No Remedy for Taxpayers

As Executive Director of the Indiana Civil Liberties Union, I am constantly explaining that a relatively small percentage of our cases account for virtually all of our publicity, and that most citizens would agree with our position on most of those unreported cases.

A recent case in which we participated is a great example. Pence v. State raises the issue whether the Indiana Constitution requires “germaneness” when a piece of legislation includes more than one subject. Obviously, a juicy pornography case is far more likely to spark media interest.

The fact that sex sells, however, should not obscure the fact that Indiana citizens are likely to be affected far more by legislative logrolling (which is what the Pence case was all about) than by an occasional lawsuit to remind the government that even Klan members, Communists and folks who talk dirty have free speech rights.

The Indiana Constitution requires that all legislative acts be confined to a single subject “and matters properly connected therewith.” The point of that provision was to require that important public policy decisions be arrived at independently and not secretly.

In 1850, Alexander Stevenson of Putnam County proposed the cited constitutional language, explaining that it was intended to prevent a “frequent occurrence when a bill is presented and its friends are not numerous enough to pass it so they enter into a coalition with gentlemen who desire the passage of some other measure to mutually assist each other in the passage of both combined under one head.”

In other words, logrolling allows the passage of laws which would not pass if they were not hidden within more popular measures.

In 1992, members of the Indiana Legislature voted to increase their own pension contributions. They did so by inserting the provision into a bill bringing Indiana into compliance with the American with Disabilities Act. The Indiana Policy Review brought suit on behalf of taxpayers asking the courts to find that this was precisely the sort of exercise the Indiana Constitution intended to prevent. The Indiana Civil Liberties Union submitted briefs on behalf of the Indiana Policy Review’s position.

In an opinion issued this summer, the Indiana Supreme Court held that invalidity of a particular statute “is almost never sufficient rationale for judicial intervention; the party challenging the law must show adequate injury or the immediate danger of sustaining some injury.” In lawyer lingo, this need to show “sufficient injury” is called standing. (Only persons with standing may bring a lawsuit, for obvious reasons — if we think the courts are crowded now, imagine what it would be like if people could simply petition the courts at will.) The principle of standing is important and necessary. Its application here, however is another matter.

What the court has said in Pence is that you and I do not have standing, as taxpayers, to complain when lawmakers enrich themselves and deplete the public till, using tactics that are clearly forbidden by the Indiana Constitution. The court is requiring that complainants demonstrate some particular “harm,” separate and distinct from the farm suffered by taxpayers generally. The result (as we argue in a recently filed Petition to the Court asking for rehearing) is to deprive taxpayers of a remedy for legislative misconduct which costs each of us real money. It insulates legislators from scrutiny and thus diminishes government accountability.

There has been very little media attention paid to this case; nevertheless, the ruling will affect every citizen in Indiana who pays taxes. Think about that the next time you read four columns of newsprint about the rights of a topless dancer