Lawmakers resume debate on issues impacting state courts

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.”•