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Monday, February 28, 2005

Ind. Gov't. - More on the inspector general bill

Martin DeAgostino of the South Bend Tribune has a story today on the inspector general bill, headlined "Inspector general bill sparks debate: Former top judge says measure is flawed but fixable." Some quotes:

A state prosecutor who works directly for the governor poses legal and policy problems that lawmakers should fix before they create an office of inspector general, according to a former chief judge of the Indiana Court of Appeals.

Sanford M. Brook said the proposed legislation, which Gov. Mitch Daniels is pushing hard, does not appear to be unconstitutional on its face, as some Democrats have claimed. But he said it includes several "problematic" features that could spark legal challenges and raise questions about political motivations.

"The spirit of such a thing is good," he said. "I'm not so sure this is the vehicle."

The bill assigns a key role to the chief judge of the appeals court, a post Brook held from 2002 until he resigned to return to private practice in 2004. The former St. Joseph Superior Court judge now works for a legal arbitration firm in Denver, and he reviewed the bill at The Tribune's request.

In essence, Brook said it blurs executive and judicial authority, it lacks sufficient checks and balances, and it feeds perceptions that governors could use it for politically motivated investigations and prosecutions.But he said none of those problems are insurmountable if even modest amendments occur. "They can easily all be remedied and maintain the spirit of the legislation," Brook said. * * *

[The bill "creates an office of inspector general with broad powers to investigate mismanagement, waste and civil or criminal violations of law within state government. And it outlines circumstances and procedures under which the inspector general could act as prosecutor, with authority from the governor and the Appeals Court."]

"It creates too much power in one person, going into the other branch (of government)," House Minority Leader B. Patrick Bauer, D-South Bend, said.

Brook tends to agree, noting the bill's requirement that the inspector general report all findings to the governor.

"Presumably," he said, "corruption could extend to the governor's office. And the system of checks and balances loses its objectivity if a report to the governor's office is required." * * *

Jason Barclay, special counsel and policy director for Daniels, said the legislation pulls together fragments of Indiana law, including its special prosecutor statute, and resembles similar measures in 11 states.

Although no state gives direct prosecutorial powers to its inspector general, Barclay said most can serve as special prosecutors under separate legislation.

He also said the proposal balances power in several ways, including an early role for county prosecutors whenever an investigation yields a formal report. Similarly, no governor could directly order a prosecution under the bill, but only authorize the inspector general to approach the Appeals Court for that authority.

But critics say that puts the governor in a gatekeeper role involving his own administration, as the governor could also block the inspector general from moving forward.

They also note that in civil cases, the inspector general can override a no-charge decision by the state attorney general, who is chosen by voters as the state's chief law enforcement office.

Brook suggested an amendment to bypass the governor's role entirely, which would put prosecutorial decisions solely in the hands of the inspector general and Appeals Court. But Barclay dismissed the suggestion as unnecessary and imprudent. "The governor's an additional check here" on the inspector general's activities, he said. * * *

County prosecutors and their lobbying arm opposed the bill as filed, which gave the governor direct authority to authorize prosecutions by the inspector general.

But negotiations created a role for the Appeals Court and added other minor changes, and the Association of Indiana Prosecuting Attorneys now supports the bill.

Stephen J. Johnson, who bargained with the administration on the association's behalf, said prosecutors see real benefits in the bill's general drift.

He said one significant benefit is that the inspector general would investigate and prepare a case before referring it to county prosecutors, who may lack expertise in state ethics and anti-corruption laws.

"It's a new concept, there's no question about that," Johnson said, "and it's hard to get your arms around. But I do think there are potential benefits for prosecutors in the investigative work that can be done at the state level."

Brook, who expressed the highest confidence in Johnson's views, said the bill still could benefit from changes. He suggested more independence for the inspector general, including a fixed term of office and more control of the office budget.

But he said the legislative process is strong enough to correct imbalances and weaknesses in the bill, which already includes some important limits on the inspector general's power.

He noted one in particular, which requires an inspector general to obtain a grand jury indictment before filing criminal charges. "It's an excellent limitation," he said. "It's an excellent check."

A reader has pointed out to me that the Judicial Article of the Indiana Constitution includes the state's prosecuting attorneys. Article 7, Sec. 13:
Section 13. Removal of Circuit Court Judges and Prosecuting Attorneys. Any Judge of the Circuit Court or Prosecuting Attorney, who shall have been convicted of corruption or other high crime, may, on information in the name of the State, be removed from office by the Supreme Court, or in such other manner as may be prescribed by law.
(History: As Amended November 3, 1970).
Article 7, section 18:
Section 16. Prosecuting Attorneys. There shall be elected in each judicial circuit by the voters thereof a prosecuting attorney, who shall have been admitted to the practice of law in this State before his election, who shall hold his office for four years, and whose term of office shall begin on the first day of January next succeeding his election. The election of prosecuting attorneys under this section shall be held at the time of holding the general election in the year 1974 and each four years thereafter.
(History: As Amended November 3, 1970).
I'm checking to see whether these provisions were in the 1851 version.

[More - revised] The answer is yes, the prosecuting attorney was included in the original Article 7 of the 1851 Constitution. Sections 11 and 12 read:

Section 11. There shall be elected, in each judicial circuit, by the voters thereof, a Prosecuting Attorney, who shall hold his office for two years.

Section 12. Any Judge, or Prosecuting Attorney, who shall have been convicted of corruption or other high crime, may, on information in the name of the State, be removed from office by the Supreme Court, or in such other manner as may be prescribed by law.

The Prosecuting Attorney was not included in the Judicial Article (Article 5) of the 1816 Constitution.

Posted by Marcia Oddi on February 28, 2005 09:43 AM
Posted to Indiana Government