A monthly column by Marcia J. Oddi

Transcription

1 To elaborate... A monthly column by Marcia J. Oddi Separation of Powers in the County Courthouse A recent story out of Grant County reported: When Grant County, Ind., commissioners were caught snooping in the sheriff s , it caused a ruckus. But when the county board s response was to send all county employees a safety agreement that would allow the commissioners to monitor all Internet and activity, it got judges backs up. The judges in Marion, Ind., threatened contempt for any unauthorized access by the commissioners. We don t have any problem with the commissioners creating an Internet usage and policy. That s their responsibility to do that, says Grant County Circuit Judge Thomas R. Hunt. But they have no right to supervise the employees of the judicial branch of government. 1 According to the report, Judge Hunt said one of the problems with signing the form would be that it violates the separation of powers. 2 More than a century ago a similar dispute about the supervision of courthouse personnel took place between the board of county commissioners and the courts in Vigo County, and made its way to the Indiana Supreme Court. 3 The newfangled device at issue in 1893 was not the Internet, but the elevator. The Vigo County courthouse, three stories high above the basement, was built with stairways at each end and an elevator in the center. The county officers and board of county commissioners were located on the first floor, the courts on the second floor, and the grand jury and other offices on the third floor. The commissioners had operated the elevator since the courthouse was opened for use in April of 1887, but not to suit the convenience or necessities of the circuit and superior courts. The elevator was often shut down before the courts adjourned. Frequently persons attending court were compelled to use the stairways, while the records had to be carried up. Finally the judge of the Vigo circuit court issued the following order: It is hereby ordered that the elevator running from the basement to the court-room floor be run and operated in accordance with the following schedule ABA Journal ereport, July 15, 2005, Judges Resist County s Snooping Plan, Geri L. Dreiling. 2 Issues related to Indiana Administrative Rule 9, Access to Court Records, may be discussed in a later column. 3 Board of Comm rs of Vigo County v. Stout, 136 Ind. 53, 35 N.E. 683 (1893). 1

2 However, after service of the order, the person in charge of the elevator failed to obey the same. The circuit court then directed the sheriff of Vigo County (James W. Stout, the defendant in the case) to take charge of the elevator and run it according to the courts schedule. In response, the commissioners entered an order that the interests of the people of the county and a due regard for the administration of the affairs of the county do not require further running of the elevator and ordered the elevator closed. The Vigo circuit court thereupon ordered the sheriff to operate the elevator, deeming that the operation and running of said elevator is necessary in carrying out the business of the court. The commissioners sued in Vigo superior court to enjoin the sheriff from operating or interfering with the elevator in the courthouse. Not surprisingly, the Vigo superior court found for the defendants the sheriff and the Vigo circuit court. After reviewing the history of the dispute, the Indiana Supreme Court wrote: It is not seemly that a dispute such as this should have arisen between the parties concerned. We have, however, to consider the case as it comes to us. The controversy must seem trivial, but the questions involved are important. The control of county property, and the management of county business generally, are confined by law to the commissioners of the county. The Court wrote that all county buildings were in the hands of the commissioners, [who] may not exercise their powers arbitrarily, and without regard to the trusts committed to their keeping.... Should any such trust be disregarded or abused, resort may be had to the courts... In case, however, the court itself is the party aggrieved, more delicate and important considerations are presented. The courthouse, as the term implies, is chiefly for the use of the court, the remaining uses being subordinate, and to a great extent, incidental. A court of general jurisdiction, the opinion continued, whether named in the constitution or established in pursuance of the constitution, cannot be directed, controlled, or impeded in its functions by any of the other departments of the government.... [T[he court... possesses all powers necessary for the free and untrammeled exercise of its functions. Considering, therefore, the facts concerning the Vigo county courthouse..., there can be but little doubt that the order made by the court as to the running of the elevator was a proper exercise of the inherent powers of the court. The Supreme Court in Stout made clear that this was not an appeal from an order of the lower court directing (mandating) the sheriff to take charge of the elevator, 2

3 but rather for injunction to restrain the officers of the court from carrying out the order of the court itself. However, the Supreme Court added: What we have said thus far would be also applicable if this were an appeal from the order of the court directing the sheriff to take charge of the elevator. A 1999 dispute about the assignment of courtrooms and judges offices in St. Joseph County also ended up before the Supreme Court. 4 Indiana Trial Rule 60.5 now establishes procedures to resolve intra-county disputes about the funding for court operations. Here the Supreme Court wrote: These procedures are infrequently invoked in Indiana. In this case, however, the extraordinary procedures of Trial Rule 60.5 have been employed to settle a rather ordinary dispute over which judge uses a particular office in the St. Joseph County Courthouse. In a footnote the Court added: The typical mandate proceeding involves a dispute about court funding and Trial Rule 60.5 consistently speaks in those terms. However, we have held that the procedures of Trial Rule 60.5 apply to mandates other than just those involving court funding. Board of Comm rs of Crawford County v. Riddle, 493 N.E.2d 461, 462 (Ind. 1986). The 1986 Crawford County mandate case cited involved the reassignment by the Crawford commissioners of Room 7 in the courthouse, from the clerk s office to the department of public welfare. The Supreme Court rejected the commissioner s argument that the present mandate was not within the scope of TR 60.5 because it did not specifically seek funds. Citing Stout, the Court found the contention without merit: Our case law illustrates that Ind. R.Tr.P applies to mandates in addition to those specifically for funds. Again citing Stout, the Court stated: A court of general jurisdiction cannot be controlled, directed, or impeded in its functions by any other department of government. Courthouse security was the focus of a 2002 courthouse dispute in Tippecanoe County. 5 The circuit court judge disagreed with the adequacy of the commissioners plans for courthouse security. When efforts toward a negotiated settlement of the dispute surrounding courthouse security failed, the judge issued an order of mandate expressly directing how access to the courthouse should be controlled, including instructions on how many entrances to the courthouse should be kept open and who should be permitted to bypass security. In the introduction to its per curiam opinion, the Supreme Court stated: Indiana Trial Rule 60.5 establishes procedures by which intra-county disagreements about court funding may be resolved. We have also held that the procedures of that rule apply to orders of mandate relating to things other than court funding. See Board of Comm'rs of Crawford County v. Riddle, 493 N.E.2d 461, 462 (Ind.1986). In this instance, those procedures have been invoked in a dispute about courthouse security in Tippecanoe County. 4 In re Assignment of Courtrooms, 715 N.E.2d 372 (1999). 5 In re Courthouse Security in Tippecanoe County, 765 N.E.2d 1254 (2002). 3

4 The opinion reports that, while the case was being briefed, the commissioners agreed to comply with the decree. However, the commissioners argued that review by the Supreme Court was still warranted because the case involves separation of powers issues of great public importance. The Court responded: We see no out-of-the-ordinary separation of powers issues in need of resolution here. What the commissioners were urging was some limit on the courts mandate authority. According to the brief, only two cases had been located where the Supreme Court totally rejected a mandate, one directed that the location of the courthouse be changed, and the other, that the courthouse be razed. 6 Turning back to the recent Grant County Courthouse disputes, Kristin Harty reported in the June 21, 2005 Marion Chronicle-Tribune: Grant County judges want the locks changed on every door in the Grant County Courthouse, saying security has been breached because unauthorized individuals including the county s three commissioners have master keys. And Grant Circuit Judge Thomas Hunt is quoted as saying: I don t imagine President Bush has a key to the Supreme Court building, Hunt said. I don t want to be contentious. I don t want it to be personal. It s just a matter of understanding each other s branch of government. But do the county commissioners represent another branch of government? As acknowledged in State v. Monfort, 723 N.E.2d 407, 414 (2000): [T]here is authority for the proposition that the separation of powers doctrine applies only to state government and its officers, not municipal or local governments. See Sarlls v. State ex rel. Trimple, 201 Ind. 88, 115, 166 N.E. 270, 280 (1929). However, the opinion continues: [S]uperior courts, as courts of general jurisdiction, enjoy the same immunity as circuit courts from interference that violates the separation of powers. How may these two statements be reconciled? Article 3, Section 1 of the Indiana Constitution establishes the separation of powers of the three departments of government. 7 The executive power of the State is vested in a governor; the 6 Board of Comm rs of Benton County v. Thompson, 7 Ind. 265 (1855), and Board of Comm rs of White County v. Guin, 136 Ind. 562, 587, 36 NE 237, 243 (1894). 7 The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial: and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided. 4

5 legislative authority of the State is vested in a general assembly. 8 These are state officers. But the judicial power of the State shall be vested in one Supreme Court, one Court of Appeals, Circuit Courts, and such other courts as the General Assembly may establish. 9 In other words, while the powers of the executive and legislative departments established in the Indiana constitution do not extend down to the local levels of government, the judicial power of the State, and its corresponding autonomy, reaches from the Supreme Court at the state level to the courts of general jurisdiction at the local level. So perhaps Judge Hunt might have said: I can t imagine either Governor Daniels or the Grant county commissioners with a key to the Grant County Courthouse. 8 Art. 5, s. 1: The executive power of the State shall be vested in a Governor.... Art. 4, s. 1: The Legislative authority of the State shall be vested in a General Assembly Art. 7, s. 1. This language varies only slightly from that adopted in 1851: The judicial power of the State shall be vested in a Supreme Court, the Circuit Courts, and in such inferior Courts as the General Assembly may establish. 5