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IDEM whistleblower makes argument to Indiana Supreme Court

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A former employee of the Indiana Department of Environmental Management appeared in the Indiana Supreme Court courtroom Thursday arguing her right to bring a complaint against the state under the whistleblower provision of the Indiana False Claims Act.

Suzanne Esserman claimed IDEM terminated her employment in retaliation for her objections to claims paid through the Excess Liability Trust Fund. Her position required that she review and approve payment for the work to clean up the contamination caused by leaking underground storage tanks. However several times, she rejected the claims, finding the applicants had not provided proper documentation.

Marion Superior Court dismissed her complaint on the grounds that IDEM was protected by sovereign immunity. The Indiana Court of Appeals reversed in Suzanne E. Esserman v. Indiana Department of Evinronmental Management, 49A02-1605-PL-1129. The unanimous panel ruled the state environmental agency was not entitled to common law sovereign immunity.

Before the Supreme Court, the IDEM argued it was immune because the Indiana General Assembly did not specifically note the state could be subject to the False Claims Act, Indiana Code 5-11-5.5-8.

Justice Geoffrey Slaughter questioned Indiana Solicitor General Thomas Fisher as to why the statute did not provide relief for Esserman?

Fisher pointed out that the state was not included in the definition of “employer” unlike the Civil Rights Act, which does include the state.

“So you think the Legislature needs to have an opt-in, that is “employer” specifically includes the state as opposed to an opt-out which says we’ve described employer in broad-brush terms and we’re not excluding the state,” Slaughter asked. “You don’t think that failure to exclude is good enough?”

“No, I don’t think that’s consistent with sovereign immunity,” Fisher replied. “One of the consequences, one of the implications of sovereign immunity is the need for a clear statement to waive it, otherwise it becomes a doctrine that is not really subject to legislative control any longer.”  

Fisher then cited State ex rel. Indiana Dep’t of Conservation v. Pulaski Circuit Court, 231 Ind. 245, 108 N.E.2d 185 (1952), which held courts cannot infer a waiver of sovereign immunity but rather it must be explicitly waived.

“What do we infer from the fact that our Legislature made the decision to not statutorily define (employer),” Chief Justice Rush asked. “… You’re saying that we have to infer that they meant the state out based on sovereign immunity?”

“No,” Fisher responded. “I think what I’m saying is we can’t infer that they intended the state to be included.”

“So you’re saying the word employer is ambiguous,” Rush countered.

“At best, yes, I think that’s it,” Fisher said. “And ambiguity cuts in favor of the state here because of the interpretive rule that we’re advocating which is the need for a clear statement.”

When Esserman’s attorney, Mary Jane Lapointe, returned for rebuttal, Slaughter wondered what was wrong with the state’s approach that it has sovereign immunity because the Legislature did not waive it in the False Claims Act.

Lapointe replied to take that approach, the court would have to ignore what “employer” and “employee” means when it is not defined in the statute.

Slaughter continued, “The state makes the point that when it comes to the Civil Rights Act, the Legislature knew how to make explicit that the state was a covered employer for purposes of civil rights violations but it didn’t do so here. So why shouldn’t we draw a negative inference in this case based on that silence?”

“I think there are other occasions where the word employer is not used where there hasn’t been sovereign immunity,” Lapointe responded.

She then cited recently retired Justice Robert Rucker’s dissent in Berry v. Crawford, 990 N.E.2d 410 (Ind. 2013), which argued the term “employer” in the wage payment statute does include the state because the other closely related statutes explicitly identify the Indiana government as an employer. 

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  1. One can only wonder whether Mr. Kimmel was paid for his work by Mr. Burgh ... or whether that bill fell to the citizens of Indiana, many of whom cannot afford attorneys for important matters. It really doesn't take a judge(s) to know that "pavement" can be considered a deadly weapon. It only takes a brain and some education or thought. I'm glad to see the conviction was upheld although sorry to see that the asphalt could even be considered "an issue".

  2. In response to bryanjbrown: thank you for your comment. I am familiar with Paul Ogden (and applaud his assistance to Shirley Justice) and have read of Gary Welsh's (strange) death (and have visited his blog on many occasions). I am not familiar with you (yet). I lived in Kosciusko county, where the sheriff was just removed after pleading in what seems a very "sweetheart" deal. Unfortunately, something NEEDS to change since the attorneys won't (en masse) stand up for ethics (rather making a show to please the "rules" and apparently the judges). I read that many attorneys are underemployed. Seems wisdom would be to cull the herd and get rid of the rotting apples in practice and on the bench, for everyone's sake as well as justice. I'd like to file an attorney complaint, but I have little faith in anything (other than the most flagrant and obvious) resulting in action. My own belief is that if this was medicine, there'd be maimed and injured all over and the carnage caused by "the profession" would be difficult to hide. One can dream ... meanwhile, back to figuring out to file a pro se "motion to dismiss" as well as another court required paper that Indiana is so fond of providing NO resources for (unlike many other states, who don't automatically assume that citizens involved in the court process are scumbags) so that maybe I can get the family law attorney - whose work left me with no settlement, no possessions and resulted in the death of two pets (etc ad nauseum) - to stop abusing the proceedings supplemental and small claims rules and using it as a vehicle for harassment and apparently, amusement.

  3. Been on social security sense sept 2011 2massive strokes open heart surgery and serious ovarian cancer and a blood clot in my lung all in 14 months. Got a letter in may saying that i didn't qualify and it was in form like i just applied ,called social security she said it don't make sense and you are still geting a check in june and i did ,now i get a check from my part D asking for payment for july because there will be no money for my membership, call my prescription coverage part D and confirmed no check will be there.went to social security they didn't want to answer whats going on just said i should of never been on it .no one knows where this letter came from was California im in virginia and been here sense my strokes and vcu filed for my disability i was in the hospital when they did it .It's like it was a error . My ,mothers social security was being handled in that office in California my sister was dealing with it and it had my social security number because she died last year and this letter came out of the same office and it came at the same time i got the letter for my mother benefits for death and they had the same date of being typed just one was on the mail Saturday and one on Monday. . I think it's a mistake and it should been fixed instead there just getting rid of me .i never got a formal letter saying when i was being tsken off.

  4. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  5. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

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