Public Law No. 305 and Public Law No. 309 of Indiana Acts of 1975, Matter of

• Decision Date: 19 September 1975
• Docket Number: No. 975,975
• Citation: 263 Ind. 506,334 N.E.2d 659
• Parties: In the Matter of PUBLIC LAW NO. 305 AND PUBLIC LAW NO. 309 OF the INDIANA ACTS OF 1975. S 240
• Court: Indiana Supreme Court

Page 659

334 N.E.2d 659

263 Ind. 506

In the Matter of PUBLIC LAW NO. 305 AND PUBLIC LAW NO. 309

OF the INDIANA ACTS OF 1975.

No. 975 S 240.

Supreme Court of Indiana

Sept. 19, 1975.

GIVAN, Chief Justice.

The 99th Indiana General Assembly passed Senate Enrolled Act No. 441, which became Public Law No. 305 of the Acts of 1975 (IC 33-10.5-1-1 et seq.). It also passed Senate Enrolled Act No. 351, which became Public Law No. 309 of the Acts of 1975 (IC 33-5-43-1 et seq.). Public Law No. 305 provides for the establishment of 'small claims docket' in certain circuit and superior courts and provides for the establishment of a 'county court' in certain counties. Public Law No. 309 provides for an amendment to the Act establishing the Vanderburgh Superior Court. Senate Enrolled Act No. 89, which became Public Law No. 313 (IC 33-11.6-4-11) provides for small claims courts in counties having cities of the first class. Senate Enrolled Act No. 136, which became Public Law No. 311 (IC 33-5-45.5-1 et seq.) establishes a superior court in Warrick County.

Public Law No. 313 is mentioned here only because of a provision for the taking of judicial notice of ordinances. The Court provided for in that Act is entirely different from the courts provided for in Public Laws 305 and 309, thus other questions and comments in this opinion are not addressed to Public Law No. 313. We acknowledge that existence of Public Law No. 313 is a deviation from the legislative attempt at uniformity of small claims litigation. However, such deviation is constitutionally acceptable in that it does not confound the existing court system. The courts created by this Act are not courts of record. Their decisions are subject to de novo review in the circuit and superior court of the county.

Public Law No. 311 is mentioned here only because of difference in date of transfer of the 'small claims' cases to the Warrick Superior Court.

Article 7, § 14 of the Indiana Constitution of 1851 provided for the election of justices of the peace by the voters in each township of the several counties. Traditionally, those justices of the peace handled small civil claims and exercised misdemeanor criminal jurisdiction. On November 3, 1970, the voters of Indiana adopted an extensive amendment to Article 7 of the Constitution which, among other things, eliminated the reference to the office of justice of the peace. The 1975 General Assembly passed Public Law No. 305 in order to provide for the handling of the cases previously decided by the justices of the peace. Public Law No. 309 must also be dealt with in this opinion because it establishes a small claims division of the Superior Court of Vanderburgh County.

On August 1 of this year this Court rendered an opinion concerning Public Law No. 305. In that opinion we observed that traditionally the Supreme Court does not issue opinions sua sponte. However, in a situation presented by Public Law No. 305, where certain duties of administration devolved to this Court, it has become necessary in order to carry not the legislative mandate in a uniform manner, for this Court to pass upon certain questions concerning the statute before it is to go into full force and effect on January 1, 1976. The public generally, and the judiciary specially, would be rendered a great disservice if this Court remained silent at this time and permitted this Act to go into effect with the probability of several different interpretations by the trial courts throughout the State, thus giving rise to a state of confusion and lack of uniformity throughout the State's judicial system.

In raising and answering the following questions in this opinion, it is not the purpose of this Court to invade the province of the legislature, nor do we intend to be critical of the legislature. In passing these acts, the legislature has diligently and intelligently addressed itself to a difficult situation. The duty now devolves upon this Court to address itself to the legislative intent demonstrated in these acts and to aid the statewide judiciary in carrying out that intent with a maximum of efficiency and uniformity.

Question 1. Is the provision in Public Law No. 305, which requires the county courts to take judicial notice of municipal, city and town ordinances (IC 33-10.5-7-4), a valid provision?

A similar provision is contained in Public Law No. 309 (IC 33-5-43.1-12). The above-noted provisions are invalid for the reason that they concern procedural matter contrary to procedure previously adopted by this Court. The procedural rules and the cases decided by the courts take precedence over any statute enacted concerning a procedural matter. IC 34-5-2-1. The law in Indiana is established 'that courts do not take judicial notice of ordinances of incorporated towns, and, where suit is predicated on such an ordinance, so much of the same as relates to the action must be made part of the complaint.' Indianapolis Traction and Terminal Co. v. Hensley (1917),186 Ind. 479, 115 N.E. 934; see also McClurg v. Carte, Inc. (1970), 255 Ind. 110, 262 N.E.2d 854, 23 Ind.Dec. 179. We also note that IC 33-11.6-4-11 provides that the Marion County Superior Court take judicial notice of such ordinances. This section of that statute is likewise invalid for the above reason. The reason the courts do not take judicial notice of ordinances is that many cities and towns lack an organized codification of municipal ordinances. It is, therefore, virtually impossible for a trial judge to handle his case load if he must stop to search for obscure ordinances.

Question 2. Is the provision in the county court statute which requires six-member juries in both civil and criminal cases in county courts (IC 33-10.5-7-6) a constitutional provision?

We hold that such a provision is constitutional. Our decision in this regard today represents a change of law in Indiana, inasmuch as there is a prior case indicating that six-member juries are unconstitutional. Miller's Natl. Ins. Co. v. American State Bank of East Chicago (1934), 206 Ind. 511, 190 N.E. 433. The Supreme Court held that the legislature could not authorize six-member juries because of Article 1, § 20 of the State Constitution, which provides that 'in all civil cases the right of trial by jury shall remain inviolate,' citing Allen v. Anderson (1877), 57 Ind. 388, for the proposition that 'inviolate' means 'continue as it was.' The Court concluded that the Constitution was intended to codify the existing common law requirement that the Court found to be a twelve-member jury. In an earlier case, Allen v. State (1876), 54 Ind. 461, the Supreme Court held that a defendant in a criminal case may not waive the right of a jury composed of twelve jurors.

However, the Supreme Court of the United States, in Williams v. Florida (1970), 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, held that the use of six-member juries does not violate the Fourteenth Amendment to the United States Constitution. In view of the ruling by the Supreme Court of the United States and in view of the obvious legislative intent in this statute, we hold that the provision for a six-member jury in the county courts is a constitutional provision.

Question 3. What are the appropriate costs for small claims and misdemeanor cases in circuit and superior courts acting under the authority of Public Laws No. 305 and 309?

The costs provided by Public Law No. 305 (IC 33-10.5-8-5(a)) are as follows:

'(1) a county docket fee in the amount of Ten Dollars ($10.00), to include service of process by registered mail;

'(2) the costs of publication of notices, if any, or sheriff's costs for the service of any writ, process or other papers issued by the court, or the proper officer thereof, as is required by law to be taxed and charged for like services in the circuit courts; and

'(3) witness fees, if any, in an amount as provided for by law in circuit courts.

'The county docket fee provided herein shall be in lieu of any docket fee or clerk's service fee required by law to be taxed by circuit courts in civil actions and shall be paid upon the institutions (sic) of each civil case.'

The above provision concerning costs refers only to the county courts. There are no other provisions in the new statute concerning costs for small claims and misdemeanors in the circuit and superior courts. The docket fee prescribed in the statute for county courts is different from the docket fee generally assessed in circuit and superior courts and is different from the docket fee prescribed in the new Vanderburgh county statute for the disposition of small claims in the Vanderburgh Superior Court (IC 33-5-43.1-10(b)).

Article 4, § 23 of the Indiana Constitution reads as follows: 'In all the cases enumerated in the preceding Section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.' An examination of these statutes in their entirety leads us to the conclusion that it was the intent of the legislature to abide by the above-quoted section of the Constitution and to provide for the uniform handling of small claims litigation throughout the State. We, therefore, conclude that it was the legislative intent to provide that the costs specified in the county court statute apply to all courts of record performing the 'county court functions.' To the extent that Public Law No. 309 purports to establish a separate and different costs provision, the same is invalid as a violation of Article 4, § 23, above quoted. We, therefore, hold that the costs provided for in Public Law No. 305 be applied in all courts exercising small claim and misdemeanor jurisdiction under Public Law No. 305. The same is also applied to the Vanderburgh County small claims section provided by Public Law No. 309. We further observe that it is the apparent legislative intent that the costs applicable to small claims are in lieu of any other court...