Rumor has it that the USDOT’s time zone decision will be announced this afternoon. Perfect time for my site to be sketchy. In any event, I thought I’d go ahead and do a post with an overview of the time zone debate. Unfortunately, without my archives reinstated yet, I’ll have to do most of this without the benefit of too many links.
From 1918 to 1961, the Indiana/Ohio border was essentially the dividing line between the Eastern and Central time zones. In 1961, after hearings, the Interstate Commerce Commission (which preceded the United States Dept. of Transportation in authority over time zones) moved the dividing line westward, essentially cutting the state in half. In the recent debate, if the USDOT had decided to grant every county that petitioned its request to return to Central Time, the dividing line would have looked remarkably similar to the line as it existed in 1961. A good recounting of this period is provided in the case of Time Life Broadcast v. Boyd, 289 F.Supp. 219 (D.C. 1968).
In 1967, a movement was afoot to put all of Indiana on year round Central Daylight Time. Procedurally, it was easier to have the state put on Eastern Standard Time year round. Functionally Central Daylight Time and Eastern Standard Time are the same thing. So, most of the state was moved into the Eastern Time Zone with the understanding that the State would then opt to observe year round standard time. Some of the western counties wanted to continue to observe Central Standard Time in the winter months with their western neighbors, and so they were left in the Central Time Zone. In addition, everybody looked the other way while about 5 renegade counties around Cincinnati and Louisville observed Eastern Daylight Time illegally.
For the better part of 4 decades, this compromise worked. All of Indiana, save those few renegade counties, were on the same time for 7 months out of the year. For the remainder, most of Indiana was on the functional equivalent of Central Daylight Time, which is more or less consistent with Indiana’s geographic location between 85 and 87.5 degrees west longitude.
MITCH DANIELS AND SEA 127-2005
In 2005, the General Assembly adopted SEA 127 which repealed the provision of Indiana Law that exempted the Eastern Time Zone portions of the state from observing Daylight Saving Time. This was done on the thinnest of margins and only with the understanding that the issue of the time zone would have to be revisited. It bears mentioning how thin the support for the daylight saving time legislation was. On or about February 28, 2005, the original Daylight Saving Time bill, HB 1034 died without passing the House of Representatives prior to the relevant deadline. On or about March 30, 2005, the original text of SB 127 was stripped in committee and the daylight saving time language resurrected. On or about April 11, 2005, SB 127 failed to obtain a majority vote and was defeated 50 to 49 in the House of Representatives. Because the bill did not receive 51 nay votes, it was still eligible for a revote. On a second vote, three House Republicans, Eric Gutwein (R-Renssalaer), Don Lehe (R-Brookston, and Richard McClain (R-Logansport) switched their votes and allowed the daylight saving time bill to pass and be eligible for conference committee with the Senate. These three legislators have written to the USDOT docket requesting that their counties, Cass, White, and Jasper should all be on central time.
In the Senate, the Daylight Saving Time barely squeaked out of committee in a 6 to 5 vote with Sen. Allen Paul (R-Richmond) giving his â€œyeaâ€ vote even though he would ultimately vote against the measure when it came to the floor of the Senate. Back in the House for a final vote on the version adopted by both the House and Senate conference committees, the bill again failed to obtain a majority vote with a vote of 48 in favor and 49 against daylight saving time. Because there were not 51 votes against, the vote was brought up for a second vote and finally passed 51 to 49 only after Rep. Troy Woodruff (R-Vincennes) cast the final vote in favor of Daylight Saving Time, breaking a promise he had made publicly to his constituents that he would â€œalwaysâ€ vote against Daylight Saving Time.
The United States Department of Transportation has been given jurisdiction over the nationâ€™s time zones by virtue of 15 U.S.C. 261. That statute states in pertinent part:
For the purpose of establishing the standard time of the United States, the territory of the United States shall be divided into nine zones in the manner provided in this section. . . . [T]he standard time of the . . . second zone (Eastern Time) on the seventy-fifth degree; that of the third zone (Central Time) on the ninetieth degree; . . . of longitude east from Greenwich. The limits of each zone shall be defined by an order of the Secretary of Transportation, having regard for the convenience of commerce and the existing junction points and division points of common carriers engaged in interstate or foreign commerce, and any such order may be modified from time to time.
The current time zone line in Indiana between eastern and central is established by 49 CFR 71.5(b). There appear to be no formal constraints on the power of the Secretary of Transportation to draw time zones as he or she deems appropriate. There appears to be a policy requiring a state or county official to request a time zone change and to answer as to certain criteria falling under the umbrella of â€œconvenience of commerce,â€ but these seem to be internal policies as opposed to binding law. The three criteria suggested by 15 USC 261 are 1) the geographic distance from Greenwich; 2) the convenience of commerce; and 3) junction and division points of common carriers. While the Secretary of Transportation may not disregard these factors, they are not exclusive or dispositive. For example, in OST Docket Number 8, Notice 91-17 with respect to Starke County, Indianaâ€™s petition to switch time zones, the Secretary appeared to give a great deal of weight to public comments that did not directly address the convenience of commerce criteria specified by the internal policy. Furthermore, no specific request from a Governor or county executive is mandated by the law.
The 2005 petition process
SEA 127-2005 directed Governor Daniels to petition for statewide hearings and to provide the USDOT with whatever it needed to make that happen. He merely provided the USDOT with a copy of SEA 127-2005 and a letter asking for hearings. He did not provide any additional documentation.
In response, the USDOT decided to improvise. The internal procedures allow the USDOT to respond to a time zone request from a state as a whole or on a county-by-county basis. Deeming the Governor’s request inadequate, it decided to skip the statewide approach and, instead, solicited petitions from individual counties. This put the counties in quite a bind. As a rule, one county didn’t know what its neighbor would do and so it couldn’t very well decide what might be in its best interests. The further east one proceeded, the less likely a county was to petition. Obviously not very much can be read into such a county’s failure to petition other than a recognition that it wouldn’t do the county much good to petition for Central if it had 2 or 3 or 4 counties to its west that may or may not petition for Central and, once petitioning, may or may not be granted its request.
Eventually, 17 or so counties petitioned for a shift from Eastern to Central. No counties petitioned for a shift from Central to Eastern. Throughout the process Governor Daniels’ positions continued to shift and his predictions of how the process would proceed in the future continued to be wrong. As a new development occurred, the Governor would do his best to make it appear as if the development was a good thing and was exactly what he expected and wanted. He berated local officials for being unhappy with having the time zone issue dropped in their laps. He disavowed his campaign position that Indiana would be best on Central Time and, in fact, tried to state he had never made such a claim; newspaper quotes from a variety of sources notwithstanding.
The biggest flashpoint in this improvised time zone process became the proposed division between neighboring St. Joseph and Elkhart counties. Lost in the debate for some reason was the fact that the alternative to that division was a division between St. Joseph and LaPorte counties. Another point that never received a great deal of discussion was the fact that, if Elkhart County was that concerned about a division from St. Joseph County, it was permitted at any time to submit its petition for Central Time to the USDOT. The petition would be heard on a different docket and be subject to somewhat different deadlines depending on the date the petition was filed, but otherwise be the same process as the other counties had gone through.
Once again, Governor Daniels shifted positions. Previously, one of his many positions on the issue was that time zones were naturally a local issue. That notwithstanding, he decided to inject himself into the Elkhart/St. Joseph County debate despite the fact that he had to break the law to do it. IC 1-1-8.1-3 requires the State to “support the county executive of any county that seeks to change the time zone in which the county is located.” The St. Joseph County Commissioners petitioned to change the time zone in which their county is located. In response, rather than complying with the law and supporting the St. Joseph County Commissioners (or at least keeping quiet), Governor Daniels actively opposed the petition by writing the USDOT (PDF) to say, ” I recommend the Department decline the petition of St. Joseph County to move from the Eastern to the Central Zone.”
Some of what the future holds depends on what the Department of Transportation decides to do. However, we know that a number of legislators have filed bills to repeal the Daylight Saving Time law or hold referenda to put all or most of the state on one time zone or the other depending on how Hoosiers vote. These bills seem very unlikely to receive a hearing. To some degree, the bills are going to be used as political cover by legislators, vulnerable on the issue, who had an opportunity to kill the Daylight Saving Time bill but failed to do so for one reason or another. Legislation changing the result, if any, can be expected if there is political fallout from messing with Hoosiers clocks. There is reason to suspect some fallout will occur. Certainly Rep. Woodruff is a huge target, given that he lives in the western part of the state, is a first term legislator, and renegged on a specific promise not to vote for DST, only to turn around and become the deciding vote on the issue. Other legislators may be affected given that the time issue is an emotional issue for Hoosiers. I don’t think Hoosiers will be motivated to vote for a legislator because of a DST vote they liked, but I think a fair number of them will be motivated to vote against a legislator for failing to leave the clocks alone. Is this a rational reason to cast a vote? Probably not. But, regardless of the issue, “single issue voters” are almost always casting their votes emotionally rather than rationally.
If, by chance, the USDOT follows Governor Daniels’ recommendation and reverses its preliminary approval of the St. Joseph County petition for Central Time, there might be a non-legislative approach to be had. I think there is at least a reasonable argument to be had that St. Joseph County is entitled to an injunction on implementation of SEA 127-2005 and Daylight Saving Time. The argument would go something like this:
Governor Daniels knowingly and recklessly violated IC 1-1-8.1-3 causing the USDOT to subsequently deny the petition of St. Joseph County. The provisions of SB 127-2005 requiring state support of a county seeking to change its time zone (SECTION 1 of the bill) are inextricably linked to the provision adopting Daylight Saving Time (SECTION 2 of the bill). Because Governor Daniels through his actions has nullified SECTION 1 of the bill, it is impermissible for SECTION 2 of the bill to be enforced.
IC 1-1-1-8 provides:
If any provision or application of a statute is held invalid, the invalidity does not affect the remainder of the statute unless (1) the remainder is so essentially and inseparably connected with, and so dependent upon, the invalid provision or application that it cannot be presumed that the remainder would have been enacted without the invalid provision or application; or (2) the remainder is incomplete and incapable of being executed in accordance with the legislative intent without the invalid provision or application.
The Daylight Saving Time provision and the support of county time zone petition provision are inseparably connected. It cannot be presumed that one would have been enacted without the other.
The Governor failed to perform and, in fact actively breached, a ministerial duty required of him and all other members of the State government by virtue of the law enacted by the General Assembly and signed by him. See Ellingham v. Dye 99 N.E. 1 (Ind. 1912.),
In order to invoke the jurisdiction of equity to determine the validity of an ordinance, there must first be asserted some property or civil right which the enforcement of the ordinance will violate, and facts must be alleged showing that there is no adequate remedy at law. If such rights and facts are asserted and established, the court will inquire into the validity of the legislation. Otherwise, it will leave the validity of the legislation to be determined in an action at law.
Indianapolis Market Ass’n v. City of Indianapolis, 192 N.E. 754, 755 (Ind. 1934). The General Assembly created a right of a county to support of the state when petitioning the USDOT for a change of time zone. The right was intended to allow an appropriate adjustment in the time zone line in the wake of implementation of Daylight Saving Time. The Governorâ€™s actions deprived St. Joseph County of that right and, as a result, St. Joseph Countyâ€™s petition was denied. There is no adequate remedy at law. Money damages are not an appropriate remedy for the yearly imposition of Eastern Daylight Time on the people of St. Joseph County resulting from the Governorâ€™s violation of IC 1-1-8.1-1. The Governorâ€™s actions cannot be undone. The only appropriate remedy is an injunction prohibiting the observance of Daylight Saving Time in the Eastern Time Zone portions of Indiana until such time as St. Joseph County is moved to the Central Time Zone or the Indiana General Assembly adopts legislation nullifying the application of IC 1-1-8.1-1 to St. Joseph Countyâ€™s petition to the USDOT.
Not a slam-dunk case, obviously, but I think it is one that St. Joseph County would have a plausible chance of winning. Whether the citizens and elected officials of St. Joseph County want to go through all that is an entirely different question. It doesn’t do much for the citizens of the county, but a noble martyrdom from having been so wronged by Governor Daniels — according to recent polls, a person not very popular in that area of the state — could be more politically profitable for the elected officials than a lawsuit attempting to remedy the Governor’s misdeed.