Indiana Law Review


124 INDIANA LAW REVIEW [Vol. 10:124

V. Constitiitioiaal La^v

William E, Marsh*

A. Federalism

Indiana was a party in two recent cases, National League of
Cities V. Usery^ and Brennan v. Indiana,'^ challenging 1974 amend-
ments to the Fair Labor Standards Act (FLSA).' The FLSA,
originally enacted in 1938, establishes minimum wage and maxi-
mum hour protections for employees in the private sector. These
employee benefits were extended to most public employees by the
1974 amendments. Indiana challenged the constitutionality of ap-
plication of minimum wage and maximum hour provisions to state
employees as a party plaintiff in National League cj Cities v.
Usery, in the United States District Court for the District of

Columbia."* In Brennan v. Indiana,^ the state was defendant in
actions brought by the Secretary of Labor in the United States
District Court for the Southern District of Indiana to enforce the

FLSA. Both district courts and the Seventh Circuit, on appeal in
Brennan,'' upheld the 1974 FLSA amendments on the basis of
Maryland v. WirtzJ When National League of Cities v. Usery
came before the United States Supreme Court, the Court overruled
Wirtz and held the 1974 FLSA amendments unconstitutional.

Mr. Justice Rehnquist wrote the opinion for the Court. The
decision is not the most widely heralded case decided by the Court
in the 1975 term, but in the long run it may be the most significant.
Given its narrowest reading, this is one of the most significant
federalism decisions of the Court since 1937. Potentially, if the

broad ramifications of the decision suggested by Mr. Justice
Brennan in his dissent come to pass, the case may someday be

Associate Professor of Law, Indiana University School of Law—Indi-
anapolis. B.S., University of Nebraska, 1965; J.D., 1968.

The author extends his appreciation to Brian Schuster and Jerrilee
Sutherlin for their assistance in the preparation of this article.

^96 S. Ct. 2465 (1976).
^517 F.2d 1179 (7th Cir. 1975), vacated sub nom. Indiana v. Usery, 96

S. Ct. ai96 (1976). The Court vacated and remanded to the Seventh Circuit
for further consideration in light of its decision in National League of Cities
V. Usery.

^29 U.S.C. §§201-19 (1970).
M06 F. Supp. 826 (D.D.C. 1974).
^The district court proceedings were not reported.
*517 F.2d 1179 (7th Cir. 1975).
7392 U.S. 183 (1968). Wirtz upheld 1961 and 1966 amendments to the

FLSA, which extended the Act to cover fellow employees of those protected
by the 1938 Act and employees of hospitals and schools, including those
owned and operated by states.



1976] SURVEY—CONSTITUTIONAL LAW 136

studied alongside Marbury v. Madison'^ and Martin v. Hunter's
Lessee'' as landmarks in development of the federal system.

The FLSA, and the 1974 amendments to the Act, are based
on the power of Congress to regulate commerce among the states."^
In reviewing congressional exercise of the commerce power, de-
cisions of the United States Supreme Court invalidating legisla-
tion can be placed in two groups. First, there are those cases hold-
ing that Congress has overreached the power granted to it by the
Constitution. In these cases the judgment of the Court has been
that Congress has attempted to regulate an activity which is not
a part of commerce and the legislation is invalid simply because
Congress lacks the power to regulate the activity in question."
The second group of cases in which the Court has invalidated legis-
lation based on the commerce power includes those cases in which
the Court concludes the activity being regulated is subject to the

power of Congress under the commerce clause, but the legislation
is invalid because it contravenes a specific constitutional limitation

on the power of Congress.'^
An accurate assessment of which of these two lines of reason-

ing is the basis of the holding in a given case is indispensable to an
assessment of the future ramifications of the case. Cases in the

first group reflect the extent of the power granted to Congress by
the enumerated powers of the Constitution, whereas cases in the

second group define the specific limitations upon these enumerated

powers. It appears the decision in National League of Cities v.

Usery falls within the second group.

Mr. Justice Rehnquist begins his analysis by suggesting that
the plenary power of Congress to regulate commerce is not at issue
in this case.

It is established beyond peradventure that the Com-
merce Clause of Art. I of the Constitution is a grant of

plenary authority to Congress. . . . Appellants in no way

«5 U.S. (1 Cranch) 137 (1803).
'14 U.S. (1 Wheat.) 304 (1816).
'°U.S. Const, art. I, § 8, cl. 3.
''See, e.g., Carter v. Carter Coal Co., 298 U.S. 238 (1936).
'''See, e.g., United States v. Butler, 297 U.S. 1 (1936). This basic model

of constitutional decision making was first suggested by Chief Justice Mar-
shall in Gibbons v. Ogden, 22 U.S. 1 (1824). Chief Justice Marshall said:

We are now arrived at the inquiry—what is this power? It is the
power to regulate; that is, to prescribe the rule by which commerce
is to be governed. This power, like all others vested in congress, is

complete in itself, may be exercised to its utmost extent, and ack-
nowledges no hmitations, other than are prescribed in the con-

stitution.

Id. at 86.



INDIANA LAW REVIEW [Vol. 10:124

challenge these decisions establishing the breadth of au-

thority granted Congress under the commerce power.
Their contention, on the contrary, is that when Congress
seeks to regulate directly the activities of States as public

employers, it transgresses an affirmative limitation on the
exercise of its power akin to other commerce power
affirmative limitations contained ... in the Sixth Amend-
ment ... or the Due Process Clause of the Fifth Amend-
ment. . . . Appellant's essential contention is that the 1974

amendments to the Act, while undoubtedly within the
scope of the Commerce Clause, encounter a similar consti-
tutional barrier because they are to be applied directly to

the States and subdivisions of States as employers.'^

This introduction plainly suggests the Court is not concerned

with the scope of the commerce power, but with specific limita-
tions imposed on that power by other provisions in the Constitu-
tion. This characterization cannot, however, be made unequivocally,
since the opinion concludes

:

We hold that insofar as the challenged amendments op-
erate to directly displace the States' freedom to structure

integral operations in areas of traditional governmental

functions, they are not within the authority granted Con-

gress by Art. I, § 8, cl. 3.'^

A strict reading of this concluding paragraph would be incon-
sistent with the Court's earlier statement of the case, and it is
therefore probably not to be read too literally. Apart from this
one sentence, the opinion is squarely based on constitutional

provisions other than the commerce provision.
The constitutional provision which is held to restrict the

commerce power so as to preclude extension of the FLSA to public
employers is the tenth amendment. ^^ Justice Rehnquist wrote,

This Court has never doubted that there are limits

upon the power of Congress to override state sovereignty,
even when exercising its otherwise plenary powers to
tax or to regulate commerce which are conferred by Art.
I of the Constitution. . . . [A]n express declaration of
this limitation is found in the Tenth Amendment ....'*

'^96 S. Ct. at 2468-69 (citations omitted).

'^7d. at 2474.

'^U.S. Const, amend. X: "The powers not delegated to the United
"States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people."

'^96 S. Ct. at 2469-70.



1976] SURVEY—CONSTITUTIONAL LAW 127

Although the Court relied on Fry v. United States,'^ National
League of Cities v. Usery is the first case to invalidate congres-
sional legislation on the basis of the tenth amendment since
President Franklin D. Roosevelt announced his "court packing"
plan in February 1937. This fact is the most significant aspect of
the case and the source of the greatest concern regarding future
impact of the decision.

A reliable guide to future impact of a newly-announced rule
can often be found in the Court's statement of the rule. Justice
Rehnquist's statement provides some assistance in analyzing the
rule of this case

:

The question we must resolve in this case, then, is
whether these determinations [the wages to be paid public
employees, the hours they work and overtime compensa-
tion] are "functions essential to separate and independent
existence," ... so that Congress may not abrogate the
States' otherwise plenary authority to make them.'"

A further elaboration of which functions of a state govern-
ment and its political subdivisions are "essential to separate and
independent existence" is not given in the opinion. Some enlight-
enment may be found in the two reasons given by the Court for
its holding that establishment of wages, hours, and overtime
compensation by a public employer is such an essential function.
First, the Court cites the increase in costs for personnel which

the FLSA would impose on states. The opinion dramatizes this
factor by reciting allegations from the complaint, which the Court
accepts as true, regarding predicated costs and the programs
which plaintiffs assert they will be forced to abandon in order
to meet these increased costs."

'^421 U.S. 542 (1975). The Court found no tenth amendment violation
in wage regulations of the Economic Stabilization Act of 1970.

'«96 S. Ct. at 2471.

"The Court's use of these figures is an intriguing example of judicial
decision making. Plaintiff's complaint was dismissed by the district court
so there is no evidence before the Supreme Court at the time it is deciding
the case. Nonetheless, Justice Rehnquist says that since the district court

decided the case below on a motion to dismiss, the Supreme Court will take
all "well pleaded allegations as true." The Court in this case decides the
issue raised by the complaint on its merit by declaring the challenged legis-
lation unconstitutional. This is completely different from accepting well
pleaded allegations as true for the purpose of deciding, on a motion to
dismiss, whether the complaint states a claim upon which relief can be

granted. Fed. R. Civ. P. 12(b) (6). A decision on a 12(b) (6) motion has no
concrete impact on the basic controversy and benefits the plaintiff only if he

can prove that the facts are as he has alleged in the complaint. Here the case

has been decided on its merits, with the allegations providing part of the



128 INDIANA LAW REVIEW [Vol. 10:124

Justice Rehnquist minimizes the impact of these allegations,

emphasizing that they are not "crucial to resolution of the issue

presented . . . ."^° This leaves the conclusion that the critical fact

is that the FLSA would cost money.
The second reason the Court gives for holding that the 1974

amendments interfered with essential functions of sovereignty
is that "the Act displaces state policies regarding the manner in
which they will structure delivery of those governmental services
which their citizens require/'^ ^ This reason is more basic to the
judgment of the Court than the fiscal impact, but it gives little
guidance concerning the manner in which the Court will determine
what functions are essential.

Ramifications of the decision are wide open. The decision
revives the tenth amendment and many "overregulated" institu-
tions, public and private, will be anxious to utilize it. In that sense,
this could be the start of something big. The most significant
unanswered question, which is raised by Justice Brennan in
dissent, is the impact the decision will have on state legislation.
Mr. Justice Brennan says, "Certainly the paradigm of sovereign
action—action qtca State—is in the enactment and enforcement
of state laws."^^

The fears expressed by Justice Brennan are somewhat tem-
pered for the short term by the fact that Mr. Justice Blackmun,
the fifth member of the majority, qualifies his concurrence. In
his opinion, the case "does not outlaw federal powers in areas
such as environmental protection, where the federal interest is
demonstrably greater and where state facility compliance with
imposed federal standards would be essential.""

basis of the decision, yet the plaintiff will never be called upon to prove the
truth of the allegations.

Allegations of the fiscal implications of the amendments are not the
kinds of facts on which the Court would ordinarily base a decision without
some proof. The allegations are vague. For example, the estimate of Cali-
fornia as to impact on its budget varies by 100 percent; the estimate is
somewhere between 8 million and 16 million dollars. Some of the allegations
are incredible. The Court says that Cape Girardeau, Mo., estimated its annual
budget for fire protection might be increased by from $250,000 to $400,000
over the then-current figure of $350,000. 96 S. Ct. at 2471. Can it be possible
that the imposition of a minimum wage provision and time and a half for
overtime could more than double fire protection costs for any city?

^"96 S. Ct. 2474.

^^Id. at 2472. The Court noted that imposition of minimum wage require-
ments would interfere with a state's policy of hiring persons with little

training or experience, such as students, at lower wages.

227d. at 2485.

^^Id. at 2476. Justice Blackmun interprets the majority opinion as adopt-
ing a "balancing" approach.



1^6] SURVEY—CONSTITUTIONAL LAW 129

One significant issue left open by the case is the impact it
will have on existing, pervasive federal regulations which are
under broadside attack today. These bureaucratic regulations often

control decisions of state officials in a much more comprehensive
and restrictive way than the establishment of minimum wage
and overtime provisions. Possibly, if the court is willing to in-
validate congressional legislation on the basis of the tenth amend-
ment, the regulations of the bureaucrats will also be exposed to a

new level of scrutiny. At least, state officials who have been
very vocal in their dissatisfaction with federal regulations in

recent years will be given new confidence to challenge these
regulations in litigation in federal court.

B. Trial by Jury

In In re Public Law No. 305 & Public Law No. 309 of the Indi-
ana Acts of 1975,'^^ a sua sponte proceeding," the Indiana Supreme
Court followed recent federal decisions" and held that a statutory
provision for six-member juries is constitutional.

Upholding a statute^ ^ which requires six-member juries in

both civil and criminal cases in county courts, the supreme court
overruled Miller's National Insurance Co. v. American State
Bank,^^ in which it had held that the article 1, section 20, provision

of the Indiana Constitution holding the right to jury trial inviolate"

prevents the legislature from changing the number of jurors.
The court relied on Williams v. Florida,^° in which the United

States Supreme Court held provision for a six-member jury does
not offend the fourteenth amendment to the United States Consti-
tution,^' and noted the "obvious legislative intent" of the statute"

="334 N.E.2d 659 (Ind. 1975). This case is also discussed in Harvey,
Civil Procedure, supra, and Marple, Evidence, infra.

2=334 N.E.2d at 662. The court noted that while the Supreme Court tradi-
tionally does not issue opinions sua sponte, this legislation, reorganizing por-

tions of the state court system, required interpretation to give uniform effect

to the legislative mandate.

2*5ee, e.g., Cooley v. Strickland Transp. Co., 459 F.2d 779 (5th Cir.),

eert. denied, 413 U.S. 923 (1972) ; Lynch v. Baxley, 386 F. Supp. 378 (N.D.

Ala. 1974).

27IND. Code § 33-10.5-7-6 (Burns Supp. 1976).
2«206 Ind. 611, 190 N.E. 433 (1934).

"7d. at 515, 190 N.E. at 435. The court cited Allen v. Anderson, 57 Ind.

386 (1877), holding that inviolate means "continue as it was."
^°399 U.S. 78 (1970).

^'The Court held in Williams that jury membership need not be fixed at

twelve and individual states may develop their own views concerning larger
or smaller juries. Id. at 103.

"334 N.E.2d at 663.



130 INDIANA LAW REVIEW [Vol. 10:124

in holding that provision for six-member juries violates neither
the Federal nor the Indiana Constitution.

C. Equal Protection

1. Classification Based on Sex

In Kinslow v. Cook"^^ the Indiana Court of Appeals held that

a mother was denied equal protection by the requirement of former
Indiana Code section 34-1-1-8 that she show death, desertion, or
imprisonment of her child's father before being permitted to sue

in her own right for wrongful death of that child.^^ The com-
plaint was filed by Mr. and Mrs. Kinslow as mother and father,
and Mrs. Kinslow as administratrix of her son's estate.^^

The court began its review of the statute with traditional
low scrutiny language,^* but struck down the classification and
the statute, treating the legislature with less than maximum
deference. Quoting Haas v. South Bend Community School Corp.,^^
the Kinslow court held

:

In order to withstand a constitutional challenge founded

upon a denial of equal protection the statutory classifica-
tion . . . must be reasonable . . . and mu^t rest upon some
ground of difference having a fair and substantial relation

"aa3 N.E.2d 819 (Ind. Ct. App. 1975).
^'^The constitutionality of the following portion of the old statute was at

issue: "A father, or in case of his death, or desertion of his family, or im-
prisonment, the mother, . . . may maintain an action for the injury or death
of a child . . . ." Ind. Code § 34-1-1-8 (Bums 1973). The statute was amended
in 1975 to provide: "The father or mother jointly, or either of them by naming
the other parent as a co-defendant to answer as to his or her interest . . .
may obtain an action for the injury or death of a child . . . ." Ind. C<H)E
§ 34-1-1-8 (Burns Supp. 1976).

^^Although refusing to decide whether Mrs. Kinslow had been errone-
ously dismissed as administratrix, the court noted that she obviously could

not recover as both parent and administratrix under Indiana law.
36"The equal protection guarantees of both state and federal constitutions

do not prohibit statutory classifications so long as they are reasonable and
not arbitrary." 333 N.E.2d at 821 (emphasis added). Standards of review

appropriate to an equal protection case include a range from (1) a "strict"
or "high scrutiny" test, applied to classifications based on certain "suspect"

traits such as race or national origin, or which impinge on fundamental rights
such as the right to travel or associate freely, to (2) a "low scrutiny" test,
which presumes the constitutionality of the classification being examined.
Under high scrutiny a statute will be invalidated unless it is justifed by a
compelling governmental interest. When the low scrutiny test is applied the
statute is valid if there is a reasonable relationship to a governmental interest.

=^7259 Ind. 515, 289 N.E.2d 495 (1972). For an extensive discussion of this

case see Stroud, Sex DiscrimiTiation in High School Athletics, 6 iND. L. Rev.

661 (1973).



1976] SURVEY—CONSTITUTIONAL LAW l»l

to the object of legislation, so that all persons similarly

circumstanced shall be treated alike.'®

Under classic low scrutiny any "reasonably conceivable" set of
facts may justify a statutory classification." Terms like "substan-
tial relationship" and "all persons similarly circumstanced" sug-
gest that the court looked more closely at the classification than
required by the low scrutiny test. Classification on the basis of

sex appears to have triggered an intermediate level of review.

The court's failure to defer to legislative judgment is appar-
ent in the closeness with which it scrutinized the stated purpose

of the classification. Defendant asserted that a rational basis for

the classification lay in its prevention of double recovery, dis-

allowing an action in the name of each parent. Selection of the
father as the one to bring the action was asserted to be permissible
because of his superior right to the child's services and primary

duty of support.

The court found that this purpose did not require preference
of one parent over another, observing that the double recovery

argument loses its force in view of the ease with which the
omitted parent can be joined.^° Assuming, however, that the

double recovery purpose was served by providing a preferred
class, the court disagreed with defendant's assertion that the

preference of father over mother was reasonable. The court
referred to recent legal trends undercutting the assertion that the

^^333 N.E.2(i at 821 (emphasis in original). The language in Haas is
taken from Reed v. Reed, 404 U.S. 71, 76 (1971). The court also cites Stanton
V. Stanton, 421 U.S. 7 (1975), and Indiana High School Athletic Ass'n v.
Raike, 329 N.E.2d 66 (Ind. Ct. App. 1975). Both Reed and Stanton deal with
classification based on sex. In Raike the court recognized a classification
bearing on the right of married persons to participate in high school ath-
letics as triggering an intermediate type of scrutiny. See Stanmeyer, Coti^
stitutional Law, 1975 Survey of Recent Developments in Indiana Law, 9<
Ind. L. Rev. 99, 100-01 (1975), for a discussion of intermediate scrutiny.

This test calls for a fair and substantial relation between the classification
and the legislative purpose.

^'Classic low scrutiny is defined by Professor Stroud as follows:
First, the burden of showing the invalidity of the statutory classifi-
cation is on the person asserting such invalidity. Secondly, it is
sufficient to find any "reasonably conceivable" legitimate government
purpose in the classification. Thirdly, a court will assume as true
any "reasonably conceivable" set of facts which show that the
members of the class burdened by the statute do possess the purpose-
trait, i.e., are those persons similarly situated with respect to the
purpose of the statute. Fourth, a court accepts as reasonable a sig-
nificant deviation from the ideal classification in the form of under-
inclusion and over-inclusion.

Stroud, swpra note 37, at 663-64 (footnotes omitted).
^°333 N.E.2d at 821 n.4.



132 INDIANA LAW REVIEW [Vol. 10:124

father's rights and duties are superior/' and held that recognition
of the father's primary rights and duties includes a tacit admis-
sion of the mother's secondary rights and duties which could
allow damages to go to her.

The court found the classification was "arbitrary" and not
based on "some ground of difference" between the parents sub-
stantially related to the object of the legislation.'^^

2. Classic Low Scrutiny for Economic Classification

In Allen v. Pavach,"^^ the Indiana Supreme Courf*^ refused
to strike down a classification favoring surety bondsmen, who
are employed by insurance companies, over professional bondsmen
with respect to the amount of deposit required to obtain a license
and limitations on bail bonds written. The court cited Dandridge
V. Williams^^ and clearly indicated that it was applying low level
scrutiny : " [L] egislative classifications will not be set aside if any
state of facts rationally justifying them is demonstrated to or
perceived by the courts."^' Citing statutory provisions which
require insurers to maintain substantial assets,'*^ the court found

a rational basis for a $25,000 difference in deposit requirements

between the two classes of bondsmen. Over-inclusion and under-

inclusion did not concern the court. "If the classification has some

reasonable basis, it does not offend the Constitution merely because

the classification is not mathematically precise or because in

practice it results in some inequality.""^®

Discriminatory classification involved in limiting the amount

of bail bonds which may be written by professional bondsmen
and setting no limit for surety bondsmen was not dealt with

in detail. The court relied on its discussion of the deposit issue

^^The court cited Troue v. Marker, 253 Ind. 284, 252 N.E.2d 800 (1969)

for the proposition that spouses are equal before the law, and a section of the

Indiana Code as establishing equality between parents with respect to support

obligations. See Ind. Code §31-1-11.5-12 (Burns Supp. 1976).
^=333 N.E.2d at 822.

^^335 N.E.2d 219 (Ind. 1975).

'''*Chief Justice Givan wrote the opinion, in which Justices Arterburn and

Hunter concurred. Justice Prentice dissented without opinion and Justice

DeBruler concurred in the result.

"^^397 U.S. 471 (1970). Dandridge^ a classic low scrutiny case, is discussed

in Stroud, supra note 37, at 664.

^*335 N.E.2d at 222.

^^IND. Code §§ 27-1-6-15 to -16 (Burns 1975) and 23-1-16-2 (Burns 1972).

The court also cited Ind. Code § 27-1-1-1 (Burns 1975), which provides for

control over insurance companies by the Department of Insurance.

^»335 N.E.2d at 222.



1976} SURVEY—CONSTITUTIONAL LAW 133

and quoted at length from Ferguson v. Skrupa*'* which espoused
a hands-off policy with respect to economic classification.

Justice DeBruler in his concurring opinion favored more
fact-finding below, inquiring into the existence of a "rational

basis for the disparate treatment . . . ."^°

3. Indiana's Guest Statute

In Sidle v. Majors,^^ the United States Court of Appeals for

the Seventh Circuit upheld the Indiana guest statute" in the face

of an equal protection challenge. Plaintiff, a guest in an Indiana
automobile, sued her Indiana host for negligence and for wanton
or willful misconduct. The parties proceeded to trial on the count
for wanton or willful misconduct, but defendant was granted
summary judgment on the general negligence claim, on the basis
of the guest statute. Pursuant to Indiana Appellate Rule 15 (N)*^

the court of appeals certified to the Indiana Supreme Court ques-
tions of validity under the Indiana Constitution,^'* and the supreme
court consolidated Sidle with a state case in which the trial court
had ruled the guest statute unconstitutional." Noting an obliga-

tion to refrain from undue interference with the legislature and

a general presumption of a statute's constitutionality, the court

^'372 U.S. 726 (1963).
^°335 N.E.2d at 224-25.
^'536 F.2d 1156 (7th Cir.), cert, denied, 97 S. Ct. 366 (1976).
"IND. Code § 9-3-3-1 (Burns 1973), which provides:
The owner, operator, or person responsible for the operation of a
motor vehicle shall not be liable for loss or damage arising from
injuries to or death of a guest, while being transported without pay-

ment therefor, in or upon such motor vehicle, resulting from the
operation thereof, unless such injuries or death are caused by the
wanton or wilful misconduct of such operator, owner, or person
responsible for the operation of such motor vehicle.
^^Ind. R. App. p. 15 (N) provides for certification of questions of s-tate

law from federal courts to the Indiana Supreme Court.
^'^Sidle V. Majors, 341 N.E.2d 763 (Ind. 1976). See 9 Ind. L. Rev. 885

(1976). Specifically, the Seventh Circuit wanted an opinion about possible

violation of art. 1, section 12, and art. 1, section 23, of the Indiana Constitu-

tion. iND. Const, art. 1, § 12, provides:

All courts shall be open; and every man, 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.
Ind. Const, art. 1, §23, provides: "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."

^^Dempsey v. Leonherdt, 341 N.E.2d 763 (Ind. 1976). Review in such a

case proceeds directly to the supreme court under Indiana Rule of Appellate

Procedure 4(A) (8).



134 INDIANA LAW REVIEW [Vol. 10:124

rejected plaintiff's contention that high level scrutiny was ap-
propriate,^* and viewed the equal protection claim in these terms

:

Our guest statute precludes a guest passenger from
recovering damages for personal injuries sustained
merely by the negligence of the owner or operator. Being
inoperative as to passengers who were not guests, the
statute creates two classifications of passengers—guests
and non-guests, who are treated vastly differently under
circumstances that are otherwise identical. The inequity
is patent. The issues are whether or not the classification
is reasonable and bears a fair and substantial relation to
the legitimate purpose of the statute. The presumptions
are that it is and does, and the burden is upon the plain-
tiff to show the contrary.*^

The court found two "reasonably conceivable" legitimate
governmental purposes for the statute—fostering hospitality
through insulating generous drivers from suit by ungrateful
guests and eliminating collusive suits. Although acknowledg-
ing that these purposes are not immediately perceived from a
reading of the statute and no legislative history is available, the
court determined that it could look to any possible logical purpose
for the statutory classification, even if "considerable speculation"

was required.
The court found a third possible purpose for the legislative

classification—prevention of the "benevolent thumb" syndrome.
This was described as the tendency of juries, perceiving the real
defendant to be an insurance company, "to weigh their 'benevo-
lent thumbs' along with the evidence of the defendant's negli-

gence."^®

Having identified three probable purposes of the statute, the
court held that resulting over-inclusion or under-inclusion would

be acceptable: "We think it no constitutional infirmity that a
statute may not operate to perfection, if it may reasonably be
expected to operate effectively."^'

Thus, applying pure low scrutiny reasoning and according

maximum deference to the legislature, the court found the guest
statute was not violative of the state equal protection clause.*®

^*341 N.E.2d at 766. Plaintiff argued that the right to bring a common
law negligence suit is a fundamental right.

^Ud. at 767.

^8/d. at 772.

^"Id, at 770.

*°The court also concluded that the statute did not violate art. 1,

section 12, of the Indiana Constitution.



1976] SURVEY—CONSTITUTIONAL LAW 135

The Seventh Circuit did not agree with the analysis of the
Indiana Supreme Court, but reached the same conclusion on the
basis of a Utah case which was appealed to the United States
Supreme Court/' The Utah court upheld the guest statute and the
appeal was dismissed for want of a substantial federal question.
Such a dismissal is an adjudication on the merits and thus binding
on the circuit courts."

Before reaching that result, the Seventh Circuit rejected the

legislative purposes advanced by the Indiana court, suggesting
that widespread liability insurance eliminates notions of ingrati-

tude and that the anticollusion purpose is not met when guest and
host are still free to collude on the existence of compensation or
the existence of willful or wanton misconduct. Looking to the new
"benevolent thumb" theory, the court noted that in Connecticut
no reduction in automobile insurance premiums followed enactment
of a guest statute.

The court distinguished Silver v. Silver,'''^ sl 1929 case relied
on by the Indiana court, in which the United States Supreme
Court upheld a guest statute against an equal protection attack

based on the statute's application to motor vehicles only, as dis-
tinguished from other forms of transportation. Silver did not deal
with the division of possible plaintiffs into burdened and benefited
classes. In light of the age of the Silver decision, changes in the

economic climate, the split among courts dealing with the ques-
tion,''^ and the different nature of the equal protection claim now
advanced, the Seventh Circuit suggested that there is a need for

conclusive resolution of the issue.

* 'Cannon v. Oviatt, 520 P.2d 883 (Utah), appeal dismissed for want of
a substantial federal question, 419 U.S. 810 (1974).

"Hicks V. Miranda, 422 U.S. 332, 344-45 (1975). Appellate jurisdiction
under 28 U.S.C. § 1257(2) is not discretionary, and thus dismissal because the
court has branded the federal question insubstantial amounts to adjudication
on the merits.

"280 U.S. 117 (1929).
**Cases which have upheld guest statutes include: Richardson v. Hansen,

527 P.2d 536 (Colo. 1974); Justice v. Gatchell, 325 A.2d 97 (Del. 1974);
Delany v. Baedame, 49 111. 2d 168, 274 N.E.2d 353 (1971) ; Keasling v. Thomp-
son, 217 N.W.2d 687 (Iowa 1974); Duerst v. Limbocker, 525 P.2d 99 (Or.
1974); Behrns v. Burke, 229 N.W.2d 86 (S,D. 1975); Cannon v. Oviatt, 520
P.2d 883 (Utah), appeal dismissed for want of a substantial federal question,
419 U.S. 810 (1974). Cases which have declared guest statutes unconstitu-
tional as a violation of equal protection include: Brown v. Merlo, 8 Cal. 3d
855, 506 P.2d 212 (1973) ; Thompson v. Hagan, 96 Idaho 19, 523 P.2d 1365
(1974); Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974); Manistee
Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975);
Laakonen v. Eighth Jud. Dist. Ct., 538 P.2d 574 (Nev. 1975) ; Johnson v.
Hassett, 217 N.W.2d 771 (N.D. 1974); McGeehan v. Bunch, 88 N.M. 308,
540 P.2d 238 (1975).



136 INDIANA LAW REVIEW [Val. 10:124

D. Substantive Due Process

In Fitzgerald v. Porter Memorial Hospital,^^ the Seventh Cir-
cuit Court of Appeals refused to extend the doctrine of marital

privacy to include a right of a father to be present in the delivery

room when his child is born if the public hospital has prohibited
his presence for medical reasons. The court also held that exclusion
of the father did not improperly restrict the right of a physician

to practice medicine.

Plaintiffs brought suit in district court for a temporary re-
straining order, declaratory relief, and damages. Plaintiffs re-
quested different remedies depending upon whether or not their
child had been born; their request for class certification was not
ruled on.*** Jurisdiction was premised on 42 U.S.C. § 1983, and the
first, fourth, ninth, and fourteenth amendments to the United
States Constitution. After hearing testimony of one physician for

the plaintiffs and taking affidavits from both sides, the district
court granted defendant's motion to dismiss both the request for a

temporary restraining order and the underlying claim. The motion
to dismiss was granted on the grounds that plaintiffs lacked stand-
ing to assert the right of their doctors*^ and, since the hospital was
not denying access to facilities or totally disapproving a recog-

nized operation, the complaint failed to state a cognizable claim.

On appeal, plaintiffs sought to have the case reversed and re-
manded for consideration on the merits at the district court level.

Judge Stevens, writing for the majority of the Seventh Cir-

cuit panel, upheld the dismissal for failure to state a cognizable

claim. The court noted that the right to privacy protects indi-
viduals from "unwarranted public attention, comment or exploi-
tation,"*^ and lamented a new breed of privacy cases designed to
secure other types of protection. The court determined that the
decision to allow a father's presence and participation during the

birth of his child is not an issue which requires constitutional
protection.

The birth of a child is an event of unequalled importance
in the lives of most married couples. But deciding the
question whether the child shall be born is of a different

magnitude from deciding where, by whom, and by what
method he or she shall be delivered. In its medical aspects,

*5523 F.2d 716 (7th Cir. 1975), cert, denied, 96 S. Ct. 1518 (1976).

'^-/d. at 719.

*''The court of appeals did not agree on the standing issue, but refrained

fr^m reversing the district court on that question since the determination of

failure to state a claim was dispositive of the case.
"523 F.2d at 719.



1976] SURVEY—CONSTITUTIONAL LAW 137

the obstetrical procedure is comparable to other serious

hospital procedures. We are not persuaded that the mar-
ried partners' special interest in their child gives them
any greater right to determine the procedure to be fol-
lowed at birth than that possessed by other individuals

in need of extraordinary medical assistance/'

Since plaintiffs implicitly acknowledged that the husband

had no right to be present absent consent of the attending phy-

sician, the court indicated that they should also recognize the

necessity for hospital approval based on medical reasons. The
court thus held that a hospital may exclude a father from the
delivery room if that exclusion is for medical reasons/®

Plaintiffs had also asserted that the hospital rule interfered

with their doctors' right to practice medicine. The court was
unpersuaded, holding that the right asserted by plaintiffs was
not entitled to constitutional protection and thus their physicians

were not unconstitutionally restricted. The court concluded by
deferring to the medical profession, suggesting that courts should

not become involved in deciding the medical desirability of having

fathers in the delivery room.

Focusing on the fact that no hearing on the merits was held
at the district level, the dissent favored reversal and remand for
trial.^' Quoting at length from affidavits submitted by plaintiffs'
expert supporting the medical desirability of permitting fathers

to be present during delivery, the dissent found the right within

the physician-patient relationship and within the right of a patient

to control the manner in which his or her body is dealt with. The
dissent also found the reasons presented by the hospital for its
rule to be "so non-compelling as to be virtually non-existent . . . .""

E. Free Speech

In Stults V. State/^ the Indiana Court of Appeals examined

circumstances surrounding a charge of disorderly conduct and

found that certain modes of speech are not constitutionally pro-

tected and may constitute criminal conduct.

*'/d. at 721.

^°The primary reason presented by the hospital for its rule was that the

physical arrangement of the labor and delivery rooms would allow laboring

mothers to be seen from a common corridor by husbands of other women.
The hospital also relied on absence of facilities for husbands to put on

surgical gowns. Id. at 718 n.6.
7 '523 F.2d at 722-24 (Sprecher, J., dissenting).

72/d. at 724.

7^336 N.E.2d 669 (Ind. Ct. App. 1975).



138 INDIANA LAW REVIEW [Vol. 10:124

Defendant was stopped by off-duty policemen working as
security guards in a discount department store who suspected her
and her sister of shoplifting. The sisters objected to being stopped.
An argument ensued, a group of onlookers gathered, and the
women's language became loud and interspersed with curses. One
of the policemen warned the defendant to "cease with the language
and all the noise,"'* and eventually both women were arrested and
charged with disorderly conduct. A search later revealed that they
had no merchandise in their possession and thus were not guilty
of shoplifting as the guards had suspected.''^

A municipal court jury found the defendant guilty of dis-
orderly conduct and she was sentenced to pay a fine of $15 and
$50 costs. The Criminal Court of Marion County affirmed and
this appeal was filed.

Defendant contended that the disorderly conduct statute'*

had been previously construed to apply to "pure speech"

—

i.e.

spoken words unaccompanied by other acts—only if that speech
has a tendency to lead to violence,'' and that her behavior merely
aroused the curiosity of onlookers.'® While the court did not de-

termine whether the defendant's contention had merit," it ruled
that her speech fell directly into the category of "fighting words"
which the Supreme Court has held constitutionally unprotected

7^/d. at 671.

^^Id. In Indiana there is no offense known as "shoplifting." The behavior
usually referred to as shoplifting is a violation of a section of the Offenses

Against Property Act, Ind. Code § 35-17-5-3 (a) (Burns 1975) (repealed
effective July 1, 1977).

7*lND. Code § 35-27-2-1 (Burns 1975) (repealed effective July 1, 1977),
provides

:

Whoever shall act in a loud, boisterous or disorderly manner so
as to disturb the peace and quiet of any neighborhood or family, by
loud or unusual noise, or by tumultuous or offensive behavior,
threatening, traducing, quarreling, challenging to fight or fighting,

shall be deemed guilty of disorderly conduct, and upon conviction,
shall be fined in any sum not exceeding five hundred dollars [$500]
to which may be added imprisonment for not to exceed one hundred
eighty [180] days.

7^336 N.E.2d at 673. See also Hess v. State, 260 Ind. 427, 297 N.E.2d 413

(1973) ; Miller v. State, 258 Ind. 79, 279 N.E.2d 222 (1972) ; Whited v. State,

256 Ind. 386, 269 N.E.2d 149 (1971).

^^Defendant also argued that the entire incident arose because the police

wrongfully accused her of shoplifting; that her speech was only directed

toward police officers and as such a conviction for disorderly conduct cannot

lie; and finally that the trial court erred in not giving certain instructions

tendered by the defendant.

^'The court noted, "No case has held that the failure of the proscribed

speech behavior to produce violence is proof that the speech behavior did not

have the tendency to lead to violence." 336 N.E.2d at 673.



1^76] SURVEY—CONSTITUTIONAL LAW 139

since 1942.*° Thus, although defendant's conduct was "pure
speech," her behavior was not constitutionally protected. In affirm-
ing the disorderly conduct conviction, the court carefully limited

its holding:

We must note that we do not hold that speech con-
taining vulgarities or obscenities is per se constitution-

ally unprotected. . . . Nor do we hold that "fighting
words" per se constitute a violation of the disorderly con-

duct statute. Instead, we hold that personal epithets and
verbal abuse (which may or may not contain vulgarities
or obscenities) do not enjoy constitutional protection,

and that engaging in such activity may under certain cir-
cumstances constitute disorderly conduct.®'

F. Zoning

In City of EvansvUle v. Reis Tire Sales,^^ the court of appeals

held that a city zoning ordinance unconstitutionally restricted the

owner's use of proi)erty.

Reis was the owner of vacant real estate in Evansville which
had been restrictively zoned for single family residences. Con-
tending that the condition of the terrain substantially increased

the cost of construction, Reis applied to the Area Plan Commis-
sion for rezoning to build multifamily residential apartments,

development which would bring a greater return on investment
and thus justify increased costs of construction. The commission
recommended the change, but the Evansville Common Council
denied the application for rezoning. Reis brought suit requesting

a declaratory judgment allowing him to develop the property with
multifamily dwellings.®^

Evidence was presented at trial substantiating the claim that
increased costs of developing the property would make it unprofit-
able to build single family residences. The city introduced evidence
that building multiresidence apartments would create a safety

«°Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

:

There are certain well-defined and narrowly limited classes of speech,

the prevention and punishment of which have never been thought to

raise any Constitutional problem. These include the lewd and obscene,

the profane, the libelous, and the insulting or "fighting" words—^those
which by their very utterance inflict injury or tend to incite an im-

mediate breach of the peace.

Id. at 571-72.

«'336 N.E.2d at 674.

»'333 N.E.2d 800 (Ind. Ct. App. 1975).

°^The suit also requested a mandate for issuance of a building permit

for such use. IcL at 801.



140 INDIANA LAW REVIEW [Vol. 10:124

hazard due to increased traffic in the otherwise single family resi-

dential area.

The trial court entered judgment for Reis, ruling that the
zoning ordinance as it applied to the property in issue violated

article 1, sections 21 and 23 of the Indiana Constitution^'* and the
fifth and fourteenth amejidments to the United States Constitu-
tion.®^

On appeal, the court acknowledged that zoning is a proper
exercise of the state's police powers, but noted that exercise of

that power may result in a taking of property without proper com-
I)ensation, in violation of constitutional law.°* While every burden
placed on property is not to be viewed as a confiscation or taking,®'
zoning which prevents any use of property for any reasonable
purpose is unconstitutional.®®

Finding sufficient evidence to support a determination that

Reis's property could not reasonably be used for the purpose for

which it had been zoned, the court of appeals affirmed the lower
court decision and held the ordinance unconstitutional as applied
to the property in issue.®'

^'^IND. Const, art. 1, § 21, provides: "No man's property shall be taken
by law, without just compensation; nor, except in case of the State, without
such compensation first assessed and tendered." See note 54 supra for the
text of IND. Const, art. 1, § 23.

®^The pertinent language is: "nor be deprived of life, liberty, or property,

without due process of law; nor shall private property be taken for public

use, without just compensation." U.S. Const, amend. V. The fourteenth
amendment applies this provision to the states.

''^The court relied on Town of Homecroft v. Macbeth, 238 Ind. 57, 148
N.E.2d 563 (1958) ; Board of Zoning App. v. Koehler, 244 Ind. 504, 194 N.E.
2d 49 (1963) ; and Metropolitan Bd. of Zoning App. v. Sheehan, 313 N.E.2d 78
(Ind. Ct. App. 1974). These opinions are grounded on Village of Euclid v.
Ambler Realty Co., 272 U.S. 365 (1926), in which the Supreme Court held
that zoning ordinances may be constitutional police power if asserted for the
public welfare. Whether such assumption of power is legitimate was found
to depend on surrounding circumstances and conditions.

»7The court cited Board of Zoning App. v. Schulte, 241 Ind. 339, 172
N.E.2d 39 (1961), in which the Indiana Supreme Court stated, "The result-
ing depreciation in value to certain private property as a result of the passage

of a zoning ordinance which is for the general welfare, health or safety is
not a ground for unconstitutionality." Id. at 348-49, 172 N.E.2d at 43.

»°333 N.E.2d at 802, citing Homecroft v. Macbeth, 238 Ind. 57, 148 N.E.2d
563 (1958). A zoning ordinance was found unconstitutional in Homecroft
because it deprived the owner of use of his property for any purpose for which
it was reasonably adapted. The Homecroft court cited Arverne Bay Constr.
Co. V. Thatcher, 278 N.Y. 222, 232, 15 N.E.2d 587, 592 (1938): "[Aln ordi-
nance which permanently so restricts the use of property that it cannot be
used for any reasonable purpose goes, it is plain, beyond regulation, and must
be recognized as a taking of property." 238 Ind. at 68, 148 N.E.2d at 669

(court's emphasis).
«'333 N.E.2d at 802.



1976] SURVEY—CONSTITUTIONAL LAW 141

In Board of Commissioners v. Kokomo City Plan Commis-
sion,''° the Indiana Supreme Court was asked to decide whether a
statute authorizing extraterritorial land use planning was consti-
tutional. The statute at issue" places cities in two categories. In
one category are all cities in counties with master plans and a

population of less than 84,000. The other category includes all
cities having a master plan and a population of more than 84,000.
A city in the former category may exercise extraterritorial plan-
ning on its own discretion ; a city in the latter category must gain
county approval in order to exercise authority outside its boun-

daries.'^ The record established that Howard County had a popula-
tion of 83,000 and had enacted a master plan.

Suit was brought by the Board of Commissioners of Howard
County alleging that the statute, which allowed the Kokomo City
Plan Commission to exercise its authority outside the physical

boundaries of the city without county approval, was unconstitu-
tional in that it violated the fifth and fourteenth amendments to

the Constitution guaranteeing equal protection and that the statute

also violated article 4, section 23, of the Indiana Constitution.'^

On cross motions for summary judgment, the trial court
upheld the statute. The court of appeals reversed, holding that

under article 4, section 23, of the Indiana Constitution the statute

was unconstitutional.'^ The Indiana Supreme Court granted a

petition to transfer and affirmed the trial court judgment.

Although the court engaged in an enlightening discussion of

judicial review in equal protection cases, it never reached the

merits, since it determined that the Board lacked standing.

Holding that none of the constitutional provisions relied on by

the Board" provide protection for a county, the court held

:

Since the constitutional provisions have not been con-

strued to assure a county, as a governmental entity, rights

equal to those granted other counties, and since a county

has not been recognized as a sovereign which may protect

'°330 N.E.2d 92 (Ind. 1976), rev'g 310 N.E.2d 877 (Ind. Ct. App. 1974).

See Shaffer, Administrative Law, supra, for another discussion of this case.
"iND. Code § 18-7-5-34 (Burns 1974).
"330 N.E.2d at 98.
'3/d. at 95.

'^310 N.E.2d 877 (Ind. Ct. App. 1974).

'^The County Commissioners contended that the challenged legislation

contravened "the Fourteenth Amendment, § 1, of the United States Constitu-

tion and Art 1, §§ 21 and 23, and Art. 4, §§ 22 and 23 of the Indiana
Constitution." 330 N.E.2d at 99.



142 INDIANA LAW REVIEW [Vol. 10:142

its citizens, we find that the County has no standing to
raise the issue of constitutionality of this statute.'*

The court perceived article 1, section 1, of the Indiana Constitu-
tion as guaranteeing the political and civil rights of only the human
inhabitants of the state. Indiana's privileges and immunities clause
was held applicable only to "citizens," and a county, which is not
a citizen, is not protected. Similarly, the county was deemed to
lack status to invoke article 4, section 23, of the Indiana Constitu-

tion,'^ but the court noted that an individual or nongovernmental
corporation adversely affected by a statute would have standing
to invoke this provision, which prohibits local or special laws.

The court did suggest in dictum that, as the record stood,
the statute would have withstood low level scrutiny or the "rea-
sonableness" test defined in the opinion, since the Board had not
carried its burden of proof to overcome a presumption of consti-
tutionality.'*

VI. Consumer Law

David W. Gray*

During the current survey period, major developments in
consumer law involved the extension and redefinition of protec-
tions and remedies which were developed in previous years. Al-
though no new major consumer-oriented legislation was enacted
this year, several federal statutes were amended to extend or
change their coverage.^ Noteworthy cases in this survey period

^''Id, at 101.

^^The court noted that no claim was made that the county, as a govern-
mental entity, was injured by the statute and that such a claim would not be
valid against the power of the state over its subdivisions.

'»330 N.E.2d at 101.
*Member of the Indiana Bar. Law Clerk for the Honorable S. Hugh

Dillin. A.B., Indiana University, 1972; J.D., Indiana University School of

Law—^Indianapolis, 1975.
The author extends his appreciation to Barbara Banks for her assistance

in preparing this discussion.

'Consumer Leasing Act of 1976, Pub. L. No. 94-240 (Mar. 23, 1976),

amends the Truth in Lending Act, 15 U.S.G. §§ 1601-65 (1970) ; and the

Equal Credit Opportunity Act Amendments of 1976, Pub. L. No. 94-239

(Mar. 23, 1976), amends the Equal Credit Opportunity Act of 1974, 15

U.S.C. §§1691-91f (Supp. V, 1975); the Consumer Goods Pricing Act of

1975, Pub. L. No. 94-145 (Dec. 12, 1975), repealed a section of the Sherman

Antitrust Act, 15 U.S.C. §1 (1970), and a section of the Federal Trade

Commission Act, 15 U.S.C. § 45 (1970).