By VICKI URBANIK

With less than two weeks left in this year’s session of the Indiana General Assembly, it’s up to the Indiana House to decide if one of their members, State Rep. Ed Soliday, R-Valparaiso, is properly seated.

That was the ruling this morning by Porter Superior Court Judge William Alexa, who granted Soliday’s request to dismiss the residency case against him -- but not for the reason advanced by Soliday’s attorney, William Bock.

Bock argued at this morning’s hearing that Alexa should dismiss the case because of legislative immunity, which grants state legislators protections while they are in session. Bock argued that if the case were dismissed, it could be re-filed once the session is over with, and that Alexa’s court has no jurisdiction until then.

But Alexa, himself a former state legislator, said he was dismissing the case for an entirely different reason -- on his own motion involving the separation of powers.

Alexa said his court does not have jurisdiction to remove a legislator. “That’s for the body itself to do,” he ruled.

His ruling now throws the issue to the Indiana House, which is narrowly controlled by Democrats, at a critical and chaotic time when both chambers are working out compromises on bills and trying to pass a state budget before Sunday.

Alexa, a Democrat, made it clear that the state constitution gives the legislative chambers the authority to judge the qualifications of their members. However, he also hinted that he agreed with the substance of the case against Soliday.

Referring to an ordinance passed in 2001 by the Porter County Commissioners that changed precinct lines, Alexa said that only the Legislature -- not counties -- have the authority to change legislative boundary lines.

Otherwise, he said, each of Indiana’ 92 counties “could play havoc” with the legislative process.

Alexa’s ruling appeared to stun the plaintiffs.

Attorneys Mitch Peters and Ken Elwood, representing the five voters who tried to unseat Soliday on the grounds that he doesn’t live in his 4th House district, said they did not expect Alexa’s ruling. They said they did not immediately know if they would file a motion to correct errors and bring the case again before Alexa or if they would appeal.

But when asked what might happen now in the Indiana House, Elwood said he believes the House would have to act on the issue while in session, and not wait until after the session is set to adjourn this Sunday.

Elwood said that Alexa sided with Soliday only on the procedural question of who has jurisdiction.

“Merit-wise, he agreed with us,” he said.

“Too Late”

The actual issue of whether or not Soliday lives in the 4th House district was barely addressed at this morning’s hearing.

Bock said that if anyone wanted to contest Soliday’s residency, the proper time to do so was either after he filed his candidacy or within a certain period after the November election, in which Soliday was declared the victor over Democrat Sylvia Graham.

He argued that the only time a special election has been ordered was as the result of a contested election, not based on a residency dispute well after the lawmaker took office.

After the hearing, Bock said he believes it’s too late to raise the residency issue, since Soliday has already been seated by the Legislature. When asked if he thinks Soliday lives in the 4th District, Bock said he does, and that the maps of the districts that he has seen shows that Soliday’s residence has always been in the 4th District.

Bock also agreed that because the Indiana House has already recognized Soliday as a sitting member, allowing him, for example, to vote on bills, that it in effect has already judged Soliday’s qualifications.

“Uncontroverted Fact”

Bock argued that the suit should be dismissed based on legislative immunity, which he said is intended to protect all voters and to allow the person they had elected to do their job. Especially at this critical time in the Legislature, he said, Soliday should not be distracted by the current lawsuit.

Peters argued, on the other hand, that the appropriate remedy is not dismissal of the lawsuit but to squash the original summons against Soliday and then re-issue another summons once the Legislature adjourns. He argued that legislative immunity only grants limited protections, and that Soliday can still be sued while in office.

In response to Bock’s argument that portions of the lawsuit were factually in error, Peters said that there is one part of the lawsuit that the other side cannot dispute: “An uncontroverted fact is -- he does not live in the district,” he said.

Also in response to Bock’s assertion that Soliday was voted into office by the majority vote, Peters argued that the majority of voters didn’t know that Soliday didn’t live in his district at the time of the election.

Soliday’s residency was called into dispute at the beginning of this year. At that time, Porter County Democrat Party Chair Leon West said a voter looked at legislative maps and found that Soliday actually lives in the 10th District. The lawsuit that was subsequently filed cites the 2001 action by the then-commissioners, who changed precinct lines due to annexations. One of the areas presumably affected was Soliday’s neighborhood in Valparaiso. The suit contends that the commissioners erred, not only because of improper record keeping but also because the change moved the boundary between the 4th and the 10th House districts.

Posted 4/17/2007