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Tuesday, June 02, 2015

Ind. Decisions - The Supreme Court decision upon which the General Assembly's claim to a right of secrecy is based

As was quoted yesterday in an ILB post re Niki Kelly's Fort Wayne Journal Gazette story about public access to emails and other records of the General Assembly:

... a 1993 Indiana Supreme Court ruling complicates the entire debate. In that case, the court declined to get involved in a voting record dispute, citing the separation of powers.
The Supreme Court opinion in that case, Masariu (State ex Rel. Masariu v. MARION SUPER. CT. NO. 1, 621 NE 2d 1097 - Ind: Supreme Court 1993), was less than 2-pages long. The facts were not clearly set out in the opinion, but they were in the petitioner Indianapolis Newspapers' brief, from Sept. 8, 1993:
The underlying action in the trial court seeks to redress the Clerk of the Indiana House of Representatives' failure to make a permanent record of roll call votes on proposed amendments to House Bill 1001, the state budget hill, in violation of Article 4, Section 12 of the Indiana Constitution and the Open Door Law's memorandum requirements, Ind. Code § 5-14-1.54(b)(4). The Amended Complaint alleges that on February 19, 1993, the House of Representatives, constituted as the Committee of the Whole for the purpose of considering House Bill 1001, the biennial slate budget, conducted a meeting attended by the public and news media. During the course of that public meeting, amendments to House Bill lOOl were proposed and debated. At the conclusion of debate on each such amendment, representative Chester Dobis of Merrillville, presiding officer of the Committee of the Whole, called the question on each amendment. Members of the House cast their roll call votes on the· House of Representatives' electronic voting system. The votes were displayed momentarily on the tally board in the front of the House chamber.

In violation of the Indiana Open Door Law, Ind. Code §§ 5-14-1.5-3(b) and -4(b)(4) -- as well as Article 4, Section 12 of tbe Indiana Constitution and Rule 76 of the Rules for the Government of the House of Representatives of the 108th General Assembly of Indiana -- no permanent record of these roll call votes on proposed amendments was made.

Pursuant to the Indiana Access to Public Records Act, Ind. Code § 5-14-3-2, the voting records of the House of Representatives arc public records of a public agency which must be available for inspection and copying. Theobald and Winkley, in their capacities as news reporters for The Indianapolis Star, appeared in person on February 19, 1993 and made a request to the Indiana House of Representatives by and through Relator, as its Principal Clerk, and to Dobis, presiding officer of the Committee of the Whole, pursuant to Ind. Code § 5-14-3-9, to inspect and copy the record of tbe roll call votes on proposed amendments to House Bill 1001. They were denied access to such records, constituting a violation of Ind. Code § 5·14-3-3.

The Amended Complaint seeks a declaration that the failure to record roll call votes and the denial of access to records of roll call votes violated the Indiana Constitution, the Indiana Open Door Law and the Indiana Access to Public Records Act, plus an award of attorney fees.

Those who were around in 1993 and before may remember standing outside the chamber, watching the votes on the proposed amendments to the budget going up on the electronic voting board when the House was convened as a Committee of the Whole. But 1993 may have been the last session the House used the "Committee of the Whole" procedure to vote on proposed amendments to the state budget. The rule authorizing the process is no longer in the House Rules and the regular second reading process is used in the House for budget bills, just as was always the case in the Senate. (The applicable Rules of the House can be found in the front of the House Journals - I've been told "There is always a motion to adopt the rules at the start of a session and the full text is an attachment to the motion and is printed in full.")

With this background, a look at the Supreme Court opinion in Masariu shows, first, that the opinion was written in response to a writ of prohibition; there was no trial court litigation of the issues, and no decision. Second, the vote was 3-2. The opinion was written by Justice Givan, joined by Justices DeBruler and Dickson. Chief Justice Shepard dissented, and was joined by Justice Krahulik.

The majority opinion:

The Relator seeks a writ of prohibition barring Respondent court and judge from proceeding further with an action brought against her, styled Indianapolis Newspapers, Inc., William Theobald, and Nancy Winkley v. Betty Masariu in her official capacity as Principal Clerk of the Indiana House of Representatives, under Cause No. 49D01-9304-CP-416.

The Clerk of the Indiana House of Representatives is a patronage appointment chosen by the majority party in closed caucus and ratified by the full House in public session. Her duties are controlled totally by the leadership of the House, and she is answerable only to them for her actions in the performance of her duties. How those duties are performed, or any lack of performance of those duties, is an internal matter totally controlled by the House leadership.

Article 3, § 1 of the Indiana Constitution reads as follows:

"The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided."
Although it is the duty of the Courts to determine the constitutionality of statutory law, this Court has held repeatedly that courts should not intermeddle with the internal functions of either the Executive or Legislative branches of Government.

The plaintiff's amended complaint seeks declaratory relief and attorney fees, remedies ostensibly available under Ind. Code § 5-14-3-9 (Indiana Access to Public Records Law) and Ind. Code § 5-14-1.5-7 (Indiana Open Door Law). The complaint asserts that the voting records of the House of Representatives are public records available for inspection and copying pursuant to Ind. Code § 5-14-3-2. We find, however, that to the extent such enactments empower the judicial branch to inquire into and interfere with the internal operations of the Indiana House of Representatives, said application transgresses the above separation of powers clause of our state constitution. Courts cannot be authorized to undermine the exclusive constitutional authority of the presiding officers of each house to authenticate all legislation. See Roeschlein v. Thomas (1972), 258 Ind. 16, 280 N.E.2d 581. If the legislature wishes to authorize sanctions against itself upon a claim by press or public alleging improper legislative secrecy, such sanctions would have to be determined and imposed solely by the legislative branch itself, without recourse to the courts.

Because further litigation of this case in the trial court would amount to constitutionally impermissible judicial interference with the internal operations of the legislative branch, a permanent writ of prohibition prayed for by the Relator is hereby granted.

Here is CJ Shepard's dissent, in which he was joined by J. Krahulik:
This case presents several issues of considerable importance about the operation of Indiana government, such as whether legislators' votes should be recorded on amendments to the state's multi-billion-dollar budget, how citizens can learn whether their own legislators voted yes or no on those amendments, and whether the distribution of powers article in the Indiana Constitution prevents the judiciary from taking notice of such matters. I cannot agree that all these issues are so simple that they should be resolved in a few paragraphs through the supervisory procedure of a writ of prohibition. I would permit the trial court to complete the litigation so that we could hear the matter through the regular appellate process.
In Sum. Rather than following the wise counsel of the dissent, Masariu abruptly closed the door on the Court's looking at the question of whether the vote totals should be available to the public, asserting, without citation:
Although it is the duty of the Courts to determine the constitutionality of statutory law, this Court has held repeatedly that courts should not intermeddle with the internal functions of either the Executive or Legislative branches of Government.
This ruling now is being set forth by the General Assembly as a touchstone that forecloses examination of the limits of legislative authority and the applicability of a system of checks and balances. And unfortunately, instead of being analyzed in depth when an opportunity arise, Masariu was cited as authority four times by the Supreme Court in 2013, in the 3-2 opinion in Berry v. Crawford.

The only case cited in the Court's Masariu opinion was Roeschlein v. Thomas, involving a lawsuit which sought to have the then-new Judicial Article 7, "which was ratified in the general election of November 3, 1970, declared illegal and void." One of the bases for the challenge was that there were procedural deficiencies in the adoption of the joint resolution proposing the new Judicial Article 7, that the specific directives for the adoption of an amendment to the constitution, as set out in Article 16, § 1, had not been totally met. But the Supreme Court in Roeschlein held:

We now reaffirm the repeated stand taken by our Supreme Court that courts should not look beyond the authentication of the presiding officers of the legislature to determine from their journals whether there has been a defect in following the constitutional directives of Article 16, § 1.
This decision in Roeschlein reflects our Supreme Court's historical reluctance to delve into the details of the legislative process (the sausage-making) in determining the validity of a public law or a constitutional amendment. But should this reluctance be expanded to encompass everything "legislative"?

Posted by Marcia Oddi on June 2, 2015 09:50 AM
Posted to GA and APRA | Ind. Sup.Ct. Decisions | Indiana Decisions | Indiana Government