
________________________________________________________________________

Attorneys for Board of Commissioners         Attorneys for Hon. Ronald
of Tippecanoe County and the                 E. Melichar
Tippecanoe County Council



Michael A. Wukmer                                  Karl L. Mulvaney

Myra C. Selby                                Phil L. Isenbarger
Melanie E. Harris                                  Nana Quay-Smith
Indianapolis, Indiana                        Candace L. Sage
                                             Indianapolis, Indiana
David W. Luhman
Douglas J. Masson
Lafayette, Indiana


                       Attorneys for Amicus Curiae, Indiana


                       Association of County Commissioners


                       Stanley C. Fickle
                       Debra Pollack-Milgate
                       Indianapolis, Indiana

                       Attorney for Amicus Curiae, Association
                       of Indiana Counties, et al.

                       Jo Angela Woods

                       Indianapolis, Indiana

________________________________________________________________________

      IN THE INDIANA SUPREME COURT

                                        )
IN THE MATTER OF COURTHOUSE       )     Supreme Court Cause No.
SECURITY IN TIPPECANOE COUNTY     )     79S00-0109-MF-405
                             )
________________________________________________________________________


               REVIEW OF A TRIAL RULE 60.5 MANDATE PROCEEDING
              The Honorable Raymond D. Kickbush, Special Judge

                         Cause No. 79C01-0012-MI-43

________________________________________________________________________


      April 12, 2002


Per Curiam


      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.

      The Tippecanoe County Courthouse  is  used  predominantly  for  court-
related functions.  Perhaps as many as a thousand  people  enter  and  leave
the courthouse on a daily basis.    Incidents over the  past  several  years
have made courthouse security a topic of concern  in  Tippecanoe  County.[1]
Certain courthouse security  measures  were  implemented  by  the  Board  of
Commissioners  of  Tippecanoe  County  and  the  Tippecanoe  County  Council
(collectively,  “Commissioners”).   However,   the   Honorable   Ronald   E.
Melichar,  Judge  of  the  Tippecanoe  Circuit  Court,  disagreed  with  the
adequacy of the Commissioners’ plan.

      When efforts toward a negotiated settlement of the dispute surrounding
courthouse security failed,  Judge  Melichar  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.

      As provided in Trial Rule  60.5,  we  appointed  a  special  judge  to
conduct a trial on the merits of the mandate order.  After  the  trial,  the
special judge entered  a  final  decree  documenting  his  fact-finding  and
conclusions.  The decree does not become effective  until  reviewed  by  the
Supreme Court unless that review is waived.  Ind. Trial Rule  60.5(B).   The
Commissioners declined to waive review and in  due  course  the  matter  was
fully briefed before this Court.

      The special judge’s decree overturned and modified the  mandate  order
in significant part, concluding that some  of  Judge  Melichar’s  directives
exceeded his authority.[2]   That decree is the subject of our review.

      The decree provides that so long as proper security is placed at  each
open entrance, the number of entrances is a matter for the Commissioners  to
decide.  The decree notes that the county Sheriff is  primarily  responsible
for preserving order in the courthouse.  See Ind.  Code  §  36-2-13-5(a)(6).
The decree states that each entrance with public access shall have  a  metal
detector  through which persons entering  the  courthouse  shall  pass.  The
decree further notes that  it  is  the  responsibility  of  the  Sheriff  to
supervise his deputies, to determine whether  additional  security  measures
should be employed, and to create special rules for  the  transportation  of
prisoners and for the screening of governmental employees.

      In sum, the special judge’s decree directs that  metal  detectors  and
security staff  be  put  in  place  at  as  many  public  entrances  to  the
courthouse as  the  Commissioners  think  appropriate  to  keep  open.   The
operation and management of those security points  is  noted  as  being  the
responsibility of the Sheriff.  We  would  expect  that  the  Sheriff  would
continue to work, as always, with the  local  judiciary  to  understand  and
address their particularized security concerns.

      While this case was being  briefed,  the  Commissioners  were  granted
leave to supplement the record with documents demonstrating that  they  have
now voluntarily complied with the decree.   The Commissioners closed six  of
the eight entrances to the courthouse, installed x-ray  screening  equipment
at both entrances, and allocated funding for  five  additional  bailiffs  to
assist with entrance security.  These  developments  would  seem  to  render
moot any controversy between the parties.   The  Commissioners  nevertheless
assert that review by this Court is still warranted because:  (1)  the  case
involves separation of powers issues of great  public  importance;  and  (2)
the decree lacks the flexibility necessary to account for future changes  in
circumstances.  We address this latter issue first.

      The  mandate  decree  already  incorporates  a  reasonable  degree  of
flexibility.  Moreover, we perceive no reason why the decree  might  not  be
subject  to  modification  if  warranted  by  changed  circumstances.    The
appointment of the special judge was made pursuant to Trial Rules  60.5  and
79(K).  Trial Rule 79(L) gives the  special  judge  continuing  jurisdiction
over this matter.

      As to the former point, separation of powers  issues  can  be  weighty
and courthouse security is an important topic.  However, we see  no  out-of-
the-ordinary separation of powers issues in need of  resolution  here.    As
in every case of this nature, the central issues are whether  a  mandate  is
reasonably necessary  for  the  operation  of  the  court  or  court-related
functions  and  if  so,  are  any  specific  fiscal  or  other  governmental
interests so severely and adversely affected as to require  that  the  order
be set aside.  Morgan Circuit Court v. Morgan  County  Council,  550  N.E.2d
1303, 1304 (Ind. 1990).  On review, we will sustain the judgment  if  it  is
supported by substantial evidence of probative value.  Id.

      In this instance, the Commissioners have demonstrated that  compliance
with the decree is fiscally achievable  without  adverse  consequences.   We
presume that since they took these measures on their  own  initiative,  they
ultimately concluded  that  these  steps  were  reasonably  necessary.   The
cooperation  and  attention  given  to  the  issue  of   security   by   the
Commissioners have mooted the need for more detailed review of  the  special
judge’s decree. As already noted, the special judge retains jurisdiction  to
act  on  motion  from  either  party.   We  also  affirm  the   unchallenged
directives of the special judge regarding the payment of attorneys  fees  in
this case.

All Justices concur.
-----------------------
[1] Security is a concern universal to all Indiana  governmental  officials.
In response to  these  concerns,  in  1994  we  issued  an  order  approving
security guidelines and priorities  for  Indiana  judges  and  courts.   See
Cause No. 95S00-9411-MS-1103.

[2] Seven judges work in the Tippecanoe  County  Courthouse.   The  original
order of mandate overturned in part by the special judge in  this  case  was
prepared and signed by only one of those judges.  We are reluctant to  adopt
a per se rule requiring that a majority of the judges in a county  agree  to
any mandate order of collective interest to the local  judiciary.   However,
in order to avoid the potential for conflicting mandate orders or  unwelcome
control over the courtrooms of other judges by one judge, that would be  the
preferred approach in situations  where,  as  here,  the  operation  of  the
entire county judiciary is affected.

