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Friday, March 02, 2007

Ind. Law - More on "State expected to defend Soliday in residency dispute" [Updated]

Updating this ILB entry from Feb. 27th, Bob Kasarda of the NWI Times writes today:

The Indianapolis law firm of House Minority Leader Brian Bosma, R-Indianapolis, is seeking to dismiss the local lawsuit challenging the residency of state Rep. Ed Soliday, R-Valparaiso.

The firm argues it is unconstitutional to serve a state lawmaker with a civil lawsuit while the Indiana General Assembly is in session.

The motion to dismiss the case for lack of jurisdiction, which was mailed out Wednesday, cites the state constitution in prohibiting both civil suits and criminal arrests of lawmakers in session, short of treason, a felony or a breach of the peace.

Portage attorney Ken Elwood, who along with attorney Mitch Peters of Merrillville filed the lawsuit on behalf of several local voters, said he is researching the claim, but does not believe it applies.

It does not apply because Soliday does not live within the district he is supposed to represent and is thus is not a valid lawmaker, Elwood said, echoing the allegation at the heart of the lawsuit.

"Everything they're doing is just to deny the inevitable in my opinion," said Elwood, a former chair of the Portage Democratic Party. * * *

Indianapolis attorney William Bock III [of Kroger Gardis & Regas LLP, Rep. Bosm's firm] said in a letter to Elwood and Peters he was retained by Soliday to file the motion to dismiss.

He said pursuing the lawsuit against Soliday is "an abuse of process for which legal remedies are available." The action is also a violation of Elwood and Peter's duties to the court as members of the bar and contrary to their oath to uphold the state constitution.

The letter calls on Elwood and Peters to withdraw the complaint without awaiting action by the judge.

The case is before Porter Superior Judge Bill Alexa, a Democrat, who is a former state senator.

[Updated 3/3/07] "'06 election still hounds Ed Soliday" is the headlined of a story by Jim Stinson in the Gary Post-Tribune. Some quotes:
Democrats recently criticized a possible request by Indiana Attorney General Steve Carter to represent Soliday in Porter Superior Court.

But Soliday said Carter's office almost stepped in when Elwood, an attorney for the Democratic case, threatened to involve Indiana Secretary of State Todd Rokita.

"They always have a spin and a lie," said Soliday. "Steve Carter, quite frankly, wanted to take the case."

Soliday decided to hire a election-savvy attorney, Bill Bock of Indianapolis, which brought flak from the Democrats because the law partnership also employs Rep. Brian Bosma, R-Indianapolis, the GOP House minority leader.

Bock said Elwood is pursuing a case which defies the Indiana Constitution (Article 4, Section 8), and took Elwood to task about it. Bock and Soliday say members of the Indiana General Assembly cannot be sued while in session. Bock said the lawsuit seeks to distract Soliday during session, which is exactly what Section 8 seeks to prevent.

That provision could soon kill the lawsuit -- for now.

Elwood said the lawsuit is not about distraction or politics, but constitutionality.

"This is constitutional law at its most basic form," said Elwood.

Elwood said, at best, the constitution's say on lawsuits while the Indiana General Assembly is in session just puts off "the inevitable." (He hasn't conceded on that point, though.)

"It's a delay," said Elwood. "It's delay, delay, delay."

Elwood said Soliday isn't defending his case on its merits, and said the GOP practically admits Soliday lives in District 10, the domain of Rep. Duane Cheney, D-Portage.

"He's a void candidate," said Elwood.

Soliday could make much of the case moot by resigning and letting the District 4 GOP precinct committeemen choose a replacement. Elwood said the GOP cannot do that because Soliday is not a legitimate representative and there is no GOP "vacancy." Elwood believes Graham would be the candidate to fill the seat, or hold a special election.

Or Soliday could move deeper and indisputably within the district. Soliday said he met with a builder on Friday about house plans he made well before the 2006 election, although lot selection is still undecided.

Posted by Marcia Oddi on March 2, 2007 08:14 AM
Posted to Indiana Law