Indiana’s legislature just put the state’s top appellate judges into the middle of constitutional convention fights; can authorize or permit prosecuting delegates

The U.S. Constitution provides in Article V two ways to get a proposed constitutional amendment before state legislatures: get 2/3rds of the House and Senate to approve an amendment OR have 2/3rds of the states call for a convention (“The Congress…on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…”)

Over time state legislatures have made such calls, but for the most part the modern efforts have been made to rescind all such prior calls, mostly out of fear any such Constitutional Convention would spiral out of control and propose all sorts of amendments (which would still need ratification by 3/4rds of states).

Indiana has taken it one step further and in the process put their state’s top appellate judges into the thick of it should such a call ever come to fruition.

This year’s state budget (HB 1001) signed earlier this month by the Governor includes what is perhaps a first of its kind provision related to any future Article V convention.

Under newly enacted Indiana Code 2-8.2-4, the state’s General Assembly will issue a directive to any Article V delegates regarding what they may, or may not, vote for. Section 2-8.2-4-6 provides a delegate that votes outside the scope of the General Assembly’s directive is guilty of a Class D felony.

The Indiana Code’s new 2.8.2-4-5 offers help for the worried delegate: an advisory group would be available to answer his or her questions within 24 hours on whether a particular vote will or won’t get the person a felony conviction.

The advisory group is made up of the state’s top three appellate judges: the Chief Justice of the Supreme Court, the Chief Judge of the Court of Appeals, and the Chief Judge of the Tax Court (in Indiana, the Tax Court is not an agency, but an intermediate appellate court within the judicial branch).

In addition to the delegates, the 3 judge panel would be required to give their advice on request to the attorney general on whether or not an action taken by the delegate(s) violated the law.

To top it all off, the 3 judge group “on its own motion” could decide in a summary manner to look into any actions taken by a delegate and determine if the vote was legal or not.

In any of the above events, the 3 judge panel would be under no obligation to even hold a hearing; the judges would conduct themselves “in any summary manner considered appropriate by the group” and could make a determination “without notice or an evidentiary proceeding” and must reach a decision within 24 hours.

2 thoughts on “Indiana’s legislature just put the state’s top appellate judges into the middle of constitutional convention fights; can authorize or permit prosecuting delegates”

  1. Forgive my potential ignorance, but I am at a loss for how such a provision could be a part of the budget and not violate the single subject rule. I understand that the single subject rule is treated more liberally in the context of a budget bill, but on its face this seems to extend far beyond the bounds of even the most broad concept of a “single subject.”

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