ATTORNEYS FOR APPELLANTS
Jeffrey A. Modisett
Attorney General of Indiana
Deputy Attorney General
ATTORNEY FOR APPELLEE
SUPREME COURT OF INDIANA
STATE OF INDIANA, et al., ) ) Appellants (Defendants Below ), ) ) v. ) Indiana Supreme Court ) Cause No. 66S00-9904-CV-232 ROBERT V. MONFORT, ) ) Appellee (Plaintiff Below ). )
APPEAL FROM THE PULASKI CIRCUIT COURT
The Honorable Michael A. Shurn, Judge
Cause No. 66C01-9707-CP-068
Id. at 1807-08. Despite Judge Bordens concerns, the convention passed Article VII,
§ 1 as proposed. In view of this history, it is clear
that the language was intended to confer on the legislature the power to
create and abolish courts.
C. Separation of Powers
Although the text and constitutional debates both support legislative power to abolish courts, that power is not without limitation. Constitutional provisions must be examined within the structure and purpose of the Constitution as a whole, and not in isolation. See Welsh v. Sells, 244 Ind. 423, 451, 193 N.E.2d 359, 361 (1963) (The Constitution has to be read as a whole and not as a part.); Beavers v. State, 236 Ind. 549, 557, 141 N.E.2d 118, 122 (1957) (If possible, the provisions of the constitution must be construed together, and not so as to create a conflict.). Judge Monfort argued, and the trial court agreed, that the separation of powers doctrine prohibits the legislature from abolishing Jasper Superior No. 2 altogether.
The separation of powers provision of the Indiana Constitution, Article III, § 1, states, The powers of 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. The importance of this provision was elaborated in Book v. State Office Building Commission, 238 Ind. 120, 149 N.E.2d 273 (1958). Article 3, § 1, of the Constitution of Indiana is the keystone of our form of government and to maintain the division of powers as provided therein, its provisions will be strictly construed. Id. at 159, 149 N.E.2d at 293. The true interpretation of this [separation of powers] is, that any one department of the government may not be controlled or even embarrassed by another department, unless so ordained in the Constitution. In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350, 352, 332 N.E.2d 97, 98 (1975) (quoting State v. Shumaker, 200 Ind. 716, 721, 164 N.E. 408, 409 (1928)).
The separation of powers doctrine recognizes that each branch of the government has specific duties and powers that may not be usurped or infringed upon by the other branches of government. The judiciary is one of the three co-equal branches of government and its independence is essential to an effective running of the government. See Board of Commrs v. Stout, 136 Ind. 53, 58-59, 35 N.E. 683, 685 (1893) (Courts are an integral part of the government, and entirely independent; deriving their powers directly from the constitution, in so far as such powers are not inherent in the very nature of the judiciary.).
In particular, it has been held in a variety of contexts that the legislature cannot interfere with the discharge of judicial duties, or attempt to control judicial functions, or otherwise dictate how the judiciary conducts its order of business. See In re Senate Act No. 441, 263 Ind. at 353, 332 N.E.2d at 98 (legislation prescribing qualifications for county judges is unconstitutional); Thorpe v. King, 248 Ind. 283, 287, 227 N.E.2d 169, 171 (1967) (legislature cannot set aside final judgment of a court); Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 180, 125 N.E.2d 709, 713 (1955) (court has inherent authority to appoint and require payment of such personnel as the functions of the court may require); State ex rel. Kostas v. Johnson, 224 Ind. 540, 550, 69 N.E.2d 592, 596 (1946) (statute limiting time in which a court must rule on an issue is unconstitutional); Gray v. McLaughlin, 191 Ind. 190, 193, 131 N.E. 518, 519 (1921) (legislation attempting to set standards for briefs filed in Supreme Court is void) ; Roberts v. Donahoe, 191 Ind. 98, 104, 131 N.E. 33, 35 (1921) (same); Solimeto v. State, 188 Ind. 170, 171-72, 122 N.E. 578, 578 (1919) (same); Parkison v. Thompson, 164 Ind. 609, 626, 73 N.E. 109, 115 (1905) (legislature cannot dictate the manner and mode in which the courts shall discharge their judicial duties); State ex rel. Hovey v. Noble, 118 Ind. 350, 371, 21 N.E. 244, 252 (1889) (legislature cannot appoint ministers and assistants for the court).
These principles apply equally to superior courts once they are created, even though there is no constitutional requirement that they be established in the first place. See Kostas, 224 Ind. at 550-51, 69 N.E.2d at 596 (Although the Superior Court of Marion County is not identified in the Constitution, that does not mean that it acquires its judicial power from the legislature. The legislature, under the Constitution, may create other courts than those named in the Constitution. But the Constitution alone bestows judicial power and all judicial power comes from the Constitution and is vested by it in courts and judges who can no more be interfered with by the legislature than a court or judge created by the Constitution itself.). [T]he courts possess the entire body of the intrinsic judicial power of the State, and . . . the other departments are prohibited from assuming to exercise any part of that judicial power. Id. at 546, 69 N.E.2d at 594 (quoting Noble, 118 Ind. at 354, 21 N.E. at 246).
Notwithstanding the general prohibition against interference by one branch in the functions allotted to another, some powers that arguably constitute that interference are expressly conferred by the Constitution. If so, the specific grant is, to use the phrase from In re Senate Act 441, 263 Ind. at 352, 332 N.E.2d at 98, ordained in the Constitution and is a constitutional exercise of power. Article VII, § 1 is an example of this. In view of the explicit language of this section, we conclude that the power to create and abolish courts is among the powers given to the legislative branch.
The question remains whether Public Law 18-1995 nonetheless unconstitutionally interfered with the judiciary when it attempted to abolish Jasper Superior Court No. 2 in the middle of Judge Monforts term. See footnote We hold today that the legislature has the power to create and abolish superior courts, and indeed, within the limits of the Constitution, circuit courts as well. But, to do so in the middle of a judges term violates the separation of powers provision of the Indiana Constitution. In order to preserve the very foundation on which our government was established, it is necessary to have absolute integrity and freedom of action of courts. Board of Commrs v. Albright, 168 Ind. 564, 578, 81 N.E. 578, 582-83 (1907) (quoting Stout, 136 Ind. at 59, 35 N.E. at 685). A court of general jurisdiction, whether named in the Constitution or established in pursuance of the provisions of the Constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of the government. Id. If the legislature can remove a sitting judge, it has the power to direct, control, or impede the judiciary by the threat of removing judges who make unpopular decisions, or by delivering on that threat. The resulting intimidation and potential disruption of courts entertaining issues that may be unpopular in legislative circles constitutes an impermissible intrusion into an independent judiciary.
The separation of powers provision exists not only to protect the integrity of each branch of government, but also to permit each branch to serve as an effective check on the other two. Indeed, Blacks Law Dictionary defines separation of powers as the constitutional doctrine of checks and balances by which the people are protected against tyranny. Blacks Law Dictionary 1369-70 (7th ed. 1999). See Book, 238 Ind. at 161, 149 N.E.2d at 294 ([T]he powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others.) (quoting Thomas Jefferson, Notes on the State of Virginia). The concept of an independent judiciary lies at the bedrock of the separation of powers doctrine that shapes our form of government. It was one of the central principles underlying the thinking of the framers of the Indiana Constitution and also the Constitution of the United States. As Alexander Hamilton put it in the Federalist Papers:
The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the Legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
. . . .
[T]he courts of justice are to be considered as the bulwarks of a limited Constitution, against Legislative encroachments . . . . This independence of the Judges is equally requisite to guard the Constitution and the rights of individuals, from the effects of those ill humors which the arts of designing men, or the influence of particular conjectures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the Government, and serious oppressions of the minor party in the community. . . .
But it is not with a view to infractions of the Constitution only, that the independence of the Judges may be an essential safe-guard against the effects of occasional ill humors in the society. These sometimes extend no further than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the Judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the Legislative body in passing them; who, perceiving the obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled by the very motives of the injustice they mediate, to qualify their attempts.
The Federalist No. 78, at 426, 428-29 (E.H. Scott ed., 1894)
The same considerations undergird our state Constitution. We have long taken the view that:
Our courts are the bulwark, the final authority which guarantees to every individual his right to breathe free, to prosper and be secure within the framework of a constitutional government. The arm which holds the scales of justice cannot be shackled or made impotent by either restraint, circumvention or denial by another branch of that government.
State ex rel. Fifer, 234 Ind. at 181-82, 125 N.E.2d at 714. In sum, the legislature, as a co-equal branch of government, cannot be allowed to shackle the judiciary by, at its whim, removing judges from office during their term. This statute cannot stand as written in the face of Article III, § 1 of our Constitution.
D. Indiana Case Law
The sparse case law addressing the role of the legislature in abolishing courts and judgeships in midterm points in the same direction. In State ex rel. Gibson v. Friedley, 135 Ind. 119, 129, 34 N.E. 872, 875 (1893), this Court addressed the constitutionality of an act abolishing a circuit court. There, we held that the act was unconstitutional because it infringed upon the judges constitutional right to a six-year term as stated in Article VII, § 7 (formerly Rev. Stat. 1881, § 169). However, this Court also stated:
To construe this section to mean that the Legislature can, at its own will, abolish the circuit, and thus legislate the judge . . . out of office, in addition to being in direct conflict with the other provisions of the our organic law, would also put the official life of every judge . . . of the State at the mercy of the Legislature. It would subject the judiciary to the legislative power, and utterly destroy all judicial independence. Judges . . . would be at the whim or caprice of the Senators and Representatives in their tenure of office. . . . If the Legislature, by a special act, may remove one judge . . . , it may remove any and all such officials in the State, and hence they would be at the mercy of any Legislature whose enmity or ill will they may have incurred.
Id. at 128-29, 34 N.E.2d at 875. This reasoning applies equally to superior courts even though their judges terms are not specified in the Constitution. If the legislature is allowed to remove a superior court judge in mid-term, it presents the same potential for abuse as the removal of a circuit court judge.
The Indiana Court of Appeals addressed related issues in Corn v. City of Oakland City, 415 N.E.2d 129 (Ind. Ct. App. 1981). In that case, the city councils attempt to abolish a city court at the end of the judges term was upheld. In the accompanying discussion, the court acknowledged that the legislature cannot deprive a judge of his office before the expiration of his term by abolishing his office or the court served by the judge. Id. at 132. The court went on to note that this rule was established in cases involving constitutional courts, the Supreme Court, the Court of Appeals, and the circuit courts, and it suggested that the rule did not apply to a city court or judgeship because they are not constitutional offices. In Corn, any contention based on separation of powers was waived. Id. at 134. However, there is authority for the proposition that the separation of powers doctrine applies only to state government and its officers, not municipal or local governments. See Sarlls v. State ex rel. Trimble, 201 Ind. 88, 115, 166 N.E. 270, 280 (1929). Under this view the result stated in this dicta in Corn was correct, even if the rationale was not. As already explained, superior courts, as courts of general jurisdiction, enjoy the same immunity as circuit courts from interference that violates the separation of powers. In any event, in Corn, the city judges court was abolished after his term expired and the issue presented in this case was not presented there.
In sum, although Article VII, § 1 of the Indiana Constitution gives the legislature the power to create and abolish courts, that power is limited by Article III, § 1, which provides for the separation of powers among the three branches of Indiana government. Any attempt by the legislature to abolish a superior court in the middle of a judges term interferes with the judicial power of the courts and is therefore unconstitutional. P.L. 18-1995 cannot stand as written.
In re Public Law No. 154-1990, 561 N.E.2d 791, 793 (Ind. 1990); In
re City of Mishawaka, 259 Ind. 530, 533, 289 N.E.2d 510, 512 (1972).
This Court must determine if it is apparent [that] the Legislature would
not have passed the act except as a whole, Sarlls v. State ex
rel. Trimble, 201 Ind. 88, 100 n.1, 166 N.E. 270, 275 n.1 (1929),
or otherwise stated, if the Legislature would have passed the statute had it
been presented without the invalid features. State v. Kuebel, 241 Ind. 268, 278,
172 N.E.2d 45, 50 (1961).
Public Law 18-1995 consisted of 149 sections of which only thirteen related to Jasper County. One of these, § 17, does not relate at all to the abolishment of Jasper Superior No. 2, and another, § 126, expired on July 1, 1995. In the remaining sections, the only constitutional infirmity appears in the title of each section which states, [e]ffective upon passage as opposed to effective January 1, 1999, the first day after the expiration of Judge Monforts term at the time the legislation was passed. We think it is clear that the legislative intent was to abolish Jasper Superior No. 2 and that the legislature would have passed the statute without the invalid date. Accordingly, Public Law 18-1995 stands without the effective upon passage language of §§ 44 to 55. The remainder of Public Law 18-1995, including § 17, stands as written. Given that the survival of Jasper Superior No. 2 after 1998 was the product of the injunction issued by the trial court, that injunction should be dissolved in a fashion that permits the orderly transfer of all cases pending before Jasper Superior No. 2 to be accomplished within ninety days after the certification of this opinion. See footnote No new cases should be permitted to be filed in Jasper Superior Court No. 2 after that certification.See footnote