I am writing to you as the judges presiding over civil litigation in Tippecanoe County and ask your consideration with respect to local procedures in light of IC 33-37-5-15(a), as added by the 2006 General Assembly and which becomes effective on July 1, 2006 for cases filed after June 30, 2006. That subsection requires the sheriff to â€œcollect a service of process fee of thirteen dollars ($13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.â€
Depending on how this statute is interpreted and implemented, this statute could make pursuing judgment debtors cost prohibitive. To mitigate potential costs, I would ask that the judges consider two issues: 1) modifying the current local practice of requiring proof of service for proceeding supplemental hearings; and 2) an interpretation of whether it is a party to the case or the court itself requesting that the Sheriff serve a writ.
A. PROCEEDINGS SUPPLEMENTAL
The notice requirements for a Proceeding Supplemental are set forth in Trial Rule 69(E). The Motion for Proceedings Supplemental and the courtâ€™s order stating the time for the appearance and hearing shall be served upon the judgment debtor as provided in Rule 5. Trial Rule 5(B)(2) provides that service by ordinary mail to the personâ€™s last known address with certificate of service is appropriate.
This would seem to be a continuation of the principle recognized by Indianaâ€™s Supreme Court prior to adoption of the Trial Rules:
It is well established that once a court acquires jurisdiction over parties, the jurisdiction continues until the final disposition of the litigation including the enforcement of the judgment or decree.
State ex rel Brubaker v. Pritchard, 138 N.E.2d 233, 233-34 (Ind. 1956). The Brubaker case involved contempt proceedings for violation of a temporary injunction. The Defendant had been personally served upon commencement of the original action and had appeared by counsel. An injunction was entered in the original action. Subsequently a contempt motion was filed by the Plaintiffs and the motion was served on Defendantâ€™s attorney. The Brubaker Court rejected an argument that a court did not have jurisdiction over a person in contempt proceedings absent personal service on an individual by Sheriff. While this is different from the typical situation in which a judgment debtor is not represented by counsel, the Trial Rules apply to pro se parties just as they do to represented defendants. There is a distinction between the formal service necessary for a court to acquire jurisdiction over the person of a party in the commencement of an action and the right to reasonable notice of the proceedings after jurisdiction has been acquired in the first instance. Id. at 234.
B. RULE TO SHOW CAUSE & CONTEMPT
One of the issues most commonly faced by the courts with respect to Proceedings Supplemental is failure of the judgment debtor to obey the courtâ€™s order to appear for the hearing. This constitutes indirect contempt of court which is governed by IC 34-47-3, provided the order has been served upon the judgment debtor. IC 34-47-3-5 and 6 set forth the procedures for punishing a judgment debtor for indirect contempt. Under section 5, all persons charged with indirect contempt are entitled to be served with a rule of the court against which the contempt is alleged to have been committed. The rule must: 1) set forth the facts constituting contempt; and 2) specify the time and place at which the defendant is required to show cause why he or she should not be attached and punished for contempt. To procure personal jurisdiction over the alleged contemnor, the court may issue a writ of attachment directing that the person be taken into custody and subject to release on bail or escrow. IC 34-47-4-2. Such a writ is to be issued by a court to the Sheriff and must fix an amount of bail.
Under IC 34-47-3-6, if the defendant fails to appear or fails to show cause why he or she should not be held in contempt, the court may punish the defendant by fine, imprisonment, or both.
As to the service requirements in contempt proceedings, in Brubaker, the Supreme Court concluded:
It is our judgment that where the purpose of the contempt proceedings is to enforce a court order against a person who is a party properly brought in to the main action, no new process for personal service is required to enforce such order after notice to the parties or his attorney, and an opportunity to be heard has been given.
Brubaker, 138 N.E.2d at 228.
C. EXECUTION OF WRIT OF BODY ATTACHMENT AND CONTEMPT CITATIONS BY SHERIFF
There are two ways in which a court may enlist the assistance of the Sheriff in the course of civil contempt proceedings: writs of body attachment and contempt citations.
IC 34-47-4-2 governs writs of attachment upon the body of a person. Such writs are to be issued by a court for the purpose of procuring personal jurisdiction over a person who has allegedly violated a court order or who is otherwise in contempt of court. The writ is to be issued by the court to the Sheriff and is to fix a bail amount. The Sheriff or the Sheriffâ€™s assistant is required to serve the writ and take the person into custody and take the person before the court or release the person on bail as in criminal matters.
IC 34-47-4-1 provides for service of contempt citations by the Sheriff upon an alleged contemnor requiring the alleged contemnor to appear before the court at a certain date and time and show cause why he or she should not be held in contempt. The citation is to be served in the same manner as a summons is served in a civil proceeding.
D. MITIGATION OF EXPENSES IN LIGHT OF IC 33-37-5-15(a) SHERIFFâ€™S FEE
Current practice in Tippecanoe County with respect to Proceedings Supplemental makes extensive use of service by Sheriff in large part because of the protections afforded to judgment debtors by having a return of service demonstrating that a copy of an order was at least posted at the judgment debtorâ€™s last known address and a copy was mailed and not returned undeliverable. However, this practice will become prohibitively expensive if a judgment creditor is required to pay the Sheriff $13 each time the creditor attempts to have an order served on a debtor in an effort to enforce the judgment.
The statutes and case law cited above set forth the minimum standards governing service of Proceedings Supplemental and use of writs of attachment and the courtsâ€™ contempt powers to enforce compliance with its orders. If an individual is properly served with a summons and complaint at the commencement of a suit, the court obtains personal jurisdiction over the individual and further service of motions and orders, including petitions for Proceedings Supplemental may be made by ordinary mail under Trial Rule 5. After being served with the initial process, it is the individualâ€™s duty to keep the court advised of a current address until such time as the case is dismissed or the judgment released.
If a judgment debtor fails to appear at a Proceeding Supplemental after an order issues, even if by ordinary mail, the court has three options for pursuing consideration of whether the person failing to appear should be held in contempt: 1) If the facts of the alleged contempt are brought to the courtâ€™s attention through a verified statement, the court may issue a rule requiring the person to appear at a certain date and time to show cause why he or she should not be held in contempt. If the alleged contemnor is a judgment debtor who was properly served at commencement of the suit, the rule may be served upon the person by ordinary mail as provided for in Trial Rule 5; 2)
The court is empowered to direct the Sheriff to take the person into custody and either have the person post bail in an amount set by the court or have the person brought before the court; or 3) The court is empowered to direct the Sheriff to serve a contempt citation requiring a person to appear before the court at a particular date and time and show cause why the person should not be held in contempt of court.
If the alleged contemnor does not show cause for failing to obey the courtâ€™s order to appear at the proceeding supplemental, he or she may be held in contempt and may be punished by incarceration, fine, or both.
These are minimum standards and a court is within its discretion to adopt more stringent procedures insomuch as a court has broad latitude when deciding whether to exercise its contempt power. The more stringent procedures followed by the Tippecanoe County Courts requiring service by Sheriff or certified mail were laudable in that they provided protections for judgment debtors who may not have been diligent about notifying the court and creditors when they changed their address or may not have been diligent about checking and reading their mail while at the same time those procedures did not unduly burden judgment creditors attempting to enforce their judgments.
Under the new IC 33-37-5-15(a), however, judgment creditors will be subjected to a service of process fee of $13 any time the judgment creditor requests the Sheriff to serve â€œa writ, an order, a process, a notice, a tax warrant, or any other paper completed by the Sheriff.â€ Certified mail is an alternative in many instances. However, this is likely to prove more expensive to the County in that IC 33-37-3-6 provides that â€œCourt cost fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.â€ Where proof of service is required, litigants will presumably opt to serve opposing parties via certified mail since that expense is already included in the filing fee even though such service is often less effective in Proceedings Supplemental because judgment debtors often decline to accept certified mail.
E. SHERIFFâ€™S FEES FOR WRITS OF BODY ATTACHMENT AND CONTEMPT CITATIONS
IC 34-47-4-2 concerning writs of attachment and IC 34-47-4-1 concerning service of contempt citations are reasonably clear in stating that it is the Court directing the Sheriff to take action. The new IC 33-37-5-15(a) requiring the Sheriff to collect a service of process fee is triggered when a party requests service of a particular document. It would be helpful if the Courts would make a determination as to whether the fee is triggered when a party requests that a Court hold a judgment debtor in contempt for failing to appear, causing the Court to issue a writ or a citation to the Sheriff to be served upon a judgment debtor in the course of exercising the Courtâ€™s contempt powers.
In light of the new Sheriffâ€™s fee imposed by the General Assembly for causes of action filed after June 30, 2006, the courts should consider changes to current procedures required of judgment creditors seeking to enforce their judgments. Under the prior law, the procedures provided protection to judgment debtors without unduly burdening judgment creditors. Under the new law, the current procedures will become financially burdensome to those seeking to enforce their judgments.
I would respectfully suggest that the Courts permit service of Proceedings Supplemental and Rules to Show Cause by ordinary mail under Trial Rule 5 as permitted by Trial Rule 69(E). I would also request a determination that service of writs of body attachment and contempt citations are being requested of the Sheriff by the Court and not by a party and, therefore, do not require the Sheriff to collect a service of process fee under the new IC 33-37-5-15(a).
HEA 1158-2006 (P.L. 174-2006)
SECTION 12. IC 33-37-5-15 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 15. (a) The sheriff shall collect a service of process fee of thirteen dollars ($13) from a party requesting service of a writ, an order, a process, a notice, a tax warrant, or any other paper completed by the sheriff.
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SECTION 21. [EFFECTIVE JULY 1, 2006] IC 33-37-4-4, IC 33-37-4-6, IC 33-37-5-15, and IC 33-37-5-28, all as amended by this act, apply only to cases filed after June 30, 2006.
Inclusion of service of process by mail in court costs fee
Sec. 6. Court costs fees under this chapter include service of process by certified mail, unless service by the sheriff is requested by the person who institutes the action.
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