EMERGING FEDERAL RELIANCE—CONTINUED STATE CONSTITUTIONAL MINIMALISM: INDIANA STATE CONSTITUTIONAL LAW SUMMARIES—2015-2016 SCOTT C HINN * D ANIEL E. PULLIAM ** In the survey period, Indiana courts showed signs of relying increasingly on federal case law to interpret Indiana constitutional principles. Like previous1 years, the survey period saw only minimal developments in constitutional law, marked notably by the lack of dissents in cases involving Indiana constitutional law. The courts’ decisions covered thirteen provisions of the Indiana2 Constitution, a figure that has been higher in some years, and lower in others.3,4 * Scott Chinn is a partner at Faegre Baker Daniels LLP practicing public sector law and litigation. B.A., 1991, Indiana University; J.D., 1994, Indiana University Robert H. McKinney School of Law. He is a former Editor-in-Chief of the Indiana International and Comparative Law Review. He clerked for Judge David F. Hamilton, then District Judge, U.S. District Court, Southern District of Indiana. ** Daniel Pulliam is an associate in the business litigation group at Faegre Baker Daniels, LLP. B.A., 2004, cum laude, Butler University, Indianapolis; J.D., 2010, magna cum laude, Indiana University Robert H. McKinney School of Law. He is also a former Editor-in-Chief of the Indiana Law Review and The Butler Collegian and a former law clerk for Judge John Daniel Tinder on the United States Court of Appeals for the Seventh Circuit. 1. See, e.g., Garcia v. State, 47 N.E.3d 1196, 1200-03 (Ind. 2016) (relying on U.S. Supreme Court case law in holding a police officer could reasonably open a container found on a defendant after a pat-down search incident to arrest); Tiplick v. State, 43 N.E.3d 1259, 1263-66 (Ind. 2015) (relying on U.S. Supreme Court case law in holding the synthetic drug and the look-a-like statutes were not unconstitutionally vague); Hodges v. State, 54 N.E.3d 1055, 1058-60 (Ind. Ct. App. 2016) (relying on the Fourth Amendment to hold a lack of reasonable suspicion is no longer a legitimate objection to the constitutionality of probation searches). 2. In fact, two of the six Indiana Supreme Court opinions dissenting in at least one part came from retiring Justice Rucker. See, e.g., Citizens Action Coalition of Ind. vs. Koch, 51 N.E.3d 236, 243-45 (Ind. 2016) (Rucker, J., dissenting), reh’g denied, No. 49S00-1510-PL-607, 2016 Ind. LEXIS 490 (Ind. July 12, 2016); State v. Buncich, 51 N.E.3d 136, 145-50 (Ind. 2016) (Rucker, J., dissenting). 3. Eighteen topics were addressed in 2014, Jon Laramore & Daniel E. Pulliam, Indiana Constitutional Developments: Small Steps, 47 IND. L. REV. 1015, 1042 (2014); ten were addressed in 2015, Jon Laramore & Daniel E. Pulliam, Developments in Indiana Constitutional Law: A New Equal Privileges Wrinkle, 48 IND. L. REV. 1223, 1240 (2015); and fourteen were addressed in 2016, Scott Chinn & Daniel E. Pulliam, Minimalist Developments in Indiana Constitutional Law—Equal Privileges Progresses Slowly, 49 IND. L. REV. 1004, 2021 (2016). 4. The authors thank Allison Schten for her tremendous contribution in gathering material for this Article. http://doi.org/10.18060/4806.1167 https://doi.org/10.18060/4806.0040 https://doi.org/10.18060/4806.01118 1216 INDIANA LAW REVIEW [Vol. 50:1215 I. SEPARATION OF POW ERS In Consumer Attorney Services, P.A. v. State, the court of appeals held if the5 General Assembly makes any “intrusions” on the Indiana Supreme Court’s exclusive jurisdiction to regulate the practice of law, the legislature must do so in express terms and with clear and unmistakable language. A Florida-based6 limited partnership sought to provide consumer advocacy services for homeowners facing foreclosure in Indiana; however, they never obtained a license to practice law in Indiana. Instead, the partnership associated with7 Indiana-licensed attorneys to provide legal representation. An attorney general8 investigation of consumer complaints resulted in a lawsuit against the limited partnership for violations of various state laws governing credit services, mortgage fraud, and deceptive consumer sales practices, but the suit did not name any of the Indiana attorneys.9 The court of appeals found the Indiana Credit Services Organization Act10 failed to expressly intrude upon the supreme court’s authority to police lawyers and their firms. Thus, due to the partnership’s affiliation with Indiana lawyers,11 it was exempt from the statute. Although the law did not exempt law firms— just12 attorneys— the court recognized that “clear and unmistakable language” was required for the General Assembly to show that it did not “entrust our supreme court to adequately police lawyers and their firms in this area.” T he court’s13 construction of the law avoided an executive branch intrusion upon the supreme court’s exclusive jurisdiction over the regulation of attorneys and what could have been a significant conflict between the executive and judicial branches of the government. In Citizens Action Coalition of Indiana vs. Koch, the Indiana Supreme Court14 held the Indiana Access to Public Records Act (“APRA”) applies to the General A ssembly and its members, but the determination of whether certain correspondence constituted work product was a non-justiciable question under article 3 of the Indiana Constitution. A clean energy think-tank sought records15 of Indiana House Representative Eric Koch and his staff related to certain 5. 53 N.E.3d 599 (Ind. Ct. App. 2016), reh’g denied, No. 49A05-1504-PL-274, 2016 Ind. App. LEXIS 288 (Ind. Ct. App. Aug. 4, 2016), trans. denied, 64 N.E.3d 1205 (Ind. 2016). 6. Id. at 606. 7. Id. at 601. 8. Id. at 602. 9. Id. at 602-03. 10. IND. CODE §§ 24-5-15 (2016). 11. Consumer Atty. Servs., 53 N.E.3d at 606-07. 12. Id. at 608. 13. Id. at 606. 14. 51 N.E.3d 236 (Ind. 2016), reh’g denied, No. 49S00-1510-PL-607, 2016 Ind. LEXIS 490 (Ind. July 12, 2016). 15. Id. at 238-39, 242-43. 2017] CONSTITUTIONAL LAW 1217 legislation. The Republican Caucus in the H ouse of Representatives denied the16 request on the basis that the APRA did not apply to the General Assembly.17 As initial matters, the supreme court held it had subject matter jurisdiction to hear the case and that A PRA applied to the General Assembly. U nder article 7,18 section 4, the supreme court “shall exercise appellate jurisdiction under such terms and conditions as specified by rules” and Rule 4 of the Indiana Appellate Rules gave the court “discretionary jurisdiction over cases in which it grants Transfer under Rule 56.” The court distinguished subject matter jurisdiction19 from justiciability, which is the “quality or state of being appropriate or suitable for adjudication by a court.” Because the court granted transfer under Rule 56,20 the court had subject matter jurisdiction.21 However, article 3, section 1’s separation of powers principles gave the court the ability to find an issue non-justiciable. For “prudential reasons,” the court noted it could leave a question to another branch of government. But the court22 deemed the question of whether the APRA applies to the General Assembly and its members justiciable. No constitutional provision expressly reserved to the23 legislative branch the authority to determine whether a statute applies to the legislature. Although the General Assembly could create an exception by statute24 or rule, it failed to exercise that power. Indeed, the exception for “work product25 of individual members and the partisan staff of the general assembly” clearly contemplated that the APRA applied to the General Assembly and its members.26 But the court then found the central claim regarding whether documents were exempt from disclosure as legislative work product non-justiciable. The General27 Assembly did not define “work product” and so if the court were to define “work product,” it could result in court-ordered disclosure of records under a court- created rule. The court held finding otherwise would violate the separation of28 powers by the court intruding on the G eneral Assembly’s core power to define work product.29 16. Id. at 239. 17. Id. 18. Id. at 240-41. 19. Id. at 240. 20. Id. (citing Berry v. Crawford, 990 N.E.2d 410, 418 (Ind. 2013)). 21. Id. 22. Id. at 241. 23. Id. 24. Id. at 241-42. 25. Id. at 241. 26. Id. at 242. 27. Id. at 242-43. 28. Id. at 242. 29. Id. at 239. Representing the House Republican Caucus was Geoffrey Slaughter who was at the time of the argument awaiting a decision from then-Governor Mike Pence on whether he would be appointed to the Indiana Supreme Court to replace Justice Dickson. See Indianapolis Attorney Chosen to Fill Indiana Supreme Court Vacancy, INDIANAPOLIS BUS. J. (May 9, 2016), 1218 INDIANA LAW REVIEW [Vol. 50:1215 Justice Rucker concurred in part, agreeing the APRA applied to the legislature and the court had subject matter jurisdiction, but dissented on the basis that the merits of the work product exemption were never addressed by the trial court, the supreme court, or the parties. Thus, the court weighed in on a30 significant separation of powers issues without an adequate record.31 In State v. Buncich, the supreme court held an abnormal number of small32 precincts in the county was a sufficiently distinct defining characteristic to justify a special law to create a committee to consolidate precincts. The court also held33 precinct committee persons at risk of being eliminated by the committee were not state officers within the ambit of separation of powers doctrine because they did not perform state government functions.34 A state law, Indiana Code section 3-11-1.5-3.4, created the “Small Precinct Committee” for Lake County to identify precincts with fewer than 500 active voters for purposes of consolidation and reduction of election costs. Precinct35 committeepersons at risk for elimination sued the State challenging the statute.36 Under article 4, section 23, the General Assembly is instructed that “where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.” The court placed emphasis on the word “can”37 and found that the provision’s purpose was to prevent the General Assembly from providing benefits or imposing burdens on a single locality and not others in attempt to prevent “logrolling” and “an irregular system of laws.” But there are38 cases where general laws cannot be made applicable statewide and this was one of them . Under the two-step analysis of determining (1) whether the law was general or special and (2) if it is a special law, whether it is a constitutionally permissible special law, the court determ ines whether the act’s subject is amenable to a general law of uniform operation through the State, and if so, deems it constitutional. The court found Lake County’s inherent characteristics39 of “an exceptionally high number of small precincts” imposing “significant and unnecessary costs on the election system” was sufficient to not second-guess the legislature’s decision “not to set up a Small Precinct Committee in counties that don’t need it.” Lake County not only had a high number of small precincts, it40 http://www.ibj.com/articles/58510-indianapolis-attorney-chosen-to-fill-indiana-supreme-court- vacancy [perma.cc/N5RG-PQ84]. Justice Slaughter’s appointment came May 9, 2016, less than a month after the court’s April 19, 2016 decision in Koch. See id. 30. Citizen’s Action Coalition, 51 N.E.3d at 244-45 (Rucker, J., dissenting in part). 31. Id. at 245. 32. 51 N.E.3d 136 (Ind. 2016). 33. Id. at 138-39. 34. Id. at 144. 35. Id. at 139. 36. Id. at 140. 37. Id. at 141. 38. Id. 39. Id. (citing Williams v. State, 724 N.E.2d 1070, 1085 (Ind. 2000)). 40. Id. at 142-43. 2017] CONSTITUTIONAL LAW 1219 had twice as many as the next highest county. Although the court recognized41 that statistics may be pliable, the court felt “bound to throw the benefit of the doubt in favor of the constitutionality of the law.”42 The court also found committeepersons were not state officers because their duties involved setting up polling locations, registering voters, hiring poll workers, and other work on behalf of a political party. Although the43 committeepersons would vote on behalf of the party to fill certain vacancies, putting someone in the position to perform state government functions is not the same as performing that function. Thus, the com m itteepersons were not44 protected by article 3, section 1’s separation of powers clause.45 Justice Rucker dissented on the basis that “the high number of small precincts based on one compilation of voter counts does not constitute the kind of inherent or distinctive characteristics needed to justify the special legislation imposed upon Lake County.”46 II. EQUAL PRIVILEGES In Whistle Stop Inn, Inc. v. City of Indianapolis, the Indiana Supreme Court47 held Indianapolis’s ordinance barring smoking at bars and restaurants, with an exception for state-licensed satellite gambling facilities, did not violate the equal privileges and im m unities clause of the Indiana Constitution. The disparate48 application of the anti-smoking ordinance was reasonably related to inherent characteristics differentiating bars and restaurants from state-licensed and regulated gambling facilities. Additionally, the court found bars and restaurants49 were also not similarly situated to the gambling facilities.50 Article 1, section 23 of the Indiana Constitution provides the government “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.” Under51 Collins v. Day, a statute’s validity is determined by first looking at whether the52 disparate treatment accorded by the legislation is reasonably related to inherent characteristics distinguishing the unequally treated class and second whether the preferential treatment is uniformly applicable and equally available to all 41. Id. 42. Id. at 143 (quoting Ind. Gaming Comm’n v. Moseley, 643 N.E.2d 296, 300 (Ind. 1994)). 43. Id. at 144. 44. Id. 45. Id. 46. Id. at 150 (Rucker, J., dissenting). 47. 51 N.E.3d 195 (Ind. 2016). 48. Id. at 197. 49. Id. at 201-02. 50. Id. at 203-04. 51. IND. CONST. art. 1, § 23. 52. 644 N.E.2d 72, 80 (Ind. 1994). 1220 INDIANA LAW REVIEW [Vol. 50:1215 similarly situated persons.53 The decision in Whistle Stop demonstrates that although legislative “purpose” is not strictly a part of the Collins test, the nuance in a governmental entity’s proffer of the justification for the disparate treatment may make all the difference. The court of appeals had held in 2015 that the City’s proffered justification for treating the state-licensed gambling facilities and the bar and restaurant owners differently— the state regulation of the facilities— was too attenuated from the statutes at issue and from the ordinance’s stated purpose. That 3-0 lower court54 decision in Whistle Stop found the ordinance unconstitutional under Indiana Supreme Court’s decision in Paul Stieler Enterprises, Inc. v. City of Evansville,55 which struck down an Evansville smoking ordinance excepting the gaming riverboat from coverage but, like the Indianapolis ordinance, still applied to bars and restaurants. T he argument in Paul Stieler was that not exempting the56 riverboat would cost the city millions of tax dollars if patronage at riverboat fell.57 But in Whistle Stop, the arguments were different. The City of Indianapolis justified its exemption of the gambling facility, not by reference to the money derived from the facility, but on the basis that the State of Indiana already regulated smoking at the facilities.58 Under the first C ollins prong, the court analyzed two disparately treated classes: satellite gambling facilities (exempted from the ban) and bars and restaurants (smoking prohibited). The court found inherent characteristics did59 not necessarily refer to immutable or intrinsic attributes but to any characteristic that sufficiently related to the class’s subject m atter. The fact that Indiana law60 required the satellite gambling facilities to hold licenses and submit an application to the Indiana Horse Racing Commission that includes a description of the heating and air conditioning units, smoke removal equipment, and other climate control devices served as a distinguishing, inherent attribute. W ithout that61 application and the air control requirement, a satellite gambling facility could not exist. This inherent characteristic of the satellite gambling facilities also62 reasonably related to the class differentiator— the Horse Racing Commission could consider the impact of smoking on its licensing decisions.63 The court also found the ordinance did not violate the second prong of Collins because satellite gambling facilities were sufficiently distinct from bars 53. Whistle Stop, 51 N.E.3d at 198-99 (citing Collins, 644 N.E.2d at 80). 54. Id. at 198. 55. 2 N.E.3d 1269 (Ind. 2014). 56. Whistle Stop, 51 N.E.3d at 198-99. 57. 2 N.E.3d at 1275. 58. Whistle Stop, 51 N.E.3d at 200. 59. Id. at 199. 60. Id. 61. Id. at 201. 62. Id. 63. Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d at 1278 (clarifying the inherent distinguishing characteristic does not have to be specifically stated in the ordinance). 2017] CONSTITUTIONAL LAW 1221 and restaurants with different licensing requirements and providing different services. The exception was not based on economics as in Paul Stieler.64 65 Because the City could justify the different treatment, the ordinance did not violate the equal privileges and immunities clause.66 In M onarch Beverage Co. v. Cook, the court of appeals held a state alcohol67 statute’s prohibited interest provisions did not violate article 1, section 23 of the Indiana Constitution, because the plaintiff failed to identify two of similarly situated groups that were treated disparately— a threshold requirement of such challenge. In Indiana, a beer wholesaler can also hold a wine wholesaler permit68 and a liquor wholesaler can hold a wine wholesaler permit, but a beer wholesaler cannot hold a liquor wholesaler’s permit. The beer wholesaler argued it was69 treated disparately because anyone who does not hold a beer permit may hold a liquor permit— even wine permit holders may hold a liquor permit.70 The plaintiff, a wholesaler of beer and wine, argued that being prohibited from wholesaling liquor violated the equal privileges and immunities clause.71 The court of appeals held the disparate treatment alleged by plaintiff failed to include a similarly situated and preferentially treated group. W ithout reaching72 the two-pronged Collins test, the court of appeals found the Indiana law treated all persons and all alcohol wholesalers alike— anyone who wants to wholesale alcohol must simply choose which type of alcohol it wants to wholesale. The73 law treats each the same at the tim e of the decision and afterward— all beer and liquor wholesalers are equally prohibited from obtaining permits to distribute any other alcohol except for wine. “There can be no Equal Privileges and74 Immunities claim where all classes of person are treated equally.”75 Unlike the unanimous decision in Whistle Stop, a sharply divided supreme court in M yers v. Crouse-Hinds Division of Cooper Industries, Inc., held “the76 Indiana Product Liability Act’s statute of repose does not apply to cases . . . where the plaintiffs have had protracted exposure to inherently dangerous foreign substances.” Plaintiffs sued dozens of defendants alleging dam ages from77 64. Whistle Stop, 51 N.E.3d at 201-02. 65. Id. at 203. 66. Id. at 203-04. 67. 48 N.E.3d 325 (Ind. Ct. App. 2015), trans. denied, 48 N.E.3d 317 (Ind. 2016). 68. Id. at 331 (citing Robertson v. Gene B. Glick Co., 960 N.E.2d 179, 185 (Ind. Ct. App. 2011)). 69. Id. at 328-29. If this sounds like the beginning of an LSAT question, that is understandable. 70. Id. at 332. 71. Id. at 329-30. 72. Id. at 332. 73. Id. 74. Id. 75. Id. 76. 53 N.E.3d 1160 (Ind.), reh’g denied, 53 N.E.3d 1173 (Ind. 2016). 77. Id. at 1168. 1222 INDIANA LAW REVIEW [Vol. 50:1215 asbestos-caused diseases, which commonly take many years to manifest after exposure. At issue was whether the plaintiffs’ claims could be barred by the ten-78 year statute of repose in the Indiana Product Liability Act.79 The court first addressed whether it should revisit its decision in Allied Signal, Inc. v. Ott, which held section 1 of the Product Liability Act, and its80 81 two-year statute of limitations and ten-year statute of repose, applied to product liability actions generally. Additionally, section 2’s more generous two-year82 discovery rule applied to asbestos lawsuits against defendants who mined and83 sold raw asbestos, leaving sellers of asbestos-containing products to the ambit of section 1. The court, with Justice Dickson writing the opinion, declined to84 revisit Ott and adopt the Justice Dickson dissent— the General Assembly had twelve years to express disapproval of Ott but expressed acquiescence in the decision.85 But the court did find that, unlike the plaintiffs in Ott, the plaintiffs in M yers brought a different article 1, section 23 claim. Instead of comparing asbestos86 victim s to non-asbestos victims, the plaintiffs compared two different types of asbestos victims in a manner the court found unconstitutional: asbestos plaintiffs injured by defendants who both mined and sold raw asbestos and asbestos plaintiffs who were injured by defendants outside that category. Because this87 distinction was not raised or addressed in Ott, the court found this new section 23 challenge could serve as a basis for revisiting the Collins two-prong analysis.88 Under the first element, the classes were identical— asbestos victims.89 Section 2 of the Products Liability Act did “not differentiate between them based on any single characteristic of theirs— inherent or otherwise.” Rather, the90 difference between asbestos victims seeking relief from defendants who mined and sold raw asbestos and defendants who provided products containing asbestos did “not constitute an inherent distinguishing difference between the asbestos victims.” Because this disparate treatment did not reasonably relate to an91 inherent difference of unequally treated classes, the statute violated article 1, 78. Id. at 1162. 79. Id. 80. 785 N.E.2d 1068 (Ind. 2003). 81. IND. CODE § 34-20-3-1 (2016). 82. Ott, 785 N.E.2d at 1070. 83. IND. CODE § 34-20-3-2 (2016). 84. Myers, 53 N.E.3d at 1163. 85. Id. at 1162. 86. Id. at 1164. 87. Id. at 1166-67. 88. Id. Again, another example where legal arguments mattered under article 1, section 23. See text accompanying supra notes 51-54. 89. Myers, 53 N.E.3d at 1166. 90. Id. at 1165-66. 91. Id. at 1166. 2017] CONSTITUTIONAL LAW 1223 section 23.92 The court also found the statute conflicted with the second element of the Collins analysis. W ith two similarly situated classes of asbestos victims, one93 could only seek damages from defendants who mined and sold asbestos while the other was exempt. Because nearly all class members suffered from a ten-plus94 year latency period, and all class members were exposed to products containing asbestos, the two classes’ unconstitutional treatment violated the equal privileges and immunities clause.95 Chief Justice Rush dissented on that basis that the court’s decision created the “perception” that it would reverse close and controversial decisions based on “a third vote for the opposing view.” The court’s authority rested on the rule of96 law, “a fragile thing” that is earned “by showing stability and consistency in our97 judgments and integrity in our processes.”98 In slight contrast to Chief Justice Rush’s belief that the decision was “not a catastrophe,” Justice M assa suggested that he agreed with much of Chief Justice99 Rush’s dissent including “perhaps” the fact that the sky was not falling. Justice100 M assa believed the decision had “the potential to more than chip away at the rule of law and inflict more serious damage on our court and state.” Justice M assa101 noted that Justice D ickson first suggested the unconstitutionality of the statute of repose in a dissenting opinion, and “it is now finally the law of Indiana in102 asbestos cases.” Justice M assa found the majority’s “new” claim to avoid103 104 overruling Ott “clever” but ultimately unconvincing. R ather, the “only thing105 that is new is the make-up of our Court, and [the] dissenting viewpoint garnering a third vote.”106 Defendants sought rehearing on April 1, 2016, partly on the basis that the plaintiffs failed to notify the Attorney General regarding its claim that the state law violated the Indiana Constitution, and the plaintiffs did not file a response until April 25, 2016. The court denied the petition for rehearing on April 28,107 92. Id. 93. Id. 94. Id. 95. Id. 96. Id. at 1169 (Rush, C.J., dissenting). 97. Id. 98. Id. 99. Id. 100. Id. (Massa, J., dissenting). 101. Id. 102. Id. at 1169 n.1 (citing Covalt v. Carey, 543 N.E.2d 382, 389-90 (Ind. 1989) (Dickson, J., dissenting)). 103. Id. at 1169. 104. Id. at 1170. 105. Id. 106. Id. at 1172 (emphasis in original). 107. Brief for Appellee, Myers v. Crouse-Hinds Div. of Cooper Indus., 53 N.E.3d 1173 (Ind. 1224 INDIANA LAW REVIEW [Vol. 50:1215 2016, in the same 3-2 vote.108 II. UNCONSTITUTIONAL V AGUENESS— SYNTHETIC D RUG C ASES The Indiana Supreme Court resolved a split in the court of appeals on whether the State’s prohibition against certain synthetic drugs was unconstitutionally vague in Tiplick v. State. The split arose from contradictory109 holdings in the Indiana Court of A ppeals’ cases of Elvers v. State and Tiplick110 v. State.111 In Elvers, the court of appeals held the law satisfied article 1, section 20, which provides that “[e]very act and joint resolution shall be plainly worded, avoiding, as far as practicable, the use of technical terms.” But in Tiplick, a112 decision issued only a little over a month after Elvers, the court of appeals held the synthetic drug statute’s reference to Pharmacy Board Regulations violated void for vagueness principles.113 The Indiana Supreme Court reversed the court of appeals, holding the synthetic drug law and a look-a-like statute were not unconstitutionally vague.114 The General Assembly was attempting to regulate a field of advanced chemistry that required the use of technical terms— article 4, section 20 only prohibited the use of technical terms to the extent “practicable.” The defendant contended that115 the “statutory maze” made it impossible to know how to act. However, the116 117 court refuted this contention by stating that the “three discrete statutes . . . give clear guidance as to how to find everything falling within the definition of ‘synthetic drug.’” Furthermore, the look-a-like statute required scienter,118 defeating any vagueness challenge.119 The court also held that delegating to the Pharmacy Board authority to add drugs to the controlled substances list was not an impermissible delegation of legislative authority. The court found no guidance from the Indiana120 Constitutional Convention of 1850-1851 with respect to whether such delegation 2016) (No. 49S00-1501-MI-36). 108. Myers, 53 N.E.3d at 1174. 109. 43 N.E.3d 1259, 1264 (Ind. 2015). 110. 22 N.E.3d 824, 836 (Ind. Ct. App. 2014) (holding law was not unconstitutionally technical). 111. 25 N.E.3d 190, 196 (Ind. Ct. App.) (holding law was unconstitutionally vague), rev’d in part, aff’d in part, 43 N.E.3d 1259, 1264 (Ind. 2015). 112. 22 N.E.3d at 830 (quoting IND. CONST. art. 4, § 20). 113. Tiplick, 25 N.E.3d 190. 114. Tiplick v. State, 43 N.E.3d 1259, 1261 (Ind. 2015). 115. Id. at 1263 (emphasis in original). 116. Id. 117. Id. 118. Id. at 1264. 119. Id. 120. Id. at 1266. 2017] CONSTITUTIONAL LAW 1225 to an executive agency violated separation of powers. In the absence of such121 guidance, the court looked at U.S. Supreme Court authority and found such delegation appropriate where necessary for a limited time to avoid imminent hazard to public safety. The Pharmacy Board could also only rule on whether122 additional substances should qualify as “synthetic drugs” under another statute.123 Put otherwise, the law allowed the agency to determine whether “some fact or situation” qualified under the statute.124 125 III. FREE SPEECH In Williams v. State, the court of appeals held an angry resident’s protest126 of police action that prevented her from reentering her home, while officers waited for a search warrant to search the home, failed to establish that her speech was political and thus protected by article 1, section 9 of the Indiana Constitution. After officers asked her to be quiet, Dorothy W illiams yelled127 “You mean to tell me you are not going to let me enter my mother***ing house?” She declared she would return to her house to see her mother, who was128 sick, and did not care about going to jail. The jury acquitted her of assisting a129 criminal but convicted her of disorderly conduct.130 On appeal, W illiams argued that the conviction violated her right under article 1, section 9, which states, “N o law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.” Based on Barnes v. State, the court first addressed131 132 whether W illiams carried her burden of showing that her speech was political because, if it was, the burden shifted to the State to show that the impairment’s magnitude was slight or that the speech constituted a public nuisance. The court133 found the jury could focus on the entirety of her statement in concluding that it was ambiguous and thus not political. For example, her statements referred to134 121. Id. at 1267. 122. Id. at 1268 (citing Touby v. United States, 500 U.S. 160 (1991)). 123. Id. at 1269. 124. Id. 125. Id. 126. 59 N.E.3d 287 (Ind. Ct. App. 2016). 127. Id. at 294-95. 128. Id. at 291 (omissions in original). 129. Id. 130. Id. at 292. 131. Id. (quoting IND. CONST. art. 1, § 9). 132. 946 N.E.2d 572, 577 (Ind.), aff’d on reh’g, 953 N.E.2d 473 (2011), superseded by statute on other grounds as stated in Cupello v. State, 27 N.E.3d 1122, 1124 (Ind. Ct. App. 2015). 133. Williams, 59 N.E.3d at 293. 134. Id. at 294. 1226 INDIANA LAW REVIEW [Vol. 50:1215 herself, her mother, and her own conduct.135 The court also addressed whether the State impaired her expression under rational basis review. The court found the State could have concluded that136 W illiams’ expressive activity constituted an abuse (on her part) of her right to speak. Her speech prompted neighbors to com e out of their homes and137 distracted a number of officers from their work of securing the residence’s perimeter. Because her “outburst” constituted an abuse of her right to speak,138 139 the officers acted rationally in arresting her.140 IV. EX POST FACTO Amendments to the habitual traffic offender statute requiring the Bureau of M otor Vehicles to use dates of prior offenses, rather than dates of judgments, did not violate the ex post facto clause in Abernathy v. Gulden. The habitual traffic141 offender statute requires three qualifying offenses within the last ten years.142 Before July 1, 2012, the status triggered upon three qualifying judgments within a ten-year period. The time between five appellees’ first and third qualifying143 convictions exceeded ten years, but the offense dates were within the ten-year period. The trial court found this retroactive application of the statute violated144 the ex post facto clause.145 The court of appeals reversed because it found the amendment’s purpose was public safety, not punishment. Under article 1, section 24, “[n]o ex post facto146 law . . . shall ever be passed.” The State did not dispute that the application of147 the law here created an ex post facto effect, but argued that the result— the suspension of driving privileges— served the interests of public safety, not punishment. The court found the amendment was procedural rather than148 substantive and therefore could be applied to crimes committed before the effective date because it changed neither the elements of the crime nor enlarged the punishment. Rather, the legislature had merely explained the “method of149 enforcing” the designation and sought to protect the public by regulating 135. Id. 136. Id. at 295. 137. Id. 138. Id. 139. Id. 140. Id. 141. 46 N.E.3d 489, 497 (Ind. Ct. App. 2015). 142. Id. at 497. 143. Id. at 492. 144. Id. 145. Id. at 492-93. 146. Id. at 496-97. 147. Id. at 494 (quoting IND. CONST. art. 1, § 24). 148. Id. at 495-97. 149. Id. at 496-97. 2017] CONSTITUTIONAL LAW 1227 dangerous driving.150 Judge Brown dissented on the basis that the ex post facto prohibition was violated because the appellees could not have been deemed habitual offenders before the amendment. The amendment changed the elements of the offense151 rather than simply the procedures for enforcing the law.152 In Tyson v. State, the Indiana Supreme Court addressed whether the Sex153 Offender Registry Act violated the ex post facto clause in circumstances where putative registrants were subject to registration elsewhere and therefore subject to registration upon m oving to Indiana. The court unanimously held in each154 case that the new resident requirement did not violate the ex post facto clause.155 The court analyzed the two-pronged intent-effects test used to determine whether a statute imposes a punishment.156 First, the registration requirement was not imposed for a punitive intent. It157 appeared in Title 11 addressing corrections, not Title 35 addressing criminal offenses, procedure, and sentencing. Second, the statute’s practical effects only158 imposed a slightly greater affirmative disability beyond performing the same obligations in a new state because Tyson could not get a fresh start by moving.159 R egistration was slightly punitive in that it would “result in some increased shaming.” But there was no mens rea requirement and registration did not160 support the traditional aims of punishment. The registration requirement was161 not triggered by criminal behavior but by another state requiring registration and the statutory scheme advanced a non-punitive interest of preventing Indiana from becoming a safe haven for sex offenders. Lastly, registration was not an162 excessive punishment.163 Similarly, in State v. Zerbe, the Indiana Supreme Court held requiring a sex164 offender already required to register elsewhere to also register in Indiana did not violate the ex post facto clause. Zerbe’s conviction and conduct occurred in165 150. Id. 151. Id. at 497-98 (Brown, J., dissenting) 152. Id. 153. 51 N.E.3d 88 (Ind. 2016). 154. Id. at 89-90. 155. Id. at 96. 156. Id. at 93 (noting the test was adopted from Wallace v. State, 905 N.E.2d 371, 383 (Ind. 2009)). 157. Id. 158. Id. 159. Id. at 94. 160. Id. 161. Id. at 95. 162. Id. at 95-96. 163. Id. at 96. 164. 50 N.E.3d 368 (Ind. 2016). 165. Id. at 371. 1228 INDIANA LAW REVIEW [Vol. 50:1215 1992 in M ichigan. Two years later, M ichigan and Indiana enacted registration166 requirements. Then in 2006, Indiana added a registration requirement for167 anyone required to register in any jurisdiction. Zerbe subsequently moved to168 Indiana in 2012. The court found the amendment did not violate the ex post169 facto clause because, although M ichigan’s registration requirement may have violated Indiana’s ex post facto clause jurisprudence, it was not Indiana’s job to second-guess M ichigan’s decision that its law can apply retroactively. Instead,170 the scope of the court’s analysis was limited to whether Indiana’s 2006 am endment requiring registration of anyone required to register anywhere violated the Indiana Constitution. Such a requirement did not trigger any ex171 post facto analysis because Zerbe’s existing registration requirements were merely maintained across state lines. The amendment was also merely172 regulatory and non-punitive, as to Zerbe.173 Lastly, in a per curiam opinion, Ammons v. State, the court found requiring174 registration for a conviction for child molestation before the A ct’s enactment did not violate the ex post facto clause despite the court’s decision in Wallace v. State. Wallace held the Act violated Indiana’s ex post facto clause because it175 imposed a punitive burden as applied to an offender who committed a crime and served his sentence before the existence of the registration requirement. But176 Ammons had moved to Iowa after his release where registration was required of him. W hen Ammons moved back, he was not subject to any new177 punishment. Instead, he voluntarily assented to Indiana law by returning to the178 state.179 The court of appeals held in M cVey v. State that a law making it a crime for180 a person required to register as a sex offender to enter school property did not violate the ex post facto clause. Richard M cVey was convicted of child181 molestation for conduct committed in 2001, years before the General Assembly 166. Id. at 369. 167. Id. 168. Id. 169. Id. 170. Id. at 370. 171. Id. at 370-71. 172. Id. at 371. 173. Id. 174. 50 N.E.3d 143 (Ind. 2016). 175. 905 N.E.2d 371 (Ind. 2009). 176. Id. at 384. 177. Ammons, 50 N.E.3d at 144. 178. Id. (explaining the applicable statute was non-punitive in effect when applied to persons already registered in other states). 179. Id. 180. 56 N.E.3d 674 (Ind. Ct. App. 2016). 181. Id. at 676. 2017] CONSTITUTIONAL LAW 1229 enacted the unlawful entry statute on July 1, 2015. The court applied the182 “intent-effects” test from Wallace in examining the “type of scheme” the General Assembly intended to establish. Distinguishing the Indiana Supreme Court’s183 holding in State v. Pollard, which held retroactive application of a statute184 restricting where registered sex offenders could live violated the ex post facto clause, the court found the statute was non-punitive as applied to M cVey because he could find other places to take classes. Thus, the court deemed the effects185 on M cVey minor compared to the residency-restriction statute. Additionally,186 M cVey’s conviction was for conduct against a child whereas it was unknown whether a child was involved in the conviction in Pollard.187 V. SEARCH AND SEIZURE In Garcia v. State, the Indiana Supreme Court held a police officer could188 reasonably open a container found on a defendant after a pat-down search incident to arrest for driving without a license. A routine traffic stop for driving189 at night without headlights and turning without signaling led the officer to discover that the driver lacked a license. After the officer placed the driver190 under arrest, he searched the driver for weapons and found a cylinder-shaped container in the driver’s pocket. A pill found inside the bottle was later191 confirmed to be H ydrocodone for which the driver lacked a valid prescription.192 Because there was no dispute that the arrest and the pat-down were lawful, under the Litchfield reasonableness factors, the court addressed whether the search of the pill container was “reasonable” under the Indiana Constitution.193 Under Litchfield v. State, Indiana courts determine the reasonableness of a194 search under article 1, section 11 by looking at: “(1) T he degree of concern, suspicion, or knowledge that a violation has occurred, (2) the degree of the intrusion the method of the search or seizure imposes on the citizen’s ordinary 182. Id. 183. Id. at 679 (citing Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009)). 184. 908 N.E.2d 1145, 1147 (Ind. 2009). 185. McVey, 56 N.E.3d at 681. 186. Id. 187. Id. The court also readily found the 2001 extension of the registration requirement for McVey’s convictions from ten years to life violated the ex post factor clause under the Indiana Supreme Court’s holding in Gonzales v. State, 980 N.E.2d 312, 315 (Ind. 2013) and thus McVey only had to register for ten years. See generally id. 188. 47 N.E.3d 1196 (Ind. 2016). 189. Id. at 1197. 190. Id. 191. Id. at 1197. 192. Id. at 1198. 193. Id. at 1199-1200. 194. 824 N.E.2d 356 (Ind. 2005). 1230 INDIANA LAW REVIEW [Vol. 50:1215 activities, and (3) the extent of law enforcement needs.”195 Here, the court found the officer needed no additional degree of suspicion in opening the container. A search incident to arrest permits a “relatively196 extensive exploration of the person.” The court focused heavily on U.S.197 Supreme Court decision in United States v. Robinson, governing searches198 incident to arrest, to reject the driver’s argument that the pill container’s nature should be considered in the reasonableness analysis. Instead, once the driver199 was subject to a search, the opening of the pill bottle was of little relevance to the degree of the intrusion— he was already under arrest. The minimal additional200 step of opening the pill bottle meant little to the court. Lastly, the need for law201 enforcement to examine the contents of the pill rested on the law enforcement need to immediately eliminate even the most “seemingly innocuous items” that could pose a threat. The officer’s acknowledgment that he did not view the pill202 bottle as threatening was beside the point.203 Garcia is notable for its heavy reliance on U.S. Supreme Court precedent to analyze the Litchfield reasonableness factors. The court noted although the federal interpretation of reasonableness under the Fourth Amendment is not binding on the court’s article 1, section 11 analysis, the court was satisfied that it reached the same conclusion.204 In Wilford v. State, the Indiana Supreme Court held a warrantless205 impoundm ent and inventory search of a car was unconstitutional because the State failed to establish actual procedures authorizing the search. Because no206 state statute authorized the impoundment, the court analyzed whether the impoundment could be authorized under the State’s community-caretaking function.207 U nder the standards established in Fair v. State, “police [officers] m ay208 195. Id. at 361. 196. Garcia, 47 N.E.3d at 1200. 197. Id. at 1200. 198. 414 U.S. 218 (1973). 199. Garcia, 47 N.E.3d at 1200-01. 200. Id. at 1201. 201. Id. 202. Id. at 1203. 203. Id. 204. Id. at 1205. In Zanders v. State, 58 N.E.3d 254 (Ind. Ct. App.), trans. granted, No. 15S01-1611-CR-571, 62 N.E.3d 1202 (Ind. 2016), the court of appeals held the warrantless search of a defendant’s historical location information data on his cellphone violated his rights under the Fourth Amendment to the U.S. Constitution. The court expressly declined to address Zanders’ argument based on the Indiana Constitution because the court reversed on a Fourth Amendment violation. Id. at 261 n.1. 205. 50 N.E.3d 371 (Ind. 2016). 206. Id. at 378. 207. Id. at 375. 208. 627 N.E.2d 427 (Ind. 1993). 2017] CONSTITUTIONAL LAW 1231 discharge their caretaking function whenever circumstances compel it.” But the209 decision to impound must rest on standard criteria and on a basis other than the suspicion of evidence of criminal activity. Because the State could not establish210 written policies or officer testimony proving that an established policy governed the impoundment, the police conduct was unconstitutional. Although the211 court’s decision rested on its 1993 decision in Fair, the court made no attempt to separately analyze the issue under the Indiana Constitution. And because Fair expressly found that the defendant waived any state constitutional challenge,212 Wilford is ambiguous as to whether it rests on the U.S. or the Indiana Constitution. In Whitley v. State, the court of appeals appeared to reach a different result213 from the Indiana Supreme Court’s decision in Wilford in part by relying on police department orders that, although were not followed, were not deemed unreasonable under article 1, section 11.214 In Gerth v. State, the Indiana Court of Appeals held hearsay tips from215 confidential informants lacked sufficient indicia of reliability to support a search warrant’s issuance. Two hearsay tips in a probable cause affidavit were not216 meaningfully corroborated other than the defendant’s address— publicly available information that could have been easily obtained. The officer also omitted217 information regarding the confidential informant’s credibility. Furthermore, the218 good faith exception did not apply because of the officer’s reckless omission of the credibility issue.219 In Sidener v. State, the court of appeals held the Indiana Constitution did220 not protect a passenger’s interests in being tracked by law enforcement-placed GPS devices. Assuming that the GPS tracking of the vehicle constituted221 property being seized, the court found the passenger had no interest in the property because the officers were only tracking the car and were not even aware of the passenger’s presence.222 In M oore v. State, the court of appeals held the wearing of “a hoodie on a223 209. Wilford, 50 N.E.3d at 375. 210. Id. 211. Id. at 377. 212. 627 N.E.2d at 430 n.1. 213. 47 N.E.3d 640 (Ind. Ct. App. 2015), trans. denied, 46 N.E.3d 445 (Ind. 2016). 214. Id. at 649. 215. 51 N.E.3d 368 (Ind. Ct. App. 2016). 216. Id. at 375. 217. Id. at 374. 218. Id. 219. Id. at 375-76. 220. 55 N.E.3d 380 (Ind. Ct. App. 2016). 221. Id. at 382. 222. Id. at 384-85. 223. 49 N.E.3d 1095 (Ind. Ct. App. 2016), reh’g denied, No. 49A02-1505-CR-321, 2016 Ind. App. LEXIS 79 (Ind. Ct. App. Mar. 14, 2016), trans. denied, No. 49A02-1505-CR-321, 2017 WL 1232 INDIANA LAW REVIEW [Vol. 50:1215 very hot day” could give an officer a basis for stopping someone to talk. The224 intrusion was minimal— it just took a minute to answer the questions. T he225 officer did not activate his patrol lights or otherwise engage him in anything but a consensual conversation. After learning the man’s name, the officer226 remembered the same person had been issued written trespass warnings and nearby residents had complained about him. These two factors— the hoodie and227 the information regarding the issuance of trespass warnings— justified a further investigatory stop. Law enforcement needs were also high given several228 residential complaints regarding trespass.229 In Hodges v. State, the court held a lack of reasonable suspicion is no230 longer a legitimate objection to the constitutionality of probation searches. The231 Indiana Supreme Court held in State v. Vanderkolk that Indiana probationers232 and community correction participants may consent and waive their constitutional rights by authorizing warrantless and suspicionless searches. Vanderkolk rested233 solely on the Fourth Amendment and did not address the Indiana Constitution.234 The court of appeals found this broad holding meant that a separate Litchfield analysis was unnecessary to determine the reasonableness of the probation officer’s suspicionless search because the defendant had waived his rights as a condition of his probation.235 In State v. Pitchford, the court of appeals held a warrantless strip search236 violated article 1, section 11 of the Indiana Constitution. O fficers arrested237 Pitchford on misdemeanor battery charges and conducted a strip search pursuant to department policy because the offense, although a misdemeanor, was a “crime of violence.” But under Edwards v. State, “routine, warrantless strip searches238 239 of misdemeanor arrestees, even when incidental to a lawful arrest, are not 237751 (Ind. Jan. 12, 2017). 224. Id. at 1099, 1103. 225. Id. at 1103. 226. Id. at 1099, 1101. 227. Id. at 1099. 228. See id. at 1103 (concluding the officer’s investigatory stop was reasonable). The additional investigation included the officer asking to pat down the individual. Id. at 1099. 229. Id. at 1103. 230. 54 N.E.3d 1055 (Ind. Ct. App. 2016). 231. Id. at 1059. 232. 32 N.E.3d 775 (Ind. 2015). 233. Id. at 779. 234. See id. at 778 (concluding because the search and seizures at issue were unlawful under the Fourth Amendment, whether they were lawful under the Indiana Constitution was irrelevant). 235. Hodges, 54 N.E.3d at 1060; see also id. at 1061 (finding the defendant had signed probation rules that waived his right against search and seizure). 236. 60 N.E.3d 1100 (Ind. Ct. App.), trans. denied, 64 N.E.3d 1206 (Ind. 2016). 237. Id. at 1103-04. 238. Id. at 1101, 1106 (noting “Pitchford was arrested for misdemeanor battery”). 239. 759 N.E.2d 626 (Ind. 2001). 2017] CONSTITUTIONAL LAW 1233 reasonable under . . . the Indiana Constitution.” Rather, the officers must have240 a reasonable suspicion, based on the arrest’s totality of the circumstances, that the defendant was concealing weapons or contraband.241 The State argued that the U.S. Supreme Court’s decision in Florence v. Board of Chosen Freeholders abrogated Edwards in holding “the Fourth Amendment242 does not prohibit strip searches of arrested persons before they enter a jail’s general population.” But Edwards rested on both the Indiana Constitution and243 the federal Constitution. Thus, even though the Fourth Amendment may have244 allowed the search, the search still had to satisfy article 1, section 11’s stricter requirements.245 The State attempted to establish that the battery arrest constituted a crime of violence and was thus permitted. But E dw ards did not provide a general246 exception for crim es of violence. Routine searches of individuals arrested for247 violent misdemeanors went contrary to the Edwards requirement of reasonable suspicion that the arrestee was concealing weapons or contraband. Because the248 circumstances around Pitchford’s offense and arrest did not suggest a reasonable suspicion that he concealed any weapons or contraband, the court found the trial court properly suppressed the evidence discovered during the strip search.249 VI. R IGHTS OF THE A CCUSED AND V ICTIM S The Indiana Supreme C ourt held in Horton v. State that a defendant’s250 silence when his attorney requested a bench trial was insufficient to waive the right to a jury trial. The court’s decision rested on article 1, section 13 of the251 Indiana Constitution, which the court recognized “provides greater protection” by requiring the defendant to personally waive the right in a felony prosecution.252 The court’s decision also rested on the statutory right that had remained essentially unchanged since its enactment in 1852, conferring upon the defendant— not counsel— the authority to waive the jury trial right. This253 240. Pitchford, 60 N.E.3d at 1103-04 (citing Edwards, 759 N.E.2d at 629). 241. Id. at 1106. 242. 566 U.S. 318 (2012). 243. Pitchford, 60 N.E.3d at 1104 (citing Florence, 566 U.S. at 339). 244. Id. (citing Edwards, 759 N.E.2d at 630). 245. Id. at 1104. 246. Id. at 1105. 247. Id. 248. Id. 249. Id. at 1106. 250. 51 N.E.3d 1154 (Ind. 2016). 251. See id. at 1158 (finding the defendant’s attorney’s attempt to waive the defendant’s jury trial right on the defendant’s behalf was not enough to meet Indiana’s personal waiver requirement). 252. Id. 253. Id. 1234 INDIANA LAW REVIEW [Vol. 50:1215 personal waiver requirement avoids the “intolerable risk” that “a felony prosecution will not proceed to a bench trial against the defendant’s will . . . [g]iven the high stakes of erroneous jury-trial deprivation and the low cost of confirming personal waiver.”254 In Wahl v. State, the Indiana Suprem e C ourt held an alternate juror’s255 participation and taking over of deliberations entitled the defendant to a presumption of prejudice. The alternate juror, according to an affidavit,256 physically manipulated evidence and repeatedly played portions of a DVD admitted into evidence, increasing the volume to get the other juror’s attention.257 The State asserted that the alternate’s behavior diminished after other jurors told him to stop and that the jury still reached a unanimous verdict. Yet the record258 failed to show that the jury remained impartial. Because the State could not259 show that the prejudice was harmless, the court reversed the convictions and remanded for retrial.260 Justice M assa concurred in part and dissented in the grant of a new trial on the basis that the court should give the State an opportunity to meet its burden on the merits by having every juror inform the court as to the alternate’s conduct’s impact on their impartiality.261 In Ward v. State, the court held article 1, section 13’s promise that criminal262 defendants “shall have the right . . . to meet the witnesses face to face” did not require a literal interpretation. Although the clause has the same meaning and263 history of the Sixth Amendment’s Confrontation Clause, the Indiana provision “has a special concreteness and is more detailed.” Yet testimony from an absent264 witness may nevertheless be admissible at trial if the witness is otherwise unavailable through death or illness. In this case, the witness had simply265 recounted a minor’s out-of-court statements giving the defendant the opportunity to confront a “case of typical hearsay.”266 Notably, the article 1, section 13 discussion only occupied two paragraphs of the court’s opinion. The Confrontation Clause aspect of the case occupied the267 254. Id. at 1160. 255. 51 N.E.3d 113 (Ind. 2016), reh’g denied, No. 29S04-1510-CR-605, 2016 Ind. LEXIS 385 (Ind. May 17, 2016). 256. Id. at 116. 257. Id. at 115. 258. Id. at 117. 259. Id. (recognizing the State did not meet its burden to show the jury was impartial). 260. Id. 261. Id. at 119 (Massa, J., concurring in part and dissenting in part). 262. 50 N.E.3d 752 (Ind. 2016) . 263. Id. at 756. 264. Id. (quoting Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991)). 265. Id. (quoting Miller v. State, 517 N.E.2d 64, 71 (Ind. 1987)). 266. Id. 267. See id. at 756-57. 2017] CONSTITUTIONAL LAW 1235 bulk of the discussion across another seven pages.268 VII. D OUBLE JEOPARDY Convictions for reckless driving and operating a vehicle while intoxicated did not violate double jeopardy principles in Berg v. State. Under Richardson v.269 State, the court looked at whether either the (A) statutory elements of the270 offense or (B) actual evidence supporting the convictions established the same essential elements of both offenses. The actual evidence used to obtain both271 convictions must establish a “reasonable possibility” that the jury used the same facts to obtain both convictions.272 Here, the State presented evidence of unsafe driving to support both the endangerment element for operating while intoxicated and the reckless driving offense. Yet because the reckless driving offense did not require evidence of273 intoxication, the State established a wholly separate basis for the crime of operating a vehicle while intoxicated. Thus the behavior underlying the274 convictions was not “the very same behavior.” Put otherwise, the “evidentiary275 footprint” for both offenses was not the same.276 A defendant’s guilty plea to multiple convictions made it impossible to review the convictions for double jeopardy violations in Kunberger v. State.277 The facts alleged in a probable cause affidavit were insufficient to determine whether the same act served as the foundation for all three offenses. The278 defendant admitting to each offense’s elements was the only factual basis supporting the guilty plea. Thus, there was no basis for finding a double279 jeopardy violation.280 In Luke v. State, convictions for stalking and invasion of privacy violated281 double jeopardy principles under the actual evidence test. The evidence at the282 trial on invasion of privacy rested on the defendant’s violation of no contact 268. See id. at 757-64. 269. 45 N.E.3d 506, 508 (Ind. Ct. App. 2015). 270. 717 N.E.2d 32 (Ind. 1999). 271. Berg, 45 N.E.3d at 509 (quoting Spivey v. State, 761 N.E.2d 831, 833 (Ind. 2002)). 272. Id. at 509. 273. Id. at 510. 274. Id. 275. Id. at 511 (quoting Richardson, 717 N.E.2d at 56). 276. Id. The State had in fact conceded the issue and agreed to remand. Id. at 510. Despite this concession, Berg’s convictions were both affirmed. Id. at 511. 277. 46 N.E.3d 966, 972 (Ind. Ct. App. 2015). 278. Id. 279. Id. 280. Id. 281. 51 N.E.3d 401 (Ind. Ct. App.), trans. denied, 50 N.E.3d 147 (Ind. 2016). 282. Id. at 414. 1236 INDIANA LAW REVIEW [Vol. 50:1215 orders and testimony from victims. The same evidence was used at the trial on283 the stalking charges. The court rejected the State’s argument that the invasion284 of privacy convictions rested on the violations of the no contact order and that the stalking conviction rested on the course of conduct of contacting the victims.285 That argument simply could not overcome the “reasonable probability” that the jury used the same evidence to convict the defendant twice for the same conduct.286 VIII. PROPORTIONATE SENTENCES In Pittman v. State, the court held a six-year sentence for stalking did not287 violate article 1, section 16’s proportionality clause. The provision states “[a]ll288 penalties shall be proportioned to the nature of the offense.” Although the289 language sweeps broadly, its protections are limited. The court found the290 legislative decision to establish an advisory sentence of ten years for such an offense did not “shock public sentiment” or “violate the judgment of reasonable people.” The defendant had repeatedly called the victim, threatened to kill her,291 threatened her safety, and confronted her and her infant child with his mother’s guns.292 IX. THE R IGHT OF THE JURY TO D ETERM INE THE LAW AND THE FACTS IN C RIM INAL C ASES In Keller v. State, the Indiana Supreme Court held a “misleading” and293 expansive jury instruction as to the statutory definition of “dwelling” for a burglary conviction violated the Indiana Constitution. A rticle 1, section 19,294 provides that in all criminal cases “the jury shall have the right to determine the law and the facts.” By defining a “dwelling” to include both a “building,295 structure, or other enclosed space” and any “place a person keeps personal items with the intent to reside in the near future,” the instruction invaded the providence of the jury.296 283. Id. at 410. 284. Id. at 410-11. 285. Id. at 413-14. 286. Id. at 414. 287. 45 N.E.3d 805 (Ind. Ct. App. 2015). 288. Id. at 819 (citing IND. CONST. art. 1, § 16). 289. Id. at 818 (quoting IND. CONST. art. 1, § 16). 290. Id. 291. Id. at 819. 292. Id. 293. 47 N.E.3d 1205 (Ind. 2016), reh’g denied, No. 88S04-1506-CR-354, 2016 Ind. LEXIS 267 (Ind. Apr. 11, 2016). 294. Id. at 1207. 295. Id. at 1208 (citing IND. CONST. art. 1, § 19). 296. Id. at 1208-09 (citing Ludy v. State, 784 N.E.2d 459, 461 (Ind. 2003)). 2017] CONSTITUTIONAL LAW 1237 B y imposing on the definition a specific set of facts— any “place where a person keeps personal items with the intent to reside in the near future”— the instruction decided for the jury what constituted a conviction under the statute.297 Although an earlier court of appeals decision held such facts could support a conviction for burglary, that did not make the sam e language appropriate for a jury instruction.298 Justice M assa dissented on the basis that the trial court was placed in the position of relying either on the statutory text or to “further inform deliberations by incorporating the holding of [the White decision],” the court of appeals decision that found where a person kept his personal belongings constituted a “dwelling” for a burglary conviction. Such a place “is considered a dwelling,”299 and not optional for the jury to deem otherwise.300 In Williams v. State, the Indiana Suprem e Court held that although an301 officer’s testimony embraced the ultimate issue of guilt and invaded the province of the jury in violation of Indiana Constitution article 1, section 19, the admission of such evidence was nevertheless harmless. Implementing article 1, section 19,302 Indiana Rule of Evidence 704(b) prohibits witnesses from testifying as to a defendant’s guilt or innocence. Here, the officer’s testimony paraphrased all the303 elements of the offense. These factual assertions went to the ultimate opinion304 of whether the defendant was guilty, which was for the jury alone to decide.305 For example, the officer said there was “zero doubt in his mind that” the defendant dealt cocaine. The testimony did not just describe the offense’s306 elem ents, the testimony encompassed all of the offense’s elements including mens rea. Yet admission of the guilt opinion was harmless error because of the307 substantial, independent evidence supporting the jury’s verdict.308 X. TAKINGS In Boyland v. Hedge, the Indiana Court of Appeals held residential flooding309 caused by heavy rainfall did not constitute a taking through inverse condemnation. The plaintiffs claimed that county officials failed to remedy the310 297. Id. 298. Id. (citing White v. State, 846 N.E.2d 1026, 1031 (Ind. Ct. App. 2006)). 299. Id. at 1210 (Massa, J., dissenting) (citing White, 846 N.E.2d at 1031). 300. Id. (emphasis in original). 301. 43 N.E.3d 578 (Ind. 2015). 302. Id. at 583. 303. Id. at 580 (citing IND. R. EVID. 704). 304. Id. at 581-82. 305. Id. 306. Id. at 580. 307. Id. at 583. 308. Id. at 583-84. 309. 58 N.E.3d 928 (Ind. Ct. App. 2016). 310. Id. at 930-32. 1238 INDIANA LAW REVIEW [Vol. 50:1215 Dickey Ditch after multiple incidents of flooding. Under Arkansas Game &311 Fish Commission v. United States, damages resulting from temporary flooding312 can amount to a compensable taking. But rather than inducing flooding in313 Boyland as in Arkansas Game & Fish, the county officials took steps to address the flooding, including paying $14,000 to an engineering firm to address the flooding. The county officials never benefited from the flooding nor used the314 plaintiff’s property. Thus, the temporary occupation of the plaintiff’s homes by315 the flooding of the ditch did not constitute a public taking.316 XI. IM PRISONM ENT FOR D EBT In Whittaker v. Whittaker, the Indiana Court of Appeals held the trial court317 could use its contempt authority to enforce a spouse’s obligation pursuant a divorce decree. In most cases, Indiana Constitution article 1, section 22’s318 prohibition against imprisonment for debt and Indiana Trial Rule 69’s provisions for execution on a judgm ent m ake contempt unavailable for obligations to pay money. But a specific statute authorizes the enforcement of dissolution decrees319 by contempt. Therefore, the spouse did not have to execute on the judgment320 under Rule 69 of the Indiana Rules of Trial Procedure to enforce the decree by contempt.321 XII. R IGHT TO R EM EDY In Town of West Terre Haute Ind. v. Roach, the court of appeals held a322 town employee’s claim that the town failed to hold a pre-termination hearing did not support a claim for money damages under article 1, section 12 of the Indiana Constitution. The employee, an at-will utility clerk who handled payment of323 public funds, was terminated after a routine audit by the State Board of Accountants revealed missing funds. Others involved in the audit were arrested324 and pled guilty to felonies, but Roach was dismissed without a hearing.325 Roach sued under the article 1, section 12 “open courts” provision of the 311. Id. 312. 133 S. Ct. 511 (2012), 313. Boyland, 58 N.E.3d at 937. 314. Id. at 937-38. 315. Id. at 938. 316. Id. 317. 44 N.E.3d 716 (Ind. Ct. App. 2015). 318. Id. at 720. 319. Id. at 719 (citing Cowart v. White, 711 N.E.2d 523, 531 (Ind. 1999)). 320. Id. (citing IND. CODE § 31-15-7-10 (2016)). 321. Id. at 720. 322. 52 N.E.3d 4 (Ind. Ct. App. 2016). 323. Id. at 9. 324. Id. at 6-8. 325. Id. at 8. 2017] CONSTITUTIONAL LAW 1239 Indiana Constitution: “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase, completely, and without denial; speedily, and without delay.” The court, in an opinion by Senior326 Judge Shepard, noted the differences between this provision and the Due327 Process Clause of the federal Constitution, but found the case law did not support a notion that article 1, section 12 created a substantive right of action. Instead,328 “Indiana reflects the historic reasons why state constitutions contain open courts provisions.” Royal governors and other representatives from E ngland had329 closed courts as “a tool of repression.” This interference with the independence330 of the judiciary prompted states to enact open courts provisions but did not support a claim for money damages.331 326. Id.; IND. CONST. art. 1, § 12. 327. The former Chief Justice of the Indiana Supreme Court. See Justice Randall Terry S h epard, I N D . JU D I C I A L B R A N C H , h t t p : / / www. i n . go v/ j u d i c i a ry/ c i t c / 2 8 2 8 . h t m [https://perma.cc/A74Z-92WX] (last visited May 3, 2017). 328. Roach, 52 N.E.3d at 9. 329. Id. 330. Id. 331. Id.