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Former auditor wins appeal on attorney fee issue

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The Indiana Supreme Court decided a case seven years ago but left for another day the answer to a question about governmental attorney fees, and now that specific issue has found its way to an appeal before the state’s second-highest appellate court.

A decision on that issue comes today in Clinton County, et al. v. Jacqueline R. Clements, et al., No. 54A01-1008-PL-407, which involves the former Clinton County auditor who served in that role between August 2004 and November 2008 and explored software changes for the county property tax management systems.

Several companies offered proposals for the system software, and at one point a dispute arose over the estimated costs for the legislative changes, resulting in the county terminating a contract with one of the companies. The county in June 2009 filed an amended complaint against Clements and the company Nikish involving breach of contract, fraud, negligence, actual fraud, and intentional interference with contractual relations. The complaint also included a civil action by a crime victim against both Nikish and Clements, and claims involved Clements knowingly misrepresenting to the county what the system changes would cost.

Clements filed a motion for summary judgment claiming that she had governmental immunity, and the trial court agreed on the basis that county officials didn’t prove that any intentional misrepresentation existed to override that immunity. The court also found she was immune from liability because she’d been acting within the scope of her employment.

But the trial court denied her motion for reimbursement of attorney fees and costs, based on Indiana Code 34-13-3-5e(e), which states that “the governmental entity shall provide counsel for and pay all costs and fees incurred by or on behalf of an employee in defense of a claim or suit for a loss occurring because of acts or omissions within the scope of the employee’s employment, regardless of whether the employee can or cannot be held personally liability for the loss.”

In denying that motion, the trial court relied on State v. Evans,  810 N.E. 2d 335 (Ind. 204) and found that state statute ambiguous and intended to apply only where a third party claimant filed a claim against a governmental employee personally, and concluded that “an absurd result would occur if it accepted Clements’s interpretation of the statute.”

The Court of Appeals affirmed the ruling on the governmental immunity aspect, but disagreed on the attorney fee issue. It said Evans didn’t go far enough to address this specific issue raised by Clements on whether the statute would afford reimbursement to a defendant who prevails.

“Although our supreme court concluded in Evans that it would be absurd to require the Attorney General to finance both sides of the litigation against the prosecutor accused of misappropriating funds during the litigation, it specifically left open the possibility of reimbursing an employee who prevails in such an action,” Judge Michael Barnes wrote.

Statute enacted following that Evans holding in 2004 shows the Legislature’s intent to reimburse an officer or employee wrongly accused by the governmental entity in certain civil suits, the appellate panel found.

“Where, as here, a county has filed an unsuccessful and highly questionable action against its former auditor, it would be unjust to deny her request for reimbursement of her attorney fees. We conclude that Clements is entitled to reimbursement of her attorney fees under a plain reading of Indiana Code Section 34-13-2-5(e),” the appellate panel wrote, finding the trial court abused its discretion on that issue.

With that holding, the appellate panel has remanded for a calculation of attorney fees owed to Clements.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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