Indiana state and local lawmakers must be mindful of the state Constitution’s “Equal Privileges and Immunities” clause. Recent cases have raised important questions about what lawmakers can and cannot do. This presentation discusses these recent cases, and provides tips on drafting sound laws and defending constitutional challenges.

1. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP, which may not be disseminated or disclosed to any person or
entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of the author or presenter. The information on this page is intended for informational purposes only and shall not be
construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Minimizing Exposure Under the
Indiana Constitution
Defending and Preventing Legal Challenges
Based on Indiana’s “Equal Privileges and
Immunities” Clause

2. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Agenda
• History
• Language
• Standards and Application
• Differences from the Federal Standard
• Recent Cases
• Practice Tips
2

3. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
History
• Early Statehood – public works, infrastructure
• Economic Crisis
• Investment in Private Enterprise
• Bankruptcy
• 1851 – New Constitution
3

4. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Language
Article I, Section 23
• “The General Assembly shall not grant to any
citizen, or class of citizens, privileges or
immunities, which, upon the same terms,
shall not equally belong to all citizens.”
• Broad application:
– All governmental entities
– Privileges and burdens
4

5. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Collins v. Day
• Two-Part Test:
1. “disparate treatment . . . must be reasonably related to
inherent characteristics which distinguish the unequally
treated classes”
2. “the preferential treatment must be uniformly applicable
and equally available to all persons similarly situated”
• “Substantial Deference”
Collins v. Day, 644 N.E. 2d 72 (1994) (Indiana Supreme Court)
5

6. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Departures from Equal Protection
• Historical Basis: Governmental Entanglement
with Business (vs. Racial Inequality)
• No Levels of Scrutiny
• More Capable of Invalidating Economic
Regulations
• Perhaps Equally Capable of Invalidating
Regulations Based on Gender, Race, Religion
(Precedent)
• Less Capable of Protecting “Fundamental Rights”
6

7. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Equal Protection (Cont.)
Fundamental Rights
– Speech, Press,
Assembly
– Religion, Worship
– Privacy
– Autonomy
– Travel
– Marriage
– Paternal / Family
– Abortion (separate)
Suspect Classes
– Race
– Religion
– National Origin
– Alienage (states)
– Gender (quasi-)
– “Legitimacy” (quasi-)
7

8. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Paul Stieler Enterprises, Inc. v.
City of Evansville
• Evansville Smoking Ban
– Exempted: riverboat casinos
– Not Exempted: bars & clubs with gaming licenses
Paul Stieler Enterprises, Inc. v. City of Evansville,
2 N.E. 3d 1269 (2014)
8

9. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Paul Stieler Enterprises (Cont.)
Majority (Dickson, David, Massa)
• The three factors offered to distinguish Casino
from Bars & Clubs – all fail
1. Recent ventilation upgrade
2. 87% of patrons from outside city
3. Economic impact
• Ordinance contravenes the very purpose of
the Equal Privileges & Immunities Clause
9

10. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Paul Stieler Enterprises (Cont.)
Dissent (Rush, Rucker)
• Deference is not limited
• Reasons are valid:
– Economic impact → realistic lawmaking
– Out-of-town clientele → purpose of the ordinance
• Relevance of language present in (vs. absent
from) the ordinance
• Incrementalism
10

11. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Future of the Equal Privileges &
Immunities Clause
• Court Composition
• Indianapolis Smoking Ban
11

12. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Drafting Tips
• Augment law/ordinance language
• Emphasize law/ordinance’s dependence on
this language (Stieler, “prerequisites”)
• Consider omitting fiscal/fundraising language
• Explicitly state severability position
12

13. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Litigation Tips
• Avoid overreliance on deference
• If possible, avoid mention of economic
reasons
• Stake out position on severability, and seek
stipulation
13

14. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Laws/Ordinances Potentially at Risk
• Smoking bans with exemptions unrelated to
tobacco
– Goodpaster v. City of Indianapolis,
736 F.3d 1060 (7th Cir. 2013)
• Laws exempting a very small set of very large
companies
• Laws that promote/protect economic interests
• Any law that carves out exemptions
14

15. CONFIDENTIAL © 2014 Barnes & Thornburg LLP. All Rights Reserved. This page, and all information on it, is confidential, proprietary and the property of Barnes & Thornburg LLP,
which may not be disseminated or disclosed to any person or entity other than the intended recipient(s), and may not be reproduced, in any form, without the express written consent of
the author or presenter. The information on this page is intended for informational purposes only and shall not be construed as legal advice or a legal opinion of Barnes & Thornburg LLP.
Questions?
15