Rush, C.J.
Article 4, Section 23 of the Indiana Constitution forbids special legislation—laws that apply only to a specific class—if a general law can be made applicable. Our case law has underscored two important, but countervailing, points: while the drafters of the 1851 Constitution sought to curb the spread of special legislation throughout the state, special laws are sometimes necessary.
Our analysis of special legislation begins with the oft-stated presumption in favor of a statute’s constitutionality. With that presumption in mind, we then determine whether the statute’s proponent has met its burden to show that a general law cannot be made applicable. This burden is met by demonstrating that an affected class has unique characteristics that justify the particular form of differential treatment provided by the special law. Given the overarching presumption in favor of the law’s constitutionality, this burden is low—but it is still a burden that the proponent of the law must meet.
Here, a special law singles out the cities of Bloomington and West Lafayette for preferential treatment. That law is the “Fee Exemption,” a provision in Indiana Code section 36-1-20-5 that allows those cities to charge local landlords any amount to register rental properties. All other Indiana localities, meanwhile, are restricted to charging only $5 under another provision—the “Fee Restriction”—found in the same statute. The Fee Restriction was born of legislative concern that rental-registration fees statewide were negatively impacting housing affordability and rental development.
Unhappy with the special treatment afforded to Bloomington and West Lafayette, the city of Hammond challenged the Fee Exemption as unconstitutional under Article 4, Section 23. Hammond argues that the Fee Exemption is amenable to general applicability throughout the state. The city further argues that the Fee Exemption is not severable from the rest of Indiana Code section 36-1-20-5 and so the entire statute, including the Fee Restriction, must be struck down.
Both the State and Herman & Kittle Properties—a Hammond landlord—defend the Fee Exemption’s constitutionality. They contend that the statute’s special treatment is warranted by three characteristics unique to Bloomington and West Lafayette: the cities’ high percentage of renter-occupied properties, their large universities that draw young and unsophisticated renters, and their long-running rental-fee programs. But simply pointing to these characteristics is not enough to overcome the burden placed on a law’s proponents. The State and Herman & Kittle also needed to establish a connection between the cities’ alleged uniqueness and the Fee Exemption—by explaining how the unique characteristics justify that special treatment. Since the law’s proponents did not carry their burden here, the Fee Exemption is unconstitutional special legislation that must be struck down.
Although the Fee Exemption is unconstitutional, the remainder of Indiana Code section 36-1-20-5—including the Fee Restriction—remains in force. This is because, by statute, the absence of a nonseverability clause triggers a presumption in favor of severability that Hammond failed to overcome. Accordingly, the Fee Restriction operates statewide, limiting all political subdivisions’ rental-registration fees—including those of Bloomington and West Lafayette—to no more than $5 per rental unit.’
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Conclusion
Under Article 4, Section 23 of the Indiana Constitution, special legislation is constitutionally infirm if “a general law can be made applicable.” And a general law can be made applicable if the affected class possesses no unique characteristics that justify the special treatment afforded by the special law.
Here, as the proponents of the Fee Exemption, the State and Herman & Kittle bore the burden to demonstrate why Bloomington and West Lafayette should be able to charge any amount for rental-registration fees, when all other political subdivisions across the state are capped at $5. Because they failed to make that showing, the Fee Exemption is unconstitutional special legislation that must be stricken.
But the Fee Exemption is severable from the remainder of Indiana Code section 36-1-20-5, given Hammond’s failure to rebut an applicable statutory presumption of severability. Thus, the Fee Restriction now operates statewide, and all municipalities are restricted from charging a rental-registration fee that exceeds $5.
Accordingly, the judgment of the trial court in favor of Herman & Kittle is reversed to the extent the trial court found the Fee Exemption constitutional. The case is remanded to the trial court with instructions to enter a judgment in favor of Herman & Kittle on the issue of severability and for further proceedings consistent with this opinion.
David, Massa, and Goff, JJ., concur.
Slaughter, J., not participating.