What Happens When Part of an Indiana Statute is Unconstitutional?

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by: Colin E. Flora

     After last week’s flurry of notable civil decisions from Indiana’s appellate courts, this week was fairly quiet. An interesting footnote to Indiana legal history was added as the Court of Appeals of Indiana for the first time handed down a decision in a direct appeal from the Marion County Small Claims Court. That is notable because, since the enactment of Indiana small claims procedures, appeals of small claims decisions in all but one county progressed like any other appeal. That one county was Marion County (Indianapolis), which preserved township-based courts and required appeal to the county superior courts for trial de novo. A recent amendment to the statutes governing Marion County small claims has now made appeals direct.

     Considerably more noteworthy, however, was the Indiana Supreme Court’s ruling in City of Hammond v. Herman & Kittle Properties, Inc., which held that an Indiana statute exempting two cities from the $5 cap on municipalities charging rental-registration fees was an unconstitutional special law. The important point of the decision is not the specific law at issue. Instead, the key legal analysis was whether the statute must be struck down in full, allowing all municipalities to charge fees above the $5 cap, or just the exemption must be struck down, leaving in place the cap and applying it to all municipalities. The Indiana Supreme Court determined that the offending provision was severable, meaning that just the offending provision could be excised.

     The Indiana Court of Appeals, like the Indiana Supreme Court, found the statute was unconstitutional. The key to the court of appeals’ decision was that the statute did not contain a severability clause. Adhering to the Indiana Supreme Court’s 1977 decision in Indiana Educ. Employment Relations Board v. Benton Community School Corporation, the court of appeals found that the absence of a severability clause creates the presumption that the statute is not severable.

     Where the court of appeals got it wrong was by failing to acknowledge and apply Indiana Code § 1–1–1–8, which the General Assembly enacted in 1978 as an apparent response to Benton Community. The statute flipped the analysis on its head:

(b) Except in the case of a statute containing a nonseverability provision, each part and application of every statute is severable. If any provision or application of a statute is held invalid, the invalidity does not affect the remainder of the statute unless: 

(1) the remainder is so essentially and inseparably connected with, and so dependent upon, the invalid provision or application that it cannot be presumed that the remainder would have been enacted without the invalid provision or application; or 

(2) the remainder is incomplete and incapable of being executed in accordance with the legislative intent without the invalid provision or application. 

     The effect of the statute is twofold. First, it shifts the presumption. And second, it shifts the burden of proof. As the Indiana Supreme Court explained: 

In Benton Community, this Court recognized that, with a presumption of nonseverability in the absence of a severability clause, “the burden is upon the supporter of the legislation to show the separability of the provisions involved.” But when the legislature added subsection (b) to Indiana Code section 1-1-1-8 after Benton Community, this subsection shifted the presumption by stating that “[e]xcept in the case of a statute containing a nonseverability provision, each part and application of every statute is severable.” With the presumption shifted, the burden to overcome that presumption likewise shifted—now requiring, in the absence of a nonseverability clause, the opponent of the legislation to show that the entire statute must be stricken down

     The important takeaway, then, is that Benton Community has been supplanted by a statute that places a strong preference in favor of keeping intact all statutes that can be preserved despite unconstitutional provisions.

     Join us again next time for further discussion of developments in the law.

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*Disclaimer: The author is licensed to practice in the state of Indiana. The information contained above is provided for informational purposes only and should not be construed as legal advice on any subject matter. Laws vary by state and region. Furthermore, the law is constantly changing. Thus, the information above may no longer be accurate at this time. No reader of this content, clients or otherwise, should act or refrain from acting on the basis of any content included herein without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue.