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Friday, September 05, 2008

Ind. Courts - Commission on Courts discussion of judicial mandates

In this ILB entry from August 29th, I wrote that I had attended the August 28th meeting of the Commission on Courts and that shortly I would be reporting on the discussion of judicial mandates that at taken place at the meeting:

There was a long and lively discussion of judicial mandates yesterday, from the point of view of both the judges and the local officials who have budget-making authority. I, for one, learned some things. In my notes I see I jotted down: "More nuanced than I had realized." Watch for it.
And here it is.

At the meeting of the legislative Commission on Courts on Thursday, Aug. 28, testimony was presented on judicial mandates and alternatives to the current system of judicial mandates.

First to testify was Senator Phil Boots. Sen. Boots objects to Trial Rule 60.5, which deals with the mandate of funds. Access TR 60.5 here. (Note - it will take a few moments for 60.5 to appear.)

Senator Boots said the legislature has by statute given the power to regulate county funds solely to the county councils. He said that TR 60.5 appears to be in conflict with the separation of powers.

Sen. Boots passed out a copy of the Supreme Court's 2007 Montgomery County mandate decision. Access it here. (See also ILB entry from 9/28/07 here.) Although the full amount the trial court judges demanded was not granted, he said, there was a compromise settlement. In addition, the county had to pay the legal fees of both sets of attorneys.

Sen. Boots thinks the General Assembly needs to address this issue. Otherwise, he said, judges could be budget busters, noting that HEA 1001 limits the amounts the counties can raise and spend. He had three suggestions:

Rep. Ryan Dvorack, a member of the Courts Commission, noted he didn't find any discussion of the constitutional basis for mandates in the Montgomery opinion.

Chief Justice Shepard, also a member of the Commission, said that the judicial power of mandate was based both on the separation of powers and on the constitution's requirement that "the courts shall be open" -- i.e. that the county council can't effective close the courts by withholding funding. He continued that this doesn't mean that there aren't times when there is the potential for overreaching. "If I were on a county council," CJ Shepard said, "I wouldn't care for this arrangement at all."

The CJ observed that currently a lot of local court costs are paid by fees. And the State pays a share. But the county remains the place of last resort. If the State were paying for all the costs of the courts, the CJ said, this tension would go away. He said it was his view that this is where we ought to go. The whole mandate problem arises from financing; if the legislature were to move in the direction of HEA 1001, the mandate problem would be ameliorated.

Re Rule 60.5, the CJ said it was adopted by the Court at the request of the counties, to establish something more orderly, a forum to address concerns of the counties in the 1970s and 80s. Our Court's view, said CJ Shepard, is that TR 60.5 is printed on paper, not carved in stone. In the last six months, the Indiana Judges Association has asked the Indiana Association of Counties to meet and talk about TR 60.5. The Supreme Court, he concluded, is open to restructuring.

Re the funding of local courts, one of the Commission members asked, "Doesn't the State actually make money on the court fees?" The members were promised a report at next meeting.

Representatives of the Indiana Association of Counties spoke next from their perspective on what has happened. Larry Hesson, a Hendricks Co. council member and former judge, focused on exorbitant legal fees - over $300 an hour, charged by Marion County attorneys selected by judges to represent them. He said this is almost a tool to use against the county. Further, local attorneys may be unwilling to take the case because they may practice before the judge. Mr. Hesson said the intent of the counties is not to interfere with the courts, but to deal fairly with county employees. The CJ's funding solution may be the best answer. Another answer would be for the Attorney General to represent the judges in these cases.

Ed Koerner, a Jackson County Council member, has also been county auditor. He said his county faced mandate three years ago, was about cutting insurance benefits. The Supreme Court appointed attorney [ILB - a judge to hear the case?], the judges picked a Marion County attorney to represent them. He said 50% of the cost of the original mandate was attorney fees. The cost to the county to fight the original mandate caused the county to cave. (Here is an ILB entry from April 9, 2006 on the Jackson County issue.) Mr. Koerner said different pay for court employees creates issues with other county employees. He agreed that the answer may be the Kernan-Shepard report - i.e. state funding.

Andrew Berger, head of the Association of Indiana Counties, said that attorney fees is the major sticking point and that the AG as counsel might be the answer, to remove the hammer.

Mr. Hesson said that some trial judges are concerned that state taking over court funding might diminish their authority. He noted that county clerk and prosecutor salaries are also an issue.

For more on judicial mandates in Indiana, see this long list of ILB entries.

Posted by Marcia Oddi on September 5, 2008 10:45 AM
Posted to Indiana Courts