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Judge: Governor can be deposed

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Indiana Gov. Mitch Daniels shouldn’t be excused from appearing for a deposition in a lawsuit challenging the cancelled multi-million dollar contract with IBM to modernize the state’s welfare system, according to Marion Superior Judge David Dreyer.

The trial judge issued a ruling Thursday that held neither state statute, court precedent or public policy warrants Daniels being excused from having to appear to discuss his decision-making and knowledge of the now-cancelled, 10-year contract worth $1.37 billion.

“The effect and consequences of not allowing the deposition are simply untenable,” Dreyer wrote. “Under such an interpretation, the Statute is at best unwise when so much public money depends upon the outcome. But lack of wisdom is not grounds to depose a governor.”

This is the latest ruling in the consolidated suit and countersuit of State v. International Business Machines Corp. and IBM v. State, No. 49D10-1005-PL-021451, centering on the cancelled contract between the state and IBM for the modernization of the state’s welfare system. The state sued last year trying to recoup hundreds of millions of dollars it had paid IBM before cancelling the contract in 2009. The computer giant countersued on breach of contract allegations and argued the state still owes about $100 million.

Dreyer had earlier this year ruled the state must turn over thousands of pages of documents, including emails from the governor and other state officials, relating to that cancelled contract. The state decided not to immediately appeal that ruling about “deliberative” documents and privilege, and the judge held a hearing in April about whether the governor and chief of staff, Earl A. Goode, must appear for depositions.

The state argued that Daniels delegates day-to-day management of the governor’s office and doesn’t have any “unique substantial knowledge” of that contract, while IBM argued that Daniels took this on as a pet project and his depositions are needed.

Dreyer initially ruled Daniels didn’t have to testify about his involvement, based on evidence he had reviewed at the time, and that no exception in state statute warranted his testimony.

But after further review and consideration, Dreyer found that Indiana Code 34-29-2-1 is open to multiple interpretations. Only one reported case, Government Supplies Consolidating Servs., Inc. v. Bayh, 753 F. Supp. 739 (S.D. Ind. 1993), addresses the issue, but it focuses on federal privilege law and not the state statute.

The ruling this week is narrow and isn’t meant to apply in all situations or create any lasting exception to the state statute, Dreyer wrote.

 

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  1. 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.

  2. 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.

  3. 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.

  4. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  5. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

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