Paul Helmke
When I was in the active practice of law, I was used to winning some cases and losing others. When my client lost at the trial level, I would sometimes appeal to a higher court if I felt the legal rules had not been applied correctly at the trial court level. Regardless of the result, I respected the judicial process and the role our courts played in resolving disputes.
A bill now moving through the General Assembly threatens to upend Indiana’s judicial system.
House Bill 1235, introduced by Rep. Chris Jeter, R-Fishers, and already passed by the Indiana House, is intended to end an almost 25-year-old case brought by the City of Gary by changing the legal rules on who can bring a case to court retroactively. The details of the case should not be the main concern here; rather, we should look more closely at and fully understand the dangerous precedent this bill will set.
When two parties are engaged in litigation both sides are entitled to a judicial process where there is a judge who acts as an umpire of sorts as the case proceeds toward an eventual trial. There is an appeals process to resolve significant legal issues that may arise during any lawsuit. Sometimes you win, and sometimes you lose, but the legal process is one that all parties follow out of respect for our system of law.
In the City of Gary’s case, they have gone through the appellate process three separate times and significant legal issues about the lawsuit have been heard by the Indiana Court of Appeals as well as the Indiana Supreme Court. These appellate courts in Indiana have determined — not once, not twice, but three times — that Gary’s case has merit and should proceed to a jury trial. Yet, the defendants in this lawsuit will not accept these rulings.
HB 1235 is unprecedented in its reach and brazenness. Unlike previous versions of legislation where gun manufacturers are shielded from lawful activity, HB 1235 could shield an entire industry from unlawful activity – even when it is knowingly unlawful. This legislation prohibits all cities and towns in Indiana from seeking judicial recourse for any harm caused by a “firearm or ammunition manufacturer, trade association, seller or dealer.”
In other words, the General Assembly would be placing an entire industry above the law. In addition, it would retroactively take the option of bringing a lawsuit like this away from local elected officials and transfer it to the Indiana Attorney General.
HB 1235 would strip power from the judicial branch and transfer it to the legislative branch. Checks and balances are the lifeblood of our democracy. The U.S. and Indiana Constitutions provide for the separation of powers to prevent one branch from usurping the powers of other branches. Taking one branch’s power from another puts a thumb on the scale and tips it in one direction.
Five of the defendants in Gary’s lawsuit sit on the board of the trade organization that has endorsed and promoted this bill, which would conveniently get rid of the lawsuit they’re facing. It is clear why this bill has been introduced and why it is empowering one branch at the expense of another – and, ultimately, who benefits.
There’s more at stake here for all of Indiana than one lawsuit. This bill is an attack on the separation of powers, Indiana’s judicial system, and the rule of law. If this can happen in this case, why not in others? Lose in the courts? Don’t worry, if you have the clout, ask your legislators to change the rules, retroactively, to save you.
Legislators must consider the consequences of undermining Indiana’s Constitution and setting such a dangerous and unwarranted precedent. They should reject HB 1235 and let the facts and evidence – and the courts – decide this case.
Paul Helmke is professor of practice at the O’Neill School of Public and Environmental Affairs, Indiana University in Bloomington. He previously served as mayor of Fort Wayne from 1988-2000 and was President/CEO of the Brady Center/Campaign to Prevent Gun Violence from 2006-2011.
