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Wednesday, September 26, 2007

Ind. Decisions - Supreme Court issues two anticipated mandate decisions today

This first decision is in the long-time dispute over the control of adult probation services funds, which has impact beyond Clark County.

In Clark County Council and Clark County Auditor v. Daniel F. Donahue, Cecile A. Blau, Vicki Carmichael, and Steven M. Fleece, an 8-page, 5-0 opinion, Justice Sullivan writes:

A dispute has arisen in Clark County over the purposes for which “probation users’ fees” collected from persons placed on probation can be spent and the authority for making those spending decisions. State law is clear that probation users’ fees may be spent only to supplement probation services and to supplement salaries for probation officers; they may not be used to re-place other funding of probation services. The county fiscal body shares authority for spending decisions with the courts in the county that provides probation services. * * *

The dispute in this case is over the purposes for which money in the county supplemental adult probation services fund can be spent and the authority for making those spending decisions. The Clark County Council takes the position that it has the power to appropriate from the county supplemental adult probation services fund without the participation of county judges and that its use of the funds has not constituted the “replacement” of other funds. The judges of the Clark Circuit and Superior Courts take the position that county judges should decide how to spend the county’s supplemental adult probation services fund, and that the Indiana Code does not allow for money from the fund to replace money budgeted for probation services in prior years. * * *

Although we agree with the Clark County judges that the decision of the County Council to spend money in the supplemental adult probation services fund for general court and probation services violated the statutory restrictions that the money be spent only to supplement probation services and probation officer salaries, we do not agree with the judges that the County Council’s role with respect to appropriating money in the fund is purely ministerial. * * *

We have been gratified at the extent to which county fiscal bodies and courts throughout our state have been able to cooperate on the use of probation users’ fees. Probation departments, persons on probation, and the communities of this state have been the beneficiaries of this cooperation. We have attracted and retained high-quality probation officers by supplementing their salaries and have been able to keep many low-risk offenders who otherwise would have been incarcerated close to their families and in productive employment. We are hopeful that today’s decision clarifies the respective roles and responsibilities of the county fiscal bodies and the courts so that this highly productive degree of cooperation continues apace.

Conclusion. This case is remanded to the trial court with directions that the Clark County Council is to appropriate or otherwise return to the county adult probation services fund an amount, if any, equal to that expended from the fund for purposes other than to supplement probation services and probation officer salaries.

The ILB has posted many entries on this dispute. For background, start with this one from March 2, 2007.

This second opinion today involves the more traditional issue of who sets salaries of court employees.

In In Re: Order for Mandate of Funds; Montgomery County Council v. Hon. Thomas K. Milligan, Hon. David A. Ault and Hon. Peggy Q. Lohorn, a 10-page, 5-0 opinion, Justice Sullivan writes:

Indiana Trial Rule 60.5 establishes procedures by which intra-county disagreements about court funding may be resolved. These procedures are infrequently invoked in Indiana. In this case, however, T.R. 60.5 has been called into play in a dispute about salaries for court staff in Montgomery County.

For several years, the Judges of the Montgomery Circuit Court, Montgomery Superior Court 1, and Montgomery Superior Court 2 had requested that the Montgomery County Council increase the salaries of their employees to a level that would be competitive with court staff salaries in neighboring or comparable counties. Although the Council had approved salary increases approximating increases in cost of living indices in most budget years, no salary increase was granted in 2005.

After their efforts in 2004 to obtain salary increases failed, and following the loss within a relatively short time period of three Circuit Court staff members to, and the offer to the Circuit Court administrative assistant of, higher-paying jobs in both the public and private sectors, the Judges issued an order on August 16, 2005, and an amended order on August 22, 2005. As amended, the order directed the Council to show cause why the annual salaries for all Montgomery County court reporters, administrative assistants, and positions classified as “secretary/bailiff/receptionist” should not be increased to specified levels for the balance of 2005 and for the 2006 budget year. * * *

Part I. The issues to be decided in a mandate proceeding are whether the funds ordered paid are reasonably necessary for the operation of the courts and any court-related functions and whether any specific fiscal or other governmental interests are so severely and adversely affected by the payment as to require the order to be set aside. * * *

As noted above, salaries of court employees may be ordered paid at sufficient levels to attract and retain qualified persons. See Morgan Circuit Court, 550 N.E.2d at 1304. Mandated funds must be “reasonably necessary” for the operation of the courts, and a mandate may be issued when there is a “clear and present danger” of impairment to the courts’ operation. Id. * * *

Tables 1, 3, and 4 show that all but one of the salaries of Montgomery County court staff prior to the mandate were below the low end of the salary ranges of contiguous counties, and all of the salaries were below both the mean and median salaries of contiguous counties. However, the mandated salaries of $31,200 for court reporters and administrative assistants and $27,200 for SBRs exceed both the means and medians of the 2005 salary ranges in contiguous counties, by anywhere from several hundred dollars to several thousand dollars. Accordingly, while a mandate was warranted, it cannot be approved in the amounts requested.

We direct that the salaries of each category of employee be as set forth in the following table. [see opinion] * * *

Part II. Given that the proper delivery of judicial services is often at stake in T.R. 60.5 proceed-ings, this Court has recognized the necessity of proper compensation for attorneys who represent courts in such matters. Kramer v. Hancock County Court, 448 N.E.2d 1190, 1192 (Ind. 1983). At the completion of the trial in the present matter, counsel for the Judges submitted an invoice for legal services and expenses totaling approximately $128,300. The Council challenges this amount as excessive.

The amount of attorney fees awarded in T.R. 60.5 proceedings has occasionally been challenged, but not in the recent past. Perhaps as a consequence, the amounts at stake were far less than the amount involved here. * * *

This case was protracted, including as it did a full trial and all of the time and labor that requires. The hourly rates initially charged by the lawyers involved in the case were $320 by the senior-most lawyer involved, $190 by a second, and $140 by several law clerks assigned to the case. (The rates of the two lawyers were increased by $20 per hour during the course of the rep-resentation.) The senior lawyer testified that the firm’s billing rates are reviewed and adjusted annually by the firm based on factors including the type of work, degree of sophistication, years of practice, experience, and survey of other lawyers’ rates in the Indianapolis and Carmel areas. He further testified that an extensive amount of “legwork” was required to collect evidence on comparative salary data. There was no evidence that the firm was precluded from other em-ployment because of this representation. The substantial experience and superior reputation and ability of the lawyers here and of their firm are well known. * * *

We have examined the fee and expense request in some detail and note that it seeks $124,525 in fees and $3,772.79 in costs. The fee request is based on 574.25 hours. The Council does not contest the number of hours nor the amount of costs; its only request is that the hourly rate for the work be limited to the normal range for attorney fees in Montgomery County. Based on the factors set forth in the preceding two paragraphs and particularly on the fact that the Council does not contest the number of hours worked, we conclude that the attorney fee award shall be $72,810.29, calculated as set forth in the margin. * * * No appellate attorney fees shall be awarded. * * *

Conclusion. The order of the trial court mandating certain salary increases for employees of the Circuit and Superior Courts is affirmed to the extent set forth in part I of this decision. The request of counsel for attorney fees is affirmed to the extent set forth in part II.

For background on this case, see this Feb. 10, 2007 ILB entry, as well as this Feb. 22nd, 2007 entry about proposed legislation relating to judicial mandates and the Montgomery County dispute.

Posted by Marcia Oddi on September 26, 2007 03:06 PM
Posted to Ind. Sup.Ct. Decisions