Roeschlein v. Thomas

• Decision Date: 28 September 1971
• Docket Number: No. 1270A198,1270A198
• Citation: 273 N.E.2d 554
• Parties: Harold Roeschlein (Reagin), Plaintiff, v. Marjorie Thomas et al., Defendants.
• Court: Indiana Appellate Court

Page 554

273 N.E.2d 554

Harold Roeschlein (Reagin), Plaintiff, v. Marjorie Thomas et al., Defendants.

No. 1270A198.

Appellate Court of Indiana, In Bank.

Sept. 28, 1971.

Opinion Superseded 280 N.E.2d 581.

Nelson G. Grills, Collins, Grills & Suess, Indianapolis, for plaintiff.

Thomas & Thomas, Brazil, Theodore L. Sendak, Atty.Gen., Wendell C. Hamacher, Edw. W. Johnson, Deputy Attys.Gen., Indianapolis, for defendants.

PER CURIAM.

This is an original class action in which the plaintiff seeks to have the amendment revising Article 7 (the Judicial Article) of the Indiana Constitution which was ratified in the general election of November 3, 1970, declared illegal and void, and seeks an injunction restraining the Governor from acting until such amendment has been constitutionally adopted.

Plaintiff's predecessor commenced this action in the Clay Circuit Court on October 29, 1970 and it was subsequently removed to this Court on December 3, 1970 pursuant to IC 1971, 34-4-18-2, Ind.Ann.Stat. § 3-2121 et seq. (Burns' 1968 Repl.).

Prior to removal, a Motion to Dismiss was filed by the Attorney General of Indiana on behalf of the Governor and oral argument was heard on this Motion February 10, 1971. The question was taken under advisement and on March 2, 1971 an order was issued that pursuant to Rule TR. 12 the Motion to Dismiss would be treated as a Motion for Summary Judgment. Both parties were then given twenty days from the date of the order to file any papers for the consideration of the court in ruling on the Motion for Summary Judgment.

On March 17, 1971, plaintiff filed an Affidavit with attached exhibits in support of a Motion for Summary Judgment and the next day filed a Petition Questioning the Qualification of Certain Judges of this court.

On April 19, 1971, this court heard oral argument relating to said Affidavit and Petition, the maintenance of this action as a class action, and at the same time, considered two further motions, i.e., Motion to Substitute a Party and a Motion to Intervene. The original plaintiff in this action having died since its commencement, Marcella Reagin sought to be substituted as a party plaintiff. Also, one Harold Roeschlein requested permission to intervene in this action as a party plaintiff.

We then entered orders on July 27, 1971:

1. Denying the Petition Questioning the Qualification of Certain Judges of this court. ¹

2. Denying the motion of Marcella Reagin to be substituted as a party plaintiff.

3. Allowing Harold Roeschlein to be made a party plaintiff in this cause.

Pursuant to Rule TR. 23(C)(1), an order was then issued on September 1, 1971 that this cause of action be maintained as a class action under Rule TR. 23(B)(1)(b).

Having thus disposed of these preliminary procedural matters, we must now decide the Motion for Summary Judgment. If no genuine issue as to any material fact exists, then we are free to decide from the pleadings and affidavit before us whether the Constitutional Amendment revising Article 7 (the Judicial Article) was validly adopted by the electorate on November 3, 1970. Rule TR. 56.

A summary of the Judicial Amendment is sufficient for purposes of this opinion. ² It completely revises the Judicial Article (7) of the Indiana Constitution, effective January 1, 1972. The method of selection of judges at the appellate level (Supreme Court and Court of Appeals) is changed from a partisan popular election system to one authorizing the Governor to select such judges from a list of three persons submitted to him by a nonpartisan nominating commission. After serving a short term a judge's name is submitted to the electorate for approval, and if approved he thereafter must be approved on a nonpartisan basis by the electorate at ten-year intervals. The Supreme and Appellate Courts are reorganized into a Supreme Court of from five to nine members and a Court of Appeals whose membership is set by the legislature. The office of Chief Justice of Indiana is created and a system of discipline, removal, and retirement of judges is established. Also, there are certain miscellaneous provisions which require the Supreme Court to retain exclusive appellate jurisdiction of certain criminal cases and limit its original jurisdiction; affect prosecuting attorneys and the operation of the Grand Jury; and remove justices of the peace as constitutional officers.

Plaintiff submits three propositions alleging defects in the procedures by which the Judicial Amendment was adopted. ³

I. "The General Assembly did not comply with the terms of Article 16, § 1, of the Indiana Constitution in adopting the Joint Resolutions which permitted an amendment to Article 7 of the Indiana Constitution pursuant to Chapter 375 of the Acts of the 95th Session and Chapter 457 of the Acts of the 96th Session of the Indiana General Assembly."

II. "The Constitutional Amendment was not certified by the Secretary of State to the Clerks of the Circuit Courts of the various counties prior to its being placed on the ballot, and the notice of the election was not published by some Clerks."

III. "The description of the proposed Constitutional Amendment did not adequately and accurately identify the proposed Constitutional Amendment to permit an intelligent vote upon the Amendment by the electorate."

As we are bound to know the public records, including the acts of state officials, we take judicial notice of the fact that House Joint Resolution No. 6 (1967 Session) and House Joint Resolution No. 12 (1969 Session) proposing the Judicial Amendment were both duly authenticated by the Speaker of the House and by the President of the Senate. ⁴ Evans v. Browne, infra, 30 Ind. at page 520. We also take judicial notice of public history and on that basis recognize the fact that on November 3, 1970, a majority of the electorate voting thereon approved the judicial amendment. Smith v. Pedigo, (1896) 145 Ind. 361, 44 N.E. 363.

We shall consider these propositions in the order submitted by plaintiff.

PLAINTIFF'S PROPOSITION NO. ONE

It is our opinion that the authentication of the joint resolutions by the presiding officers of the Legislature is conclusive evidence of the proper enactment and evidence from the journals or elsewhere is not admissible to determine whether the Legislature has complied with the requirements of Article 16, § 1 of the Indiana Constitution.

Plaintiff points to Article 16, § 1, of the Indiana Constitution which contains the method of proposing amendments:

"Any amendment or amendments to this Constitution, may be proposed in either branch of the General Assembly; and, if the same shall be agreed to by a majority of the members elected to each of the two Houses, such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals, and referred to the General Assembly to be chosen at the next general election; and if, in the General Assembly so next chosen, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each House, then it shall be the duty of the General Assembly to submit such amendment or amendments to the electors of the State; and if a majority of said electors shall ratify the same, such amendment or amendments shall become a part of this Constitution." (Emphasis supplied.)

In particular, plaintiff refers to the language "such proposed amendment or amendments shall, with the yeas and nays thereon, be entered on their journals," alleging this was not done. Rhetorical paragraphs 4 and 5 of the Complaint state:

4. "That in the 95th Session of the General Assembly of the State of Indiana, House Joint Resolution No. 6 was amended by the Senate and the proposed amendment as adopted was never entered in the Journal of the House of Representatives, and the vote with yeas and nays thereon was not entered in the Journal showing the adoption of the amendment by a majority of the House of Representatives."

5. "That in the 96th Session of the General Assembly of the State of Indiana, House Joint Resolution No. 12 was amended in the Senate and the House of Representatives concurred in the Senate amendment being the only vote upon the above described amendment to the Constitution as finally adopted which vote was not by a majority of all members elected to the House of Representatives and such vote was not entered on the Journal of the House of Representatives."

Attempting to bolster the importance of these alleged violations, plaintiff further contends that "[a]n examination of the Indiana Senate Journal for the year 1967 will disclose that substantive amendments were made by the Senate Committee and were made on a second reading of House Joint Resolution No. 6." ⁵ This would mean the House and the Senate in voting upon the proposed Judicial Amendment did not vote upon the same "proposed amendment or amendments" as required by the language of Article 16, § 1. The defendant asserts that these changes are mere corrections of an unsubstantial nature. In view of the decision we reach, the character of the changes does not constitute a material issue of fact and therefore we do not need to determine whether the changes are substantial or unsubstantial.

Stated in its essential terms Proposition No. One is deceptively simple. Article 16, § 1, requires that when constitutional amendments are proposed in the legislature the amendment with the yeas and nays vote thereon shall be entered in the journals. In adopting the joint resolutions incorporating the Judicial Amendment this was not done and the same proposed amendment was not properly adopted in both houses of the Legislature and therefore the constitutional amendment is void because it failed to follow these specific provisions of the constitution. Our constitution is a sacred document expressing the organic law of the State of Indiana and therefore must be strictly construed. The courts must look beyond the authentication of the presiding officers...