A TTORNEYS FOR A PPELLANT A TTORNEYS FOR A PPELLEES Daniel L. Taylor Jeffrey C. McDermott J. Kent Minnette Angela M. Hamm Crawfordsville, Indiana Libby Y. Mote Carmel, Indiana

______________________________________________________________________________ 

# In the 

# Indiana Supreme Court

_________________________________

No. 54S00-0611-MF-443

I N R E : O RDER FOR M ANDATE OF F UNDS

M ONTGOMERY C OUNTY C OUNCIL , Appellant (Defendant below)

,

v.

H ONORABLE T HOMAS K. M ILLIGAN , J UDGE , M ONTGOMERY C OUNTY C IRCUIT C OURT ; H ONORABLE D AVID A. A ULT , J UDGE , M ONTGOMERY C OUNTY S UPERIOR C OURT I; H ONORABLE P EGGY Q. L OHORN , J UDGE , M ONTGOMERY C OUNTY S UPERIOR C OURT II;

Appellees (Plaintiffs below)

.

_________________________________ Appeal from the Montgomery Circuit Court, No. 54C01-0510-MI-00421 The Honorable Julian L. Ridlen, Special Judge

_________________________________ For Automatic Review Pursuant to Trial Rule 60.5(B)

_________________________________ September 26, 2007 Sullivan, Justice.

Indiana Trial Rule 60.5 establishes procedures by which intra-county disagreements about court funding may be resolved. These proce dures are infrequently invoked in Indiana. Inthis case, however, T.R. 60.5 has been called into pl ay in a dispute about salaries for court staff in Montgomery County.

For several years, the Judges of the Mont gomery Circuit Court, Montgomery Superior Court 1, and Montgomery Superior Court 2 had requested that the Montgomery County Council increase the salaries of their employees to a leve l that would be competitive with court staff salaries in neighboring or comparable counties. Although the Council had approved salary increases approximating increases in cost of living indices in most budget years, no salary increase was granted in 2005.

After their efforts in 2004 to obtain salary increases failed, and following the loss within a relatively short time period of three Circuit Cour t staff members to, and the offer to the Circuit Court administrative assistant of, higher-paying j obs in both the public and private sectors, the Judges issued an order on August 16, 2005, and an amended order on August 22, 2005. As amended, the order directed the Council to show cause why the annual salaries for all Montgomery County court reporters, administrative assi stants, and positions classified as “secretary/bailiff/receptionist” should not be increased to specified levels for the balance of 2005 and for the 2006 budget year.

This order triggered the procedures found in T.R. 60.5 for resolving intra-county funding disputes. We appointed the Honorable Julian L. Ridlen, Judge of the Cass Circuit Court, as special judge to hear evidence and to make findings with regard to the show cause order. Following a two-day trial, Judge Ridlen entered a decree cont aining findings of fact and conclusions of law. The special judge’s decree mandated that all of the salaries be increased to the specified levels. We express our appreciation to Judge Ridlen for his service.

Trial Rule 60.5 provides that the special judge ’s decree be reviewed by this Court unless the responsible governmental subdivision (in this case, the Council) expressly waives such review. The Council did not waive review, and this Court issued an order governing the filing of the record on appeal and briefs by the parties. Once fully briefed, this Court took the matter under advisement.

2Discussion

I

The issues to be decided in a mandate pro ceeding are whether the funds ordered paid are reasonably necessary for the operation of the cour ts and any court-related functions and whether any specific fiscal or other governmental interest s are so severely and adversely affected by the payment as to require the order to be set aside. In re Court Reporter Salaries in the Knox Circuit and Superior Courts , 713 N.E.2d 280, 282 (Ind. 1999) ( citing Morgan Circuit Court v. Morgan County Council , 550 N.E.2d 1303, 1304 (Ind. 1990)). The annua l salaries of court employees fall within a court’s mandate authority and may be ordered paid at levels sufficient to attract and retain qualified persons. Morgan Circuit Court , 550 N.E.2d at 1304. Salaries for comparable positions in both the public and private sectors are relevant. Id. A court need not wait to take action until the court’s operation actually has been impaired, but may act once there is a clear and present danger of impairment. Id.

Each of the three Montgomery County courts (Circuit Court, Superior Court 1, and Superior Court 2) has three employees: (1) a court repor ter; (2) an administrative assistant; and (3) an employee classified as “secretary/bailiff/receptioni st” (“SBR”). In 2004, the salaries established by the Council for these positions ranged as follows:

Table 1 Montgomery County Court Employee Salaries -- 2004 Lowest Highest Court Reporter $21,069 $23,637 Administrative Assistant $19,142 $23,637 SBR $19,142 $23,637

Concerned about their inability to attract a nd retain employees at the existing salary structure, the Judges sent two letters to Council president Terry Hockersmith in July and August 2004, requesting 2005 salaries of $30,700 for cour t reporters, $28,100 for administrative assistants, and $26,200 for SBRs. The Judges also provi ded comparative data from other counties.

3However, the Council did not comply with the Judge s’ request and, in fact, did not grant any salary increases to the nine court employees in 2005. (In 2006, with only one exception, these salaries each were budgeted to increase modestly.)

The Circuit Court lost three court empl oyees between November 2003 and November 2004 to higher-paying jobs in the public and privat e sectors. In the summer of 2005, a local attorney made an employment offer involving a highe r salary to the Circuit Court administrative assistant. The administrative assistant was poise d to accept the offer, but the Circuit Court judgepersuaded her to stay while the Judges made efforts to secure salary increases for their employees. The Judges approached the Council one more time, again unsuccessfully. Thereafter, in August 2005, the Judges issued their mandate order.

The order required that the employees be paid for the remainder of 2005 at the following annual salary rates:

Table 2 Montgomery County Court Employee Salaries As Mandated 2005 Court Reporter $31,200 Administrative Assistant $31,200 SBR $27,200

The mandate provided further that the employ ees would be paid at those same rates for 2006 plus any county-wide percentage increase approved by the Council.

As noted above, salaries of court employees may be ordered paid at sufficient levels to attract and retain qualified persons. See Morgan Circuit Court , 550 N.E.2d at 1304. Mandated funds must be “reasonably necessary” for the opera tion of the courts, and a mandate may be issued when there is a “clear and present danger” of impairment to the courts’ operation. Id.

Exhibits produced at trial compared the salaries of the Montgomery County court employees to those of court employees in several other counties. The counties utilized for compari4son were those with comparable weighted caseloads (Dearborn, Floyd, Franklin, Hendricks, Perry, and Vanderburgh), those contiguous to Montgomery County (Boone, Clinton, Tippecanoe, Fountain, Parke, Putnam, and Hendricks), a nd those counties that compete with Montgomery County for employees (Boone, Tippecanoe, Putnam, Hendricks, and Marion).

Salary data from each of these groups of coun ties is relevant to some extent. Comparison with counties with similar weighted caseloads ta kes into consideration the volume of work performed by court employees. However, the releva nce of this comparison under the circumstances of this case is influenced primarily by geographi c and labor market considerations. Comparisons with competing and contiguous counties take in to account the most immediate “threat” to a court’s ability to attract and retain employees. U nder the circumstances of this case, we believe that comparison of Montgomery County court empl oyee salaries with salaries of court employees in contiguous counties provides the most usef ul benchmark for examining what salaries are “reasonably necessary” for Montgomery County to attract and retain qualified persons.

The evidence produced at trial indicated th e following ranges in salaries for court employees in counties contiguous to Montgomery County in 2005.

Table 3 Court Employee Salaries (Counties Contiguous to Montgomery County) 2005 Lowest Highest Court Reporter $25,350 $35,518 Administrative Assistant $24,930 $33,234 SBR $20,850 $29,125

Should the Montgomery County court employees be paid at or below the low end of these salary ranges, the courts’ ability to attract and retain employees would be comparatively weak. On the other hand, salaries at the upper level of these ranges would exceed what is reasonably necessary for Montgomery County courts to be competitive. Further, approval of salaries at the upper level of these ranges would unduly encourage mandates from courts in which

5employees’ salaries are not at the upper level. We believe that salaries near the middle of theseranges achieve what is reasonably necessary to avoid impairment of court operations while appropriately recognizing the extraordinary nature of a mandate.

The following table compares the highest salary paid to court employees in Montgomery County in 2005 with the mean and median of the salary ranges in contiguous counties in that

year.

Table 4 Court Employee Salary Comparison -- Montgomery and Contiguous Counties 2005 Montgomery County Contiguous Counties

Highest Mean Median Court Reporter $23,637 $30,266 $29,346 Administrative Assistant $23,637 $28,230 $27,036 SBR $23,637 $25,736 $26,392

Tables 1, 3, and 4 show that all but one of the salaries of Montgomery County court staff prior to the mandate were below the low end of the salary ranges of contiguous counties, and all

of the salaries were below both the mean and medi an salaries of contiguous counties. However, the mandated salaries of $31,200 for court repor ters and administrative assistants and $27,200

for SBRs exceed both the means and medians of the 2005 salary ranges in contiguous counties, by anywhere from several hundred dollars to se veral thousand dollars. Accordingly, while a mandate was warranted, it cannot be approved in the amounts requested.

We direct that the salaries of each categor y of employee be as set forth in the following

table.

6Table 5

Aug. 16, 2005 -

Dec. 31, 2005 Calendar Year 2006 Calendar Year 2007 Court Reporter $29,800 $30,700 Administrative Assistant $27,600 $28,400 SBR $26,100 $26,900 2006 Amount Plus General Increase Given Montgomery County Employee Salaries -- Supreme Court Decision

These amounts reflect, for each cat egory of employee: (a) for 2005 , the midpoint between the mean and median of the 2005 salary range s in contiguous counties; (b) for 2006, the 2005 amount plus 3% (the general increase given all Montgomery county employees for 2006); and (c) for 2007, the 2006 amount plus a percentage equal to the general increase given all such county employees for 2007. All amounts are rounded up to the nearest $100. To the extent that any employee has been paid less than this amount during the periods indicated, the county shall pay the employee the difference (less all tax and other withholdings that would have been applicable) in one or more payments before Decembe r 31, 2007. To the extent that any employee has been paid more than this amount during the pe riods indicated, the employee shall have no obligation to repay any excess.

II

Given that the proper delivery of judicial se rvices is often at stake in T.R. 60.5 proceedings, this Court has recognized the necessity of proper compensation for attorneys who represent

courts in such matters. Kramer v. Hancock County Court , 448 N.E.2d 1190, 1192 (Ind. 1983). At the completion of the trial in the present matter, counsel for the Judges submitted an invoice for legal services and expenses totaling a pproximately $128,300. The Council challenges this

amount as excessive.

The amount of attorney fees awarded in T.R. 60.5 proceedings has occasionally been challenged, but not in the recent past. Perhaps as a consequence, the amounts at stake were far

less than the amount involved here. See In re Mandate of Funds in the Harrison Superior Court

, 674 N.E.2d 555 (Ind. 1996) (affirming an attorn ey fee award of approximately $10,300); Morgan

7Circuit Court v. Morgan County Council , 550 N.E.2d 1303 (Ind. 1990) ($6,000); Allen County

Council v. Allen Circuit Court , 549 N.E.2d 364 (Ind. 1990) ($27,800); Kramer , 448 N.E.2d 1190 ($3,300); Vigo County Council v. Vigo Superior Court, Division I , 397 N.E.2d 969 (Ind. 1979) ($3,000).

We have identified as the principal considerations in determining the appropriate amount of attorney fees in T.R. 60.5 proceedings the l ogistics problems faced by attorneys who have the burden of proof as to the number of employees i nvolved in court processes, the salaries paid therefor, the volume of work required to be done by those personnel, and the necessity for the

increase in salaries in order to f acilitate the work of the court. Harrison Superior Court , 674 N.E.2d at 558 ( quoting Allen County Council , 549 N.E.2d at 367). More generally, our Rules of Professional Conduct give us guidance as to factor s to be considered in determining the reasonableness of attorney fees:

(1) the time and labor required, the nove lty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

Ind. Professional Conduct Rule 1.5(a).

This case was protracted, including as it did a full trial and all of the time and labor that requires. The hourly rates initially charged by the lawyers involved in the case were $320 by the

8senior-most lawyer involved, $190 by a second, a nd $140 by several law clerks assigned to the case. (The rates of the two lawyers were incr eased by $20 per hour during the course of the representation.) The senior lawyer testified that the firm’s billing rates are reviewed and adjusted annually by the firm based on factors including the type of work, degree of sophistication, years of practice, experience, and survey of other lawyers’ rates in the Indianapolis and Carmel areas.

He further testified that an extensive amount of “legwork” was required to collect evidence on comparative salary data. There was no eviden ce that the firm was precluded from other employment because of this representation. The substantial experience and superior reputation and ability of the lawyers here and of their firm are well known.

On the other hand, the questions involved in this matter are frequently recurring and straightforward. Judge Milligan of the Montgomer y Circuit Court testified that the normal range of hourly rates for attorney fees he approves in his court is $125-$175. There do not appear to have been any particularly stringent or excessi ve time demands connected with this litigation. Most of the “legwork” required does not appear to have required legal training. And the amounts involved, as measured by the aggregate annual amount of the differences between the salaries approved by the Council for 2006 and th e amounts required by the mandate order, totaled approximately $85,000. Under these circumst ances, we believe it appropriate to limit the amount of attorney fees awarded here.

We have examined the fee and expense re quest in some detail and note that it seeks $124,525 in fees and $3,772.79 in costs. The fee request is based on 574.25 hours. The Council

does not contest the number of hours nor the amount of costs; its only request is that the hourly rate for the work be limited to the normal range for attorney fees in Montgomery County. Based on the factors set forth in the preceding two para graphs and particularly on the fact that the

Council does not contest the number of hours worke d, we conclude that the attorney fee award shall be $72,810.29, calculated as set forth in the margin. 1 To the extent that counsel has been

1 The bill reflects and the trial court order recites that 574.25 hours were expended by counsel. However, our review of the firm’s invoice indicates that the firm did not charge for 88 hours. The invoice submitted by counsel itemizes 437.50 hours of charged attorney time and 48.75 hours of charged paralegal and law clerk time. Our attorney fee award reflects attorn ey compensation at a rate of $150 per hour, paralegal and law clerk compensation at a rate of $70 per hour, and costs as billed.

910 paid less than this amount by the county, the count y shall pay counsel the balance of the amount owed in no less than three equal installm ents on December 31, 2007, June 30, 2008, and December 31, 2008. No appellate attorn ey fees shall be awarded. See Morgan Circuit Court , 550

N.E.2d at 1306.

III

The County Council also seeks our review of the mandate court’s finding that the Montgomery County Auditor had been in contempt for failing to make certain expenditures from the County Bond Administration Fund. The Auditor res ponded to the mandate court’s order to that court’s satisfaction and the contempt order was vacated. We find the issue to be moot.

Conclusion

The order of the trial court mandating certain salary increases for employees of the Circuit and Superior Courts is affirmed to the extent set forth in part I of this decision. The request of counsel for attorney fees is affirmed to the extent set forth in part II.

Shepard, C.J., and Dickson, Boehm, and Rucker, JJ., concur.