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Democrats' walkout leads to another 'fines' mess

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Before the Indiana General Assembly convened Jan. 7, some unfinished business was debated in the Statehouse: whether Republican House leaders went too far in seizing fines from Democrats who walked out of the Legislature in 2011 and 2012.

The Indiana Supreme Court on Jan. 3 heard oral arguments in Tim Berry, et al. v. William Crawford, et al., 49S00-1201-PL-53. At issue is whether the Legislature had the power to withhold from Democratic lawmakers’ per diem payments the fines that were assessed when the minority bolted from the House in an effort to prevent votes on right-to-work legislation.
 

giaquinta GiaQuinta

Attorney Mark GiaQuinta of Haller & Colvin P.C. in Fort Wayne argued on behalf of Democratic lawmakers and told the court they had no due process. “We’re proposing (the Legislature) follow the same procedure as any other employer,” he said, which would involve a judgment and garnishment order from a court. He said House members suffered losses of $5,000 to $10,000 in per diems and related benefits.

Indiana Solicitor General Thomas Fisher opened his defense of the Legislature’s powers by telling the court, “This case is about hardball politics, pure and simple.” But Chief Justice Brent Dickson closed the arguments with a plea for both sides to compromise and settle the dispute, and he referenced Fisher’s opening by saying, “Courts are not a political institution.”

Indiana University Maurer School of Law professor Luis Fuentes-Rohwer observed that the justices seemed uneasy intervening in a separation-of-powers case that he said nonetheless “is no different than millions of other cases.


fuentes Fuentes-Rohwer

“This is a classic, classic case. You can see (the justices) puzzling, you can see them struggling,” said Fuentes-Rohwer, whose areas of expertise include judicial independence and accountability and democratic theory. “They know there ought to be limits.”

GiaQuinta argued before the justices that there is little court precedent for the seizure of lawmakers’ pay besides Powell v. McCormack, 395 U.S. 486 (1969), in which a scandalized lawmaker was seated but fined $25,000. The U.S. Supreme Court held that Congress may not develop qualifications for members beyond those in Article 1, Section 5 of the Constitution.

“No other case we can find other than Powell v. McCormack involves the seizure of legislative pay,” GiaQuinta said.


fisher Fisher

Fisher argued that courts have very limited grounds to intervene in House discipline under its rules, but several justices questioned him regarding how far the Legislature could go in collecting the fines it assesses. Among the hypotheticals: Could it impose fines if members voted a particular way? Could it burn down a disobedient lawmaker’s house as discipline?

“Is there any limit on the ability to collect fines?” Justice Loretta Rush asked, after which Fisher said the General Assembly should have the ability to collect without judicial interference as long as it was within House rules.

“How far do you push the non-intervention of the court based on the conduct of the General Assembly?” asked Justice Robert Rucker, the lone Democrat-appointed member of the court. “It is the collection piece that still bothers me.”

Fisher replied that fines and their collection have been the province of legislatures since colonial times. “This is something legislatures have done over centuries,” he said.

After oral arguments, Rep. William Crawford, D-Indianapolis, said the case was about fairness. “Why should they treat me any differently because I happen to be a legislator?”

GiaQuinta, meantime, said Dickson had made his point regarding compromise. “I would never fail to take the advice of the Chief Justice of the Supreme Court of Indiana,” he said. GiaQuinta indicated after the arguments that he planned to talk further with Fisher.

House Minority Leader Scott Pelath, D-Michigan City, also embraced Dickson’s call for the House to settle its own business.

“We’re always open to discussing what is best for the institution not just for today, but for twenty years in the future or a hundred years in the future,” Pelath said in a statement. “The structure of government and limitations of its power must endure the political winds and transcend the passions of the moment.” 

But House Speaker Brian Bosma, R-Indianapolis, issued a statement after the argument that sounded like compromise was off the table.

“I appreciate the attorney general’s continued defense of the separation of powers doctrine clearly mandated by our state’s Constitution, and continue to hold that our court system has no jurisdiction to review or overturn the internal workings of the Indiana General Assembly,” Bosma said.

“I look forward to the Supreme Court confirming the limitation of judicial authority over the legislative branch, and to getting the activities of the 2013 session under way.”

Neither Bosma nor Pelath responded to subsequent requests for comment.

Fuentes-Rohwer said Bosma’s comments after the arguments “sent a shot across the bow” directed at the court. “‘Remember, we’re watching,’ is basically what he said.”

Despite the court’s seeming displeasure in arbitrating the case, courts intervene frequently in issues involving powers of other branches of government, Fuentes-Rohwer said, from redistricting disputes to the Supreme Court decision in Bush v. Gore.

“It’s not a question of law, it’s a question of judicial will: are they really going to step in here?,” he said. “Anybody who thinks the court doesn’t play politics isn’t paying attention.”

But Fuentes-Rohwer said the case also is about the court’s willingness to establish limiting principles on the Legislature. He predicted the court would determine that the Legislature is subject to certain limiting principles that can be imposed by the court, but that the instant case isn’t one in which they apply.

“My guess would be that (justices) say this is the traditional purview of the Legislature,” he said. “I would be surprised if they were to stand in the way of the Indiana Legislature.”•

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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