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Dickson encourages compromise on House Democrat fines suit

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Indiana Chief Justice Brent Dickson implored litigants to resolve a lawsuit over the collection of fines levied on House Democrats who walked out of the Legislature in 2011 and 2012.

“Courts are not a political institution,” Dickson said at the close of oral arguments, after he noted Solicitor General Thomas Fisher’s opening observation that the case was about hardball politics. Dickson admonished “both sides to get together and settle this by compromise.”

Justices on Thursday 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.

Fisher argued that courts had 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.

“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 its 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 Democratic-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.

Attorney Mark GiaQuinta of Haller & Colvin P.C. in Fort Wayne argued on behalf of Democratic lawmakers 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. He said the seizure of lawmakers’ pay left them without access to due process that would have been provided in a garnishment proceeding.

“We’re proposing they follow the same procedure as any other employer,” he said.

GiaQuinta said Democrats who walked out of the session faced economic losses of $5,000 to $10,000, when fines and their impact on other benefits are tallied.

After Thursday’s argument, 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. “I would never fail to take the advice of the Chief Justice of the Supreme Court of Indiana,” he said. He said after Thursday’s arguments that he planned to talk further with Fisher.

House Speaker Brian Bosma, R-Indianapolis, issued a statement after Thursday’s 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.”
 

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  1. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

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