*1 491 Stаte, (1971) Shepherd relationship. marital who only those privilege is accorded 165. 277 N.E.2d state legal wife. Our relationship of man and maintain marriage. 31-1-6-1 recognize law Ind. Code common does 1973). (Burns the sanc- lofty object protecting from invasion “[T]he only who peace those tity extend of marital is deemed and wife, their honest
legally whatever husband their validity to the have as innocent belief been relation.” (NcNaughton 1961). We Wigmore rev. on Evidence legally privilege those not husband extend this
refuse to wife. foregoing reasons, no trial error and we find For all judgment affirmed. should be
Judgment affirmed. Pivarnik, JJ.,
Givan, C.J., DeBruler, Prentice and
concur.
Reported at
Indiana Capacity Individually DeWald, his K. Chair lin Employment Indiana Relations Education man George Individually Gardner, D. Cleon Foust and Capacity Their as Members Indiana Educa and in Employment Board, American Relations Federation tion Municipal County Employees, State, AFL-CIO v. Corporation. Community
Benton School July 12, Rehearing September (No. 27, 1977.) denied Filed 776S203. *3 Attorney General, Sendak, Arthur Thaddeus L. Theodore appellant Attorney General, Edu- Perry, Deputy for Indiana Wendy Employment Board, Kahn, Relations L. Swerd- cation D.C., Darko, Washington, ling Mauer, of Richard J. and for Spilman, Indianapolis, & Bingham, Summers, Welsh County Munici- State, appellant Federation of American AFL-CIO. pal Employees, Lobley, West, Alan Nolan,
Alan H. T. Martha S. Miller Ice Ryan, Indianapolis, appellee. Donadío & for appeal J. This is an from the determination of Prentice, 254, (Ind. trial court Public Law that Acts Code seq. I, 22-6-4-1 et is unconstitutional as violative of Article constitution, prohibits judicial Section 12 of our it state agency’s оf an administrative determination. presented, determination, are Three issues for our briefs Appellant Appellant-Intervenor. (1) err, ruling trial court law, Did the as a matter of constitutionality statute, absence of justiciable controversy?
(2) err, holding the trial Did court matter of law in challenged precluded that the sections of ad- agency respect repre- ministrative determination made with proceedings sentation held under Section 7 of the Act? err, Did the trial court law, ruling as matter of challenged sections not severable re- from the rendering mainder of the thus the entire Act unconsti- ? tutional (Ind. through
Public Law Acts of 1975 Code 22-6-4-1 22-6-4-13) provides public for collective between employees governmental employer. their defendant (appellant), Employment Eduсation Indiana Relations (Board) charged state is the under the Act with its administration. (Appellee), Community
Plaintiff Benton Corporation School complaint declaratory filed a temporary judgment, a re- straining preliminary permanent order and injunctions, all relative to the enforcement of Public Law which it *4 charged is I, unconstitutional under Section Article the by Constitution of Indiana. plaintiff action Said the in- was following receipt stituted from the (Board) defendant hearing upon representation petition a notice a theretofore by filed with the Board the Retail Union, Clerk’s Local No. previously petition No. 25 had Local filed with the representative said seeking as the exclusive certified to be hearing purpose employees; was determine аnd pur- employees, plaintiff’s for “appropriate unit” of bragaining determine under and poses of collective representative of such question existed to the a as exclusive if unit. restraining restraining issued, temporary order was
A proceeding hearing, issued and notice from with said application in- hearing upon plaintiff’s temporary for a for hearing upon application a junction. Thereafter, injunction was continued and consolidated with temporary hearing merits; upon the American Federation of The County Municipal Employees, (Inter- and AFL-CIO State, intervene, stipulations of fact venor) were was allowed judgment put motions for filed the cause at issue filed intervenor. the Board dismiss, overruled said declared trial court motions (g) (d), unconstitutiоnal that subsections 8 entire (i) from the remainder thereof were not severable prohibited review of state administrative Act and regard representation pro- made in agency determinations Accordingly, ceedings of the Act. held under Section 7 enjoined proceedings permanently further from Board was the Act. under I
ISSUE challenges jurisdiction of the trial court and Intervenor injured Board’s neither Plaintiff nor asserts that the actions justiciable injury pose sufficient to con- it with threatened constitutionality troversy regarding of the Act. argued pass by Intervenor that courts do not true,
It is constitutionality of a statute until constitutional on the necessarily directly involved in is
determination pro justiciable controversy and essential to the Bush rights parties of the concerned. tection 922, 9 958; Texas, Roth S.Ct. L.Ed.2d 372 U.S. *5 496 Union, (1939)
v. Local Union No. Retail Clerks 1460 of question 24 N.E.2d A constitutional be Ind. not will anticipated necessity deciding of the advance consti Poer, rel., tutional Trustee State, issue. ex 188 Ind. 83; N. Y. Cent. R. N.E. R. Co. v. Pub. Ser. Comm. of Ind., (1958) 544, 147 N.E.2d 547.
Contrary argument, to Intervenor’s we believe that a deter constitutionality mination necessarily was directly controversy and involved in this and was protection rights plain essential to the show, hearing tiff. facts As the on determina appropriate among tion anof Plaintiff’s em by ployees injunctive was scheduled the Board. Without relief, proceed Plaintiff have been hearing forced with such according which, from there would have been no clearly review available. Plaintiff was threatened legal injury with a and should not been have pro forced to ceed under an unconstitutional peril. statute its at This case presents merely “ripening not seeds” of a controversy, but already presents existing controversy. and actual brought part action This was under the Indiana Declar- atory Judgment Act, provides: Ind. Code 34-4-10-2, which § * ** rights, “Any person status, legal whose or other rela- * ** by are affected statute
tions any have determined question validity arising or or construction under the * * * * * * statute, rights, and obtain a declaration of status legal or other relations thereunder.” Ind. Code 34-4-10-2 (1971). provides The Act further Ind. Code 34-4-10-12: remedial; purpose “This act be is declared to to settle uncertainty insecurity and to afford relief from and legal respect rights, relations; status and other tois liberally construed and administered.” justiciability standing The doctrines of exist litigation actively vigorously will be insure con- eliminating possibility of collusion tested, thus exemplified opinions. attempts advisory As obtain appeal, this on and the briefs the record below vigorously both sides and case has been contested advisory seeking merely plaintiff intervenor. The was impact opinion immediate and the decision has an rights obligations parties. of all Declaratory Judgment standing criteria for under the *6 Agler, 214, (1930) 202 Ind. was stated in Zoercher v. City 189, quoted
221, Misha 186, 172 N.E. v. App. Mohney, (1973) 668, waka 156 Ind. 297 N.E.2d 858: “ bringing have a sub- person action must ‘[T]he sought, present such as there interest the relief stantial controversy question merely a theoretical or
must exist not but ripening controversy, or at least the a real actual question has arisen controversy, and that a seeds of such a ought affecting right to be in order to which decided such ” safeguard right.’ App. at 668 672 156 Ind. Mishawaka v. city seeking Mohney, City supra, the was In declaratory judgment that ordinances was a one of own city properly that The lacked constitutional. court held standing controversy action in for such an in that no actual volving implementation of the ordinance had The arisen. city seeking advisory purely opinion. a was Weinberg Agency City contrast, in Jacob News
In v. App. 181, 730, the 322 N.E.2d court Marion, (1975) Ind. 163 standing bring declaratory plaintiff that had held seeking city unconsti- judgment declare a ordinance action challeng- There, plaintiff a news distributor tutional. was Although ing city pornography. ordinance on he was rights ordinance, first amendment his federal under the liable The literature were threatened. court held of distributiоn of standing argue plaintiff his own claim that had being infringed. rights his constitutional were Wage Prevailing also cites Committee Intervenor Scale Ind. App. 478, Zeller, N.E.2d where controversy court held that the moot the time was trial challenging in the case was held. Plaintiffs were setting wage proj- method on a scale school construction By ect. project time of trial the construction had been completed wages paid. all question The court con- previously any justiciable ques- cluded if had been there tion, question litigate there remained no- at trial previous question However, discussing was moot. the nec- having essity controversy actual litigate, the court quoted: “ ‘ * * * hardly possible completely It is to measure advantage accruing
social a oppоrtunity from to secure adjudication conclusive contested official action be- fore rather than after it is undertaken. conditions of justiciability tion of naturally demanded, any ques- to avoid ”’ * * * rendering merely advisory opinions. App. at at 208 N.E.2d The case before us existing involved immediate contro- versy parties between and illustrates the need and desir- ability adjudicating parties’ rights constitutional before rather than after official action has been taken. argues
Intervenor further that Plaintiff could have raised *7 constitutionality point at of some later in the proceedings. possibly contested That Plaintiff could done have so, however, bearing standing bring upon has no to present judgment Moreover, declaratory action. if Plaintiff proceeded had unit hearing, with determination it would uncertainty determining hаve been faced with the of whether judicial or not to seek a review of the unit determination immediately only the hearing, after to told that the unit determination was not final of order the administrative agency, or whether to wait until after an election had been recog- held seek Plaintiff required If had been review. upon nize a union without an election based authorization cards, it have had to decide whether to seek review recognition by or certification the board of an upon and seek to wait representative, or whether exclusive practice determination. only an unfair labor after him- party who deems requiring a principle know of no We unconstitutional, to be statute, believed self assaulted decry challenge battered he hаs until been defer such only authority adversary’s validity constitutional of his prematurity Accordingly, dying we see no his breath. with plaintiff’s in the action. II
ISSUE General Indiana question enacted Act in was employees in govern organization of Assembly in 1975 to bargaining.1 The public purposes collective sector for of carrying pur- charged these out administrative Employment poses procedures Education is the Indiana IEERB or to as (hereinafter referred Relations Board Board). adjudi- only empowered not
Under the the Board is employers em- and their disputes public cate labor between composition ployees of but also to determine bargain, employer is to employees, with which agent. identity of such unit’s by the determination 7 of the Act deals with the Section reрresented employees and the the unit to be Board of organization represent it; deals employees’ section 8 disputes. (g) resolution of Subsection sec- with its any aggrieved by specifically provides person tion 8 obtain a order of the Board review. How- final employee’s determination and certification ever the organization employee’s representative expressly as the purview from the subsection excluded provision (i) prohibits further (d) and a subsection applies public employees, except policemen, to all 1. Public Law 254 faculty professional engineers, firemen, university, members of corporations, employees employees, confidential certificated school *8 county employees, (c) municipal health care institution 22-6-4-1 § may organize (1975). teachers under Public Law Public school Ind. 20-7.5-1, enacted Code § inclusion, transcript record, in the Board’s the evidence during representation proceedings enjoins introduced judicial proceedings. review of such (Appellant) The Board asserts that the aforementioned preclude judicial representation subsections do not review of questions merely but them from such review in the excludes provided by manner section 8 for the of determinations review disputes. representation of labor position is It that such questions are, subject nevertheless to same manner as other administrative re- actions are viewable, i.e. Adjudica- under the terms of the Administrative Act, tion Ind. Code posture, questions 4-22-1-14. In this § represеntation (IEERB) be determined the Board subject to Adju- review under the Administrative Act, dication special procedure provided by but a sec- tion applicable 8 would be to the Board’s determination of complaints practices. of unfair labor opinion
It is our legislative that such was not the intent. large The Act part was derived from the federal National (NLRA), seq. Relations Act 141 et In order U.S.C. § provisions helpful compare understand the of the Act it is provisions them with similar NLRA. Under both NLRA petitions and the a labor union first either the National Labor (NLRB) Relations Board or the IEERB, representa- be certified as the exclusive employees designated for the tive ain unit. The then through proceeds hearing determine whether the unit sought represented appropriate is аn unit. Once an appropriate determined, is Board then decides wheth- representation question er a exists within unit. Ind. (a). Under the if the Code 22-6-4-7 NLRA NLRB finds question representation exists, it must conduct an elec- practices. tion, the absence of unfair Under required 254, IEERB election, Public Law to hold an recognize may require repre- but exclusive solely on the basis of check sentative IEERB’s of union au- (b). cards. Code 22-6-4-7 thorization *9 the or Public If election is under NLRA Law an held the union the the Board results. If loses then certifies the by previously election, the unit determination made the election, upon moot the union the becomes a issue. If wins by employer obligation the certification the under an bargain representative, with the which certified exclusive obligation through practice is enforceable the unfair labor complaint procedure. employer NLRA the unit if an wishes contest
Under by prior election, the NLRB to the made determination bargain, thereby forcing employer must refuse to the union may practice charge; employer labor and the an file unfair resulting judicial practice unfair then review of labor seek specified practices labor 5 of determination. unfair § 22-6-4-5, Act, closely follow those set forth Ind. Code § 158 of Under this to bar- the NLRA. refusal U.S.C. § practice gain certification is an unfair labor even in the after among employees. election been held Ind. event has no filing (a). Upon practice of an unfair 22-6-4-5 labor Code § hearing complaint, the NLRB or IEERB to determine holds charge by complaint. raised If Code 22-6-4-8. § may IEERB then cease warranted, issue a and desist order bargain. against or for a refusal The IEERB “complaining party” may judicial seek review or enforce- (d)8 Act. order under section of the ment cease desist of a including Any employer, may aggrieved person, seek any (g) judicial “final” order of IEERB under review § procedures forth similar The NLRA sets the Act. practice unfair determinations
review of U.S.C. § attempts prohibit judicial
Contrary NLRA, unit determinations and IEERB’s certifications following language representatives by the contained exclusive provisions “Prevention of Unfair in the Practices,” Ind. Code 22-6-4-8: Labor
U;!; (d) [*] * * [*] * Provided, however, that the determination by organization employee
the board that an been has chosen by majority employees appropriate in an subject not be to review the court. * * * (g) certification employ- the board organization representative ees’ is the exclusive shall not be subject to review the court. tion record of such section 8 board order held chapter, ceeding pursuant [*] (i) and collective v transcript In evidence v (d) proceeding.” proceeding of the record to section 7 of this introduced pursuant (g) ; nor shall the court consider the for enforcement or to section during required units] chapter shall not 8(d) to be filed under sub- representation [on review of be included (g) representa- of this pro- *10 prohibitions judicial these Absent on review, the Board’s representative determinations certifications would judicially aspect be reviewable one of the review of unfair practicе labor determinations made the Board. Under procedures law, federal labor which has identical except for quoted provisions,2 the above a unit repre- determination or is not sentative certification a “final” administrative thereby order and reviewable court a until after the following steps completed: have been (1) an repre- NLRB held, (2) been sentation election has the union has won the election, (3) the results have certified, (4) been employer the Except prohibitions representation 2. for the on review of proceed- ings, those found judicial provisions the review closely parallel Public Law 254 8(d), (e), in (f) the NLRA. Subsections of Public repeat part language 254 in substantial the Law 160(e). of 29 U.S.C. § language §8(g) directly contained in is taken from 29 U.S.C. 160(f): аggrieved by “Any person denying a granting final order of the Board or part sought may in or in whole the relief obtain a review superior of that order [circuit . . . court] language (i) parallels (d), 29 except The Indiana of U.S.C. 159§ that the provision prohibits requires. the 159(d) what the NLRA Section provides the that NLRA record of unit determination and certi- proceedings transcript fication shall be included in the filed when seek- practice ing determination, an unfair labor review of (i) whereas 8§ specifies any during Public Law evidence repre- introduced proceedings transcript sentation shall not be required included judicial purposes. be filed for review, (5) bargain has refused to in order to seek charge, practice union has filed an unfair labor employer to com- consеquently NLRB have has found the practice. Only mitted an then unfair labor practice only review, seek of the unfair including determination, orders, any previous but representative U.S.C. unit determination certification. 29 159(d),160(f) (1973). §§ interpretation made the NLRB United
This was Supreme Federation Labor V. in American States Court Board, In (1940) 308 401. Labor U.S. National Relations legis- Supreme interpreting NLRA, reviewed Court purposes history found one lative of the Act and prior under federal the Act was to correct certain weaknesses passage Prior labor law. of the NLRA: attempt by “[A]ny of conduct an election Government to courts, representatives may initio contested ab although preliminary reality merely election is determination This the Government can of fact. means that delayed indefinitely step be industrial before it the first toward takes single peace. year case, in After almost a not a company which has chosen to contest an election order of has reached decision in circuit court of appeals.” 2, quoting Rep. at 410. f.n. U.S. No. Sen. on Labor, Congress, Committee Education and 74th 1st pp. 5, session prior for is no reason a court review to an “There more prior hearing. But than a court if election subsequently election, predicated upon Board makes an order bargain collectively such as an order *11 representatives, procedure then the entire election elected becomes Board is part the record which the order of the fully by aggrieved based, and is reviewable providеd party in the in federal courts manner in [29 review include And this would within U.S.C. scope 160]. § determining appro- Board the provides that action of purposes election. This priate unit for against arbitrary guarantee action complete the Board.” 3, quoting Rep. from at Sen. f.n. No. 308 U.S. Congress Labor, Education 74th on 1st Committee p. 14. session provides Relations National Labor for review Act] “[The only after the election has been held and the courts 504 something predicated employer Board has ordered the do 411, quoting
upon the results of an election.” U.S. at Congress, 79th Rec. 7658. Legislature The NLRA used was model the Indiana drafting Legislature presumed have known the Act. The is employer that under the NLRA an could not obtain review any intervening finding until after the orders change practiсe. perplexing unfair labor But it made a regard procedure specifically judicial for review. It prohibited representation questions upon review of practice charge. of an unfair labor Because of the otherwise procedures apparent identical NLRA, it and the Legislature prohibited believed that if it review of representation proceedings part of the unfair labor practice procedure, judicial proceedings no of § any would be available under circumstances. arguments calling judicial made for Adjudication Act,
review under the Administrative Ind. Code seq. (1971), precise et would create the situation §4-22-1-1 sought to be avoided National Labor Relations Act as explained supra. NLRB, in American Federation Lаbor v. Under interpretation, represen- this unit determinations and tative certifications would be reviewable before election bargain was held and before an was ordered to based upon the purpose results of that election. The prevention i.e. the practice through of unfair expeditious disputes resolution of greatly impaired if in- this terpretation adopted by were to be this Court.
Leaving NLRA, aside the derivation of the Act from the major argument availability flaw defendant on IEERB’s Adjudication of the Administrative Act for review of representative determinations and certifications is that representation decisions are not “final” administrative preliminary, orders. Such interim determinations are ripe not review. Defendant asserts in its Brief representаtion orders, determinations are final but such is the case. *12 Downing finality requirement is discussed of
The
Whitley County,
(1971) 149
Zoning Appeals
Board
in Down-
App.
The court
Under the of the Board under and certifications of the Act decisions 7§ procedural question orders. interim When a appropriate an representation unit found hearing, election is exist and an ordered after such becomes moot issue determination if the union loses the election no unit determina- necessary. preliminary Review of such tion is orders would contrary piecemeal review, purpose result intent and Adjudication of the Administrative Act. representative of an exclusive an
A after elec- certification Upon order. a final cеrtification of a tion is not duty employer representative has a bargain representative, but the Board bargain. is not an order to itself certification require any action to be taken itself does certification requiring any can order issue an party. Before the employer employer, must refuse action affirmative bargain guilty subsequently an unfair labor be found Only employer practice. cease then Board order an can the bargain. refusing Only point at is an this and desist from obligation imposed upon consummation process. the administrative
Additionally, findings in the trial court’s and as set forth conclusions: “Any thereby ripe judi- which be final order and Adjudication cial would also be final and reviewable Law under the Act review Administrative 8(g), under Sec. Public 254, judicial Therefоre, Acts of Ind. the review provisions contained in 254, 1975, Public Law Acts of Ind.
preempt any applicability Adjudica- of the Administrative agency tion Public Law and concludes administrative Act to determinations under 254, Court, Acts of Ind. 1975. The thus, finds Legislature that preclude intended to judicial representation proceedings review altogether.” of legislation governing note We that similar bar- collective gaining between school boards and certificated em- school Legislature ployees, provided special proce- for no review instead, but, specified appeals dures that could taken under Adjudication (Ind. Administrative Act Code 20-7.5-1-11 (b)). The Act under consideration provision contains no such representation with reference to determinations and certificа- any judicial indication that tions nor review final available, except orders of the is (d) under subsection (g) 8, those section specifically except subsections such issues. requirements first set forth
This constitutional Court Telephone Co., (1940) Indiana Warren v. held judi- 2d that the availability N.E. review of administrative cial con- decisions was process requirement, due saying: stitutional agency, an administrative “As properly is [Industrial Board] power facts, vested determine and the power requirements that meets exercise process due law, so far determining as function of facts necessary It is concerned. is exercise of due process long court, that the as facts be determined so provided there opportunity judicial exists for a * ** . “Strictly thing speaking, appeal there such is no from agency. an orders of review; of due there say administrative It is correct that body subject an administrative they and that requirements must be so meet process. necessary Such review is the end adjudication be an competent juris- court of diction scope has acted within the of its powers; supports that substantial evidence con- factual ; clusions and that comports its determination with the law applicable to facts found.” 104-105, 217 Ind. at N.E. 2d at 404. precludes Because determinations certification of exclusive
bargaining representatives by it is un constitutional. III
ISSUE *14 (Appellant) lastly objectionable The Board that asserts the portions are, of Section 8 nevertheless severable from the and, therefore, rest of the Act do not rendеr the entire Act support severability, invalid. In it cites Ind. Code 1-1-1-8 (Burns 1975) providing severability for of the numerous provisions comprehensive of our code enacted as such in 1976 Sharp Mishawaka, (1972) 530, 289 N.E. 2d cited, 510 and cases there wherein we reiterated that the issue severability upon rests determination of the legislative and, making intent that determination, we may properly object legislation consider the of the but that Legislature the ultimate test is whether or not the would have passed presented the statute had it been without the invalid features. argued parties vigorously many have and cited authori- determining legislative subject the the
ties intent as severability, they analysis, but in the final to come down to Legislature test, ultimate i.e. would the the aforementioned portion the invalid had it known passed have without valid invalidity. of the say portions invalid of the
If we to pro- representation severed, be we must also determine how only ceedings possibilities. two One are to be reviewed. We see Adjudi- subject way to them to the Administrative would be Act, have heretofore determined was not cation a result we compatible purpose Act; intended because not subject proceed- to them the and another would ings practice provided issues, for unfair result which Legislature specified it did not has want. There can be Legislature question that the no but intended that the Board power (IEERB) should have absolute over threshold questions representation. say passed To that it would have portions, the Act without invalid had it known of their invalidity, indulge speculation. would be to in sheer arguing severability
In for has Board cited the declara- public policy purpose tion of set forth *“* * promote orderly and constructive relationships * * * public employers employees, between all and their (1) granting public employees right organize and choose freely representatives; (2) requiring public their employers negotiate bargain good employee organi- faith with public employees representing and to enter zations into written evidencing agreements the results of such provide establishing procedures protection public public rights employee, and the large. public at Acts Public Law Section 1.” (Appellant)). (Emphasis added considering legislation, however, In it appear does not question public primary was whether or em- *15 organize bargain may ployees collectively public and with questions employers. (1) were Rather the under what circum- minority public employees public a stances accept given organization compelled labor employer be employees representative specified of all in a the exclusive as be fol- rights procedures to unit; are what right to bargaining process the collective lowed in Thus, in arbitration, deter- compulsory etc. mediation, strike, look to Legislature, does mining one the intent of the give public Assembly towas the intent of the General whether public bargain collectively em- right with employees the Legislature in- ployers, circumstances but under what rights rights give were to and how these tended thesе pursued. Assembly meant enacting General Law
In Public complete control over powers give the Board broad bargaining representatives, selecting process exclusive aspect the Board’s any on this providing checks without organization purposes of col- process authority. The begins steps forth bargaining set lective § by the Board under made the Act. The unit determinations representa- exclusive certification of and the Board’s §7(d) part (e) a critical 7(a), (b) or form tives under either §§ bargaining place until em- take can Act. No collective organized appropriate until an unit and ployees an representative determination of certified. The is exclusive govern an appropriate in fact whether an what is majority organization employee be able establish will cards, unit, election or authorization either within rep- recognition Because the certification. to receive order any prerequisites to col- proceedings under 7 are resentation provisions which shield under lective signifi- process review have a from representation this any subsequent steps impact collec- on and crucial cant bargaining scheme. tive representation importance heightened by provisions in Public Law
procedure is representative certify an exclusive the Board to which allow employer being 7(b), any held. Under election without recognize rep- election, as exclusive required, without organization presents evidence which resentative majority a unit determined within aof to the *16 gives employees appropriate. Board be nor to neither The recog- employer object required the means which to this having opportunity nition and to the an election. obtain Thus, authority specify appro- on the its own Board can priate unit, knowing makeup that the size and of the unit will organization particular control whether a labor will immedi- ately forcing majority group, have a within that recognize organization employees accept and the without question an election. There is no but that Gen- Assembly eral intended that the Board have absolute should power questions. over these threshold prohibitions
The on crucial review of such although actions, procedural, integral parts arе nevertheless statute, evincing Legislature’s give intention to power makeup absolute over the size and of the bar- gaining unit and over determination the union whether represents majority a within that unit. objectional prohibitions
Because the on power given and the concomitant unique the Board are so shape the fundamental character Indiana’s public employee bargaining statute, they are not severable from the remainder of and the entire statute must be voided. support
In severability, the Board and intervenors also rely upon severability provision a found Code 1-1-1-8. § misplaced.
Such reliance is existence or non- severability only existence of a is one clause indica- legislative presence tion of intent. Its or absence is binding determining not court in on a whether statute should enforced after the excision of portions. be unconstitutional severability The inclusion presumption clause creates remainder of the Act continue in effect. The severability opposite presump- absence of a clause creates the Legislature the Act tion: intends effective as an entirety severability at all. In the absence of a clause, legislation supporter is of the to show “the burden Carter provisions Carter separability involved.” 1160, 238, 312, 1189. See Co., L. Ed. Coal 298 U.S. (1964). at 420 2d Law 188 Am. Jr. Constitutional severability in the Indiana is the contained 1-1-1-8 clause through prior Code of which codified all statutes date, January It that in such effective obvious legislative intent was encompassing all enactment arrangement orderly all in an re-enact valid laws legislation order, provide same for future to follow accuracy. purpose The idea promoting convenience *17 and provisions later found invalid more be that should one wholly the entire provisions, indeed unrelated contaminate prudent proper and for Yet, it code, is was inconceivable. contrary. Legislature That signify intent to to its effect, provision severability to have another was intended for statutory severability pro- preempt times the i.e. to for all legislative regardless intent visions, other, one from the by enactments, established time of the as determind at the to principles, irrational ludicrous. is so 1-1-1-8, en- although was first Additionally, Ind. Code § Pearcy Criminal 1971, in State Court acted in ex rel. opinion, superseding 274 (1971) 178, County, Marion 257 Ind. compilation only 519, and without N.E. 2d it held to be a was severability general enacted clause was not This as law. effect 1975, in in was not effect when until 1976 and as law Obviously, it Legislature passed Act under consideration. Legislature any have relied could not been purpose prior enactment. to its judgment of the trial court affirmed.
The concur; JJ., DeBruler, Pivarnik, Givan, and Hunter C.J. opinion. J., with dissents Opinion
Dissenting against Assuming prohibition judi- that the J. DeBruler, representa- cial of the Board’s determinations unconstitutional as a denial of certifications is access tive my faculty courts, presence provision view, right the Act does render the entire Act invalid. The proper such review re- held within the courts is bounds determining agency stricted to whether the “has acted within scope powers; supports itsof that substantial evidence conclusions; comports factual determination applicable the law found.” Indiana facts Warren v. Telephone Co., (1940) 93, 105, 217 Ind. 2d 404. N.E. recognize right parties To these access the courts for this purpose, specifically limited where Act authorizes right them the anyway, to seek review final orders unchanged leaves the structure and the administrative process decision-making unchanged unimpeded degree. appreciable statute, provisions gov- with all of its erning simply process, in structure and the event we hold offending prohibition inoperative, sensible, be left in “a complete being form, capable against executed alike all similarly City Mishawaka, situated or affected.” In Re 530, 535, N.E.2d provisions inopеrative yet
To find these declare that balance of stand as severable would not result altering public policies this Court the essential announced Legislature substituting the Act. We would not be *18 our own proper of motion the course for law in the this area Legislature thereby for that stepping beyond the bounds judicial authority. of prohibitions simply And find these inoperative would tip not serve power the balance of public employer public between employee and erected the bargaining power subject being Act. The of both is either increased or decreased rep- determination and the determination, resentative access to the courts is provided equal challenge on basis to both those determina- premises Upon (1) tions. that: excision of prohibitions against violative review would have little impact upon operation discernible of Board and the public power relative employee remaining statutory provisions; left to function under not alter the prohibitions (2) violative excision Legislature by judgments arrived at underlying value Act; the violative forming for the excision the basis against alter the relative bar- review would not prohibitions employee my public employer gaining positions —it remaining Legislature intended for judgment say provisions Act, that is to the Act with all of this against containing prohibitions exceptions lines the few judicial review, to be severable. finding prohibitions uphold court’s the trial
I would
against judicial
unconstitutional, but set aside that
review are
voiding
judgment
part of the
entire statute.
Reported
Note. — Meyers Sidney
Wendell State Indiana.
(No. July 13, 1977.) Filed 976S291.