-dissenting.
The majority has concluded that this statutory amendment prohibiting prosecution by information after a grand jury has declined to indict, is procedural rather than substantive, is applicable to this case which was pending when it became effective, and provides a legal basis for dismissal. The *40First District Court of Appeals in Mounts v. State (1986), Ind.App., 489 N.E.2d 100, on the other hand concluded that this amendment is both procedural and substantive, is substantive wherein it restrains the right to prosecute by information following a refusal to indict, and is inapplicable to this case. I find myself in agreement with the First District.
The majority opinion relies upon the distinction made in State ex rel Blood, et al. v. Gibson Circuit Court (1959), 289 Ind. 394, 157 N.E.2d 475, between law which is procedural and law which is substantive, and concludes that laws governing the "method and time of asserting" a substantive right are procedural. I would agree, but Blood goes on in the following excerpt to instruct that a time barrier to the exercise of a substantive right, while procedural, cannot when first erected be given retroactive application so as to nullify the right.
The record here compels us to hold that the filing of such motion to strike did not reopen the issues on the merits when it was filed on July 18, 1958. 14, 15. Hence, it must follow that the issues on the merits were closed on September 1, 1958, when Rule 1-12B, supra, became effective. Therefore, the remonstrators Cooper and Taylor were required to file their motion for a change of judge within ten days from September 1, 1958. They have not shown cause for an extension of time by reason of obtaining knowledge of the cause for change after the time, as limited by the rule, had run. Having failed to do either, their right to a change of judge was waived.
As can be seen from the above, the issues were first closed on the merits prior to July 18, 1958, and the new rule requiring the motion for change of judge to be filed ten days after the issues were first closed on the merits did not become effective until September 1, 1958. The court concludes that the party could file their motion within ten days after September 1, 1958, the effective day of the rule, although many more than ten days had expired since the issues were first closed. The case tells us what to do, but does not tell us why.
I see the bar of this amendment by reason of a past refusal to indict to be at least analogous to the time bar in Blood. The case therefore supports the result reached by the First District. Such severe procedural restrictions upon a legal right or responsibility should not be given Retroactive Application in the absence of clear legislative intention that such should be the case.
I would affirm the refusal of the trial court to dismiss this information.