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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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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