State v. Monfort

ATTORNEYS FOR APPELLANTS

Jeffrey A. Modisett

Attorney General of Indiana

Jon Laramore

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Michael Riley

Rensselaer, Indiana

IN THE

SUPREME COURT OF INDIANA

STATE OF INDIANA, et al., )

)

Appellants (Defendants Below), )

)

v. ) Indiana Supreme Court

) Cause No. 66S00-9904-CV-232

ROBERT V. MONFORT, )

)

Appellee (Plaintiff Below). )

APPEAL FROM THE PULASKI CIRCUIT COURT

The Honorable Michael A. Shurn, Judge

Cause No. 66C01-9707-CP-068

ON DIRECT APPEAL

January 26, 2000

BOEHM, Justice.

We hold that the legislature may constitutionally abolish a court of

general jurisdiction in this state, but, because of the separation of

powers among the three branches of government, that action cannot be

effective before the expiration of the term of the current judge.

Factual and Procedural Background

In 1995, the General Assembly passed an omnibus bill that, among other

things, abolished Jasper Superior Court No. 2. See Pub. L. No. 18-1995, §§

17, 44-55, 126, 1995 Ind. Acts 1587, 1597-99, 1640.[1] Jasper Superior No.

2 had been created by the legislature in 1990 as a court of general

jurisdiction. See Pub. L. No. 40-1990, § 30, 1990 Ind. Acts 1312. Judge

Riley was initially appointed as the judge of the new court, and was then

elected in 1992 to a six-year term. On December 31, 1993, Judge Riley

joined the Indiana Court of Appeals and Judge Robert V. Monfort was

appointed by Governor Bayh to serve out her term.

Public Law 18-1995 was signed by the Governor and became effective on

May 10, 1995. On that day, Judge Monfort sued for both declaratory and

injunctive relief to prevent the abolition of Jasper Superior No. 2. The

trial court immediately granted a temporary restraining order and on August

1, 1995, issued a preliminary injunction preventing the termination of

Jasper Superior No. 2. After various venue motions and an interlocutory

appeal not relevant to the issues discussed here, the trial court entered

summary judgment in favor of Judge Monfort, holding that §§ 17, 44-55, &

126 of Public Law 18-1995 were unconstitutional because they were

“unwarranted and improper invasion[s] of the province of the judiciary

reserved to it under the Constitution of the State of Indiana.” The State

appealed. In the meantime, by reason of the preliminary injunction, the

position of Judge for Jasper Superior No. 2 was on the ballot in the 1998

general election and Judge Monfort was elected to that position. This

Court has jurisdiction of this appeal pursuant to Indiana Appellate Rule

4(A)8. The parties agree that there are no issues of material fact and

only questions of law are presented in this appeal.

I. Legislative Power to Create and Abolish Courts

Public Law No. 18-1995 is a statute purporting to abolish a court.

Judge Monfort contends that if the Act is allowed to stand, it would

violate Article III, § 1 of the Indiana Constitution, which provides for

the separation of powers among the three branches of government. The State

responds that the statute does not violate the separation of powers

provision of the Indiana Constitution because under Article VII, § 1, the

power to create courts—and implicitly the power to abolish them—is a

legislative function, not a judicial one. In construing the Indiana

Constitution, we look to “the language of the text in the context of the

history surrounding its drafting and ratification, the purpose and

structure of our constitution, and case law interpreting the specific

provisions.” Ajabu v. State, 693 N.E.2d 921, 929 (Ind. 1998) (quoting

Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind. 1996)).

A. Constitutional Text

The judicial power of the state is vested in the judicial branch by

Article VII, § 1 of our current Constitution. This provision has been in

the Indiana Constitution since its adoption in 1851 and was also found in

the original Constitution of 1816.[2] The “first line of inquiry in any

constitutional case” is the text of the constitution itself. Ajabu, 693

N.E.2d at 929. Article VII, § 1 states: “The judicial power of the State

shall be vested in one Supreme Court, one Court of Appeals, Circuit Courts,

and such other courts as the General Assembly may establish.” This Court

has long held that this provision means what it says. See, e.g., Stocking

v. State, 7 Ind. 326, 328 (1855).

It is beyond dispute that the Constitution gives the legislature the

power to create superior courts. Included in the power to create is the

power to abolish. See State ex rel. Yancey v. Hyde, 129 Ind. 296, 302, 28

N.E. 186, 188 (1891) (“The power that creates can destroy.”); Mullen v.

State, 34 Ind. 540, 543 (1870) (upholding act repealing Jefferson Criminal

Circuit Court because the act “is not liable to any objection which would

not with equal force apply to the act creating the court.”). This power is

limited by the text of the Constitution, with the result that the

legislature cannot entirely abolish the courts whose existence is

constitutionally mandated.[3] With that exception, we believe that Article

VII, § 1 confers upon the legislature the power both to create and to

abolish courts.

B. History

Reference to the history surrounding the drafting and ratification of

the Constitution seems unnecessary in view of the clarity of the language

of Article VII, § 1. In any event, if there were any doubt, the debates

confirm that the issue of the legislature’s power to create and destroy

courts was specifically considered by the framers of the 1851 Constitution,

and the conscious decision was made to give that authority to the General

Assembly. Judge Borden, a Delegate for Allen, Adams, and Wells counties,

expressed his concern that the proposed section, which later became Article

VII, § 1, “leaves the power in the General Assembly, to create and abolish

Courts of Justice, at their pleasure.” 2 Report of the Debates and

Proceedings of the Convention for the Revision of the Constitution of the

State of Indiana 1807 (Indiana Historical Collections Reprint, 1935). He

further argued:

[T]here should be three great departments of the government[.] I hope

that this Convention will endeavor, as far as it possibly can, to make

each department independent of the other two. . . . [I]n order to

secure this, several things are necessary. In the first place, . . .

no new Court should ever be created, or old one abolished, by the

legislative department of the government; and in the next place, sir,

the judiciary should not owe its existence to either of the other two

departments of the government. . . . If the report of the committee on

the organization of Courts of Justice is adopted, the General Assembly

will be empowered to create and abolish at their pleasure, such

inferior Courts as they may deem proper. . . . [T]he greatest

objection to investing the legislative department with the power to

create courts is, that if they can create them, they must necessarily

have the power to abolish them; and thus the power is placed in two of

the departments of the government to legislate the third out of

office.

Id. at 1807-08. Despite Judge Borden’s concerns, the convention passed

Article VII, § 1 as proposed. In view of this history, it is clear that

the language was intended to confer on the legislature the power to create

and abolish courts.

C. Separation of Powers

Although the text and constitutional debates both support legislative

power to abolish courts, that power is not without limitation.

Constitutional provisions must be examined within the structure and purpose

of the Constitution as a whole, and not in isolation. See Welsh v. Sells,

244 Ind. 423, 451, 193 N.E.2d 359, 361 (1963) (“The Constitution has to be

read as a whole and not as a part.”); Beavers v. State, 236 Ind. 549, 557,

141 N.E.2d 118, 122 (1957) (“If possible, the provisions of the

constitution must be construed together, and not so as to create a

conflict.”). Judge Monfort argued, and the trial court agreed, that the

separation of powers doctrine prohibits the legislature from abolishing

Jasper Superior No. 2 altogether.

The separation of powers provision of the Indiana Constitution,

Article III, § 1, states, “The powers of Government are divided into three

separate departments; the Legislative, the Executive including the

Administrative, and the Judicial; and no person, charged with official

duties under one of these departments, shall exercise any of the functions

of another, except as in this Constitution expressly provided.” The

importance of this provision was elaborated in Book v. State Office

Building Commission, 238 Ind. 120, 149 N.E.2d 273 (1958). “Article 3, § 1,

of the Constitution of Indiana is the keystone of our form of government

and to maintain the division of powers as provided therein, its provisions

will be strictly construed.” Id. at 159, 149 N.E.2d at 293. “The true

interpretation of this [separation of powers] is, that any one department

of the government may not be controlled or even embarrassed by another

department, unless so ordained in the Constitution.” In re Judicial

Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350, 352, 332

N.E.2d 97, 98 (1975) (quoting State v. Shumaker, 200 Ind. 716, 721, 164

N.E. 408, 409 (1928)).

The separation of powers doctrine recognizes that each branch of the

government has specific duties and powers that may not be usurped or

infringed upon by the other branches of government. The judiciary is one

of the three co-equal branches of government and its independence is

essential to an effective running of the government. See Board of Comm’rs

v. Stout, 136 Ind. 53, 58-59, 35 N.E. 683, 685 (1893) (“Courts are an

integral part of the government, and entirely independent; deriving their

powers directly from the constitution, in so far as such powers are not

inherent in the very nature of the judiciary.”).

In particular, it has been held in a variety of contexts that the

legislature cannot interfere with the discharge of judicial duties, or

attempt to control judicial functions, or otherwise dictate how the

judiciary conducts its order of business. See In re Senate Act No. 441,

263 Ind. at 353, 332 N.E.2d at 98 (legislation prescribing qualifications

for county judges is unconstitutional); Thorpe v. King, 248 Ind. 283, 287,

227 N.E.2d 169, 171 (1967) (legislature cannot set aside final judgment of

a court); Noble County Council v. State ex rel. Fifer, 234 Ind. 172, 180,

125 N.E.2d 709, 713 (1955) (court has inherent authority to appoint and

require payment of such personnel as the functions of the court may

require); State ex rel. Kostas v. Johnson, 224 Ind. 540, 550, 69 N.E.2d

592, 596 (1946) (statute limiting time in which a court must rule on an

issue is unconstitutional); Gray v. McLaughlin, 191 Ind. 190, 193, 131 N.E.

518, 519 (1921) (legislation attempting to set standards for briefs filed

in Supreme Court is void) ; Roberts v. Donahoe, 191 Ind. 98, 104, 131 N.E.

33, 35 (1921) (same); Solimeto v. State, 188 Ind. 170, 171-72, 122 N.E.

578, 578 (1919) (same); Parkison v. Thompson, 164 Ind. 609, 626, 73 N.E.

109, 115 (1905) (legislature cannot dictate “the manner and mode in which

the courts shall discharge their judicial duties”); State ex rel. Hovey v.

Noble, 118 Ind. 350, 371, 21 N.E. 244, 252 (1889) (legislature cannot

appoint ministers and assistants for the court).

These principles apply equally to superior courts once they are

created, even though there is no constitutional requirement that they be

established in the first place. See Kostas, 224 Ind. at 550-51, 69 N.E.2d

at 596 (Although the Superior Court of Marion County is not identified in

the Constitution, “that does not mean that it acquires its judicial power

from the legislature. The legislature, under the Constitution, may create

other courts than those named in the Constitution. But the Constitution

alone bestows judicial power and all judicial power comes from the

Constitution and is vested by it in courts and judges who can no more be

interfered with by the legislature than a court or judge created by the

Constitution itself.”). “[T]he courts possess the entire body of the

intrinsic judicial power of the State, and . . . the other departments are

prohibited from assuming to exercise any part of that judicial power.” Id.

at 546, 69 N.E.2d at 594 (quoting Noble, 118 Ind. at 354, 21 N.E. at 246).

Notwithstanding the general prohibition against interference by one

branch in the functions allotted to another, some powers that arguably

constitute that interference are expressly conferred by the Constitution.

If so, the specific grant is, to use the phrase from In re Senate Act 441,

263 Ind. at 352, 332 N.E.2d at 98, “ordained in the Constitution” and is a

constitutional exercise of power. Article VII, § 1 is an example of this.

In view of the explicit language of this section, we conclude that the

power to create and abolish courts is among the powers given to the

legislative branch.

The question remains whether Public Law 18-1995 nonetheless

unconstitutionally interfered with the judiciary when it attempted to

abolish Jasper Superior Court No. 2 in the middle of Judge Monfort’s

term.[4] We hold today that the legislature has the power to create and

abolish superior courts, and indeed, within the limits of the Constitution,

circuit courts as well. But, to do so in the middle of a judge’s term

violates the separation of powers provision of the Indiana Constitution.

In order to preserve the very foundation on which our government was

established, it is necessary to have “absolute integrity and freedom of

action of courts.” Board of Comm’rs v. Albright, 168 Ind. 564, 578, 81

N.E. 578, 582-83 (1907) (quoting Stout, 136 Ind. at 59, 35 N.E. at 685).

“A court of general jurisdiction, whether named in the Constitution or

established in pursuance of the provisions of the Constitution, cannot be

directed, controlled, or impeded in its functions by any of the other

departments of the government.” Id. If the legislature can remove a

sitting judge, it has the power to “direct, control, or impede” the

judiciary by the threat of removing judges who make unpopular decisions, or

by delivering on that threat. The resulting intimidation and potential

disruption of courts entertaining issues that may be unpopular in

legislative circles constitutes an impermissible intrusion into an

independent judiciary.

The separation of powers provision exists not only to protect the

integrity of each branch of government, but also to permit each branch to

serve as an effective check on the other two. Indeed, Black’s Law

Dictionary defines separation of powers as “the constitutional doctrine of

checks and balances by which the people are protected against tyranny.”

Black’s Law Dictionary 1369-70 (7th ed. 1999). See Book, 238 Ind. at 161,

149 N.E.2d at 294 (“[T]he powers of government should be so divided and

balanced among several bodies of magistracy, as that no one could transcend

their legal limits, without being effectually checked and restrained by the

others.”) (quoting Thomas Jefferson, “Notes on the State of Virginia”).

The concept of an independent judiciary lies at the bedrock of the

separation of powers doctrine that shapes our form of government. It was

one of the central principles underlying the thinking of the framers of the

Indiana Constitution and also the Constitution of the United States. As

Alexander Hamilton put it in the Federalist Papers:

The complete independence of the courts of justice is peculiarly

essential in a limited Constitution. By a limited Constitution, I

understand one which contains certain specified exceptions to the

Legislative authority; such, for instance, as that it shall pass no

bills of attainder, no ex post facto laws, and the like. Limitations

of this kind can be preserved in practice no other way than through

the medium of the courts of justice; whose duty it must be to declare

all acts contrary to the manifest tenor of the Constitution void.

Without this, all the reservations of particular rights or privileges

would amount to nothing.

. . . .

[T]he courts of justice are to be considered as the bulwarks of a

limited Constitution, against Legislative encroachments . . . . This

independence of the Judges is equally requisite to guard the

Constitution and the rights of individuals, from the effects of those

ill humors which the arts of designing men, or the influence of

particular conjectures, sometimes disseminate among the people

themselves, and which, though they speedily give place to better

information, and more deliberate reflection, have a tendency, in the

meantime, to occasion dangerous innovations in the Government, and

serious oppressions of the minor party in the community. . . .

But it is not with a view to infractions of the Constitution only,

that the independence of the Judges may be an essential safe-guard

against the effects of occasional ill humors in the society. These

sometimes extend no further than to the injury of the private rights

of particular classes of citizens, by unjust and partial laws. Here

also the firmness of the Judicial magistracy is of vast importance in

mitigating the severity and confining the operation of such laws. It

not only serves to moderate the immediate mischiefs of those which may

have been passed, but it operates as a check upon the Legislative body

in passing them; who, perceiving the obstacles to the success of an

iniquitous intention are to be expected from the scruples of the

courts, are in a manner compelled by the very motives of the injustice

they mediate, to qualify their attempts.

The Federalist No. 78, at 426, 428-29 (E.H. Scott ed., 1894)

The same considerations undergird our state Constitution. We have long

taken the view that:

Our courts are the bulwark, the final authority which guarantees to

every individual his right to breathe free, to prosper and be secure

within the framework of a constitutional government. The arm which

holds the scales of justice cannot be shackled or made impotent by

either restraint, circumvention or denial by another branch of that

government.

State ex rel. Fifer, 234 Ind. at 181-82, 125 N.E.2d at 714. In sum, the

legislature, as a co-equal branch of government, cannot be allowed to

shackle the judiciary by, at its whim, removing judges from office during

their term. This statute cannot stand as written in the face of Article

III, § 1 of our Constitution.

D. Indiana Case Law

The sparse case law addressing the role of the legislature in

abolishing courts and judgeships in midterm points in the same direction.

In State ex rel. Gibson v. Friedley, 135 Ind. 119, 129, 34 N.E. 872, 875

(1893), this Court addressed the constitutionality of an act abolishing a

circuit court. There, we held that the act was unconstitutional because it

infringed upon the judge’s constitutional right to a six-year term as

stated in Article VII, § 7 (formerly Rev. Stat. 1881, § 169). However,

this Court also stated:

To construe this section to mean that the Legislature can, at its own

will, abolish the circuit, and thus legislate the judge . . . out of

office, in addition to being in direct conflict with the other

provisions of the our organic law, would also put the official life of

every judge . . . of the State at the mercy of the Legislature. It

would subject the judiciary to the legislative power, and utterly

destroy all judicial independence. Judges . . . would be at the whim

or caprice of the Senators and Representatives in their tenure of

office. . . . If the Legislature, by a special act, may remove one

judge . . . , it may remove any and all such officials in the State,

and hence they would be at the mercy of any Legislature whose enmity

or ill will they may have incurred.

Id. at 128-29, 34 N.E.2d at 875. This reasoning applies equally to

superior courts even though their judges’ terms are not specified in the

Constitution. If the legislature is allowed to remove a superior court

judge in mid-term, it presents the same potential for abuse as the removal

of a circuit court judge.

The Indiana Court of Appeals addressed related issues in Corn v. City

of Oakland City, 415 N.E.2d 129 (Ind. Ct. App. 1981). In that case, the

city council’s attempt to abolish a city court at the end of the judge’s

term was upheld. In the accompanying discussion, the court acknowledged

that “the legislature cannot deprive a judge of his office before the

expiration of his term by abolishing his office or the court served by the

judge.” Id. at 132. The court went on to note that this rule was

established in cases involving constitutional courts, the Supreme Court,

the Court of Appeals, and the circuit courts, and it suggested that the

rule did not apply to a city court or judgeship because they are not

constitutional offices. In Corn, any contention based on separation of

powers was waived. Id. at 134. However, there is authority for the

proposition that the separation of powers doctrine applies only to state

government and its officers, not municipal or local governments. See

Sarlls v. State ex rel. Trimble, 201 Ind. 88, 115, 166 N.E. 270, 280

(1929). Under this view the result stated in this dicta in Corn was

correct, even if the rationale was not. As already explained, superior

courts, as courts of general jurisdiction, enjoy the same immunity as

circuit courts from interference that violates the separation of powers.

In any event, in Corn, the city judge’s court was abolished after his term

expired and the issue presented in this case was not presented there.

In sum, although Article VII, § 1 of the Indiana Constitution gives

the legislature the power to create and abolish courts, that power is

limited by Article III, § 1, which provides for the separation of powers

among the three branches of Indiana government. Any attempt by the

legislature to abolish a superior court in the middle of a judge’s term

interferes with the judicial power of the courts and is therefore

unconstitutional. P.L. 18-1995 cannot stand as written.

II. Other Challenges

Judge Monfort challenged P.L. No. 18-1995 in the trial court on a

number of grounds including that it was: an unconstitutional special law

under Article IV, §§ 22 & 23, a violation of the civil rights of the

parties that filed suit in Jasper Superior No. 2, an abrogation of the

Governor’s power, and improper judicial discipline. However, none of these

issues were raised in his appellee’s brief.[5] The trial court based its

injunction solely on the separation of powers provision of the Indiana

Constitution. Because Judge Monfort argues no other footing for affirming

the decision of the trial court, and the trial court’s basis for its

decision is incorrect, the injunction preventing the termination of Jasper

Superior No. 2 must be dissolved.

III. Severability

Although the portion of the legislation that sought to end Jasper

Superior No. 2 in the middle of Judge Monfort’s term is unconstitutional,

the question remains whether the entire statute is unconstitutional, or

whether the unconstitutional provision may be severed. This Court has

adopted the test for severability used in Dorchy v. Kansas, 264 U.S. 286,

289-90 (internal citations omitted) (1924):

A statute bad in part is not necessarily void in its entirety.

Provisions within the legislative power may stand if separable from

the bad. But a provision, inherently unobjectionable, cannot be

deemed separable unless it appears both that, standing alone, legal

effect can be given to it and that the legislature intended the

provision to stand, in case others included in the act and held bad

should fall.

In re Public Law No. 154-1990, 561 N.E.2d 791, 793 (Ind. 1990); In re City

of Mishawaka, 259 Ind. 530, 533, 289 N.E.2d 510, 512 (1972). This Court

must determine if “it is apparent [that] the Legislature would not have

passed the act except as a whole,” Sarlls v. State ex rel. Trimble, 201

Ind. 88, 100 n.1, 166 N.E. 270, 275 n.1 (1929), or otherwise stated, if

“the Legislature would have passed the statute had it been presented

without the invalid features.” State v. Kuebel, 241 Ind. 268, 278, 172

N.E.2d 45, 50 (1961).

Public Law 18-1995 consisted of 149 sections of which only thirteen

related to Jasper County. One of these, § 17, does not relate at all to

the abolishment of Jasper Superior No. 2, and another, § 126, expired on

July 1, 1995. In the remaining sections, the only constitutional infirmity

appears in the title of each section which states, “[e]ffective upon

passage” as opposed to “effective January 1, 1999,” the first day after the

expiration of Judge Monfort’s term at the time the legislation was passed.

We think it is clear that the legislative intent was to abolish Jasper

Superior No. 2 and that the legislature would have passed the statute

without the invalid date. Accordingly, Public Law 18-1995 stands without

the “effective upon passage” language of §§ 44 to 55. The remainder of

Public Law 18-1995, including § 17, stands as written. Given that the

survival of Jasper Superior No. 2 after 1998 was the product of the

injunction issued by the trial court, that injunction should be dissolved

in a fashion that permits the orderly transfer of all cases pending before

Jasper Superior No. 2 to be accomplished within ninety days after the

certification of this opinion.[6] No new cases should be permitted to be

filed in Jasper Superior Court No. 2 after that certification.[7]

Conclusion

The judgment of the trial court is reversed and this case is remanded

for proceedings consistent with this opinion.

SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.

-----------------------

[1] Public Law No. 18-1995 was an omnibus court bill based on House

Enrolled Act No. 1118. This Act contained provisions establishing new

courts and magistrates, as well as abolishing Jasper Superior No. 2. It

reads as follows:

Section 17. IC 33-4-1-37 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON

PASSAGE]: Sec. 37. (a) The county of Jasper shall be and constitute

the thirtieth judicial circuit of the State of Indiana. (b) The Jasper

circuit court has a standard small claims and misdemeanor division.

. . . .

Section 44. IC 33-5-25.5-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE

UPON PASSAGE]: Sec. 1. There is established a court of record to be

known as Jasper superior court No. 1. The court may have a seal

containing the words “Jasper Superior Court No. 1, Jasper County,

Indiana.” Jasper County comprises the judicial district of the court.

. . . .

Section 126. [EFFECTIVE UPON PASSAGE] (a) All matters pending in the

Jasper superior court No. 2, on the day before the date of passage of

this act shall be transferred to the Jasper circuit court in

accordance with the venue requirements prescribed under Rule 75 of the

Indiana Rules of Trial Procedure. (b) These matters have the same

effect as if originally filed in or issued by the Jasper circuit

court. (c) This SECTION expires July 1, 1995.

The Indiana Code section amended by section 44 formerly contained “(b) An

additional court of record is established to be known as Jasper superior

court No. 2. The court may have a seal containing the words ‘Jasper

superior court No. 2, Jasper County, Indiana.’” Sections 45-55 dealt with

the judge’s term, duties, etc. in both Jasper Superior Courts. P.L. 18-

1995 revised these provisions to apply to one court.

[2] Article VII, § 1 was amended in 1881 and 1970, but neither amendment is

relevant to any issue presented in this case.

[3] Article VII, § 7 provides that the “State shall, from time to time be

divided into judicial circuits . . . .” Under this clause, the legislature

has the power to reconstitute and reorganize the circuit courts. See

State ex rel. Gibson v. Friedley, 135 Ind. 119, 130, 34 N.E. 872, 875-76

(1893) (“The General Assembly may add to, or may take from, the territory

constituting a circuit. It may create new circuits. It may abolish a

circuit . . . .”); Carpenter v. State, 72 Ind. 331, 332 (1880) (“The

Legislature may, at their discretion, change judicial circuits by adding to

or taking from, and from old circuits may create entirely new ones.”);

Stocking, 7 Ind. at 328 (“[t]he legislature might create new circuits from

‘time to time’, as in their opinion the exigencies of business might

require.”). However, the legislature cannot, under the Constitution, fail

to provide a court for a portion of the state.

[4] Judge Monfort briefly discusses employment at will and the concept

that he might have a contractual or vested right violated by Public Law No.

18-1995. “Offices are neither grants nor contracts, nor obligations which

can not be changed or impaired. They are subject to the legislative will

at all times, except so far as the Constitution may protect them from

interference.” State ex rel. Yancey v. Hyde, 129 Ind. 296, 302, 28 N.E.

186, 187-88 (1891). Because there is no constitutional provision

concerning a superior judge’s term as opposed to a circuit judge’s term,

see Ind. Const. Art. VII, § 7, Judge Monfort has no personal vested or

contract right in his judgeship. See Rogers v. Calumet Nat’l Bank, 213

Ind. 576, 585, 12 N.E.2d 261, 265 (1938); Corn v. City of Oakland City, 415

N.E.2d 129, 133 (Ind. Ct. App. 1981).

[5] There also appear to be significant barriers to success on the merits

of these arguments. First, special legislation is only unconstitutional

“where a general law can be made applicable.” Ind. Const. art. IV, § 23.

In this case, Jasper Superior No. 2, like most superior courts, was created

by a special law. It has long been held that “[u]nder § 1, article 7, it

is for the legislature to determine what ‘other’ courts it will create, and

as it enjoys this power, unhampered by section twenty-two of the

legislative article, it need not enact a general law, under which courts

might spring into existence where not needed, but can ordain the existence

of a court in a particular county . . . .” Board of Comm’rs v. Albright,

168 Ind. 564, 577, 81 N.E. 578, 582 (1907); cf. Mullen v. State, 34 Ind.

540, 542 (1870) (act abolishing criminal circuit court does not violate

constitutional provision against special laws). It is questionable whether

Judge Monfort has standing to pursue the challenges based on the civil

rights of the parties involved in suits in Jasper Superior No. 2 or the

Governor’s appointment powers. See Pence v. State, 652 N.E.2d 486, 488

(Ind. 1995) (“For a private individual to invoke the exercise of judicial

power, such person must ordinarily show that some direct injury has or will

immediately be sustained.”); Deaton v. City of Greenwood, 582 N.E.2d 882,

885 (Ind. Ct. App. 1991) (“[O]ne may not assert a cause of action based

solely on the infringement of the rights of others.”). Finally, the act of

abolishing Jasper Superior No. 2 is not judicial discipline because it does

not punish Judge Monfort by removing him from office, but instead abolishes

his court as we here hold, at the end of his term.

[6] Section 125 of Public Law 18-1995, which expired on January 1, 1996,

provided for payment of salaries to employees of Jasper Superior No. 2 for

sixty days after the court was abolished. See Pub. L. No. 18-1995, § 125,

1995 Ind. Act. 1640. By reason of the trial court’s injunction, this

provision has not yet come into effect. Its 1996 expiration date was

presumably based on the assumption that the abolition of the court and the

sixty-day severance pay provision would have been accomplished by that

time. Because the employees have remained in service and the timing of the

dissolution of the trial court’s injunction was unpredictable, we conclude

that the legislative intent to give sixty days severance pay to employees

should be honored by the trial court in implementing this decision.

[7] An opinion of the Indiana Supreme Court is to be certified as final by

the Clerk of this Court when the period within which rehearing may be

sought has elapsed if no petition for rehearing is filed, or if a rehearing

petition is filed, when the Court issues an order or opinion disposing of

the petition. Ind. Appellate Rule 15(B).