State of Indiana v. John Buncich, in his capacity as Chairman of the Lake County Democratic Central Committee, Christine M. Russell, individually, Randolph Palmateer, individually

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE

Gregory F. Zoeller Clay M. Patton

Attorney General Osan & Patton LLP

Valparaiso, Indiana

Stephen R. Creason

Chief Counsel

FILED

Mar 22 2016, 10:35 am

Kyle Hunter

CLERK

Larry D. Allen Indiana Supreme Court

Court of Appeals

Deputy Attorneys General and Tax Court

Indianapolis, Indiana

In the

Indiana Supreme Court

No. 45S00-1409-PL-587

STATE OF INDIANA,

Appellant (Defendant below),

v.

JOHN BUNCICH, IN HIS CAPACITY AS

CHAIRMAN OF THE LAKE COUNTY

DEMOCRATIC CENTRAL COMMITTEE,

CHRISTINE M. RUSSELL, INDIVIDUALLY,

RANDOLPH PALMATEER, INDIVIDUALLY,

RANDY DESALVO, INDIVIDUALLY, HERBERT

SMITH, JR., INDIVIDUALLY, CATHLINE

NAVEJAS, INDIVIDUALLY, EDWARDO D.

BANDA, SR., INDIVIDUALLY, AND SCOTT M.

RAKOS, INDIVIDUALLY,

Appellees (Plaintiffs below).

Appeal from the Lake County Circuit Court, No. 45C01-1407-PL-84

The Honorable George C. Paras, Judge

On Direct Appeal

March 22, 2016

Massa, Justice.

Indiana Code section 3-11-1.5-3.4 created a Small Precinct Committee in Lake County and

directed it to identify precincts with fewer than 500 active voters that may be amenable to

consolidation, a measure intended to reduce election costs in a county that is home to over 15% of

our state’s small precincts. Implementing such a consolidation plan, however, could jeopardize

the offices of some precinct committeepersons, who brought suit challenging the Statute. We are

asked to decide whether this piece of legislation is contrary to our Indiana Constitution. Finding

it is neither an impermissible special law nor a violation of our separation of powers doctrine, we

determine the Statute is constitutionally sound, and accordingly, we reverse the trial court.

Facts and Procedural History

The Lake County Board of Elections and Registration is a statutorily created body, unique

among Indiana’s counties, 1 that is responsible for organizing elections there. Ind. Code § 3-6-

5.2-6 (2005). The five-member Board is comprised of the circuit court clerk plus two members of

each major political party, appointed by their respective county chairmen. Ind. Code § 3-6-5.2-4.

The day-to-day operations are the responsibility of the director and assistant director of the Board,

also appointed by the county chairmen. Ind. Code § 3-6-5.2-7.

1

The statutory chapter creating the Board applies only to a county with a population between 400,000 and

700,000. Ind. Code § 3-6-5.2-1. Since its enactment in 1993 and to this day, only Lake County falls within

that range.

2

In March of 2014, the General Assembly enacted Indiana Code section 3-11-1.5-3.4 (Supp.

2015) (“the Statute”), which similarly applies only to Lake County. 2 2014 Ind. Legis. Serv. P.L.

64-2014 (West). The Statute aimed to reduce the cost of election administration by consolidating

small precincts, defined as those with 500 active voters or fewer. Ind. Code § 3-11-1.5-3.4(e). At

the time of the Statute’s enactment, 130 of Lake County’s 525 precincts qualified as small, more

than double that of any other county. Indeed, the next highest number came from Allen County

with 57 small precincts out of 338; Marion County had only 19 small precincts of 600.

To address this disparity, the Statute mandated the creation of another body in Lake

County, called a “Small Precinct Committee,” consisting of the five Board members plus any other

individuals it unanimously appoints. Ind. Code § 3-11-1.5-3.4(c), (d). The Committee was

directed to (1) identify the County’s small precincts, (2) determine if any adjoining precincts could

be combined consistent with precinct boundary law, and (3) estimate the potential savings that

would result from consolidation. Ind. Code § 3-11-1.5-3.4(e). Once the Committee’s work was

complete, the Statute provided that the Board would adopt a proposed order “implementing the

findings,” which would be filed with the election division and—provided there were no

objections—would take effect at the start of 2015. Ind. Code § 3-11-1.5-3.4(f), (g).

As required by the Statute, the Board duly created the Small Precinct Committee in June

of 2014; it consisted of the five Board members, along with Director Michelle Fajman and

Assistant Director Patrick Gabrione. The Committee determined there were 76 small precincts

amenable to consolidation, which would save the county around $43,000 per election, $87,000 per

election year, and $435,000 over the next five years. Through the course of its study, the

Committee also discovered there were some precincts with more than 1200 voters, in violation of

2

The Statute applies only to a county that has a board of elections and registration pursuant to Indiana Code

chapter 3-6-5.2, which of course is limited to Lake County. Ind. Code § 3-11-1.5-3.4(a).

3

state law and in need of being addressed. Of course, consolidation would mean that some

committeepersons could lose their office before their elected term expired.

Before the Board met to act upon the Committee’s plan, the Lake County Democratic

Central Committee and five Democratic precinct committeepersons (collectively, “Buncich”)

sought declaratory judgment and an injunction, asserting the Statute was unconstitutional as

special legislation under Article 4, Section 23 of the Indiana Constitution and violated the

separation of powers doctrine recognized in Article 3, Section 1 because certain committeepersons

would be subject to removal just months after being elected. The State opposed, arguing any harm

was speculative since the Statute merely required formation of a committee and completion of a

study; if Buncich objected to the plan eventually adopted by the Board, whatever it may be, he

could seek review from the Indiana Election Division.

At the preliminary injunction hearing, without prior notice to the State, Buncich moved to

consolidate with the merits of the case. The State objected, stating such a request would be

premature, as more statistical analysis may be needed. The trial court reserved a ruling on the

motion, wanting to wait and see what evidence would be presented. At the hearing, both sides

relied mostly on the same statewide precinct data from July of 2014, 3 which shows that of Lake

County’s 520 precincts, 174 of them, or 33.46%, are small precincts. And, of the 5324 precincts

statewide, 20.83% are small.

The parties’ respective analyses of those numbers, however, tell two very different stories

about Lake County. As Buncich points out, nearly all—89 of 92—Indiana counties have small

precincts, and presumably, all counties could benefit from reduced election costs. Moreover,

3

This second data set was produced just after the primary elections. Due to low participation, many voters

became “inactive,” leading to an increased number of small precincts in Lake County and around the state.

Oral Arg. at 7:10–8:20.

4

Lake County is not alone in its proportion of small precincts: in 27 other counties, small

precincts account for 33% or more of the total precincts. The State responds by distinguishing

Lake County based on its relative size, indicating it makes sense for smaller, more rural counties

to have a larger proportion of small precincts “given the nature of population distribution.” Tr.

at 25. But Lake County is a larger, predominantly urban county with “an inordinate number of

[small] precincts given its relatively dense population.” App. at 35. More specifically, of the

27 other counties with 33% or more small precincts, all but one have fewer than 40 total

precincts; in contrast, Lake County has 520 total precincts, over seven times more than the next

highest county in that group. 4 Among the four most populous counties, Lake County has more

small precincts than Marion, Allen, and Hamilton combined. 5 And, of all 92 counties, it has

more than twice as many small precincts as the next highest county, accounting for over 15% of

Indiana’s small precincts.

Buncich also presented evidence at the hearing that the responsibilities of precinct

committeepersons include filling vacancies, should they occur, in elected positions. And several

precinct committeepersons—who had just been elected in May of 2014—testified that they are “at

risk” of losing their positions, although the parties stipulated that the Board has not yet made a

decision on which precincts are to be consolidated and which committeepersons eliminated. Tr. at

39, 42, 46–48, 50.

After taking the matter under advisement, the trial court granted Buncich’s motion to

consolidate a ruling on the merits. Finding nearly all Indiana counties have small precincts and

have an interest in consolidating precincts to realize cost savings, the trial court concluded there

are “no unique circumstances that rationally justify the application of the Statute solely to Lake

4

The next highest, Kosciusko County, has 23 small precincts out of 69 total precincts.

5

Marion has 65 small precincts, Allen 81, and Hamilton 28, compared to Lake County’s 174.

5

County and not to all of Indiana’s remaining 91 counties.” App. at 145. In addition to ruling the

Statute violates Article 4, Section 23 as impermissible special legislation, the trial court determined

its impact on precinct committeepersons violates separation of powers principles, embodied in

Article 3, Section 1.

The State filed this direct appeal, over which this Court has jurisdiction pursuant to Indiana

Appellate Rule 4(A)(1)(b).

Standard of Review

We review the constitutionality of an Indiana statute without deferring to the trial court’s

ruling. Zoeller v. Sweeney, 19 N.E.3d 749, 751 (Ind. 2014). Instead, the statute comes before us

afresh, “clothed with the presumption of constitutionality until clearly overcome by a contrary

showing.” Id. (quoting Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)). We resolve

all doubts in favor of the legislature, id.; thus, if there are multiple interpretations, we will choose

the path that upholds the statute. Baldwin v. Reagan, 715 N.E.2d 332, 338 (Ind. 1999). It is the

party seeking to strike down the statute who bears the burden of proof, and that burden is

particularly heavy where, as here, he challenges the statute on its face: the claimant must show

“no set of circumstances under which the statute can be constitutionally applied.” Id. at 337.

The Statute Is Constitutionally Permissible Special Legislation.

In Indiana, “where a general law can be made applicable, all laws shall be general, and

of uniform operation throughout the State.” Ind. Const. art. 4, § 23 (emphasis added). The

purpose of this provision is to prevent the legislature from providing a benefit to or imposing a

burden on one locality and not others, as allowing such practices would encourage logrolling

and result in an irregular system of laws. Mun. City of S. Bend v. Kimsey, 781 N.E.2d 683,

685–86 (Ind. 2003). Of course, as Article 4, Section 23 implies, while our drafters expressed a

6

preference for general laws, there are cases in which a general law cannot be made applicable

statewide. Ind. Gaming Comm’n v. Moseley, 643 N.E.2d 296, 300 (Ind. 1994). In instances

where a general law would be “inoperative in portions of the state” or “injurious and unjust,” a

special local law is necessary. Kimsey, 781 N.E.2d at 692 (quoting Gentile v. State, 29 Ind. 409,

411–12 (1868)). Our Constitution thus requires we engage in two analytical steps: first, we

determine whether the law is general or special; second, if it is a general law, we determine

whether it is generally applied, and if it is a special law, we determine whether it is

constitutionally permissible. Williams v. State, 724 N.E.2d 1070, 1085 (Ind. 2000). “If the

subject matter of an act is not amenable to a general law of uniform operation throughout the

State,” it is constitutionally permissible. Id. at 1085–86.

Both sides agree the Statute here is special because it is directed to Lake County alone.6

The question we must address, then, is whether the Statute is nevertheless permissible because

it cannot “be made applicable,” Ind. Const. art. 4, § 23, since the “relevant traits of the affected

area are distinctive such that the law’s application elsewhere has no effect.” Kimsey, 781 N.E.2d

at 692. In other words, there exist “inherent characteristics of the affected locale that justify

local legislation.” Id. The justifying characteristic need not be connected to the statutorily

defined classification, so long as the class affected is limited to those that possess the justifying

characteristic. Id. (“Hoovler made clear that a defining characteristic (a population category)

that is theoretically unrelated to the justifying characteristic (Superfund liability) is nevertheless

permissible if, under the facts as they are at the time of passage, only justified areas are defined

into the class.” (citing State v. Hoovler, 668 N.E.2d 1229 (Ind. 1996)). In considering this

question, we look to “local facts,” id.: “If the affected county reflects unique circumstances that

6

Although at one time our courts accepted a population parameter as indicative of a statute’s general nature,

it is now well-settled that if a piece of legislation distinguishes and identifies a locality—whether by name

or some other defining unique characteristic—it is a special law. Kimsey, 781 N.E.2d at 692.

7

rationally justify the legislation, then a general law is not ‘applicable’ elsewhere and Section 23

is not violated.” State ex rel. Atty. Gen. v. Lake Super. Ct., 820 N.E.2d 1240, 1249 (Ind. 2005).

We have, on several occasions, found unique circumstances warranting differential

legislative treatment. See, e.g., Lake Super. Ct., 820 N.E.2d at 1250–51 (upholding tax

reassessment statute based on “the long history of systematic underassessment in parts of Lake

County”); Hoovler, 668 N.E.2d at 1233–35 (upholding statute allowing Tippecanoe County to

increase certain taxes because it was the only county subject to Superfund liability under federal

environmental laws); Moseley, 643 N.E.2d at 301–05 (upholding riverboat gambling statute that

provided for voting by city—rather than by county—for Lake County alone because its “waterfront

is covered by substantial cities”). But see Alpha Psi Chapter of Pi Kappa Phi Fraternity, Inc. v.

Auditor of Monroe Cnty., 849 N.E.2d 1131, 1137–38 (Ind. 2006) (striking down statute that

allowed certain fraternities to retroactively extend time to file for property tax exemption because

nothing separated those fraternities except their failure to timely file); Kimsey, 781 N.E.2d at 694

(striking down annexation statute because neither “the need to preserve rural land around urban

areas” nor the need to “prevent[] competing cities . . . from annexing each other’s land” was

unique). For instance, we upheld a statute providing for additional magistrates to Lake County

superior courts, reasoning that as a larger county with a larger docket, it was “ordinary and

constitutional” for our legislature to provide such judicial resources, especially since the need was

objectively supported by a study comparing caseloads. Williams, 724 N.E.2d at 1086. We also

found it significant that the statute was not mandatory; it merely permitted local judges to appoint

the magistrates as needed. Id. 7

7

As is readily apparent, this Court has found Lake County to be unique in several contexts. We wish to

emphasize, however, that for this Statute to be constitutionally permissible, a generalized uniqueness is not

enough; there must be unique characteristics that justify the particular piece of legislation.

8

The State argues Lake County is sufficiently distinct in that it has an exceptionally high

number of small precincts, which impose significant and unnecessary costs on the election

system. 8 Buncich responds that nearly all of our counties have small precincts, and taxpayers

across the state could benefit from cost savings. We are thus confronted with a question of degree:

Lake County is not unique merely because it has small precincts, but at what point does the sheer

number of small precincts in Lake County become a defining characteristic such that it justifies

special legislation? We find Buncich has not carried his burden of rebutting the presumption that

the legislature determined Lake County to be past that point. 9 Not only does Lake County have

the largest number of small precincts in the state, it has more than twice as many as all other

counties. 10 And at the time the Statute was enacted, Lake County had more small precincts than

the other seven most populous counties in Indiana combined. 11 Because the rest of the counties in

the state have significantly fewer small precincts, 12 we decline to second-guess the legislature’s

8

The State submitted additional data on appeal, concerning patterns of population loss in Lake County, as

well as evidence of other counties’ efforts to address their own small precincts. Because this information

was never before the trial court, Buncich implores us not to hold a “trial de novo.” Appellee’s Br. at 7–8.

We need to neither strike that information nor consider it, as we find we can resolve this case based solely

on the precinct data submitted by both sides.

9

The dissent would not defer to the legislature’s decision to give specialized attention to the small precincts

of Lake County absent record evidence “the legislature made such a finding, not merely that the evidence

shows that it could have.” Dissent at 2. But neither case it relies upon for this proposition actually requires

findings as to the facts justifying special legislation: Moseley simply determined that “the legislature

decided to permit a particular form of gambling,” 643 N.E.2d at 301, and Lake Superior Court found that

“legislative action point[ed] to a unique circumstance.” 820 N.E.2d at 1249. Indeed, that there is no

requirement for such findings is not surprising given the lack of legislative history in our state and the strong

presumption of constitutionality, which mandates resolving all doubts in favor of the legislature. Zoeller,

19 N.E.3d at 751. Striking down a statute because of the absence of actual legislative findings would

require abandoning that well-settled standard of review.

10

In March, Lake County had 130 small precincts; the next highest was Allen with 57. In July, Lake County

had 174; Allen, again the next highest, had 81.

11

Marion, Allen, Hamilton, St. Joseph, Vanderburgh, Porter, and Elkhart Counties combined had 129 small

precincts, compared to Lake County’s 130.

12

We are aware that the statistical data available for our review comes only from 2014, which the dissent

observes is not enough to show “an ongoing and systematic problem.” Dissent at 6. That may well be. But

9

decision not to set up a Small Precinct Committee in counties that don’t need it. Moreover, just

as in Williams, we note that the Statute does not mandate a solution for Lake County but instead

places decision-making authority at the local level, as it is the Board that adopts an order

implementing the Committee’s findings. Ind. Code § 3-11-1.5-3.4(f).

Admittedly, statistics—these included—may be pliable, but we are “bound to throw the

benefit of the doubt in favor of the constitutionality of the law.” Moseley, 643 N.E.2d at 300

(quoting Stocking v. State, 7 Ind. 326, 328–29 (1855)). In doing so, we find the abnormal number

of small precincts in Lake County is a defining characteristic that is sufficiently distinctive to

justify the Statute. 13

The Statute Does Not Offend Indiana’s Separation of Powers Clause.

Our Constitution provides:

The powers of the Government are divided into three separate

departments; the Legislative, the Executive including the

Administrative, and the Judicial: and no person, charged with

we are also mindful of the unusual procedural posture of this case: at the preliminary injunction hearing,

Buncich—without any notice to the State—moved to consolidate with the merits. The State objected,

arguing a merits determination was premature, as any harm was speculative and “there’s a lot of analysis

that needs to be done regarding the precinct numbers for Lake County and the rest of the State.” Tr. at 7.

Nevertheless, the court granted Buncich’s motion, leaving us with the record we have. At any rate, the

State has no burden to show “an ongoing and systemic problem”; quite the contrary, it is Buncich’s burden

to show there are no justifying characteristics permitting the special legislation.

13

We acknowledge Justice Rucker’s concern over our decision’s impact on voting strength in Gary,

Indiana, which apparently is home to a large number of the small precincts subject to consolidation. That

concern, however, was never raised by the parties. And, in any event, we do not see why preserving Gary’s

interest in having disproportionately more precincts (and therefore more votes to fill vacancies) as

compared to its neighbors should be a reason for us to strike down a statute that otherwise has the result of

leveling the playing field among voters.

10

official duties under one of these departments, shall exercise any of

the functions of another, except as in this Constitution expressly

provided.

Ind. Const. art. 3, § 1. This provision, however, “relates solely to the state government and officers

charged with duties under one of the separate departments of the state”; it does not apply to local

officers. Baltimore & Ohio R.R. Co. v. Town of Whiting, 161 Ind. 228, 233, 68 N.E. 266, 268

(1903) (emphasis added); see also State v. Monfort, 723 N.E.2d 407, 414 (Ind. 2000) (“[T]he

separation of powers doctrine applies only to state government and its officers, not municipal or

local governments.”); Willsey v. Newlon, 161 Ind.App. 332, 333, 316 N.E.2d 390, 391 (Ind. Ct.

App. 1974) (“It has repeatedly been held that the separation of powers doctrine . . . has no

application at the local level.”). Thus, the question here is whether the precinct committeepersons

at risk of being eliminated perform a state government function. Buncich contends that they do,

because there are “certain official duties which only they can fulfill,” such as filling vacancies in

state legislative offices and circuit court offices, which “directly impact State positions.”

Appellee’s Br. at 14–15 (citing Ind. Code § 3-13-5-1 (2005); Ind. Code §§ 3-13-6-2, -3).

As one of the committeepersons in this case testified, their “duty is to work their precinct”

by registering voters, securing and setting up polling locations, hiring poll workers, and generally

“working on behalf of their political party.” Tr. at 61. They will also—if the need arises—vote

on behalf of their party to fill certain vacancies. But putting someone else in the position to

perform a state government function is not the same as performing that function oneself. We agree

with the State that the “ability to participate in the caucus to fill a vacancy in an elected office is a

political privilege to undertake the most political of acts: choosing elected officials.” State’s

Reply Br. at 2. Indeed, our General Assembly has specifically said that precinct committeepersons

hold “political party offices” and “are not considered to be elected offices.” Ind. Code § 3-5-2-17.

Accordingly, we find precinct committeepersons occupy local political party offices and thus fall

outside our constitutional provision with respect to the distribution of state governmental power.

11

Conclusion

Because Lake County’s proportion and number of small precincts is sufficiently

exceptional to justify the special application of the Statute, and because the precinct

committeepersons are not state officers within the ambit of our separation of powers doctrine, we

see no constitutional defect. We reverse the judgment of the trial court.

Rush, C.J., and Dickson and David, JJ., concur.

Rucker, J., dissents with separate opinion.

12

Rucker, J., dissenting.

This Court has long adhered to the rule that “for a special law to be imposed, it must be

reasonably related to inherent characteristics of the territory in which it is applied, and apply

equally to those who share those characteristics.” Mun. City of S. Bend v. Kimsey, 781 N.E.2d

683, 689 (Ind. 2003); accord Collins v. Day, 644 N.E.2d 72, 78-79 (Ind. 1994). But the Court’s

opinion today departs from this long-standing requirement instead for an analysis that permits

special legislation upon a finding of “unique circumstances” as proffered by the State in defending

the challenged legislation. Applying precedent, as we should, I do not believe speculations on

what the legislature could have found should substitute for actual findings, reflecting inherent

characteristics of the affected class. Therefore, I respectfully dissent from the majority’s

conclusion that the statute at issue is constitutionally permissible.

Although listed in seemingly generally applicable terms, Indiana Code section 3-11-1.5-

3.4 only applies to “a county with a board of elections and registration established under IC 3-6-

5.2.” Ind. Code § 3-11-1.5-3.4(a). And Chapter 3-6-5.2 “applies to a county having a population

of more than four hundred thousand (400,000) but less than seven hundred thousand (700,000).”

I.C. § 3-6-5.2-1. Simply put, this statute applies only to Lake County. 14 Accordingly, no one

disputes that Indiana Code section 3-11-1.5-3.4 is special legislation. 15 And such “special

legislation may be constitutional if it is based on distinct characteristics of the affected locality.”

SMDfund, Inc. v. Fort Wayne-Allen Cty. Airport Auth., 831 N.E.2d 725, 731 (Ind. 2005)

(emphasis added).

14

Lake County is the only county that fits this criteria.

15

“Indiana Code Section 3-11-1.5-3.4 is special legislation because it applies only to Lake County and none

of Indiana’s ninety-one other counties[.]” Br. of Appellant at 12-13; accord Br. of Appellee at 8 (“Lake

County is the only county in Indiana which meets this description.”).

The State argues that the legislation “is justified by the abnormally large number of small

precincts in [Lake] [C]ounty as compared to all others.” Br. of Appellant at 9. The State claims:

“This uniquely high number of small precincts likely leads to administrative inefficiencies and the

Lake County election board preliminarily estimated that it carried substantial unnecessary financial

burdens.” Id. at 9-10 (emphasis added). Thus, according to the State: “The General Assembly

was justified in enacting special legislation to address this problem that is unique to Lake County.”

Id. at 10. In like vein, the majority concluded that “Lake County is not sufficiently unique merely

because it has small precincts,” slip op. at 9 (emphasis omitted), but that “the abnormal number of

small precincts in Lake County is a defining characteristic that is sufficiently distinctive to justify

the statute. Id. at 10 (emphasis added). I do not share in the majority’s view, for two reasons.

First, there is nothing to demonstrate that the legislature made such a determination. Had

the legislature in fact determined that the number of small precincts 16 in Lake County was so

significant as to justify the disparate treatment imposed by the statute such a determination would

not be binding on this Court but rather entitled to deference. But this is so only if the record

supported that the legislature made such a finding, not merely that the evidence shows that it could

have. Regarding matters of constitutional proportion such as this, our jurisprudence does not

support the majority’s assumption that we simply presume the legislature did so. In Indiana

Gaming Comm’n v. Moseley, 643 N.E.2d 296 (Ind. 1994), for example, we affirmed the special

treatment of Lake County pursuant to the statute authorizing riverboat gambling because “the

legislature decided to permit a particular form of gambling[,] identified the universe of Indiana

counties suitable to host riverboat gambling [and limited] the locations of riverboats to the

specified counties [based on the] fact that not every county is home to a suitable body of water ...

16

For the purposes of this appeal, a “Small Precinct” is a “precinct[] within the county [with] fewer than

five hundred (500) active voters (as defined in IC 3-11-18.1-2) as of June 1, 2014[.]” I.C. § 3-11-1.5-

3.4(e)(1).

2

[and] the distinctions drawn between Lake County and the others fit this purpose of this local law.”

Id. at 301. In State ex rel. Atty. Gen. v. Lake Super. Ct., 820 N.E.2d 1240 (Ind. 2005), we

acknowledged that “administrative findings, judicial findings, and legislative action all point[ed]

to a unique circumstance created by uneven assessment practices in various parts of Lake

County[,]” such as “the long and tortured history of property taxation in Lake County, described

in Matonovich v. State Bd. of Tax Comm’rs, 705 N.E.2d 1093, 1095 (Ind. Tax Ct. 1999) as ‘an

endemic problem with the uniformity of assessments within classes of property.’” Id. at 1250,

1249. And although we found the statutes in question to be special legislation in violation of

Article 4, Section 22, we rejected plaintiffs’ Article 4, Section 23 claim because “[w]e [were]

directed to no comparable set of circumstances in any other county producing such widespread

tax inequities and unusual issues of valuation. [Accordingly,] [t]hese conditions readily justif[ied]

local legislation to deal with a reassessment problem of a scale and complexity not found elsewhere

in the state.” Id. at 1250. Conversely, there is no evidence in the record demonstrating that the

legislature found the sheer number of Small Precincts in Lake County to be so disproportional to

those in other counties or create such a problem of epidemic proportion that it required specialized

attention. 17 Other than the State’s bare assertions on appeal, there is simply nothing in the record

to support that the legislature reached such a conclusion.

17

A review of the small precinct totals as submitted by the plaintiffs in this case reveals that small precincts

constitute 20.83% of Indiana’s precincts with active voters and there are twenty-eight counties with one-

third or more small precincts in Indiana. App. at 104-06. While Lake County is the second largest county,

it ranks twenty-fifth on the list for the highest percentage of small precincts in the state with only 33.46%

of its precincts classified as “small.” Id. Ohio and Benton Counties top the list at 81.82% and 80%,

respectively. Martin, Clinton, Crawford, Newton, Vermillion, Warren, Pike, Fayette, Union, Davies,

Posey, Cass, and Switzerland Counties all have more than 50% small precincts, ranging from 72.22% to

50% respectively. Id. Rush, Perry, Pulaski, Fountain, Miami, Knox, Greene, Whitley, and Jasper Counties

also have higher percentages than Lake County, ranging from 47.06% to 34.48% respectively. Id. While

there is no dispute that Lake County has more small precincts than any other county in the State, there is

also no disputing that Lake County is the second largest county boasting 187 more precincts than all but

one of its counterparts in addition to having a higher number of active voters in its total voting precincts.

Thus, it should be of no surprise that the state’s second largest county would likewise have a larger number

of small precincts. Given the variances of population from county to county, in my view the question

3

Second, regarding the record before us I make the following observations. As this Court

has previously explained: “Article [4] issues will be simplified if [the specified municipality is

identified by name], accompanied by legislative findings as to the facts justifying the legislation’s

limited territorial application.” Kimsey, 781 N.E.2d at 691. It is important to note that the

legislature did not identify Lake County in Section 3-11-1.5-3.4, but rather determined that the

statute should be applied generally to any county that fits the specified criteria. But here, other

than a survey of voter counts, which demonstrates that Lake County had the highest number of

Small Precincts in the state as of June 1, 2014, there is nothing to indicate anything inherently

characteristic about “a county with a population between four hundred thousand (400,000) and

seven hundred thousand (700,000)” to warrant specialized treatment based on the sheer number of

Small Precincts. The majority declares: “Because the rest of the counties in the state have

significantly fewer small precincts, we decline to second-guess the legislature’s decision not to set

up a Small Precinct Committee in counties that don’t need it.” Slip op. at 9-10 (footnote omitted).

But whether such committees are needed misses the mark. In analyzing whether such special

legislation is constitutionally permissible, we must assess whether there are inherent characteristics

to justify the legislation not whether our legislature has determined that there are certain “counties

that don’t need it.”

It is true that when examining a challenge to Article 4, Section 23 “courts place the burden

upon the challenger to negative every conceivable basis which might have supported the

classification.” Collins, 644 N.E.2d at 80 18 (quotation omitted); accord Kimsey, 781 N.E.2d at

relevant to our analysis here should not focus on the mere number of small precincts identified per county.

Rather, the issue is whether the percentage of small precincts in Lake County is incongruous to the

percentage of small precincts located in every other county throughout the State.

18

Collins specifically considered a constitutional challenge to the exclusion of agricultural workers under

the Indiana Worker’s Compensation Statute in violation of Article 1, Section 23. This Court has since

applied the formulation expressed in Collins to Article 4, Section 23 claims. See, e.g., Kimsey, 781

N.E.2d at 688-94.

4

694. But “[w]hen this Court in Collins used the phrase ‘negative every conceivable basis,’ this

did not eviscerate the two-prong constitutional test established; rather, it merely emphasized the

importance of appropriate legislative deference, especially with regard to legislative

classifications.” Paul Stieler Enters., Inc. v. City of Evansville, 2 N.E.3d 1269, 1277 (Ind. 2014)

(alteration omitted) (quoting Collins, 644 N.E.2d at 80). And here the class is defined as a county

with a population between four hundred thousand and seven hundred thousand, not “Lake County”

but “the apparent reasons for limiting the application of the statutes in question are not related to

population.” Lake Super. Ct., 820 N.E.2d at 1248.

We have declared the test for a constitutionally permissible special law as follows, “for a

special law to be imposed, it must be reasonably related to inherent characteristics of the territory

in which it is applied, and apply equally to those who share those characteristics.” 19 Kimsey, 781

N.E.2d at 689 (emphasis added). Thus, the mere presence of unique circumstances may not be

sufficient in all instances to establish that special legislation is constitutionally permissible. A

finding of “unique circumstances” is only relevant to our determination if such circumstances

demonstrate “inherent characteristics of the affected locale.” Id. at 692. Otherwise the legislature

would be able to circumvent the Section 23 prohibition against special legislation for any locality

on the basis of any “unique circumstance” no matter how insignificant or fleeting the circumstance

may be. “When Kimsey speaks of a ‘class’ it does not mean a particular group defined in a

particular statute, but rather the broader classification to which the particular group belongs. Were

it otherwise, the General Assembly could grant privileges to any group, no matter how small and

specialized, by simply drafting legislation that self-defined the ‘specified class.’ This would

produce a situation no different than that prior to the enactment of the 1851 Constitution and render

19

It is certainly true that within the context of assessing a facial challenge to Article 1, Section 11 of our

state constitution, “the claimant assumes the burden of demonstrating that there are no set of circumstances

under which the statute can be constitutionally applied.” Baldwin v. Reagan, 715 N.E.2d 332, 337 (Ind.

1999). Nevertheless, we have not placed such a burden on claimants raising an Article 4, Section 23 claim.

I find no reason to do so now.

5

useless the provisions of Sections 22 and 23.” Alpha Psi Chapter of Pi Kappa Phi Fraternity, Inc.

v. Auditor of Monroe Cty., 849 N.E.2d 1131, 1136 (Ind. 2006).

There is nothing in the record before us that establishes that low voter counts are an inherent

characteristic of “a county with a board of elections and registration” “having a population of more

than four hundred thousand (400,000) or less than seven hundred thousand (700,000)” generally

speaking or that this is an ongoing and systematic problem plaguing only Lake County specifically.

We previously found a statute authorizing a tax exemption to only a few fraternities at Indiana

University to be unconstitutional special legislation in part because “there [wa]s nothing

supporting the contention that ‘education cost[s were] a problem unique to Indiana University

students living in Monroe County [nor was there] evidence to suggest that tax years 2000 . . . and

2001 . . . were unique tax years.” Pi Kappa Phi Fraternity, 849 N.E.2d at 1138 (quotation omitted).

Indeed, the survey in the present case merely reflects one voter counts summary as prepared in

2014, not an ongoing and systematic problem in Lake County as compared to other counties

throughout the state. Contrary to the majority view, specialized treatment of the small voter

precincts in Lake County is no different than the tax exemption afforded a few fraternities at

Indiana University, which we rejected as unconstitutional. Our reasoning in Kimsey has resonance

here:

In this case, several different explanations were offered to justify the

subsection’s application only in counties of 200,000 to 300,000

population. But these reasons were all couched in terms of

characteristics of St. Joseph County, not necessarily those possessed

by a county of this population size. . . . But none of these

justifications are inherent in the population range and none turn on

facts unique to St. Joseph County. Preserving rural land near urban

areas or preventing competing annexation by different

municipalities may indeed be legitimate concerns, but there is no

basis to conclude they are unique to St. Joseph County.

Kimsey, 781 N.E.2d at 694. The same rationale applies in this case. More than half of the voter

precincts in over a dozen counties constitute small precincts. And although the State claims on

appeal the statute “is justified by Lake County’s unique and undesirable status among Indiana

6

counties[,]” Br. of Appellant at 11, there is no direct evidence to support that the legislature

determined a county with the highest number of small precincts to be less desirable than the fifteen

other counties that are financing more than fifty percent small precincts.

Although not raised by either party, the record reflects the impact today’s decision will

have on the voting power of those cities affected by the statute’s mandatory consolidation. 20 It

will be drastically diminished. While this point alone is not dispositive of Buncich’s Section 23

claim the disparate impact on the voting power of the citizens in Lake County—Gary in

particular—cannot be ignored. It is undeniable that the city of Gary has the most small precincts

under review. 21 Of the 174 small precincts in all of Lake County under scrutiny, 57 of those

precincts (32.76%) are located in the city of Gary alone, which encompasses 105 precincts in total.

Essentially, 54.29% of Gary’s precincts will be at risk of consolidation as mandated by Indiana

Code section 3-11-1.5-3.4. And although couched as general legislation to identify “the potential

savings in the administration of elections resulting from the combination of precincts[,]” I.C. § 3-

11-1.5-3.4(e)(3), still we cannot turn a blind eye to the impact this legislation has on a citizen’s

20

Even though the majority accepts the State’s position that Section 3-11-1.5-3-4 is discretionary because

it “places decision-making authority at the local level,” slip op. at 10, the statute expressly requires that “the

board of elections and registration shall: (1) adopt a proposed precinct establishment order implementing

the findings of the committee; and (2) file the proposed order with the election division . . . .” I.C. § 3-11-

1.5-3.4(f) (emphasis added). This is unlike the purely discretionary language in Indiana Code section 33-

5-29.5-7.1, which we found to be permissible in Williams v. State, 724 N.E.2d 1070, 1086 (2000). See I.C.

§ 33-5-29.5-7.1 (2000) (“The judges of the criminal division may appoint two (2) full-time magistrates

under IC 33-4-7 to serve the criminal division. . . . The judges of the civil division may appoint two (2)

full-time magistrates under IC 33-4-7 to serve the civil division.” (emphasis added)) (repealed by P.L.98-

2004, SEC.164).

21

The only other cities in Lake County with ten or more small precincts are Hammond, East Chicago, and

Lake Station with thirty, seventeen, and eleven small precincts respectively. Pl’s Ex. 1, Vol. 2 at 277-280

(East Chicago), 293-300 (Hammond), 306-308 (Lake Station). Those cities may also be heavily affected

by a consolidation plan. Notwithstanding, the city of Gary has as many precincts under scrutiny as these

three cities combined.

7

individual or collective voting capacity. 22 The elimination of these precincts will undeniably

diminish the collective voting strength of the city of Gary by reducing the number of votes it may

cast when filling legislative, circuit court, or prosecutorial vacancies. Precinct committee persons

are charged with filling vacancies in legislative and local offices. I.C. §§ 3-13-1-5; 3-13-1-6; 3-

13-5-1; 3-13-11-3. 23 And each committee person is entitled to one vote. I.C. § 3-13-5-4(c).

Reducing the number of these officials—possibly in half—directly minimizes the strength of the

voters in Gary by reducing the total votes they currently cast in favor of filling candidates or seats

for legislative or local vacancies. That is not to say that Gary, or any other city throughout the

state, is in any way “entitled” to have a greater influence in the appointment of any official.

Nevertheless, when considering the disparate treatment imposed by our state legislature on any

one locality we would be remiss to decline to recognize such an impact simply because of the

political implications such discussions conjure up.

In sum, 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. And this is especially so considering the impact this

legislation will have on voting strength. It is certainly the case “the challenging party must negate

every conceivable basis which might have supported the classification [and t]his may be done by

presenting evidence establishing the lack of distinct characteristics . . . .” Kimsey, 781 N.E.2d at

22

Even though consolidation of certain precincts may be in compliance with precinct boundary standards

that is not to say that the relocation of the eliminated precincts would not indirectly hinder an individual

voter’s ability to access the polling place. This may also impact voter turnout in this urban area. While

public transportation is more readily available in our cities throughout the state, it is not always easily

accessible and certainly not available without financial expense. These transportation challenges faced by

hard-working voters in our inner cities who do not possess their own means of transportation is no less

daunting than those faced by voters in rural environments who are equally challenged in getting to polling

places.

23

See for example Section 3-13-5-1(a), which provides: “A vacancy in a legislative office shall be filled

by a caucus comprised of the precinct committeemen from the senate or house district where the vacancy

exists who represent the same political party that elected or selected the person who held the vacated seat.”

8

694 (internal quotation omitted). Here Buncich has met this burden by establishing that small

precincts are a pervasive problem in over two dozen counties throughout the state. Accordingly,

I would affirm the trial court’s judgment.

9