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Wednesday, March 08, 2006

Ind. Courts - Judge rules in Clark County dispute between judges and County Council [Updated]

This Nov. 3, 2005 ILB entry gives the background to today's story in the Louisville Courier Journal, by Alex Davis, headed "Judge rules Clark wrong to take cash from courts." Here is a quote from an earlier story by Davis, in the Nov. 3, 2005 LCJ:

A lingering financial dispute between Clark County's four elected judges and the County Council is now casting uncertainty over the county's budget for a second straight year. The two sides have been arguing since September 2004 over which of them controls hundreds of thousands of dollars a year in fees paid by participants in court-supervised probation programs.

The judges argue that the county's 2005 budget illegally relies on the fee money for $921,000 in expenses. They're also protesting next year's budget, which will use $1.1 million in fee money to keep the government operating. The judges filed a lawsuit over the matter earlier this year. If they prevail, the council could be forced to give some or all of that money back to the judges, then find the revenue needed to replace it. * * *

The suit is now scheduled to go to trial Feb. 16 in Clark Circuit Court before Elaine Brown, a special judge from Dubois County.

Similar arguments over probation fee money have surfaced in other Indiana counties in recent years. David Bottorff, executive director of the Association of Indiana Counties, said the Clark County suit could have "statewide ramifications" by producing one of the first court rulings on the matter.

Regardless of the outcome, the county's taxpayers will foot the bill for lawyers on both sides of the dispute. Legal costs previously had been estimated at $50,000, and Hollis said this week that the figure could be as much as $75,000 before the matter is resolved.

Today's story reports:
The Clark County Council acted illegally when it approved hundreds of thousands of dollars in spending over the last two years, a judge has ruled.

Council President Jim Smith predicted that the ruling could lead to the layoffs of dozens of county employees. The money, from fees generated by court-supervised probation programs, was used to plug holes in the county's budget for this year and last year.

The county's four elected judges sued the seven-member council over the matter last year, claiming that it didn't have the authority to appropriate money collected by the courts.

Elaine Brown, a special judge from Dubois County, sided with the judges in a ruling filed Friday in Clark Circuit Court. In addition to declaring the council's actions illegal, Brown ordered it to reimburse the judges for the entire amount in question and to pay their legal expenses.

Smith predicted that the ruling could have disastrous consequences for the county's finances. "There's not really a positive spin on this," he said yesterday, estimating that about $1.9million is at stake. "It was a complete slam dunk for the judges." * * *

Some council members have accused the judges of not being responsible stewards of the fee money. In recent years, the fees have been used to pay for such things as candles and paintings to decorate offices.

And last month a former top employee of Superior Court 1 acknowledged that he used probation-fee money to pay his wife's cell phone bill and for political campaign materials. The employee, Jerry Lemmons, has since resigned and said he reimbursed the county. His former boss, Superior Court Judge Jerry Jacobi, has said the State Board of Accounts is looking into the matter.

Dan Moore, an attorney who represented the County Council in the suit's early stages, said yesterday that he was not surprised by the ruling. He said legal experts on both sides of the case expect the matter to be resolved by the Indiana Court of Appeals.

Moore said two similar lawsuits — one in Grant County and the other in Warrick County — resulted in favorable rulings for the county councils at the appellate level, reversing decisions by the trial judges.

In her decision last week, Brown said that in the future the Clark County Council must seek approval from the judges before approving any spending of the fee money.

Interesting. If this was a mandate action under Trial Rule 60.5 as the ILB believes it was [but the ILB was wrong -- , see the Update below], the case will not go to the Court of Appeals. Rule 60.5 provides in part:
Unless expressly waived by the respondent in writing within thirty (30) days after the entering of the trial judge's decree, a decree or order mandating the payment of funds for the operation of the court or court-related functions shall be automatically reviewed by the Supreme Court. Promptly on expiration of such thirty (30) day period, the trial judge shall certify such decree together with either a stipulation of facts or an electronic transcription of the evidence to the Supreme Court. No motion to correct error nor notice of appeal shall be filed. No mandate order for appropriation or payment of funds made by any court other than the Supreme Court or Court of Appeals shall be effective unless it is entered after trial as herein provided and until the order has been reviewed by the Supreme Court or such review is expressly waived as herein provided.
Here are two orders (one and two) of the Supreme Court appointing Judge Brown as a special judge in the matter, pursuant to Trial Rule 60.5.

[Updated] Thanks to the LCJ's Alex Davis, here is information from David Lewis, the attorney for the judges in the case, clarifying that this was not the mandate case:

Judge Brown’s decision was entered in the declaratory judgment case, not the mandate case.

Quick history: In March ’05 we filed an action for mandate and an action for declaratory judgment and injunction all in one case under one cause number. The Indiana Supreme Court appointed Judge Brown to the case. The council objected to the joinder of a mandate claim with the other two claims. Judge Brown dismissed the declaratory judgment and injunction on procedural grounds without prejudice, giving us the right to re-file, and agreeing to serve as the judge in the new case after it was re-filed.

The mandate case was not dismissed, and may still be litigated with Judge Brown presiding.

We re-filed the dec/injunction action under a separate cause number in June, ’05. By agreement, Judge Brown was appointed in the new case. Also by agreement the parties litigated the dec/injunction case ahead of the mandate case.

There were other mandate cases relating to issues other than probation user fees. All of those mandate cases have either been dismissed when the council gave what was being requested or were otherwise settled.

Posted by Marcia Oddi on March 8, 2006 08:54 AM
Posted to Ind. Trial Ct. Decisions | Indiana Courts