ATTORNEY FOR RELATOR ATTORNEYS FOR RESPONDENT
Alan VerPlanck Jeffrey A. Modisett
Fort Wayne, Indiana Attorney General of Indiana
James P. Fenton Geoff Davis
Fort Wayne, Indiana Deputy Attorney General
SUPREME COURT OF INDIANA
STATE OF INDIANA ON THE RELATION ) OF THE CITY OF NEW HAVEN, ) ) Relator, ) ) v. ) Cause No. 02S00-9801-OR-21 ) THE ALLEN SUPERIOR COURT AND THE ) HONORABLE ROBERT SCHMOLL, ) REFEREE ) ) Respondent. )
SHEPARD, Chief Justice.
Relator, the City of New Haven, Indiana, sought to invoke original jurisdiction for a writ of mandate. The writ would compel
the respondent Allen Superior Court and its referee Robert Schmoll
to dismiss a number of complaints for traffic or other infractions
which the court scheduled for hearing. We denied the City's
petition and now record the basis for that denial.
This matter is before us on the City's request for relief in
one traffic infraction case, City of New Haven v. Charles
Schindler, Cause No. 02D04-9710-OV-3672. For purposes of clarity,
we set forth the events which gave rise to these proceedings.
An officer of the New Haven Police Department issued a traffic
violation ticket to Charles Schindler on October 19, 1997. The
ticket cited Schindler for speeding and instructed him to appear in
Allen Superior Court on November, 14, 1997, at 9 a.m.
On October 24, 1997, the court assigned a cause number to the case. Thereafter, the City and Schindler apparently reached an agreement for dismissal. On November 10, 1997, Schindler and an attorney for the City filed a joint motion to dismiss the action. The City says that it often resolves traffic or other infraction complaints by entering into a "Stipulation for Dismissal" like the agreement reached with Schindler in this case. (Relator's Br. at 1.) The settlement agreements accompanying the stipulations for dismissal often require payment by the defendant to the City of New Haven or a commitment by the defendant either to engage in or refrain from some activity for a period of time. (Id.)
The trial court held a hearing on these matters on January 21,
1998. At the hearing, the court informed Schindler and other
defendants that the City had been running a deferral program that
did not comply with the governing statute. The court told the
defendants it would not honor the stipulations for dismissal, at
least until it could "get this matter sorted out." (Respondent's
Ex. 2 at 2-3.) Finally, the City petitioned this Court for a writ
of mandate and prohibition under Original Action Rule 2 to compel
the trial court to dismiss these cases. We denied the petition via
order on March 6, 1998.
lower court within its lawful jurisdiction,
See footnote 1
but Original Action
Rule 2(E) expressly warns would-be relators that "[o]riginal
actions are viewed with disfavor and may not be used as substitutes
for appeals." Because they are extraordinary remedies, such writs
will not be issued unless the relator can show a clear and obvious
emergency where the failure of this Court to act will result in
substantial injustice. State ex rel. Kiritsis v. Marion Probate
Ct., 269 Ind. 550, 381 N.E.2d 1245 (1978). Writs of prohibition
and mandate will be issued only where the trial court has an
absolute duty to act or refrain from acting. State ex rel. Pickard
v. Superior Ct. of Marion County, 447 N.E.2d 584 (Ind. 1983).
conducted in accordance with the Indiana Rules of Trial
Procedure, the state must prove the commission of the
infraction by only a preponderance of the evidence, and
punishment for its commission is only a fine. There can
be no imprisonment.
"In short," the City argues, "an infraction case is like any other
civil case." (Relator's Br. at 2.) This leads the City to cite
Indiana Trial Rule 41(A)(1), which reads in pertinent part:
(1) By plaintiff--By stipulation. Subject to contrary provisions of these rules or of any statute, an action may be dismissed by the plaintiff without order of court:
(b) by filing a stipulation of dismissal signed by
all parties who have appeared in the action.
Because these are civil cases, says counsel, and because Trial Rule
41(A)(1) allows for voluntary dismissal of civil cases by
stipulation without order of the court, "the Respondent Court is
without jurisdiction to do anything other than dismiss since
stipulations have been duly filed." (Relator's Br. at 2.) The
City asserts that Rule 41 "leave[s] no room for interpretation."
Appearing for the trial court, the Attorney General argues in response that the City was running an unauthorized deferral program in violation of Indiana Code § 34-4-32-1(f). See footnote 2 2 (Respondent's Br. at 3-5.) This statute allows prosecuting attorneys and municipal corporations to institute a deferral program in which the
prosecutor and defendant agree to certain conditions of dismissal,
the defendant agrees to pay the court clerk an initial user's fee
and a monthly user's fee, the terms of the agreement are recorded
in an instrument signed by the parties and filed with the court,
and the defendant pays court costs to the court clerk if the case
involves a moving traffic offense. Ind. Code Ann. § 34-4-32-
1(f)(1)-(5) (West Supp. 1997). We think the Attorney General
correctly characterizes the City's actions as an attempt to run "an
'informal' deferral program." (Respondent's Br. at 5.) The State
Board of Accounts has reached a similar conclusion.See footnote 3
disposition of this case does not require us to give the City's
actions any specific moniker.
See footnote 4
The City argues that it, "like any other litigant, is at liberty to dismiss litigation which it has instituted." (Relator's Br. at 2.) While the City stresses latter portions of Rule 41, the opening clause of the Rule makes it clear that there is no absolute right to dismiss: "Subject to contrary provisions of these rules or of any statute . . . ." As the trial court correctly points out, our legislature has set forth statutory guidelines for
dealing with traffic infraction complaints in Indiana Code § 34-2-
32-1. Because Rule 41 explicitly recognizes contrary statutes, we
look to section 34-4-32-1 for the rules that prosecuting attorneys
and cities like New Haven must follow when disposing of traffic
.See footnote 5
Whether or not the City actively tried to
run an informal deferral program, we find that the program it did
establish did not comply with the governing statute.
The trial court noted that the City's program for dealing with traffic complaints violated the deferral program requirements in at least three ways. First, the City acknowledges that "[t]he Settlement Agreement[s] accompanying such dismissals often require payment by the Defendant to the City of New Haven or a commitment by the Defendant to engage in, or not to engage in, described activity in the future." (Relator's Br. at 1.) Section 34-4-32-1 does not contemplate a payment made directly to the City, but does call for payment to the clerk of the court if the City opts to institute a deferral program. Thus, if the City were running a deferral program, it could require payments to the clerk of the court. Ind. Code Ann. § 34-4-32-1(f)(2), (4) (West Supp. 1997). We find no authority for the City to require payments
conditional to dismissal apart from those made to the court clerk.
Second, the trial court points out that the joint motion to
dismiss asked that the court dismiss the action without prejudice.
(Respondent's Br. at 5; R. at 7.) The statute contemplates that
conditional agreements or stipulations of dismissal such as those
reached between the City and the defendant in this case, requiring
as they do payment and/or a commitment to engage in or not to
engage in some prescribed activity, will ultimately be dismissed
See footnote 6
We find merit in the trial court's contention
that the dismissal arrangements in cases like Schindler's create a
risk that the action may be refiled, and thus "[t]hey risk
consuming more of the court's resources in the future and do so
without compensating the [c]ourt for the costs of the proceedings."
(Respondent's Br. at 5.)
Third, the trial court also correctly points out that the
statute requires agreements such as these to be filed with the
court. The agreement in this case was apparently not filed.
Of course, the City may dismiss traffic infraction cases
outright under the statute and the trial rules. Ind. Code Ann.
§ 34-4-32-1(c)(1) (West Supp. 1997); T.R. 41(A)(1)(b). If the City elects to prosecute these cases, it may also do that under the
statute and according to the trial rules. If the City wishes to
impose conditions precedent to dismissal, however, it must abide by
the requirements of Indiana Code § 34-4-32-1(f). Here, the City
attempted to require payment and/or continuing obligations as
conditions of dismissal, but failed to meet several of the
statute's other obligations.
For these reasons, the petition for a writ of mandate and
prohibition was denied.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
Converted by Andrew Scriven