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| Mr. Frank Straub, Director of Public Safety |
Let's take another look at the statute.
IC 36-3-5-2
Deputies and directors; acting deputies and directors; controller and deputy controllers; corporation counsel
Sec. 2. (a) The executive shall, subject to the approval of the city-county legislative body, appoint each of the executive's deputies and the director of each department of the consolidated city. A deputy or director is appointed for a term of one (1) year and until a successor is appointed and qualified, but serves at the pleasure of the executive. (b) When making an appointment under subsection (a), the executive shall submit the name of an appointee to an office to the legislative body for its approval as follows:
(1) When the office has an incumbent, not more than forty-five (45) days before the expiration of the incumbent's one (1) year term.
(2) When the office has been vacated, not more than forty-five (45) days after the vacancy occurs.
(c) The executive may appoint an acting deputy or acting director whenever the incumbent is incapacitated or the office has been vacated. An acting deputy or acting director has all the powers of the office.
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Abdul's argument violates the first rule that you interpret a statute to give effect to legislative intent. In that process you don't assume that the legislature wrote provisions into the statute that it intended to be rendered meaningless by other provisions. Abdul is arguing that the reappointment of directors does not matter because they "serve at the pleasure of the executive." Therefore, using Abdul's interpretation, the mandatory council approval of the director provision in the statute is turned into a non-binding vote because of the "serve at the pleasure" provision.
Abdul's interpretation completely guts the statute. If his interpretation is what was intended, why didn't the General Assembly simply write the statute so that only the initial appointment of the director had to be approved by the council and thereafter the director could only be removed by the executive? Instead the legislature went to a great effort to spell out that these directors only have one year terms and that their reappointments, not just their initial appointments, have to be approved by the council. The legislature did not provide for a "non-binding" vote on the reappointments.
Well then what does the "serve at the pleasure of the executive" language Abdul trumpets means in context of the statute? That's an easy one. It means that the directors appointed by the Mayor serve "at his pleasure" during their terms. On many council appointments to boards and commissions, the Mayor cannot remove the person once he makes the appointment. That's done to provide those individuals some independence from mayoral control. It is obvious that is not a situation you want when it comes to an appointment like the Director of Public Safety. The legislature made that perfectly clear when it included in the statute that the appointees would "serve at the discretion of the executive."
When I started looking at this statute, I assumed the loophole the pro-Straub crowd was relying on was the section dealing with the appointment of an "acting director," i.e. that Straub could be appointed as "Acting" Director of Public Safety even if the council didn't agree to his reappointment.. I noted then that would be a ruse to try to get around the law. I had no idea when I penned that column that instead they would rely on the "serve at the discretion of the executive" language as giving the Mayor sweeping authority to ignore the specific statutory requirement that the Council approve Straub's reappointment. That is a much, much worse legal argument than the "acting" director one I suggested.
11 comments:
"Rather than make a valid point, Abdul provides fodder for my argument that we need to do a better job training attorneys and judges on how to properly interpret a statute."
No, Paul, law schools do an excellent job of that. They train aspiring attorneys that consulting statutes shows a lack of attorney sophistication, as the law is whatever a judge says it is.
Laypeople consult statutes. Since anyone can read a statute, why are attorneys and judges needed? The enlightened read case reporters. The real law is not the Indiana Code, but the Indiana Code Annotated. You don't have law until a judge says what the law is.
This rule does not usually apply in criminal cases, at which point, judges reach for the most strict rationale, almost always a statute, to get the desired outcome.
Law schools teach you that all of a lawyer's energies are to be expended on learning how to convince judges that an outcome should be this or that way. Judges use cases to draft and enact legislation, on the fly, and a savvy attorney knows how to make the most satisfying arguments to judges to get the judge to use the case to draft favorable legislation.
Always look first to what the court wants to do, and find a way to let them do it. In Indiana, with the power elite in firm control of the state, it's easy to discern which way a case is supposed to come out.
In this regard, Abdul is an excellent attorney, as he realizes that judges are politicians and every court case is an election.
Law schools don't admit to this, but this is exactly what they teach.
I don't know, Cato, I think Abdul actually believes his interpretation is legit...and it isn't. I have seen plenty of judges who don't know how to interpret statutes as well. I don't think they were all because of politics...I think a lot was related to their lack of knowledge about how to interpret statutes.
Paul,
The key to me isn't the "at the pleasure" part of the statute, but it's the part where the current PSD can serve until another is appointed and qualified.
That, to me, means that Straub can serve until Ballard appoints someone else...no matter what the council says.
Now, if I were the Council, I'd cry bloody murder everyday if that happens, but if Ballard simply forgets to appoint someone then...
Jon,
If that were the case, there would be no point of even including the 1 year term. As I read the "appointed and qualified" language, that refers to a situation where the Mayor has appointed (or re-appointed) someone but the Council has not taken action yet. In which case, the director remains until the Council has voted.
If Abdul wants to become a legal pundit, perhaps he should try and get admitted to the Bar in Indiana.
The legislative intent to require an annual approval vote is also buttressed by paragraph (b)(1), requiring the submission of an incumbent director's name w/in 45 day of the "expiration" of his term.
If the term of an incumbent is solely at the pleasure of the executive, and independent of the 1 year language, then once again, the actual language of the statute is made utterly meaningless, because the term would not be "expiring."
Can there be any question that the legislators who wrote the law and voted and passed it would agree that they just wasted their time talking about 1 year?
B.S.
Art, the law is public record, and commenting on the law is absolutely protected by the First Amendment.
If Abdul represents an Indiana client before an Indiana court, at that point, he'll need to worry about the admission requirements of the court to work there.
To the subject, Paul's statutory construction is unfailingly precise and black-letter law.
It's also of no compulsory legal weight, as judges do what they want.
Jon,
I agree with Bill. The bottom line always has to be the intent of the legislature. As Bill points out, interpreting that phrase that way would invalidate the one year appointment provision. Obivously the legislature meant it for a reason. They wouldn't write a provision for one year terms and then include another provision that effectively invalidates the first provision.
Cato,
Boy do I know that to be true! Where we differ though is I think a lot of it is just poor interpretation and bad judging. You on the other hand say it's because of politics. We both may be right.
It means that the directors appointed by the Mayor serve "at his pleasure" during their terms.
Of course, it does. But again, certain people would rather lie and pretend that black is white and white is black.
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