State Constitutional Law - Single Subjects

 Okay, I am not thinking of ever returning tot the practice of law. I escaped with my reputation ruined but alive. I have no desire to go back into anything that damaged me earlier in life. Not that the federal government thinks so; which is a source of amusement for me.

However, the law still interests me. I like doing the research. And I keep an eye out for certain items.

One area still of interest remains state constitutional law, so I subscribe to a newsletter on state constitutional law from The Brennan Center. The latest led me to North Dakota Budget Bill Struck Down as Violation of ‘Single Subject’ Constitutional Rule. Indiana has a similar constitutional provision.

Earlier this month, the North Dakota Supreme Court relied on an infrequently cited constitutional provision to invalidate the budget bill for the state’s Office of Management and Budget. The provision, Article IV, Section 13, is known as the “single subject rule.” It holds that “no bill shall contain more than one subject, and the subject shall be clearly expressed in the title.”

The aim of the single subject rule is to prevent “logrolling” — the undemocratic combination of disparate provisions into a single act — as well as the passage of legislation that members of the legislature and public do not fully understand. The good governance motives behind single subject rules explain why 43 states have some version of it. But the commonalities end there. State courts have collectively struggled to precisely define what constitutes a “subject,” leading to differing interpretations and concerns that such provisions conflict with rule-of-law principles such as clarity of the law and predictability in its application. Those concerns have manifested in North Dakota.

As I recall Indiana's few cases on this provision, the Indiana Supreme Court grants considerable deference to the General Assembly. It may be time to rethink that, but requires lawyers actually knowing the state constitution and then arguing the provision. The Brennan Center piece recognizes this problem:

It’s relatively easy to see why the bill violated the single subject rule. The harder question — and the question that requires additional scholarly attention — is what courts should do with a state constitutional provision that is invoked so infrequently advocates label it “a dead letter,” like this one. The reawakening of dormant constitutional provisions will almost always raise concerns about arbitrary enforcement, especially from targeted parties who may question the motives behind its application to their case. Underused, perhaps understudied, provisions are also vulnerable to critiques that the rigor of the legal analysis is lacking in the rare cases they arise.

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