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Appeals court affirms sending employee appeal back to agency

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The Indiana Court of Appeals affirmed the grant of a fired Department of Correction employee’s petition for judicial review, finding that it was clear on the record that an administrative agency’s action was without evidentiary foundation. The appellate court noted the difficulty the judge had in conducting the judicial review due to deficiencies in recording testimony.

George Finney, who was a teacher at the Westville Correctional Facility, was fired after becoming belligerent and verbally abusive toward Westville officials after he was made to put his cell phone in his car before going into the facility. The Indiana State Employees’ Appeal Commission and an administrative law judge found that Westville proved it had cause to fire Finney. The full commission affirmed the ALJ’s determination, so Finney sought judicial review in Marion Superior Court.

There were numerous technical issues during the ALJ’s hearing, so most of the witnesses’ testimony wasn’t recorded and often recordings were inaudible, static, or blank. Only Finney’s and one other person’s testimony was intelligible.

Marion Superior Judge David Dreyer granted Finney’s petition, set aside the agency action and remanded to the agency for further proceedings.

The COA affirmed, finding Westville didn’t show that the reviewing court committed reversible error. It’s clear from the record that the agency’s action was without evidentiary foundation, let alone substantial evidence as required by Indiana Code 4-21.5-5-14(d)(5), wrote Senior Judge Patrick Sullivan in Westville Correctional Facility, et al. v. George Finney, No. 49A05-1103-PL-92.

“Without question Judge Dreyer’s task in conducting his judicial review was made difficult, if not virtually impossible, by the woeful deficiencies in the tape recordings of the testimony of various witnesses so that the attempts to transcribe the proceedings from those tapes were unavailing,” he wrote. “Suffice it to say that our extensive compilation of what appears on the purported record of the proceedings before the administrative agency reflects an intolerable failure to preserve the evidence or to make sure that the recording equipment was adequate to the task at hand. The posture of the case at its various levels, including this level, cries out for remedial action with respect to SEAC’s method of preserving testimonial evidence.”

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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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