Right-to-work fines raise judicial reach question

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Crawford

Updated: February 25, 2012 8:11AM

INDIANAPOLIS — House Democrats are hoping the classic separation of powers between the three branches of government isn’t so expansive that it keeps Indiana’s courts from blocking $1,000-a-day fines in the ongoing right-to-work battle.

Republican House Speaker Brian Bosma began levying the fines last week after Democrats resumed their on-and-off boycotting of the measure. A legal challenge filed last week brought the Democrats a temporary reprieve.

The Democrats, who are outnumbered 60-40 in the House, have reached outside their chamber to the courts to keep from getting hit with thousands of dollars in fines each while they fight the right-to-work bill. The proposal would ban unions from collecting mandatory fees for representation.

Rep. Bill Crawford, D-Indianapolis, started the ball rolling last June when he challenged fines levied against him after Democrats left the state for five weeks to block the same measure.

But there still is no clear answer whether the Democrats will have to pay up.

Marion County Superior Court Judge David Dreyer showed his skittishness in dealing with the constitutional divide between the two branches when he ruled in Crawford’s case last month that the fines are an internal matter for the House to handle but said the mechanism for collecting those fines was wrong.

Courts see a “big difference” when they consider whether lawmakers are affecting people outside their chamber or whether they are handling internal matters like setting committee sizes or establishing rules of debate, said David Orentlicher, a constitutional law professor at Indiana University-Purdue University Indianapolis.

“Then you worry that your encroaching on their authority,” said Orentlicher, who in the House from 2002 to 2008 as a Democrat representing Indianapolis. “After all you expect each branch to be supreme within its own sphere of authority.”

And the state has built its case on the separation of powers argument.

“This well-established principle of judicial noninterference with the internal workings of the Legislature squarely applies here,” state lawyers argued in an August filing seeking the dismissal of Crawford’s case.

Although Mark GiaQuinta, who is representing the House Democrats in their lawsuit, noted the irony of Republicans arguing that the judiciary should keep its nose out of the Legislature’s business when the $1,000 fines they approved last year must be filed for in court.

“We’ve always kind of laughed,” he said. “They also passed an anti-bolting statute. Well guess where you go to press your anti-bolting case: Marion County Superior Court.”

The Crawford case has not been accepted by the Court of Appeals, although Attorney General Greg Zoeller filed another motion Friday seeking an expedited approval from the appellate court to review the case.

Crawford’s battle over last year’s fines still is being played out in court. In fact, it was that continuing legal battle that House Democrats swung to their advantage last week, winning a temporary restraining order against this year’s fines by signing on to the appeal.

As of Friday afternoon, 31 Democrats, including Democratic House Minority Leader Patrick Bauer, had signed on to the Crawford lawsuit.

Inside the Statehouse there’s about as much consensus over the legality of the fines as there is about the right-to-work bill. During the first week of the session, some of boycotting House Democrats said they had no fear of the $1,000 fines because of Crawford’s ongoing lawsuit.

Although Bosma has remained confident the fines are legal.

“This is just a bump,” Bosma said. “I think the prospect that every county court in the state — and there’s hundreds of them — can file a restraining order on the inner workings of the General Assembly is not going to be upheld.”

Besides, if the Democrats don’t pay up, Bosma suggested he could always go to court to seek a judgment forcing them to pay.