Indiana Constitutional Developments: Incrementalism and School Tuition

Abstract

School of Law—Indianapolis. Former legal counsel to Governors Frank O’Bannon and Joseph E. Kernan. ** Associate, Baker & Daniels LLP, Indianapolis. 1. See infra Part I. 2. See infra Parts III, IV, VI, VIII. 3. See infra Part V. 4. See IND. CONST. art. I, § 1; infra Part II. 5. 849 N.E.2d 488 (Ind. 2006). 6. The federal court certified the following question: “Does a private right of action for damages exist under Article I, Section 9 of the Indiana Constitution, and if so, what are the elements of the action the plaintiff must prove?” Id. at 491. The Indiana Supreme Court accepted the federal court’s invitation to rephrase the question because it did “not believe the question as phrased is susceptible of a generally applicable response.” It rephrased the question as follows: Does an employee of a state or local governmental agency whose discharge is alleged to have violated rights of free speech guaranteed by Article I, Section 9 of the Indiana Constitution assert a claim for money damages against the unit of government or any individual responsible for the firing, and, if so, what is the source of that claim and what are its elements? Id. 7. See Citizens Nat’l Bank of Evansville v. Foster, 668 N.E.2d 1236, 1241-42 (Ind. 1996). Chief Justice Shepard has also written on the topic of pros and cons of certified questions regarding INDIANA CONSTITUTIONAL DEVELOPMENTS: INCREMENTALISM AND SCHOOL TUITION