Lawmakers no longer back away from bills impacting pending litigation
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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, 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, 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, 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, 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 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 Department of Corrections (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 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 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.
The Indiana Capital Chronicle is an independent, not-for-profit news organization that covers state government, policy and elections.