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Indiana justices consider whether ‘cause of death’ is public information

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The Evansville newspaper and local county health department appeared before the Indiana Supreme Court Thursday, reviving a dispute they had decades ago over whether death certificates are public record.

In 2012, the Evansville Courier & Press filed a complaint against the Vanderburgh County Health Department after the health department denied the newspaper’s request for access to May 2012 death certificates. The newspaper was interested in learning the decedents’ cause of death, but the health department maintained that information was not a matter of public record.

Both the Vanderburgh Circuit Court and the Indiana Court of Appeals agreed with the health department. The Indiana Supreme Court granted transfer of Evansville Courier & Press v. Vanderburgh County Health Department, 993 N.E. 2d 302 (Ind. Ct. App. 2013).

Speaking to the justices, Patrick Shoulders, attorney representing the newspaper, summed up the case as being focused on the narrow issue of whether death certificates, which include the cause of death, and certifications of death registration are the same thing.

The newspaper contends they are two different documents. Consequently, while I.C. 16-37-1-8 limits who can obtain a certification of death registration to those who have a direct interest, it does not prohibit the public disclosure of death certificates.

However, the Vanderburgh Health Department, represented by Joseph Harrison Jr., asserted the Legislature used the terms “certification of death registration” and “death certification” interchangeably and access is limited only to those who meet the criteria outlined in the statute.

In 1975, the same parties had a similar dispute over death certificates. Then, the Indiana Court of Appeals ruled the documents were open to the public. The Indiana Supreme Court did not grant transfer.

Shoulders, partner at Ziemer Stayman Weitzel & Shoulders LLP in Evansville, pointed to the Court of Appeal’s prior opinion and said the newspaper believes “this court will affirm 40 years of precedent in this state and hold that, in fact, they are different documents.”

The Indiana attorney general and Indiana public access counselor have filed amicus briefs in support of the newspaper’s position. During oral arguments, Stephen Creason, deputy attorney general, briefly presented to the justices the state’s position that the death certificates listing the cause of death were public record.  

The justices asked many questions about the 2011 change to an electronic system of record keeping and if the county health departments still had access to cause of death information.

Justice Steve David asked Shoulders what would happen if the county health department did not have the cause of death and could not produce that information.

Shoulders maintained that local health departments have the information and can produce both a certification of death registration and a death certificate. He said the health department is using a “cut and paste collage of several statutes” to support its denial of access.

On the other hand, Shoulders noted, all three branches of state government have found death certificates to be public records. Specifically, in addition to the Court of Appeals decision in 1975 and concurring opinions from the Indiana attorney general and the Indiana access counselor, he said the four attempts by the Indiana General Assembly to limit access failed.

“I would suggest the attempt (here) is to do, perhaps through the judiciary or simply in practice, to amend this statute since four attempts to do it in the only proper way have failed,” Shoulders said. “That, in fact, by de facto action they are attempting to amend the statute and it is not their place to do that. It is the Legislature’s place to do that.”

The justices seemed less sympathetic to the Vanderburgh County Health Department.

Harrison, of counsel at Massey Law Office LLC in Evansville, contended the newspaper was “splitting hairs” in making a distinction between certification of death registration and death certificate. The terms are synonymous, he argued.

Moreover, he pointed out, the state mandates county health departments maintain for public access the death records of all county residents excluding the cause of death and Social Security numbers of the deceased. Harrison then questioned why the state would limit the information a health department makes available while, at the same time, allowing anyone to have access to a death certificate that gives the cause of death.

“To me, the Legislature has spoken on this,” Harrison told the court. “It’s clear that you can’t go to the Indiana State Department of Health and get a death certificate with cause of death information unless you meet specific requirements for those who are entitled to receive it.”

Both Chief Justice Brent Dickson and Justice Robert Rucker raised the possibility that the Legislature’s intent was not to limit access but rather to relieve the state from having to fulfill the requests by having the county health departments provide the information.

Harrison reiterated the statue is “perfectly clear” that only people meeting the statutory requirements can get access.

Rucker then asked, “Is it your position that the department does not have this information or that we’ve got it but you can’t get it because the statute says so?

“Oh no, they’ve got the information but it’s in the Indiana state death registration system,” Harrison replied.

“So nothing that would prohibit the county from extracting the data,” Rucker asked.

“They do it all the time,” Harrison answered.

Later Justice Mark Massa and David picked up the same line of questioning, inquiring whether the health department was able to get the death certificates. Harrison replied the local agency can provide the documents.

The court took the case under advisement.
 

 
 

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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