SB 44 – Representation of Judges in Mandate Litigation

Senate Bill 44, introduced by Senator Boots, would require the attorney general to represent a judge in any mandate litigation under Trial Rule 60.5. It further specifies that the state may not reimburse the judge for expenses in retaining a private attorney to represent the court in mandate litigation.

A bit of background for those who are unfamiliar with the concepts of mandates. A mandate is the power of the court to issue an order usually with respect to the proper administration of that court. Lately the power has come up in the context of tight local budgets that impact a court’s operation — for example compensation or staffing levels for court staff. Unlike other county departments which simply have to go without when the county’s fiscal body makes cuts, the court can order the fiscal body to cough up the money. If the county council does not cough up the money in response to the mandate, the matter goes to court where mandating courts have historically had a lot of success. (Skeptics out there might raise an eyebrow at the notion of judges siding with judges, but that’s probably too simple to be a fair criticism.)

But, one of the biggest insults to the mandate injury, from the perspective of the fiscal body representing an already cash strapped county is that the county then has to pay the court’s legal bills. Frequently the court has gone to Indianapolis and obtained some of the highest priced lawyers in the state. Senator Boots’ legislation obviously seeks to mitigate at least this part of the mandate equation by requiring that the attorney general represent a judge in any mandate litigation.

However, even with the provision that prohibits the state from paying for costs associated with private counsel, I’m not sure that the proposed legislation prohibits the judge from hiring private counsel in addition to the attorney general and then leaving a county (as opposed to the state) on the hook for paying for the private attorney costs. My uncertainty comes primarily from the fact that I don’t have the time this morning to look up the mechanism related to that aspect of the court’s mandate powers.