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 Rush County Judge May Be Home’s Final Hope

May 20, 2009 - A Rush County judge may be the only remaining hope for keeping the Indiana Soldiers’ and Sailors’ Children’s Home open until state lawmakers can address the pending closure in an upcoming special legislative session.

Rush Circuit Court Judge David Northam heard arguments last Friday in a case that seeks a preliminary injunction that will keep the Home open until the legislature has an opportunity to decide whether it should be closed. Friday’s hearing dealt only with motions to dismiss filed by attorneys from the Indiana Attorney General’s office, who represent the governor and the Indiana State Department of Health, the defendants in the case.

As an initial matter, defense attorneys argued that the case, filed in February by a 17-year-old resident of the Home and the Home’s alumni association, should be dismissed because of an agreement the parties reached last month. In a joint stipulation signed April 24, the plaintiffs agreed to dismiss their case with prejudice -- meaning it could not be refilled -- if the general assembly took no legislative action to prevent the Home’s closure.

Deputy Attorney General Chad Duran, one of the defendants’ attorneys, argued that lawmakers had an opportunity to act to keep the Home from closing, but failed to do so. Saying it should be enforced like any other contract, Duran said joint stipulation’s “clear ... unequivocal and unambiguous” terms required the plaintiffs’ case to be dismissed with prejudice because of the legislature’s failure to act.

Everett Powell II, attorney for the plaintiffs, argued that lawmakers had, in fact, taken legislative action to prevent the Home’s closure. However, because the language addressing the Home was included in the budget bill that did not pass, the matter was left unresolved and will have to be revisited in the upcoming special session.

Powell said that when the plaintiffs agreed to the April 24 joint stipulation, both the House and Senate versions of the budget had included provisions that would have kept the Home open at least one more year. With the end of the legislative session less than a week away at that time, he said the plaintiffs had not planned on the budget not passing, requiring a special session.

“We anticipated that we would not be here today,” Powell said. “We anticipated that a budget would be passed.” He told the court that all four legislative caucuses -- the Democrats and Republicans in both the House and Senate -- anticipate that any budget crafted in the special session will include language addressing the Home.

While he acknowledged that a special session is anticipated, Duran argued that “should have no bearing on whether the plaintiffs fulfill the terms” of the joint stipulation. He said the April 24 agreement had, in essence, given the plaintiffs what was requested in their petition seeking a preliminary injunction: time for lawmakers to act to prevent the Home’s closure. Duran said the general assembly had their opportunity to resolve the issue, but failed to do so.

Ruling from the bench, Northam denied the defendants’ motion to dismiss the case pursuant to the terms of the April 24 joint stipulation. The judge said attorneys for both sides had been receptive to giving lawmakers time to act on the Home issue, and that plaintiffs’ and defendants’ counsel both may have “been remiss for not contemplating a special session” when they drafted the stipulation.

Their first motion defeated, defense attorneys moved on to their second line of attack. Deputy Attorney General David Christoff argued that the plaintiffs’ case should be dismissed because the state health commissioner, Judith Monroe, was acting within her authority when she announced in early January that the Home would be closing. “The Indiana Code is very clear,” Christoff said. “... It explicitly gives complete administrative control (over the Home) to the commissioner of the Department of Health.” He also noted that the Indiana Court of Appeals, in a 2006 case, had upheld the health commissioner’s authority to close a facility called Silvercrest in New Albany based on statutory language similar to that which governs the Home.

Powell argued that the Silvercrest case was different from that of the Home and should not guide Northam’s decision. Calling them “two very divergent situations,” he said it was “disingenuous” and “inappropriate” to say the two were analogous.

One distinction Powell tried to make was that with Silvercrest, state statute had given the health commissioner “complete administrative control” over the facility. By contrast, he said the statute dealing with the Home omitted the word “complete” and only gave the health commissioner “administrative control” over it.

Christoff agreed that the word “complete” was not included in one of the statutes describing the health commissioner’s role with respect to the Home. However, he correctly noted that a second state statute found in another chapter of the Indiana Code does explicitly give the health commissioner “complete administrative control” over the Home. Christoff also said the Court of Appeals decision in the Silvercrest case had focused on the meaning of “administrative control,” not the word “complete.”

Pointing out that the Home currently has funding through July 1, Powell said the plaintiffs were only asking that the planned May 23 closure be put off until then, to give lawmakers time for their special session. “That’s all we’re asking for,” he said. “... We’re asking for 37 days.”

Christoff told the court it didn’t matter if it were only 37 days, and said he thought that delay would be just as improper as giving the plaintiffs 37 months or 37 years. In all three cases, he said, if the court prevents the closure from going forward, the judicial branch would be substituting its authority for that of the executive branch.

Northam, a Republican like the governor, declined to rule during Friday’s hearing on this motion to dismiss. Instead, he told the attorneys they would have until today to present proposed findings of fact and proposed orders for him to consider.

If Northam declines to grant the defendants’ motion to dismiss, the next step will be to schedule a hearing on the plaintiffs’ request for a preliminary injunction. If the case is dismissed, plaintiffs will have the option of appealing the judge’s ruling.


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