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Saturday, July 15, 2006

Ind. Courts - "Mediation ordered in Clark fee dispute: Council, judges still wrangling"

The long running dispute between the Clark County Council and the county's four elected judges continues.

Alex Davis of the Louisville Courier Journal reports today:

A financial dispute between the Clark County Council and the county's four elected judges will grind on for at least another six weeks after the Indiana Supreme Court ordered the matter to mediation.

The two sides have been arguing for nearly two years over who controls hundreds of thousands of dollars in fees collected through court-supervised probation programs.

The judges eventually sued the council over the matter, and a trial court judge ruled in their favor.

Last month the suit moved to the Indiana Supreme Court. But on Wednesday Chief Justice Randall T. Shepard signed an order saying the matter should be decided locally.

The order sets a 15-day deadline for a mediator to be named. It requires a mediation report by Aug. 28. If the case is still unresolved, it would go back to the high court.

No mediator had been selected as of yesterday. But Karl Mulvaney, an Indianapolis attorney representing the judges, said he has started looking at possible candidates.

He said the county will pay the cost of the mediator, which can run up to $350 an hour.

County Councilwoman Barbara Hollis said yesterday that she was disappointed by the high court's decision. She said the issue will now take more time to resolve, adding to a legal bill already estimated at more than $100,000.

"Here we are right back where we started," she said in an interview. "It's frustrating because nothing is defined for the future."

Hollis declined to comment on the chances for a successful mediation. But she said she continues to believe that the council has the sole authority to spend the probation fees. The council has appropriated about $1.9 million from those fees for the county's budgets over the last two years.

For their part, the judges claim that they should control how the money is spent.

Clark Circuit Court Judge Daniel Donahue said yesterday that he thought it would be difficult for a mediator to put together an agreement.

"From my point of view, the statute is absolutely clear," Donahue said in an interview. "There is no reason (for the judges) to give (in)." * * *

The Supreme Court's order says a ruling on the legal questions raised in the suit might help Clark County's leaders. But at the same time it could hinder other Indiana counties from reaching agreements on how to use the probation fees.

Jim Smith, president of the Clark County Council, said yesterday that the court's action was a positive development because it didn't side with the trial court decision in the judges' favor. But he also said the mediation process would put "tremendous weight" on the county's 2007 budget talks this fall.

Clark Superior Court Judge Steve Fleece said in a written statement that the fee case had become a "gruesome and costly stalemate," which he compared to trench warfare.

He said the mediation will not have any value as a legal precedent, either locally or in other Indiana counties.

"Both sides wanted clear guidance and finality," he said in the statement. "Neither side has obtained its objective."

This dispute has been going on since early last year. The ILB has had at least 8 entires on this dispute. My understanding is that although this was a declaratory judgment action, it could just as well have been a mandate action and appears to have been treated as such -- appointment of a special judge, appeal directly to the Supreme Court. The Fort Wayne News-Sentinel had an editorial June 11th on why it is important (see ILB entry here); here are quotes from the editorial:
Why should you care about a dispute between the Clark Couny Council and four elected judges? Because it could affect the way all Indiana counties spend public money. Due to the statewide implications, the Indiana Supreme Court has agreed to decide the case instead of leaving it in the Indiana Court of Appeals.

The dispute is over who has control of nearly $1.9 million in fees from court-supervised probation programs. The council argues that it should be able to tap the money for salaries and other court-related costs as part of the county’s annual budget. But the judges say they should control where the money is spent, accusing the council of overstepping its authority. Before the dispute arose, two years ago, the council and judges often agreed to use a certain portion of the fee money each year to pay court-related costs. But growing expenses have prompted the council to appropriate almost all the money to cover salaries and other expenditures to avoid employee layoffs.

This is also a struggle over power – who has it and how it is used. That affects us even more than how the fees are spent.

But as Judge Fleece is quoted in the LCJ story above:
He said the mediation will not have any value as a legal precedent, either locally or in other Indiana counties.

"Both sides wanted clear guidance and finality," he said in the statement. "Neither side has obtained its objective."

According to the docket for the case, 10 S 00 - 0606 - CV - 00199, CLARK COUNTY COUNCIL, ET AL -V- DONAHUE, DANIEL F., ET AL, appellants made a motion for oral argument on 6/30/06. On 7/12/06, the Supreme Court issued the following order:
THE COURT DIRECTS AS FOLLOWS:

1. ON THE COURT'S MOTION, THIS CASE IS REFERRED TO MEDIATION.

2. WITHIN 15 DAYS OF THIS ORDER, THE PARTIES MAY: (A) CHOOSE A MEDIATOR FROM THE CONTINUING LEGAL EDUCATION COMMISSION'S (HEREINAFTER "COMMISSION'S") REGISTRY; OR (B) AGREE UPON A NONREGISTERED MEDIATOR, WHO MUST BE APPROVED BY THIS COURT AND WHO SHALL SERVE WITH LEAVE OF THIS COURT.

3. IN THE EVENT THAT THE PARTIES DO NOT NOTIFY THIS COURT THAT THEY HAVE SELECTED AN AGREED MEDIATOR WITHIN 15 DAYS OF THIS ORDER, THE COURT WILL DESIGNATE ONE OR MORE REGISTERED MEDIATORS FROM THE COMMISSION'S REGISTRY.

4. THE COURT EXPECTS THE MEDIATION PROCESS TO BEGIN IMMEDIATELY AND TO PROCEED WITH ALL DUE DELIBRATE FOCUS. TO THIS END, THE PARTIES ARE AFFORDED UP TO FIVE (5) WEEKS FROM THE DATE OF THIS ORDER WITHIN WHICH TO SEEK A MEDIATED RESOLUTION TO THEIR DIFFERENCES. THE MEDIATOR OR MEDIATORS SHALL SUBMIT A MEDIATION REPORT IN COMPLIANCE WITH A.D.R. 2.7(E)(1) WITHIN TEN (10) DAYS AFTER COMPLETION OF THE MEDIATION PROCESS, BUT NO LATER THAN AUGUST 28, 2006. IF AN AGREEMENT IS REACHED, THE PARTIES SHALL COMPLY WITH A.D.R. 2.7(E)(2) BY AUGUST 28, 2006.

THESE DOCUMENTS SHALL BE SUBMITTED TO THIS COURT, WITH A COPY PROVIDED TO THE TRIAL COURT. THE COURT WILL THEN TAKE THE MATTER UNDER ADVISEMENT AND ISSUE FURTHER ORDERS AS APPROPRIATE.

5. JURISDICTION OVER THIS CASE IS REMANDED TO THE TRIAL COURT FOR THE LIMITED PURPOSE OF RESOLVING ANY DISPUTES THAT MAY ARISE IN CONNECTION WITH THE MEDIATION PROCESS TO THE EXTENT NOT OTHERWISE ADDRESSED IN THIS ORDER, AND TO OTHERWISE DO THOSE THINGS NECESSARY AND PROPER TO FACILITATE THE MEDIATION PROCESS.

IN ALL OTHER RESPECTS, WE RETAIN JURISDICTION OVER THE CASE.
RANDALL T. SHEPARD, CHIEF JUSTICE
ALL JUSTICES CONCUR. MS

[More] Here is another version of the story, via the AP.

Posted by Marcia Oddi on July 15, 2006 08:50 AM
Posted to Ind. Sup.Ct. Decisions