
addresses conditions found in at least a variety of places throughout the state.
The Courts opinion today says the Hoovler statute is permissible but the
Courts test indicates that it is not.
Perhaps the greatest difficulty the Legislature will face is trying to figure out
what a court will hold to be the conditions the law addresses.
Consider the riverboat ga
mbling statute at issue in Moseley. It permits such
gambling in certain areas contiguous to Lake Michigan, the Ohio River, and Patoka
Lake. If the conditions the law addresses are adjacency to large bodies
of water, the statute does not meet the Courts test because these conditions
are found in a variety of other places: areas adjacent to the
Maumee and Wabash Rivers, Lakes Maxinkukee, Wawasee, and Monroe, etc. But perhaps
a court will hold the law addresses different conditions. How is the
Legislature to know?
3. The Court renders an enormous body of Indiana law suspect and
takes on an enormous burden for the judicial system.
Moseley case, one amicus, in an effort to demonstrate how many
statutes would be constitutionally questionable if we were to find the riverboat gambling
statute violated art. I, § 23, filed an appendix with us with a
copy of all such laws. It ran over 500 pages.
With todays decision, the Court renders at least suspect the validity of those
500 pages of the Indiana Code. The only way to resolve the
uncertainty will be through litigation, one sta
tute at a time.
4. The Court improperly subjects the Citys claim to art. I, §
The Court subjects the Citys claim to scrutiny under the Equal Priv
Immunities Clause of art. I, § 23. But art. I, § 23,
applies only to citizens, which a political subdivision is not. (I note
the City makes no argument that the statute violates its privileges or immunities.)
It is wrong as a textual matter to say that legislation that
applies to some geographic areas of the state and not others could violate
the Equal Privileges and Immunities Clause; our Bill of Rights does not confer
citizenship on political subdivisions. It is also wrong as a jurisprudential matter
not to afford more deference to enactments adopted by the legislative branch in
the exercise of its powers under art. IV than to legislation within a
specific prohibition of the Bill of Rights. See Carolene Prods., 304 U.S.
at 152-53 n.4.
This Court was correct when it held that claims under art. IV, §
esented no justiciable issue. Board of Commrs of Jennings County v.
Fetter, 193 Ind. 288, 296, 139 N.E. 451, 454 (1923); Gentile v. State,
29 Ind. 409 (1868).
At the time this action was initiated, the new subsection was codified
at § 36-4-3-13(e). It was moved to subsection (g) in the 1999
amendments to the statute.
Footnote: The remonstrators are also required to show: (1) police and fire protection,
and street and road maintenance services are already adequately provided by a source
other than the municipality; and (2) the annexation would have a significant financial
impact on the residents or owners of land. Ind. Code § 36-4-3-13(g)
Footnote: As an alternative to opposition by a majority of landowners, the remonstrators
may show opposition by the owners of more than seventy-five percent of the
assessed valuation of the land. I.C. § 36-4-3-13(g). That alternative is
also available for all other counties under subsection (e) as it stands today.
Id. § 36-4-3-13(e).
Justice Sullivan sees significance in the narrow vote approving the statute in
this case. We do not. The logrolling issue Article IV addresses
is not that the legislators have no interest in special legislation. They
may indeed be very interested in using their vote as a trading chip
for special legislation of their own or for other considerations. But their
constituents do not share that interest, leaving legislators from unaffected areas free from
accountability to concerned voters. Whether Article IV, Section 23s effort to limit
logrolling is wise is not the issue. The Constitution makes that call
Footnote: Article IV, Section 22 states:
The General Assembly shall not pass local or special laws: Providing for the
punishment of crimes and misdemeanors; Regulating the practice in courts of justice; Providing
for changing the venue in civil and criminal cases; Granting divorces; Changing the
names of persons; Providing for laying out, opening, and working on, highways, and
for the election or appointment of supervisors; Vacating roads, town plats, streets, alleys,
and public squares; Summoning and empaneling grand and petit juries, and providing for
their compensation; Providing for the assessment and collection of taxes for State, county,
township, or road purposes; Providing for the support of common schools, or the
preservation of school funds; Relating to fees or salaries, except that the laws
may be so made as to grade the compensation of officers in proportion
to the population and the necessary services required; Relating to interest on money;
Providing for opening and conducting elections of State, county, or township officers, and
designating the places of voting; Providing for the sale of real estate belonging
to minors or other persons laboring under legal disabilities, by executors, administrators, guardians,
Footnote: The court in
Schwartzman stated that the case involved the constitutional validity
of certain statutes, 60 F.2d at 1035, but cited no specific state or
federal constitutional provision. The opinion did, however, cite to the United States
Supreme Courts ruling in Continental Baking, id. at 1037, which is clearly a
federal constitution case.
In viewing the first issue as identification of a law as special
or general, we agree with some states and disagree with others. The
Louisiana Supreme Court put it precisely as we do: An analysis of whether
a statute constitutes an unconstitutional local or special law begins with a determination
of whether the law is, in fact, local or special.
Smith & Wesson Corp., 785 So.2d 1, 17 (La. 2001). Other states,
like some earlier Indiana cases, rely on the reasonableness of the classification to
determine whether a particular statute is special legislation. See, e.g., Concerned Taxpayers
of Kootenai County v. Kootenai County, 50 P.3d 991, 994 (Idaho 2002) (The
test for determining whether a law is local or special is whether the
classification is . . . unreasonable.). Arizonas constitution considers a special law
to be the equivalent of the legislation the Indiana Constitution prohibits in Article
I, Section 23, with that states courts also employing a reasonableness test.
See Sherman v. City of Tempe, 45 P.3d 336, 341 (Ariz. 2002) (An
unconstitutional special law grants to any corporation, association, or individual, any special or
exclusive privileges. To determine whether a law is a special law we first
consider whether the classification created by the law has a reasonable basis.) (citation
omitted). Illinois also says it generally judges equal protection and special legislation
challenges under the same standards. Miller v. Rosenberg, 749 N.E.2d 946, 952
Justice Sullivan points out that there are at least fifteen other Indiana
counties with Superfund sites. This wholly misses the point. The Superfund
liability described in
Hoovler was unique because Tippecanoe County had the only site
in the state for which local governmental entities had been designated Potentially Responsible
Parties by the EPA. Hoovler, 668 N.E.2d at 1234. The issue
is whether the county government had major Superfund exposure, not whether a Superfund
site was located in the county but funded by private Potentially Responsible Parties.
Justice Sullivan describes the issue in
Moseley as whether riverboat gambling was
appropriately permitted in areas contiguous to Lake Michigan, the Ohio River, and Patoka
Lake and not in other Indiana locales bordering other large bodies of water.
As this Court explained, the issue was not that, but rather whether
the different voting procedures in the counties permitted to have riverboat gambling satisfied
Article IV, Section 23:
To their credit, counsel for appellees recognize [that limiting the locations of riverboats
to the specified counties naturally flows from the fact that not every county
is home to a suitable body of water], and argue beyond it that
all counties selected must still be treated alike. We conclude that the distinctions
drawn between Lake County and the others fit this purpose of this local
law. In Lake County, the whole of the waterfront is covered by substantial
cities, whose residents have the greatest interest in how the shore is used.
In all the other counties, however, the shore contains both incorporated and unincorporated
territory. It thus seems sensible to stage a vote of all persons in
Moseley, 643 N.E.2d at 301. Moseley thus turned on facts specific to
Lake County as distinguished from the other counties authorized to adopt riverboat gambling.
To be sure, Article I confers rights on citizens. But we
do not mean to imply acceptance of Justice Sullivans suggestion that citizens who
are classified by geographic locale have any less claim to equal privileges and
immunities than those classified by any other means. This, however, is an
issue for another day.
Footnote: The 1960 election was conducted using districts drawn based on the 1920
Stout v. Hendricks, 228 F. Supp. 568 (S.D. Ind. 1963).
By reason of the enormous growth of cities and suburbs in the intervening
period, by 1960 some representatives were elected from districts four times the size
of others. Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v.
Sims, 377 U.S. 533 (1964), were regarded as muscular exercises of judicial power
forty years ago, but in retrospect are widely accepted as necessary checks on
legislative discretion for the very reason that the normal incentives of the legislature
to act in the overall public interest are disabled if each individual legislator
is benefited by the status quo. See Martin D. Carcieri, Bush v.
Gore and Equal Protection, 53 S.C. L. Rev. 63, 76-77 (Fall 2001) (In
some cases, notably the voting rights cases, [for example
Sims] the judicial role can be defended as necessary to safeguard
the equal access of every American to elected officials and institutions of governance.
Even if the institutional limitations of the adjudicatory process decrease the possibility that
courts can provide comprehensive solutions, on balance the good done by the judiciary
in these cases of political process failure outweighs the harm.);
Richard H. Pildes,
Voting Rights, Equality, and Racial Gerrymandering: Diffusion of Political Power and the Voting
Rights Act, 24 Harv. J.L. & Pub. Poly 119, 126-27 (Fall 2000) (The
Supreme Courts initial development of the one-person, one-vote doctrine came in the context
of the grotesque, massive malapportionments characteristic at the time of
and Reynolds v.
That doctrine resulted in the
necessary destabilization of
a democratic system that had become captured by a small oligopoly that had
no interest in changing the rules under which it had been elected.).
The scholarship is voluminous. The classics include: Learned
The Bill Of Rights (1958); Herbert Wechsler, Toward Neutral Principles of Constitutional
Law, in Principles, Politics and Fundamental Law (1961); Alexander Bickel, The Supreme Court,
1960 Term Forward: The Passive Virtues, 75 Harv. L. Rev. 40 (1961); Alexander
Bickel, The Least Dangerous Branch (1962); Gerald Gunther, The Subtle Vices of the
"Passive VirtuesA Comment on Principle and Expediency in Judicial Review, 64 Colum. L.
Rev. 1 (1964).
1993 H.J. 636.
Footnote: 1993 S.J. 669.
See http://www.epa.gov/superfund/sites/npl/in.htm (visited Jan. 15, 2002). Indiana has many more Superfund
sites that do not rise to the level of a National Priority Site.
See http://www.epa.gov/superfund/sites/cursites/incerlst.htm (visited Jan. 15, 2002).
These early cases d
eserve more credit than the Court gives them today
because cases decided close to the time of the enactment of the constitutional
provision help us understand the intent of the framers. See McIntosh v.
Melroe Co., 729 N.E.2d 972, 974 (Ind. 2000); Richardson v. State, 717 N.E.2d
32, 38 (Ind. 1999); Bayh v. Sonnenburg, 573 N.E.2d 398, 412 (Ind.1991), cert.
denied 502 U.S. 1094 (1992) (quoting State v. Gibson, 36 Ind. 389, 391