A common phrase in an Indiana legislative committee room
and on a chamber floor — “pending litigation” — is increasingly said to little
effect.
Open lawsuits are off-limits to some lawmakers, while
others consider the unwritten ban on legislative interference an unnecessary
barrier to policy goals.
Current and former lawmakers said former Senate President
Pro Tem Robert Garton (Columbus), who held that powerful post from 1980 to 2006,
implemented the rule. He killed numerous proposals involving ongoing disputes
during his tenure.
But Indiana’s current General Assembly has recently taken
aim at active lawsuits involving the firearm industry, a Hoosier family with a
transgender child, streaming services, lethal injections and more — sometimes
multiple times.
Does the old rule still hold sway?
“I think (it’s) about the same. (Such bills) come up,” said
Republican Sen. Sue Glick (LaGrange), an attorney who has served in the Senate since 2010.
“I think it’s accelerating. There’s much more intervention
now,” said Democrat Rep. Matt Pierce (Bloomington), an attorney first elected to the House of
Representatives in 2002.
Gary lawsuit is the latest
Lawmakers have heard hours of testimony and discussion this
session on legislation that seeks to end a lawsuit the city of Gary has waged
against members of the firearm industry for over 24 years.
It’s their third try. Courts let the dispute continue
despite attempts to kill it in 2001 and 2015. The city, with the
Brady Center to Prevent Gun Violence, filed in 1999.
They allege that local gun dealers and major firearms
manufacturers — Smith & Wesson, Glock and more — have contributed to the
city’s high gun violence through negligent business practices, such as not
preventing illegal straw purchases.
The defendants and the National Shooting Sports Foundation,
their trade organization, say they’ve followed the law and that the legal fight
is preventing them from doing business in the Region and the state.
Gary Mayor Eddie Melton, a Democrat, told a panel of
lawmakers last week that House Bill 1235 would
— when it comes to the firearm industry — strip the right to access the legal
system from all Hoosier communities.
Prominent conservative attorney Jim Bopp and gun-rights
attorney Guy Relford countered that local units of government derive their
authorities from the state.
“The state giveth; the state can taketh away,” Relford told
the committee.
Twenty-four years and counting
The Gary lawsuit’s long life has emerged as a key detail in
the debate over killing it.
“Now, the fact that it’s (been nearly) 25 years also tells
you everything you want to know about the merits of this case,” Bopp said.
He asserted the plaintiff “like(s) the idea of endless
discovery.”
Bopp, the National Shooting Sports Foundation’s Christopher
Lee and firearm supporters blamed the plaintiff for years-long delays in the
case. Melton, Brady Center Senior Litigation Counsel Philip Bengle and others
blamed the defendants.
Bray, the Senate’s president pro tem, indicated the lengthy
timeline played into his decision-making.
“Here, you’ve got a case that’s been going north of 20
years. It’s been a frustration, and so that’s why there’s some interest in
engaging in it,” he told reporters Thursday.
“If a case is going to move through trial court, go
into appellate court and come up with an answer, then we can interpret that
answer and decide – and maybe more intelligently decide – whether we need to
craft legislation to answer the question or not,” he added.
Others said the case’s lifespan wasn’t key.
“The length doesn’t really matter. … That’s not the issue,”
Sen. Liz Brown (Fort Wayne), a Republican attorney, said while questioning a witness in
committee.
“Maybe the parties are racking up litigation expenses, but
as a matter of policy — which is what the legislature should be concerning
itself with — there’s no impact to your average Hoosier of having a lawsuit
drag out,” Pierce told the Capital Chronicle.
Melton indicated the city of Gary was not spending
substantial amounts of money on the case. Lee said one defendant’s contractors
had estimated it would cost $12 million to produce documents for discovery,
which would add up to $96 million across the eight defendants; Bengle called
the estimates “false” and characterized the discovery requests as simple.
Precedent for legislative engagement
The bill comes on the heels of two attempts last session —
one lived, the other died — to alter ongoing lawsuits.
In the first, several Hoosier municipalities
sued satellite TV and video streaming services like DirectTV and Netflix
to extract franchise fees for using equipment in the public right-of-way to
transmit programming.
Rep. Craig Snow, R-Warsaw, said he was approached by
well-known lobbyist Matt Bell on the lawsuit and agreed to insert a provision
aimed at ending it into the wide-ranging House Bill 1454, according
to the Times of Northwest Indiana.
The proposal became law.
In another, a Hoosier family sued the Indiana Department of
Child Services over the removal of their transgender child. House Bill 1407 made
it through its originating chamber, but Senate leader Rodric Bray (R-Martinsville) killed it,
citing the pending court case.
Bray justified that decision Thursday, telling reporters
that case “seemed to be actively moving through” the justice system, and that
he’d seen “some value in watching that resolve itself.”
Last year, Indiana Attorney General Todd Rokita’s
office crafted an amendment and
lawmakers made it law in the closing hours of the session. It determined that
advisory ethics opinions are confidential. The move came in the middle of a
lawsuit filed against Rokita to release an opinion he sought. A trial judge
ordered it to be released but Rokita appealed, the Indiana Citizen reported.
And then he turned to the legislature to intervene retroactively. That case is
still pending.
Also, the year before Bray was elected Senate leader,
lawmakers made headlines when they intervened in a court case over the state’s
lethal injection suppliers. An anti-death penalty lawyer filed a public
records request in 2014, and filed suit in 2016 when the Indiana Department of
Correction (DOC) refused that request.
In a ruling that same year, a trial court ordered the DOC
to release the information. But in 2017, lawmakers slipped a confidentiality
provision into the budget bill. That didn’t end the case, however. A Marion
County judge struck down the retroactive clause and a split Indiana Supreme
Court affirmed the ruling.
“As applied to this case, the General Assembly’s passage of
the Statute overstepped its authority and violated the Indiana Constitution’s
Separation of Powers by disturbing a pending case and upsetting this Court’s
judgment,” Judge Sheryl Lynch wrote.
The case for …
Supporters of the informal tendency against interference
say they’d rather react to a ruling, but some opponents contend that litigation
itself can be a strategy to keep the General Assembly away from a certain
topic.
“It is better to allow the lawsuit to play out,” and tweak
a statute afterward, Pierce said. But he asserted that parties afraid of a loss
increasingly ask lawmakers to end disputes in their favor.
“The only people who get that privilege in the Legislature
are the well-connected: the big donors, lobbyists representing associations
that play in the political process,” Pierce said. “Your average citizen doesn’t
get to come in and say, ‘Hey, I’m getting sued. Could you make it go away by
changing the laws?'”
Glick, who often cites pending litigation in “no” votes on
legislation, said ongoing disputes are the justice system’s “province.”
“It would be like the courts … making a declaratory
judgment on a bill that’s pending in the legislature,” she told the Capital
Chronicle. “We haven’t resolved it. We don’t know what it’s going to look like
at the end. So, you know, they’re a little premature in getting involved in
something that may or may not pass in that in that form. That’s what we’re
doing in terms of their court case.”
Glick indicated it would take an “emergency” like the
pandemic to get her to agree to interference.
Both Glick and Pierce are attorneys.
… And against
Others view those lawsuits with more suspicion.
David Long, a Fort Wayne Republican who served as Senate leader from
Garton’s departure in 2006 to the end of his own tenure in 2018, said he felt a
blanket ban was “wrong.”
“All you need to do if you don’t want certain legislation
is to file a lawsuit on the subject, and use the courts as a weapon … to make
sure that your issue doesn’t come before the Legislature,” said Long, who is an
attorney.
Parties could use that to their benefit in ways that could
harm state interests, he added. And he defended interference advancing those
interests, like the lethal injection confidentiality provision.
“If you feel like the courts have completely misconstrued
something …. It’s not what our intent was and we need to clarify that so that
it doesn’t continue,” Long said. “Those are all legitimate reasons, and
(there’s) nothing nefarious about that. It’s just that we don’t agree with that
judge’s interpretation.”
For him, some policy goals are worth it.
“We’ll do what we need to do in the Legislature. If we
think it’s an important issue, we’ll deal with it,” Long said. “And we’re not
going to let the courts or a pending court action dictate what the Legislature
should or shouldn’t do.”
People on both sides of the interference issue, including
Long, said it’s something decided “case by case.” That’s how Republican House
Speaker Todd Huston (Fishers) described his approach in comments to reporters Thursday.
Bray said he didn’t subscribe to a “hard and fast” rule
against interference, but that he considered it a “default.” Some
circumstances, he said, “justify engagement.”
This year’s Gary lawsuit legislation easily passed out of a
House committee and that
full chamber, along party lines.
It squeaked out of a lawyer-heavy Senate committee Wednesday in a 5-3 vote, with Democrats and
Glick against; Brown voted in favor to avoid dooming the bill but said she’d
vote in opposition on the Senate floor.
Editor Niki Kelly contributed reporting.