Indiana Law Review Indiana Constitutional Developments: A Quiet Year Jon Laramopie* The most noteworthy aspect of developments in Indiana constitutional law during the survey period may be the absence oftruly noteworthy developments. In the eight years the Indiana LawReview has surveyed this subj ect, this year had the fewest significant decisions to report. As in recent years, Indiana's appellate courts have continued to refme unique state constitutional doctrines in areas such as search and seizure and multiple punishments doublejeopardy, but no blockbuster cases arose in those areas. Nor were there many significant cases in other areas of state constitutional jurisprudence. I. Cases Addressing Structural Provisions of the Indiana Constitution The most significant case addressing the structural provisions ofthe Indiana Constitution, and likely the most noteworthy state constitutional case in the public eye during the survey period, was League of Women Voters ofIndiana, Inc. V. Rokita,^ a case challenging Indiana's voter identification statute on state constitutional grounds.^ Indiana's restrictive voter identification law had already withstood a federal constitutional challenge that was ultimately adjudicated in the U.S. Supreme Court.^ Indiana's statute requires those who vote in person at the polls on election day to present a government-issued photo identification card with an expiration date."^ In its opinion, the Indiana Supreme Court pointed out that the plaintiffs in this case presented a facial challenge to the voter identification law and that the Indiana Supreme Court had previously expressed its wariness of such challenges.^ The Indiana Supreme Court first rejected the plaintiffs' claim that * Partner, Baker & Daniels LLP, Indianapolis, Indiana. The author was formerly chieflegal counsel to Indiana Governors Frank O'Bannon and Joseph E. Keman and an adjunct faculty member at Indiana University School of Law—Indianapolis, where he taught state constitutional law. 1. 929 N.E.2d 758 (Ind. 2010). 2. The Indiana Court of Appeals had ruled that the voter identification law was unconstitutional under the equal privileges and immunities clause ofthe state constitution because its different treatment ofmail-in absentee voters was not reasonably related to inherent differences between mail-in absentee voters and in-person voters. League of Women Voters of Ind., Inc. v. Rokita, 915 N.E.2d 151 (Ind. Ct. App. 2009), trans, grantedand opinion vacated, 929 N.E.2d 783 (unpublished table opinion) (20 1 0); see also Jon Laramore, Indiana ConstitutionalDevelopments: Vitalityfor the Ex Post Facto Clause, But Not the Education Clause, 43 iND. L. Rev. 665, 686-88 (2010). 3. Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 204 (2008). 4. i?o/^/to, 929 N.E.2d at 765. 5. See id. at 760-61 ; see also Price v. State, 622 N.E.2d 954, 958 (Ind. 1993) (stating that 1116 INDIANA LAW REVIEW [Vol. 44:1115 the voter identification law violated article 2, section 2 by establishing new qualifications for voting.^ New qualifications may be established only by constitutional amendment, not by legislation.^ The plaintiffs also argued that the voter identification law was a new property qualification because it is difficult and expensive for some voters to obtain the required identification, which often may be acquired only upon showing a birth certificate and other verification that some persons may not have readily available.^ In rejecting this argument, the supreme court concluded that the voter identification law did not establish new qualifications for voting; rather, the law provided an additional system for verifying voter registration.^ 'The voter qualifications established in [s]ection 2 of [ajrticle 2 relate to citizenship, age, and residency," the court wrote. *^ "Requiring qualified voters to present a specified form of identification is not in the nature of such a personal, individual characteristic or attribute but rather functions merely as an election regulation to verify the voter's identity."^ ^ The court next addressed the plaintiffs' argument that the voter identification law violates article 2, section 2 because it is "not uniformly applicable to all voters."'^ The law applies only to those who vote in person at the polls on election day, not to those who vote by mail-in absentee ballots or those who live in a "state licensed care facility" that also serves as their polling place. '^ The court acknowledged these differences in application but concluded that they "do not undermine the uniformity of the photo identification requirement for in- person voting. They apply only with respect to special alternative voting accommodations in which the photo identification requirement would be impracticable, unnecessary, or of doubtftil utility."^"^ The court also rejected challenges to the statute under the equal privileges and immunities clause—article 1 , section 23.'^ The plaintiffs assailed the statute under this provision because it applies only to in-person voters, not to absentee mail-in voters or those who live in state licensed care facilities that are also their polling places.'^ Applying its longstanding formula, the court looked first at "[o]nce an Indiana constitutional challenge is properly raised, a court should focus on the actual operation of the statute at issue and refrain from speculating about hypothetical applications"). 6. Rokita, 929 N.E.ld at 767. 7. Id 8. /£/., at 763-65, 767. 9. Id. at 767. 10. Id 11. Id 12. Id 13. IND. Code § 3-1 1-8-25. 1(a), (e) (2010) (discussing in-person and licensed care facility voting); id. § 3-1 1-10-1.2 (discussing absentee voting). 14. Rokita, 929 N.E.2d at 76S. 15. Id. at 769-72. Article 1 , section 23 states: "The General Assembly shall not grant to any citizen, or class ofcitizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." iND. Const, art. 1, § 23. 16. /?6>A:z7<3, 929 N.E.2d at 770. i 2011] CONSTITUTIONAL LAW 1117 whether any disparate treatment was reasonably related to inherent characteristics distinguishing the disparately treated classes, then at whether the preferential treatment was uniformly applicable to all those similarly situated. ^^ The court concluded that there are sufficient inherent differences between in-person voters and absentee voters to support different treatment. ^^ Because absentee voters do not appear before any official who can check their identification, the court determined that no voter identification requirement would serve any purpose. ^^ The court also did not find that the exception for those living in care facilities created a problem under section 23 because it was at most "a minor and insubstantial disparity. "^^ But the court took pains to explain that it was rejecting only the plaintiffs' facial challenge and that any individual who was actually burdened by the voter identification statute still had the right to assert an individual, as-applied claim.^^ Justice Boehm dissented. He characterized the majority's decision as weighing the problems some voters have in obtaining voter identification against the "perceived benefits in the integrity of the election."^^ He characterized the issue not in terms of what is the proper balance but as "who gets to resolve that issue under the Indiana Constitution."^^ He noted the well-established principle that voter qualifications cannot be prescribed by the general assembly, but only by the constitution itself, and concluded, 'T think both precedent and the language of the Indiana Constitution dictate that the voter ID requirement is an unauthorized qualification for casting a ballot. "^"^ Justice Boehm went on to explain his view that a significant number of people had difficulty obtaining the identification required by the law and that courts "ordinarily give wide latitude to legislative judgment on matters of reasonable relationship in classifications created by statute. But any limitation on the right to vote surely strikes at one of the core values embodied in the Indiana Constitution."^^ He opined that because of the importance of the right to vote, the judiciary must exercise special care in preserving it, especially when one of the elected branches takes actions that impinge upon it.^^ Justice Boehm concluded that the allegations in the complaint—that many voters lacked the requisite identification and some had been prevented from voting as a result—^were sufficient to withstand a motion to dismiss.^^ 17. Id. (citing Collins v. Day, 644 N.E.2d 72, 77, 80 (Ind. 1994)). 18. Id. at 770-71. 19. Mat 771. 20. Mat 771-72. 21. Id at 769. 22. Id. at 773 (Boehm, J., dissenting). 23. Id 24. Id. at 774. 25. Id. at 775. 26. See id. 27. M at 776. 1118 INDIANA LAW REVIEW [Vol. 44: 1 1 1 5 In Wilkes v. State,^^ a capital case also focused on a structural provision, the Indiana Supreme Court looked at a separation of powers issue. Wilkes argued that the statutorily mandated use ofspecial verdict forms in capital cases violated separation of powers because it conflicted with Indiana Trial Rule 49, which eliminated special verdicts.^^ He also argued that the statutory mandate violated separation of powers by intruding on the judicial sphere.^^ The supreme court rejected the claims, holding that the document required by statute is "qualitatively different from the special verdicts to which Trial Rule 49 refers"^ '—the statutorily required form does not ask for preliminary or subsidiary findings but solicits the jury's findings as to the ultimate facts to be resolved in a capital case.^^ Moreover, those findings are required by the Sixth Amendment in cases addressing the death penalty. ^^ II. Decisions Addressing Individual Rights Provisions of the Indiana Constitution A. The Ex Post Facto Clause Indiana's appellate courts continued their recent trend ofapplying the ex post facto clause in article 1 , section 24, most often in the context of laws applying penalties to persons convicted of sex offenses.'^'* The Indiana Supreme Court addressed this clause in Hevner v. State,^^ a case involving a person convicted of possessing child pornography. At the time of Hevner' s offense, the statute had required individuals to register as sex offenders only after they had committed a second offense; after Hevner committed his crime, but before he was sentenced, the statute was amended so that all sex offenders had to register after their first offense.^^ Hevner' s sentencing court ordered him to register and declared him to be "subject to the [rjules for [s]ex [ojffenders" in the county where he was convicted.^^ The supreme court applied the analysis it first unveiled in Wallace v. State in 2009 and found that the factors implicated by that test led to the conclusion that the additional registration requirement applied to Hevner was punitive in effect and therefore violated the ex post facto clause of the Indiana 28. 917 N.E.2d 675 (Ind. 2009), reh g denied. 29. Mat 686-87. 30. See id. at 687. 31. Id 32. Id. 33. Id. 34. See Laramore, supra note 2, at 665-73. 35. 919 N.E.2d 109 (Ind. 2010). 36. Compare iND. CODE § 5-2-12-4(a)(13) (2005), with iND. CODE § 1 l-8-8-4.5(a)(13) (2007). The law is currently codified at Ind. Code § 1 l-8-8-4.5(a)(13) (2010). 37. Hevner, 919 N.E.2d at 1 10 (citation omitted). 2011] CONSTITUTIONAL LAW 1119 Constitution.^^ The supreme court vacated the portion of Hevner's sentence requiring him to register as a sex offender; it left certain other conditions in place as reasonable conditions of probation.^^ In Greer v. Buss,^^ the Indiana Court of Appeals addressed a claim that the Indiana Department of Correction had unconstitutionally imposed a policy requiring persons convicted of certain sex and violent offenses to register for an additional ten-year period once their initial ten-year period on the sex and violent offender registry had expired."^' The policy apparently required any person convicted of any offense whatsoever after the person's initial ten-year registration period had expired to register for a second ten-year period."^^ The court of appeals reversed the trial court's dismissal of the action and directed the entry of declaratory relief in plaintiffs' favor."^^ Also relying on Wallace, the court of appeals ruled that the department's policy violated the ex post facto clause ofthe Indiana Constitution by imposing a punishment that had not been in effect when the plaintiffs committed the offenses ofwhich they were convicted."^"^ The court ofappeals rejected the plaintiffs' claim that the trial court should have certified a class of plaintiffs, but the declaratory relief ordered against the Indiana Department of Correction effectively provided classwide relief^^ Brogan v. State"^^ also grew out of the Wallace line of cases. Brogan filed a motion arguing that under Wallace, he was not required to register as a sex offender because the applicable statute did not require registration at the time he committed his crime."^^ He filed the motion in the court where he was convicted, and that court determined that it lacked jurisdiction."^^ The court of appeals affirmed the dismissal for lack ofjurisdiction, pointing to a statute that permitted Brogan to file in the county where he resided."^^ 38. Id. at 1 1 1-13 (citing Wallace V. State, 905 N.E.2d 371, 378-84 (Ind. 2009), reh 'g denied). 39. Id. at 1 13. In a similar case, Blakemore v. State, 925 N.E.2d 759 (Ind. Ct. App. 2010), the Indiana Court of Appeals vacated the requirement that Blakemore register as a sex offender because no such requirement appeared in the relevant statute at the time he committed his crime. Id. at 763. The State argued that Blakemore waived this argument because he pled guilty, but the court ofappeals "decline[d] to hold Blakemore 'agreed' to requirements the Code did not impose when he entered into that agreement." Id. at 762. 40. 918 N.E.2d 607 (Ind. Ct. App. 2009). 41. Mat 610. 42. See id. at 611. 43. Id at 619. 44. Mat 617. 45. Mat 618-19. 46. 925 N.E.2d 1285 (Ind. Ct. App. 2010). 47. Id at 1287. 48. Id 49. Mat 1291 &n.lO. 1 120 INDIANA LAW REVIEW [Vol. 44: 1 1 15 B. Open Courts Henderson v. Henderson^^ was an appeal from a marriage dissolution. At the final hearing, the trial judge asked if the provisional order could be the framework for the final judgment, and the mother agreed that it could.^' The father, by contrast, said that he wanted custody ofthe children. ^^ The trial court heard no evidence and directed the mother's counsel to prepare an order tracking the provisional order." The court of appeals concluded that the trial court's conduct violated the open courts clause ofarticle 1 , section 12.^"^ In the appellate court's view, the trial court deprived the husband of his right to present his case by failing to take evidence before deciding a disputed issue. ^^ The court of appeals vacated the dissolution decree and remanded the case for a new hearing. ^^ C. Bail The Indiana Court of Appeals analyzed issues arising under the bail clause ofthe Indiana Constitution in two cases. In Reeves v. State,^^ the defendant was accused of defrauding several churches in a Ponzi scheme.^^ The trial court set bail at $1,500,000 (with no ten percent cash bail) on the ten charged counts of securities fraud and made no findings on the nine statutorily prescribed considerations.^^ The court ofappeals concluded that this amount was excessive bail prohibited by article 1 , section 16, basing its decision on the trial court's lack of findings to support the number and the fact that the number was ten times the amount recommended by local rule.^^ The court of appeals was critical of the trial court's failure to make findings, stating that it made review difficult.^^ In Rohr v. State,^^ the trial court denied bail altogether on a charge of murdering a child by engaging in frequent corporal punishment.^^ Rohr had been convicted of the murder, but the conviction was reversed due to the wrongful 50. 919 N.E.2d 1207 (Ind. Ct. App. 2010). 51. Id. at 1210. 52. Id. 53. Id 54. M at 1213. Article 1, section 12 states, in relevant part: "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." Ind. Const, art. 1, § 12. 55. Henderson, 919 N.E.2d at 1213. 56. Id 57. 923 N.E.2d 418 (Ind. Ct. App.), on subsequent appeal, 938 N.E.2d 10 (Ind. 2010). 58. Mat 419. 59. Id at 420-21. 60. Mat 42 1-22. 6 1 . See id. 62. 917 N.E.2d 1277 (Ind. Ct. App. 2009). 63. Mat 1277-78. 2011] CONSTITUTIONAL LAW 1121 exclusion of certain testimony, and the case was set for retrial.^"^ Article 1 , section 17 states, "Offenses, other than murder or treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable, when the proof is evident, or the presumption strong."^^ The trial judge had expressed strong skepticism regarding Rohr's bail evidence, which consisted of the victim's mother's statements exculpating Rohr; in fact, she indicated that the victim's mother (also charged with the murder) had changed her story several times already in testimony.^^ Also, the Indiana Supreme Court in the prior appeal had found sufficient evidence that Rohr committed the murder.^^ The court of appeals concluded that the trial court did not abuse its discretion in denying bail.'' D. Venue The Indiana Court of Appeals addressed the constitutional provision guaranteeing venue in the county where a crime allegedly was committed in Neff V. State.^^ Neffwas convicted of child solicitation for communicating online to set up a sexual liaison with someone purporting to be a twelve-year-old girl.^^ Neff used a computer in Madison County and set up the liaison to occur in Hamilton County.^^ Neff was arrested in Hamilton County at the site of the meeting he had set up.^^ He appealed, arguing that he committed no illegal act in Hamilton County. Because he had sent all online communications while in Madison County, Neffargued that his conviction violated the provision ofarticle 1 , section 1 3 stating that an accused has a right to a trial "in the county in which the offense shall have been committed."^^ The court of appeals reversed the conviction because the crime was completed when Neff sent the email solicitation from his Madison County computer. ^"^ The court ofappeals went on to rule, however, that Neffcould be tried again because there was no double jeopardy bar to retrial.^^ Venue was not an element of Neff s crime, so the reversal did not indicate the State's failure to prove an element.^' Moreover, believing that there should be incentives for defendants to raise improper venue before trial, the court held that not allowing retrial in these 64. Id. at 1278. 65. IND. Const, art. 1, § 17. 66. /?o/zr, 917 N.E.2d at 1278. 67. Rohr v. State, 866 N.E.2d 242, 249 (Ind. 2007). 68. /?o;?r, 917 N.E.2d at 1282. 69. 915 N.E.2d 1026 (Ind. Ct. App. 2009), trans, denied, 929 N.E.2d 792 (Ind. 2010). 70. Id at 1029-30. 71. Mat 1029. 72. Mat 1030. 73. Id. at 1032; see iND. CONST, art. 1, § 13. 74. iVg#,915N.E.2datl034. 75. Id at 1036-37. 76. Id 1 1 22 INDIANA LAW REVIEW [Vol. 44: 11 1 5 circumstances would encourage defendants to back-pocket the venue issue and provide incentives for multiple trials^^ E. Jury as the Judge ofthe Law and the Facts in Criminal Cases In Sample v. State,^^ the Indiana Supreme Court vacated a habitual offender enhancement based on a violation ofarticle 1, section 19's directive that "[i]n all criminal cases whatever, thejury shall have the right to determine the law and the facts."^^ After being convicted of attempted murder and other charges, the jury heard evidence that Sample's sentence should be enhanced because he was a habitual offender—that is, he had two prior unrelated felony convictions before the current conviction. ^^ The trial court had instructed the jury that it ''musf fmd Sample to be a habitual offender if the State proved beyond a reasonable doubt the existence ofthe two prior unrelated convictions.^' The supreme court found the instruction unconstitutional because it "prevented the jury from making an independent and separate decision on habitual offender status"^^ (and the jury was not otherwise instructed on its role as the judge of the law).^^ Article 1, section 19 gives the jury independent authority to determine "'whether the defendant is a habitual offender' even ifthe State has proven" the prior offenses beyond a reasonable doubt. ^"^ The supreme court remanded the case for a new habitual offender proceeding.^^ F. Right to Trial by Jury A tenant subject to eviction proceedings asserted her right to trial byjury in Bishop V. Housing Authority ofSouth Bend}^ Her landlord sought to evict her because ofcriminal acts ofone ofthe children in her household.^^ When she did not move out, the landlord sued, and Bishop sought a jury trial.^^ The trial court 77. Seeid.2ii\07>6. 78. 932 N.E.2d 1230 (Ind. 2010). 79. Id. at 1233-34; see iND. CONST, art. 1, § 19. 80. Sample, 932 N.E.2d at 1231-32. 81. /J. at 1231-32 &n.l. 82. Id. at 1232 (quoting Parker v. State, 898 N.E.2d 737, 742 (Ind. 1998)). 83. Id at 1232-33. 84. Id at 1232 (quoting Parker, 698 N.E.2d at 742). 85. Id. at 1234. In Beattie v. State, 924 N.E.2d 643 (Ind. 2010), the Indiana Supreme Court reiterated its longstanding position that inconsistent verdicts are insulated from appellate review. Id. at 644. As one ofthe reasons supporting this doctrine, the supreme court cited article 1 , section 19 and stated that rather than showing a misunderstanding by the jury, inconsistent verdicts "more likely [show] that the jury chose to exercise lenity, refusing to fmd the defendant guilty of one or more additionally charged offenses, even ifsuch charges were adequately proven by the evidence." Id. at 648. 86. 920 N.E.2d 772, 778 (Ind. Ct. App.), trans, denied, 940 N.E.2d 819 (Ind. 2010). 87. Id at 776. 88. Id 2011] CONSTITUTIONAL LAW 1 1 23 denied her claim for a jury on the determination of immediate possession^^ and ordered immediate possession to the landlord based on evidence at a hearing, finding it "more likely than not" (the statutory standard) that the lease had been violated.^^ The court of appeals affirmed, finding no violation of article 1 , section 20, which provides the right to jury trial.^* The court of appeals concluded that although the statute permits a jury trial on the ultimate issue, the trial court's denial of a jury on the preliminary determination ofpossession did not violate the Indiana Constitution.^^ In the court's opinion, "[t]he statutory [preliminary] hearing manifests the inherent power oftrial courts to intercede at an early stage—to make a preliminary decision before what could thereafter be a lengthy judicial process."^^ In Cutter v. Classic Fire & Marine Insurance Co. ^^ the court of appeals concluded that a statutory procedure to determine claims in the estate of an insolvent insurer without anyjury trial did not violate article 1 , section 20.^^ The court of appeals ruled that the claims at issue were entirely equitable, as claims in receivership were equitable before June 18, 1852 (the date the Indiana Constitution fixes for determining whether a right to jury trial is available).^^ G. Free Expression in the Context ofCriminal Acts The Indiana Court ofAppeals addressed two cases raising the free expression clause—article 1, section 9—in the context of prosecutions for disorderly conduct.^^ The applicable doctrine arose in Price v. State.^^ In this 1993 case, the Indiana Supreme Court reversed a disorderly conduct conviction, finding that the defendant engaged in protected conduct—in the form ofcomplaints about law enforcement conduct—and that he did so in a way that did not disturb others more than fleetingly.^^ 89. See IND. CODE §§ 32-30-3-1 through -5 (2010). 90. Bishop, 920 "N.E.ld at ni-lS. 91. Id at 779-80. Article 1 , section 20 states that "[i]n all civil cases, the right oftrial byjury shall remain inviolate." iND. Const, art. 1, § 20. This provision has been held to protect the right to a jury trial on any claim that was triable to a jury on June 18, 1852. See iND. Trial R. 38(A). 92. Bishop, 920 ]