D & M HEALTHCARE, INC. v. Kernan

• Decision Date: 17 December 2003
• Docket Number: No. 49S05-0310-CV-437.,49S05-0310-CV-437.
• Citation: 800 N.E.2d 898
• Court: Indiana Supreme Court
• Parties: D & M HEALTHCARE, INC., et al., Appellants (Plaintiffs below), v. Joseph E. KERNAN, in his official capacity as Governor of the State of Indiana, et al., Appellees (Defendants below).

800 N.E.2d 898

D & M HEALTHCARE, INC., et al., Appellants (Plaintiffs below), v. Joseph E. KERNAN, in his official capacity as Governor of the State of Indiana, et al., Appellees (Defendants below).

No. 49S05-0310-CV-437.

Supreme Court of Indiana.

December 17, 2003.

Peter J. Rusthoven, J. Michael Grubbs, Stanley C. Fickle, Deborah Pollack-Milgate, Mark J. Crandley, Thomas F. Shea, Indianapolis, IN, Attorneys for Appellants.

Karl L. Mulvaney, Nana Quay-Smith, Rafael A. Sanchez, Jon B. Laramore, Counsel to Governor, Steve Carter, Attorney General of Indiana, Gary Damon Secrest, Chief Counsel, Frances H. Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellees.

BOEHM, Justice.

House Enrolled Act 1866 as passed by the 2001 General Assembly would prohibit the Family and Social Services Administration ("FSSA") from adopting rules that would reduce reimbursements to nursing facilities. The bill was passed by both houses but the Governor vetoed it and delivered the bill back to the House after the legislative session had adjourned. The Plaintiffs are several nursing home facilities who seek a declaratory judgment that House Enrolled Act 1866 became law despite the Governor's veto. The Plaintiffs claim that the Governor's veto, subsequently sustained by a vote of 85-1, was ineffective because the Governor's veto message was delivered six months before the Indiana Constitution calls for it to be returned to the legislature. The trial court entered a judgment in favor of the Defendants but the Court of Appeals reversed, agreeing with the Plaintiffs that the Governor's attempted veto did not prevent the bill from becoming law. This Court granted transfer.

For the reasons explained in Part II, we conclude there was no violation of the constitution. But the short answer to the Plaintiffs' claim is set forth in Part I. In summary, if there is any irregularity, it is not a matter the courts have any business entertaining because any departure from prescribed procedure was wholly trivial and provides no basis to invalidate the Governor's veto.

Why We Are Not Recusing

The parties cite a number of bills over the past twenty years that, like the bill involved in this case, were also vetoed and returned by Governors Orr, Bayh, and O'Bannon before the next legislative session. Among these is a bill providing a raise in pay for all state judges and legislators.¹ The issue presented in this case is therefore of intense interest to both judges and legislators.

This important legislation was long overdue. Unlike many government employees, legislators, judges, and elected executive officers receive no annual salary review. Even if the veto had been overridden, judicial and legislative salaries would not have kept up with inflation since the last pay adjustment. The State has failed to address judicial pay since 1995, with the last adjustment in 1997. This is particularly egregious because judges participate in the state medical plan and bear the costs shifted by the State to its employees in recent years, but do not receive the compensating allowance given to executive branch employees. As a result, judges have not only seen declines since 1995 in real income measured by cost of living, and they now have their net dollars reduced as well. Legislators have other employment and executive officers typically serve for a period of time and return to the private sector. Most judges, on the other hand, are full-time career government employees. Many are principal breadwinners and are dependent on their salaries to provide for their families and educate their children.

Acting in our capacity as leaders of the judicial branch, members of this Court have attempted to persuade the legislature that it should frequently revise judicial pay. Indeed, we have specifically contended that the State should place legislative, executive, and judicial salaries on a regular system of review to reflect inflation without the large, irregular, and sometimes long-delayed increases generated by sporadic individual legislation. We have also argued to both executive and legislative officers that failure to have predictable, modest pay adjustments costs the State substantially in financial terms through high turnover and early retirement and also in efficiency through loss of morale. We even spoke directly to Governor O'Bannon in favor of the 2001 legislative and judicial pay bill. Therefore, although we have expressed no view on the validity of the veto, we have expressed positions in public on the desirability of vetoed legislation that we assume would be affected by the ruling on this case.

Our personal financial interests and expressed views would normally preclude participation in this case. Yet we must address this claim because there is no one else to do it. United States v. Will, 449 U.S. 200, 211-16, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980) (because every judge had an interest in the outcome of the case involving judicial salaries, the "Rule of Necessity" required that they not recuse themselves); Evans v. Gore, 253 U.S. 245, 246-48, 40 S.Ct. 550, 64 L.Ed. 887 (1920) (taxation of judicial salaries), overruled on other grounds, United States v. Hatter, 532 U.S. 557, 121 S.Ct. 1782, 149 L.Ed.2d 820 (2001); Bd. of Trs. of Pub. Employees' Ret. Fund v. Hill, 472 N.E.2d 204, 206 (Ind. 1985) (judicial pension); Chairman of Bd. of Trs. of Employees' Ret. Sys. v. Waldron, 285 Md. 175, 401 A.2d 172, 173-75 (1979) (judicial pension); Nellius v. Stiftel, 402 A.2d 359, 361-62 (Del.1978) (judicial salary); Schwab v. Ariyoshi, 57 Haw. 348, 555 P.2d 1329, 1331 (1976) (judicial salary). Despite our view that this legislation is important to the State, we cannot simply decree our own policies. Rather, we are obliged to address this claim, like any other, based on our best assessment of the applicable law. We conclude that we must sustain the Governor's veto.

Factual Background

The relevant facts are few and simply stated. On April 29, 2001, the House passed House Enrolled Act 1866 in the form previously passed by the Senate after it was recommended by a Conference Committee composed of members of both houses. The General Assembly adjourned that day. The Clerk of the House of Representatives presented the bill to Governor O'Bannon on May 4, 2001. Seven days later, on May 11, the Governor vetoed and delivered the bill to the House. His veto and veto message were reported in the House and Senate Journals on that date. The House was not in session on May 11 and first reconvened on November 20, 2001, the "Organization Day" for the 2002 session. The initial meeting day of the 2002 session was January 7, 2002. On March 14, 2002, the House voted 85-1 to sustain the Governor's veto.

Article V, Section 14 of the Indiana Constitution reads in relevant part:

(a) Every bill which shall have passed the General Assembly shall be presented to the Governor. The Governor shall have seven days after the day of presentment to act upon such bill as follows:

* * *

(2) He may veto it:

* * *

(D) In the event of a veto after final adjournment of a session of the General Assembly, such bill shall be returned by the Governor to the House in which it originated on the first day that the General Assembly is in session after such adjournment.... If such bill is not so returned, it shall be a law notwithstanding such veto.

Ind. Const. Art. V, § 14(a)(2)(D).

I. Plaintiffs Cite No Cognizable Harm

At some point in the prehistory of the common law, courts formulated the eminently practical doctrine now sometimes colloquially referred to as "de minimis" but formally stated as "de minimis non curat lex." Freely translated from the Latin, it proclaims that the law does not redress trifles.² In contemporary American vernacular, it is the courts' way of saying "So what?" If there is no "what," the courts do not provide relief to ordinary litigants and certainly do not interfere with the operations of the other branches of government. This doctrine is relevant here. Plaintiffs cite no practical consequences of the Governor's delivery of the vetoed bill before the first day the legislature reconvened, rather than on that date. And it is obvious there were none. The bill was "returned" and ready for legislative action at the first moment the General Assembly could consider it. No wheel of the machinery of government was slowed and no change in the bill's status was effected by its delivery on May 11 rather than on November 20. To the extent there was any effect of the allegedly premature delivery, it was to expand by a few hours on November 20 the time the legislature had to consider the matter. In short, there is no substance to the Plaintiffs' claim.

The de minimis doctrine is closely related to the idea of substantial performance, which teaches that minor irregularities that do not affect the finished product do not provide the basis for a lawsuit. Max L. Veech & Charles R. Moon, De Minimis Non Curat Lex, 45 Mich. L.Rev. 537, 549 (1947). One may view these doctrines as denying legal intervention where no significant injury is inflicted, at least for unintentional wrongs, or as denying legal intervention where the process complained of is out of specification but in the end produces the same result that would have emerged from strict conformance. Hessel v. O'Hearn, 977 F.2d 299, 303-04 (7th Cir. 1992). Plaintiffs' complaint about the Governor's veto in this case suffers from both defects. No harm whatsoever was inflicted on the legislative process. And delivery before rather than "on" the first day achieved everything necessary for the process to work.

Plaintiffs make much of the fact that the language on which they rely is found in the Indiana Constitution. But common sense has driven our constitution from the earliest time.³ It was the order of the day in 1816 and 1851 when that document was framed, and in 1970 when it was amended to include the provision at issue here. The...