Indiana Judges Association: Legislative gridlock? Let the judges handle it

David J.
March 3, 2010
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Indiana Lawyer Commentary

Now that Sen. Evan Bayh has apparently adopted the "Bill Polian" approach to political football (rest now for a later challenge), the term "gridlock" is becoming more common than "gridiron." The public spotlight glares even more disapprovingly upon Congress, if that is possible. Recent polls suggest that as much as 86 percent of the public feels Congress is "broken." The remaining 14 percent are presumably members of Congress and their staffs.

Overall, we citizens go about our daily lives oblivious to all this Beltway blustering. We have mortgages, kids, jobs (hopefully), and, most importantly, our local communities. But in the legislative branch, there is often no objective standard for success or failure. There is no practical leverage for legislatures to actually accomplish anything. There is no assembly line, no product orders to fill, no specific job duties to perform.

So when legislative battle lines are drawn, some of us are left wondering what the real reasons are.

Many purportedly wise commentators develop diatribe after diatribe about the lack of civility as the culprit. But if one looks more closely, it seems like there is often too much civility to get anything done. For example, U.S. Senate gridlock is often blamed on the mysterious practice of "holds," in which any senator (even a brand new one) can block or delay any action on a treaty, nomination, or legislation. According to the Library of Congress, no one knows how or when this practice was started, but it is derived from the unwritten tradition of "senatorial courtesy" honored by every president since George Washington.

Well, the "courtesy" every senator enjoys is actually a strategic weapon. One senator recently held up the nominations of dozens of presidential appointees to gain White House attention to award some federal programs to the senator's home state. In the 1990s, there was a two-year battle of holds between opposing senators that blocked such unrelated topics as an incumbent Federal Trade Commission member, two federal judge nominees, and an education bill.

But Congress is hardly alone in its fitful charade. State legislatures all over the country share the same gridlock addiction. During the summer of 2009, the California state budget (eighth largest in the world) faced a catastrophic $27 billion deficit ... and the legislature would not come to an agreement. At the same time, the New York state legislature went into a complete one-month stalemate, even to the point of one party physically locking the other delegation out of the chamber as no action was taken on stacks of bills. Let's not forget the countless times in which our own Indiana General Assembly has been halted by a partisan "walkout" - something we judges call a "failure to appear."

So what to do?

There is one solution that has yet been tried. We judges do not have the luxury of "courtesy" or gridlock. Oh, there is a sure abundance of real civility in our courts, but there is also a bottom line: Get the case decided and move on. The legal system is the lifeblood of solving problems. Indiana annual case filings have reached 2 million, up 33 percent over the last 10 years. Despite increasing caseloads and dwindling resources, Indiana state judges are continuing to meet their obligations year in and year out.

So when legislative gridlock raises it ugly head, why not treat it like any other unsettled legal dispute? Why not let the courts solve it? Just consider:

* We have a proven track record of deciding issues on merits, not politics.

* We are trained in dispute resolution.

* We're on the job all year round.

* There are no vetoes.

* We cannot accept any money, meals, or tickets from anybody for any reason.

* We will not hold press conferences.

* We will not take polls on the issues.

Hon. David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed in this column are those of the author.


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  1. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  2. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  3. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  4. I hope you dont mind but to answer my question. What amendment does this case pretain to?

  5. Research by William J Federer Chief Justice John Marshall commented May 9, 1833, on the pamphlet The Relation of Christianity to Civil Government in the United States written by Rev. Jasper Adams, President of the College of Charleston, South Carolina (The Papers of John Marshall, ed. Charles Hobson, Chapel Hill: Univ. of North Carolina Press, 2006, p, 278): "Reverend Sir, I am much indebted to you for the copy of your valuable sermon on the relation of Christianity to civil government preached before the convention of the Protestant Episcopal Church in Charleston, on the 13th of February last. I have read it with great attention and advantage. The documents annexed to the sermon certainly go far in sustaining the proposition which it is your purpose to establish. One great object of the colonial charters was avowedly the propagation of the Christian faith. Means have been employed to accomplish this object, and those means have been used by government..." John Marshall continued: "No person, I believe, questions the importance of religion to the happiness of man even during his existence in this world. It has at all times employed his most serious meditation, and had a decided influence on his conduct. The American population is entirely Christian, and with us, Christianity and Religion are identified. It would be strange, indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations with it. Legislation on the subject is admitted to require great delicacy, because freedom of conscience and respect for our religion both claim our most serious regard. You have allowed their full influence to both. With very great respect, I am Sir, your Obedt., J. Marshall."