As the clock ticked closer to a partial shutdown of state government, the Hoosier legal community received word this afternoon from the Indiana Supreme Court that trial courts should conduct business as usual and that the state's legal system would continue as much as possible if lawmakers fail to pass a budget by deadline.
The consensus from most was that lawmakers would meet the midnight deadline, but questions remained about where state-funded judges, magistrates, and lawyers fit into the "essential services" puzzle being contemplated by state leaders in case of a shutdown.
Trial court employees and those within prosecutors' and defense offices are county-funded, meaning there'd be no impact on those workers. But judges and magistrates receive their salaries from the state, as do prosecutors and chief deputy prosecutors at the trial level. In addition to the state's highest appellate courts and those related agencies, the Indiana Public Defender's Office and Indiana Public Defender Council would also be impacted and put on furlough without an operating budget.
In an early afternoon e-mail, Gov. Mitch Daniels told executive branch employees that they'd be furloughed without a budget and they wouldn't be able to volunteer their time. They were told to watch news reports throughout the day and evening.
Before 3 p.m., judges statewide heard from Indiana Chief Justice Randall T. Shepard, who notified them by e-mail that a budget was close but not final, and if it didn't pass then trial court judges should report as usual to be available for police, prosecutors, and court business in general.
In his e-mail, the chief justice wrote, "There can be little doubt that just as public safety requires the continuation of state law enforcement and corrections activities it likewise relies on the availability of Indiana's trial courts for search warrants, arraignments and bail, protective orders, child support, and a host of other needs. We therefore ask that you be at your post tomorrow, as we will.
"In the event that there is not a budget, of course, the appellate courts and the support structure for the judicial branch will need to shut down, save for certain emergency functions, beginning tomorrow. Detailed decisions about those closings and furloughs will be made tomorrow morning should that be necessary."
While their actions depend on what the Supreme Court says, several judges throughout Indiana said they planned to keep their courts open.
"Regardless of what happens, I intend to be here on Wednesday and I'd urge my colleagues throughout the state to do the same," said Lake Superior Judge John Pera. "We've all taken an oath that transcends any temporary budget issues that might put our pay in jeopardy, so as far as pay we'll let those chips will fall where they may. But we've all got full dockets, people incarcerated who need hearings, ordinary people with traffic tickets that need attention. ... I just can't see how a shutdown of the judicial system would help anyone."
Judge Pera remained optimistic from news stories online that lawmakers would be able to reach a budget deal by tonight.
Passing a budget is the General Assembly's only constitutionally established duty, and it's something they failed to do before the regular session ended in April. A 1993 special session came close to a shutdown, but that was avoided at the last minute and Indiana continued to avoid something that hasn't happened in more than a century.
Stephen Johnson, executive director of the Indiana Prosecuting Attorneys Council, said prosecutors throughout the state have been asking for guidance and he's been telling them that courts would likely continue to operate in the event of a government shutdown.
"As a matter of law, I don't see how the courts could be shut down," he said, citing constitutional requirements that mandate anyone arrested must appear before a judge within 24 to 48 hours. "At least there would have to be some people in the courts and prosecutor's office that would keep the cases flowing because arrests are going to be made regardless.
"Still, if there are non-openings, that could mess up many court calendars across the state," he said.
At the Indiana Public Defender Council, Paula Sites, assistant executive director, said the office had received word that, in the event of a shutdown, they would be furloughed along with any assistance provided to county public defenders. But she said that even as state employees, she and her staff would likely remain at work doing what needs to be done.
Spokesman Bryan Corbin for the Indiana Attorney General's Office said the state agency has an obligation to represent clients in court whether the state offices are open or not.
"Accordingly, deputy attorneys general will continue to zealously represent our clients even if a state budget isn't passed by Tuesday's deadline. Our work doesn't cease," Corbin wrote in an e-mail to Indiana Lawyer.