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.
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.
“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 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.”•