A Citizen's Guide to Indiana

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DST: Has problems after all

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WSBT found a problem that seems to be associated with Daylight Saving Time that the Indianapolis Star seemed to miss in its glowing report on the issue.

Police say Daylight Saving Time is making it harder to enforce the city’s curfew, and more kids are getting into mischief. Property crimes, like car break-ins and petty thefts are the kinds of things they’re seeing.

Officers say it may be harder for kids to keep track of the time now that it stays light for so long.

Even though it’s light — the time of day is late — a lot of people have to work the next morning,” said Capt. Phil Trent of the South Bend Police Department. “So a lot of parents are going to sleep and the kids are still up and out, and we’d like make parents aware of the fact that they need to keep their kids inside.”

Memorandum Concerning Sheriff’s Fees

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I am writing to you as the judges presiding over civil litigation in Tippecanoe County and ask your consideration with respect to local procedures in light of IC 33-37-5-15(a), as added by the 2006 General Assembly and which becomes effective on July 1, 2006 for cases filed after June 30, 2006. That subsection requires the sheriff to “collect a service of process fee of thirteen dollars ($13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.”

Depending on how this statute is interpreted and implemented, this statute could make pursuing judgment debtors cost prohibitive. To mitigate potential costs, I would ask that the judges consider two issues: 1) modifying the current local practice of requiring proof of service for proceeding supplemental hearings; and 2) an interpretation of whether it is a party to the case or the court itself requesting that the Sheriff serve a writ.

A. PROCEEDINGS SUPPLEMENTAL

The notice requirements for a Proceeding Supplemental are set forth in Trial Rule 69(E). The Motion for Proceedings Supplemental and the court’s order stating the time for the appearance and hearing shall be served upon the judgment debtor as provided in Rule 5. Trial Rule 5(B)(2) provides that service by ordinary mail to the person’s last known address with certificate of service is appropriate.

This would seem to be a continuation of the principle recognized by Indiana’s Supreme Court prior to adoption of the Trial Rules:

It is well established that once a court acquires jurisdiction over parties, the jurisdiction continues until the final disposition of the litigation including the enforcement of the judgment or decree.

State ex rel Brubaker v. Pritchard, 138 N.E.2d 233, 233-34 (Ind. 1956). The Brubaker case involved contempt proceedings for violation of a temporary injunction. The Defendant had been personally served upon commencement of the original action and had appeared by counsel. An injunction was entered in the original action. Subsequently a contempt motion was filed by the Plaintiffs and the motion was served on Defendant’s attorney. The Brubaker Court rejected an argument that a court did not have jurisdiction over a person in contempt proceedings absent personal service on an individual by Sheriff. While this is different from the typical situation in which a judgment debtor is not represented by counsel, the Trial Rules apply to pro se parties just as they do to represented defendants. There is a distinction between the formal service necessary for a court to acquire jurisdiction over the person of a party in the commencement of an action and the right to reasonable notice of the proceedings after jurisdiction has been acquired in the first instance. Id. at 234.

B. RULE TO SHOW CAUSE & CONTEMPT

One of the issues most commonly faced by the courts with respect to Proceedings Supplemental is failure of the judgment debtor to obey the court’s order to appear for the hearing. This constitutes indirect contempt of court which is governed by IC 34-47-3, provided the order has been served upon the judgment debtor. IC 34-47-3-5 and 6 set forth the procedures for punishing a judgment debtor for indirect contempt. Under section 5, all persons charged with indirect contempt are entitled to be served with a rule of the court against which the contempt is alleged to have been committed. The rule must: 1) set forth the facts constituting contempt; and 2) specify the time and place at which the defendant is required to show cause why he or she should not be attached and punished for contempt. To procure personal jurisdiction over the alleged contemnor, the court may issue a writ of attachment directing that the person be taken into custody and subject to release on bail or escrow. IC 34-47-4-2. Such a writ is to be issued by a court to the Sheriff and must fix an amount of bail.

Under IC 34-47-3-6, if the defendant fails to appear or fails to show cause why he or she should not be held in contempt, the court may punish the defendant by fine, imprisonment, or both.

As to the service requirements in contempt proceedings, in Brubaker, the Supreme Court concluded:

It is our judgment that where the purpose of the contempt proceedings is to enforce a court order against a person who is a party properly brought in to the main action, no new process for personal service is required to enforce such order after notice to the parties or his attorney, and an opportunity to be heard has been given.

Brubaker, 138 N.E.2d at 228.

C. EXECUTION OF WRIT OF BODY ATTACHMENT AND CONTEMPT CITATIONS BY SHERIFF

There are two ways in which a court may enlist the assistance of the Sheriff in the course of civil contempt proceedings: writs of body attachment and contempt citations.

IC 34-47-4-2 governs writs of attachment upon the body of a person. Such writs are to be issued by a court for the purpose of procuring personal jurisdiction over a person who has allegedly violated a court order or who is otherwise in contempt of court. The writ is to be issued by the court to the Sheriff and is to fix a bail amount. The Sheriff or the Sheriff’s assistant is required to serve the writ and take the person into custody and take the person before the court or release the person on bail as in criminal matters.

IC 34-47-4-1 provides for service of contempt citations by the Sheriff upon an alleged contemnor requiring the alleged contemnor to appear before the court at a certain date and time and show cause why he or she should not be held in contempt. The citation is to be served in the same manner as a summons is served in a civil proceeding.

D. MITIGATION OF EXPENSES IN LIGHT OF IC 33-37-5-15(a) SHERIFF’S FEE

Current practice in Tippecanoe County with respect to Proceedings Supplemental makes extensive use of service by Sheriff in large part because of the protections afforded to judgment debtors by having a return of service demonstrating that a copy of an order was at least posted at the judgment debtor’s last known address and a copy was mailed and not returned undeliverable. However, this practice will become prohibitively expensive if a judgment creditor is required to pay the Sheriff $13 each time the creditor attempts to have an order served on a debtor in an effort to enforce the judgment.

The statutes and case law cited above set forth the minimum standards governing service of Proceedings Supplemental and use of writs of attachment and the courts’ contempt powers to enforce compliance with its orders. If an individual is properly served with a summons and complaint at the commencement of a suit, the court obtains personal jurisdiction over the individual and further service of motions and orders, including petitions for Proceedings Supplemental may be made by ordinary mail under Trial Rule 5. After being served with the initial process, it is the individual’s duty to keep the court advised of a current address until such time as the case is dismissed or the judgment released.

If a judgment debtor fails to appear at a Proceeding Supplemental after an order issues, even if by ordinary mail, the court has three options for pursuing consideration of whether the person failing to appear should be held in contempt: 1) If the facts of the alleged contempt are brought to the court’s attention through a verified statement, the court may issue a rule requiring the person to appear at a certain date and time to show cause why he or she should not be held in contempt. If the alleged contemnor is a judgment debtor who was properly served at commencement of the suit, the rule may be served upon the person by ordinary mail as provided for in Trial Rule 5; 2)
The court is empowered to direct the Sheriff to take the person into custody and either have the person post bail in an amount set by the court or have the person brought before the court; or 3) The court is empowered to direct the Sheriff to serve a contempt citation requiring a person to appear before the court at a particular date and time and show cause why the person should not be held in contempt of court.

If the alleged contemnor does not show cause for failing to obey the court’s order to appear at the proceeding supplemental, he or she may be held in contempt and may be punished by incarceration, fine, or both.

These are minimum standards and a court is within its discretion to adopt more stringent procedures insomuch as a court has broad latitude when deciding whether to exercise its contempt power. The more stringent procedures followed by the Tippecanoe County Courts requiring service by Sheriff or certified mail were laudable in that they provided protections for judgment debtors who may not have been diligent about notifying the court and creditors when they changed their address or may not have been diligent about checking and reading their mail while at the same time those procedures did not unduly burden judgment creditors attempting to enforce their judgments.

Under the new IC 33-37-5-15(a), however, judgment creditors will be subjected to a service of process fee of $13 any time the judgment creditor requests the Sheriff to serve “a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the Sheriff.” Certified mail is an alternative in many instances. However, this is likely to prove more expensive to the County in that IC 33-37-3-6 provides that “Court cost fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.” Where proof of service is required, litigants will presumably opt to serve opposing parties via certified mail since that expense is already included in the filing fee even though such service is often less effective in Proceedings Supplemental because judgment debtors often decline to accept certified mail.

E. SHERIFF’S FEES FOR WRITS OF BODY ATTACHMENT AND CONTEMPT CITATIONS

IC 34-47-4-2 concerning writs of attachment and IC 34-47-4-1 concerning service of contempt citations are reasonably clear in stating that it is the Court directing the Sheriff to take action. The new IC 33-37-5-15(a) requiring the Sheriff to collect a service of process fee is triggered when a party requests service of a particular document. It would be helpful if the Courts would make a determination as to whether the fee is triggered when a party requests that a Court hold a judgment debtor in contempt for failing to appear, causing the Court to issue a writ or a citation to the Sheriff to be served upon a judgment debtor in the course of exercising the Court’s contempt powers.

F. CONCLUSION

In light of the new Sheriff’s fee imposed by the General Assembly for causes of action filed after June 30, 2006, the courts should consider changes to current procedures required of judgment creditors seeking to enforce their judgments. Under the prior law, the procedures provided protection to judgment debtors without unduly burdening judgment creditors. Under the new law, the current procedures will become financially burdensome to those seeking to enforce their judgments.

I would respectfully suggest that the Courts permit service of Proceedings Supplemental and Rules to Show Cause by ordinary mail under Trial Rule 5 as permitted by Trial Rule 69(E). I would also request a determination that service of writs of body attachment and contempt citations are being requested of the Sheriff by the Court and not by a party and, therefore, do not require the Sheriff to collect a service of process fee under the new IC 33-37-5-15(a).

HEA 1158-2006 (P.L. 174-2006)

SECTION 12. IC 33-37-5-15 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 15. (a) The sheriff shall collect a service of process fee of thirteen dollars ($13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.
. . .

SECTION 21. [EFFECTIVE JULY 1, 2006] IC 33-37-4-4, IC 33-37-4-6, IC 33-37-5-15, and IC 33-37-5-28, all as amended by this act, apply only to cases filed after June 30, 2006.

IC 33-37-3-6
Inclusion of service of process by mail in court costs fee
Sec. 6. Court costs fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.
. . .

Draft Memorandum – Service of Process Fee

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I have prepared a draft memorandum on the subject of the new service of process fee the Sheriff is required to collect under IC 33-37-5-15(a) of $13 “from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.”

When you get a judgment that doesn’t get paid, you can initiate a “proceedings supplemental” where the debtor is supposed to appear to testify as to his or her income or assets. If the debtor fails to appear, generally a court will require a show cause hearing to be set where the debtor is to show cause why he or she shouldn’t be held in contempt. Typically if the person shows up at all for the show cause hearing, the court won’t hold the person in contempt since the person is now available for questioning about his or her income or assets which was the point in the first place.

It varies a little from court to court, but usually the practice is to have the Sheriff serve the person at the Proceeding Supplemental stage and to serve the person at the Rule to Show Cause stage. If the person doesn’t get served at either of those stages, nothing will happen. If the person gets served at both of those stages, a writ will issue for the person’s arrest.

This was a good system before the new Sheriff’s fee in that it provided protection to the judgment debtor – you can presumably take the word of the Sheriff’s deputy that the document at least got to the last known address and the Sheriff would tell you if the person clearly didn’t live there anymore. Because the service fee was all wrapped up into the initial filing fee, it didn’t place any undue burdens on the judgment creditor seeking to enforce a judgment.

Now, however, at $13 per served document, it could get rather expensive for judgment creditors to even attempt to collect on their judgments, particularly in the case of an un(der) employed debtor who likes to ignore court papers.

At this link, I have posted a draft memorandum I am contemplating providing to the judges before whom I practice advising them of the law which I believe supports my contention that service by ordinary mail is, in most cases, all that is required by the law and that the courts should forego the additional protections they have afforded to judgment debtors because of the significant extra cost it will impose on judgment creditors.

By draft, I mean draft. I have not edited any of it yet. Hopefully, I’ll be able to insert some links for the relevant citations. But if any of you folks have interest in the subject and/or have knowledge of the arcana of Rules, Writs, and Citations, I would certainly appreciate any input.

Daylight Saving Time: Virtually Unmitigated Success!

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So sayeth the Indianapolis Star. The story does, however, note that the later daylight is detrimental to ability to sleep well. But how important could that be?

This probably should have been another “some like it, some don’t” story. Instead, it comes off as most people like it, “pockets of resistance remain.” If there were data to support the former, that would be a fine angle. As it is, there appears to be only anectdotal evidence in the article.

Today is the earliest the sun will rise, with sunrise being at 6:17 a.m. (In Tippecanoe County). It won’t be dark until about 9:55 p.m.

Toll Road: Trial Court upheld 4-0

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Via the Indiana Law Blog:

From the docket in the toll road case, BONNEY, STEVE ET AL.-V- INDIANA FINANCE AUTHORITY, ET AL:

6/20/06 ISSUED THE ENCLOSED OPINION:
6/20/06 2006 TERM
THE ORDER OF THE TRIAL COURT IS AFFIRMED. — BOEHM, J.
SHEPARD, C.J., AND SULLIVAN AND RUCKER, JJ., CONCUR
DICKSON, J., NOT PARTICIPATING.
19 PAGES MS

Opinion available here.

The Court found that the Indiana Finance Authority is a “municipal corporation,” despite its statewide scope because of the General Assembly’s Humpty-Dumpty powers of defining words to mean what they wish them to mean. IC 34-6-2-86(1)(B) requires only that the IFA be a public instrumentality or public corporate body created by state law to be regarded as a “municipal corporation.”

The Supreme Court further determined that the Plaintiffs did not raise any substantial issues to be tried. I’m generalizing (and paraphrasing), but the Supreme Court essentially concluded that appropriations are not special legislation and so throwing pork at particular counties to get the Toll Road legislation passed didn’t constitute special legislation.

The Supreme Court further concluded that the State no longer has “public debt” under Article X, Section 2 of the Indiana Constitution. In a footnote, the Court notes that it does not believe that the question of whether the Toll Road transaction is a lease or a sale is dispositive to the Plaintiff’s contention that the statute violates Art. X, Sec. 2; rather it’s the fact that the State no longer has any public debt.

Because state law has set up entities like the Indiana Finance Authority to issue debt secured by money controlled by the State rather than having the State incur the debt directly, there is no public debt, says the Court. The Court also noted that debts of local government do not constitute public debt — a point that makes a lot of sense to me. I did not see how the Court addressed unfunded retirement obligations of the State under PERF and TRF.

The Court appears to have avoided a major confrontation with the Governor and the General Assembly primarily through two definitional maneuvers: “muncipal corporation” doesn’t have to have anything to do with a municipality; and “public debt” doesn’t refer to debt for which the public is ultimately responsible.

J&C: Make health care available to all Hoosiers

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The Journal & Courier has an editorial entitled “Make health care available to all Hoosiers.” The editorial recognizes that about the only thing everybody can agree on is this: “Something must be done to make health care accessible to more Hoosiers.”

Beyond that, there are too many competing interests. It mentions that at any given time, there are ” 600,000 to 800,000 people — 9 percent to 14 percent of the state’s population — [who] are uninsured at any given time.” It does not go into the difficulties and thin coverage experienced even by those who are insured.

Uninsured or marginally insured are likely to avoid preventative treatment to see if the problem goes away and the cost can be avoided altogether. If the problem persists and gets worse, treatment will likely be sought in an emergency room where it’s more expensive and more difficult to treat.

The high premiums and Indiana’s high health care costs ripple through the economy. Employers spend more on health insurance, which diverts money from raises and investments and makes contract negotiations with unions difficult. It discourages entrepreneurs from starting a business. Companies looking to locate in Indiana might pass up the Hoosier state.

Huge bureaucracies are in place to manage the intricacies and vast oceans of paperwork associated with our healthcare system. Governor Daniels has suggested that part of the problem with our school systems is that too few of the dollars spent are spent on actually educating children. So too are too few of our healthcare dollars spent on treating the sick and maintaining the healthy.

The average American spends more and gets less for his or her healthcare dollar than citizens of other industrialized nations. If you’re loaded or have blue chip insurance and need bleeding edge medical procedures immediately, our system works perfectly. Otherwise, it leaves a lot to be desired. And it’s squeezing the middle class. The poor have some protection through Medicaid. The rich have a decent healthcare system. The middle class is potentially one illness away from ruin — judgments leading to a choice between bankruptcy on the one hand or decimation of savings, garnished wages, and home foreclosure on the other.

IN-09: Bill Clinton v. Laura Bush?

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Lesley Stedman Weidenbener has an article in the Louisville Courier Journal on some heavy hitting fundraisers being conducted in Indiana’s 9th Congressional District. Bill Clinton will be conducting a fundraiser for Once & Future Democrat Baron Hill while Laura Bush will be conducting one for incumbent trucking magnate Mike Sodrel. Weidenbener notes the attention this race is getting from the national media.

Meanwhile, Political Junkie Matt Tully asks the important question, “Laura Bush or Bill Clinton. Who would you rather dine with?”

I posted my comment to his blog post:

Bill is tremendously intelligent and has a freakish amount of charisma.

Laura is probably a very nice lady.

I’ll go with the charismatic braniac.

Meanwhile, I note that the comment of Benjamin H. strikes me as indicative of Bush supporters everywhere:

I don’t even have to think…Mrs. Bush

Bush: the choice of non-thinkers everywhere.

Toll Road: Editorial in FWJG

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The Fort Wayne Journal Gazette has an excellent editorial on the Toll Road lawsuit. It does not take a position on the merits of the case but rather does a good job of laying out the competing arguments and the basics of the legal issues being argued, complete with excerpts of the relevant statutes and Constitutional provisions.

The editorial does suggest that Justice Dickson ought to disclose his reasons for recusing himself from the case even if he is not legally obligated to do so. “Even thought he is not required to explain his actions, this is not a time for mystery on the court,” says the editorial. The editorial also credits Chief Justice Shepard for making the Indiana Supreme Court a comparatively open institution and for taking steps to help the public learn more about the judicial systems.

Benton County looking into wind farms

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The Journal & Courier has an editorial supporting Benton County’s wind farm development initiatives.

So far, the reaction is the opposite to the reception to the proposed Cape Wind project in Nantucket Sound. Company officials say the 130-turbine wind farm off the Northeast Coast could meet three-fourths of electricity needs of area residents.

But the Cape Wind project has run into a severe case of “not in my backyard” syndrome. Its opponents include area residents, local governmental bodies and chambers of commerce, Massachusetts Gov. Mitt Romney and U.S. Sen. Edward M. Kennedy.

Contrast that to Benton County, where California companies Orion Energy LLC and enXco Inc. are pursuing plans to build wind farms. Orion is proposing a project with at least 75 turbines to generate electricity for 30,000 to 40,000 homes. In 2004, reports said enXco was considering at 70-turbine project.

Unlike Cape Cod, officials in Benton County are working to help the wind farms materialize.

Benton County is decidedly different from Cape Cod. For starters, it’s less affluent and it’s less densely populated. I haven’t seen the design, but I don’t think banks of windmills would be unsightly in Benton County’s vast expanse of fields.

I tend to agree with the J&C’s assessment:

Other companies, including a dairy farm and a landfill, interested in locating in Benton County have drawn opposition.

Maybe the wind farms will fly. There won’t be complaints about the smell of manure or trash, and there’s no risk of contaminating the water or the air.

Kids in juvie will have a place to work when they get out

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Richard Walton and Tim Evans have an article in the Indy Star entitled “Guards for kids have records.”

More than a quarter of employees who supervise youths at the Marion County Juvenile Detention Center have criminal convictions, according to a court official appointed to clean up problems at the center.

Advance Indiana has more and notes that this reflects badly on former Judge James Payne who presided over Marion County’s juvenile court for nearly 20 years. Of Judge Payne’s tenure, Judge Marilyn Moore has said “One of the things the did not do here was practice law.” Gov. Daniels has now promoted Judge Payne to be the state’s Director of Child Services. Good choice.

But, at least kids who commit offenses will have a shot at getting jobs at the Marion County Juvenile Detention Center.