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Lawmakers resume debate on issues impacting state courts

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Both federal and state lawmakers seem to be letting the clock tick down to the final seconds.

The U.S. Congress averted a government shutdown by reaching a budget deal in the final hour before its April 9 deadline, preventing some of the uncertainty that was on tap for the Hoosier legal community. Though the federal courts would have been able to continue funding temporarily for at least two weeks by using non-appropriated fees, as an exercise of its judicial authority, a shutdown could have delayed the start of the newest federal magistrate and the U.S. attorney’s offices may have had to halt civil litigation and related tasks.

While none of that played out because of the congressional deal funding the government for another six months, the situation sets the stage for what happens as state lawmakers wind down their final weeks of the legislative session before April 29 where a priority is setting a two-year budget and passing numerous bills that could impact the Indiana judiciary and legal community. If lawmakers hit the same kind of impasse that Congress did, they’d be pulled back for special sessions until they could agree on a spending plan that would go into effect July 1.

Four of the Indiana Supreme Court justices testified before the Senate Appropriations Committee in late March and talked to lawmakers specifically about the need for an appellate case management system, more funding for public defense, and continued fairness in how judicial officers and prosecutors are paid throughout the state. Justices Steven David, Brent Dickson, Robert Rucker, and Frank Sullivan made statements and answered questions from lawmakers, following up on a budget proposal submitted to the state budget director in October.

No committee decisions were made, but the justices offered sympathy for the state’s tough fiscal situation. They gave an overview of the court’s operations and areas that need legislative attention, according to court public information officer Kathryn Dolan.

Justice Sullivan told lawmakers that the judiciary’s portion is only about 1 percent of the state’s total $14.1 billion budget per year, and that the court has mostly straight-lined its monetary requests from the current two-year budget. Specifically, the justices mentioned the need for a new appellate case management system, increased funding for Indiana public defenders, and asked for lawmakers to respect the current model for how judicial officers and prosecutors are paid.

Concerning the appellate CMS, Justice Sullivan told lawmakers that paying for that new system requires about $3 million in new funding for the two-year period – with that breaking down to about $1.9 million the first year and $1.1 the second year. The courts can expect to save costs needed for personnel in the clerk’s office in the future as a result of the new system, Justice Sullivan said.

On salaries that account for about $97 million in the state budget, Justice David told lawmakers how the Ways and Means Committee budget prohibits judges, prosecutors, state-funded magistrates, and deputy prosecutors from receiving any pay adjustments for two years regardless of whether state employees get an increase – a move that specifically reverses a 2005 statutory change that tied trial judge compensation to that of state workers.

“We seek no special treatment for the men and women who serve as judicial officers and prosecutors across this great state and who administer the people’s business in the local courthouses,” he said. “We only ask that they be treated in the upcoming biennium in the same way that the Legislature and governor intended and agreed that they would be treated in the 2005 legislation.”

Justice Rucker testified about the public defense funding, which accounts for about $13 million currently. In the budget proposal submitted last fall, the court asked for a $3.15 million annual increase in public defense funding because of five additional counties – Delaware, Hamilton, Huntington, Lawrence, and Marshall – that will qualify for reimbursement at the start of the next biennium.  The state reimburses some of the defense costs for counties meeting certain standards, and the court says the general fund appropriation needed is $16 million rather than $12.85 million included in the budget passed by the House Ways and Means Committee.

The justices’ testimony came just as a 35-day walkout by Indiana House Democrats ended, leaving five weeks for lawmakers to not only craft a budget but also address legislative redistricting and hundreds of other pending bills. The five-week delay pushed committee meetings back, jeopardizing some bills that might have moved through the process smoothly if they’d had enough time.

Bar association leaders and those with organizations like the Indiana Trial Lawyers Association and Defense Trial Counsel of Indiana have been anxiously watching the Statehouse this session, largely on budget cost-cutting measures but more generally on those issues that might affect lawyers and judges statewide. Most say that last-minute surprises relating to legal services taxes or fees is a lingering concern at the moment – something that happened two years ago and caused lawyers, lawmakers, and judges to express surprise and frustration.

The St. Joseph County Bar Association has been watching those issues but has also been focusing on a topic that has been long-debated and came to a head about two years ago – judicial selection. The General Assembly in 2009 passed House Enrolled Act 1491, scrapping the St. Joseph Superior Court’s merit system for elections. The county is one of two in the state allowing this system at the Superior Court level, though the state’s appellate judges are also chosen this way. But the governor vetoed that legislation and voiced his support for the system overall, calming some fears that a push to scrap merit selection at all levels statewide might be successful.

“Earlier in the year, we were watching for proposals related to changing the superior court judicial selection,” said South Bend attorney Joe Fullenkamp, president-elect of the county bar association. “The fact that the Wisconsin Supreme Court election became a political referendum on the governor’s public employee union issue just highlighted the impact that politics have on the independence of a judiciary that runs for popular election. This session, the merit selection/retention issue did not arise again for our county.”

It did surface in Lake County, where efforts continued to make the Superior Court’s four county divisions merit-based rather than elected positions. A bill has passed the Senate in recent weeks and has moved on to the House side for consideration.

The Indiana attorney general’s office is also focusing on several bills that have statewide impact and have led to lawsuits in recent years – the civil forfeiture process that’s been under scrutiny and led to a statewide class action lawsuit; transparency in how gaming revenue is used for local economic development; and how state lawmakers calculate the school funding formula across the board.

The Indiana State Bar Association has been pushing not only for that judicial election change, but also a land use zoning bill and comprehensive probate legislation that’s working its way through committee, as well as bills focused on guardianship and phasing out the inheritance tax.

“Honestly, our fingers are crossed but I think all our legislation is going to make it this year, even with the walk out,” said ISBA legislative counsel Paje Felts. “It was a long five weeks but in the end, somehow, I think we will be unscathed. But you never know what can happen at the last minute.”•

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  1. I like the concept. Seems like a good idea and really inexpensive to manage.

  2. I don't agree that this is an extreme case. There are more of these people than you realize - people that are vindictive and/or with psychological issues have clogged the system with baseless suits that are costly to the defendant and to taxpayers. Restricting repeat offenders from further abusing the system is not akin to restricting their freedon, but to protecting their victims, and the court system, from allowing them unfettered access. From the Supreme Court opinion "he has burdened the opposing party and the courts of this state at every level with massive, confusing, disorganized, defective, repetitive, and often meritless filings."

  3. So, if you cry wolf one too many times courts may "restrict" your ability to pursue legal action? Also, why is document production equated with wealth? Anyone can "produce probably tens of thousands of pages of filings" if they have a public library card. I understand this is an extreme case, but our Supreme Court really got this one wrong.

  4. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  5. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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