New laws overturning Ind. Supreme Court decisions demonstrate balance of power

2012-04-08T20:30:00Z 2012-04-09T12:26:37Z New laws overturning Ind. Supreme Court decisions demonstrate balance of powerBy Dan Carden dan.carden@nwi.com, (317) 637-9078 nwitimes.com

INDIANAPOLIS | On a yellow sheet of paper torn from a legal pad, Indiana Supreme Court Justice Frank Sullivan Jr. keeps the list.

It's just four Supreme Court case names and four Indiana Senate bill numbers, but amid those words and numbers lies the balance of power between the state's judicial and legislative branches.

This year's General Assembly approved four measures signed into law by Gov. Mitch Daniels that overturned four 2011 rulings of the state's high court. In each case, state law was clarified or changed in response to the court's interpretation of it.

"Three of them I thought they were wrong to do, and one of them I thought they were right to do," Sullivan said. "Each of them represents an interesting story of how the legislative and judicial branches interact."

Regarding the three law changes Sullivan objected to, Senate Enrolled Act 1 details individual self-defense rights following Barnes v. State, which said Hoosiers can never resist police. Senate Enrolled Act 97 redefines public intoxication in response to Moore v. State. Senate Enrolled Act 132 declares underground aquifers cannot be regulated by local governments. 

On the other hand, Sullivan's dissent in Citizens State Bank v. Countryside formed the basis of Senate Enrolled Act 298, setting the priority of mortgage holders in a foreclosure action.

While Sullivan believes the Legislature did not need to act on the first three, he acknowledges it has the right to do so.

"Under our separation of powers in the government and the way our constitution works, the Legislature has the last word," Sullivan said. "Except when it comes to matters of constitutional law."

State Sen. Ed Charbonneau, R-Valparaiso, co-sponsored Senate Enrolled Acts 1 and 132. He said his goal was not necessarily to overturn the court but to make sure the court interpreted the law as the Legislature intended, especially on self-defense.

"We felt that they went too far in how they got to the conclusion that they got and wanted to make it clear what we felt should be the law," Charbonneau said.

While the governor could have vetoed the four new laws, Daniels said he generally defers to the General Assembly, especially since only a simple majority is required to override his veto.

"If the Legislature is responding to the judgment of the judicial branch by changing the laws of the state, I have to have a really, really, really overwhelming reason to veto that," Daniels said. "And I have to do it knowing that I may not have any effect on the final outcome."

Sullivan said the stakes are considerably higher when a Supreme Court ruling interprets the Indiana Constitution, such as recent decisions approving a voter photo identification requirement and authorizing the Indiana Toll Road lease. 

In those cases, short of amending the constitution — typically a four-year process — there is no legislative remedy.

"Where the rubber meets the road is when the court says that something the Legislature passed is unconstitutional," Sullivan said. "Because when the court says that, it's saying it's beyond the power of the Legislature to do what it did, and that's a hell of a thing."

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