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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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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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