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Judges disagree on whether use of names or initials is appropriate

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A clear divide exists at the Indiana Court of Appeals these days and is anything but confidential. Judges are debating whether parties’ names on certain cases should be released publicly or be shielded through use of initials only.

Recent rulings from separate three-judge panels have analyzed whether state statute requires the names of individuals and businesses in workforce development cases to be withheld in published opinions and on the appellate docket.

The legal community takes an interest in the varying rationale because that uncertainty influences how lawyers advise parties on what might happen during the appeals process.

“This agreement affects a very small percentage of appeals dealing with workforce development cases, but it may be very important to some of those litigants,” said Indiana University School of Law – Indianapolis professor Joel Schumm. “It also raises broader questions about which parties and people are entitled to anonymity on appeal and which ones must have their names used. Opinions are now easily accessible through the Web, which means the first thing someone doing a Google search might discover about a person may come from an appellate opinion.”

The court’s debate centers on the gaps between state statute and appellate court rules. Indiana Code 22-4-19-6(b) says that “the records of the department relating to the unemployment tax or the payment of benefits is confidential and may not be published or be open to public inspection in any manner revealing the individual’s or the employing unit’s identity.” A statutory exception exists for court orders, and Administrative Rule 9(G)(4)(d) says that although the appellate courts “should endeavor to exclude the names of parties and affected persons, and any other matters excluded from public access,” they may disclose names “as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.”
 

baker-john-g-mug Baker

On Aug. 12, Judge John Baker wrote for a unanimous panel made up of Judges Jim Kirsch and Elaine Brown in the case of LaDon A. Moore v. Review Board of the Indiana Department of Workforce Development and Whitington Homes and Services, No. 93A02-1005-EX-529. He wrote that the full names of parties should be published because state statute doesn’t require those to be kept confidential in public court records.

The case involved a woman who worked at a Fort Wayne social services agency for family and children and was appealing her termination, and the workforce development review board agreed with the administrative law judge’s finding that she was properly discharged. During the course of the appeal, the review board filed a motion to publish the names of the parties not only in this specific case but also all future cases that workforce development appeals. Specifically, the review board contends that it’s difficult to administer the high volume of cases in the appellate system where the people’s names and employing units are not disclosed, and that it’s too inefficient and time-consuming to rely on cause numbers through the appellate clerk’s online docket.

“The Review Board contends that although Indiana Code section 22-4-19-6 protects unemployment records from public access and from use while that information resides with the Department, the names of individuals and employing units need not be kept confidential in actions involving the court system in an otherwise public proceeding. We agree,” Judge Baker wrote.

Looking at the state statute that’s been mostly unchanged since 1947, the appeals court noted that the initials-only practice began following Jan. 1, 2010, amendments to Administrative Rule 9(G) that governs public access to court records. The court rule incorporated a reference to I.C. 22-4-19-6, and the opinion states that as of that time 16 reported cases involving the review board have come from the Court of Appeals – four used the person’s full name. This amendment has led some to believe the courts are now required to keep the names of parties confidential on appeal, while others disagree.

Initials only can make it more difficult for legal searches on precedent and make cases virtually indistinguishable, the court determined.

Judge Baker wrote, “With that in mind, reading the authority granted by Administrative Rule 9(G)(9)(d) together with section 22-3-19-6(b)’s exception for court orders and considering the Review Board’s interpretation of its own obligations under the statute as well as the interpretation of the statutes by the Indiana Supreme Court and this Court in countless cases for over sixty years, we believe it is appropriate for this Court to use the full names of parties in routine appeals from the Review Board.”

But within two weeks, a second opinion came down presenting the other side of the debate on a different case, S.S. LLC v. Review Board, 93A02-1101-EX-56. Judge Terry Crone wrote a concurring opinion delving into the issue of name confidentiality and questioning the wisdom of using full names.

“Our Court has recently debated the use of names instead of initials in Review Board cases and has been unable to reach a consensus,” he wrote. “I have no position on the propriety of or wisdom behind the rule as written, but I believe that we must follow it until such a time as it is repealed by our supreme court. I would encourage our supreme court to visit the issue by court opinion or rule change to give proper guidance in and finality to this matter.”


crone-terry-mug Crone

Specifically, Judge Crone noted that the L.M. decision to publish full names is contrary to law. He pointed out how in 2009, when Judge Baker served as chief judge, he’d requested the Supreme Court adopt the administrative rule requiring confidentiality.

“It is difficult to discern how the author of the letter requiring the adoption of Adm. Rule 9(G)(1)(b)(xviii) also could have authored L.M., which ignores the existence of that letter and contracts its content.”

Judge Crone wrote that the state statute being discussed only applies to the agency and not the court, while the court rule does apply and therefore the names should be confidential. He also dismissed the idea that cases are virtually indistinguishable from one another as far as captions are concerned, and noted that they are easily searchable online. Those “minor annoyances” aren’t sufficient grounds to disregard a rule from the Supreme Court, he pointed out, and disclosing those names is not essential to the resolution of litigation or in establishing precedent.

On Sept. 7, Chief Judge Margret Robb wrote a footnote in the not-for-publication case of K.T. v. Review Board and F.C.I, No. 93A02-1101-EX-75, echoing her support of publicizing full names based on the same rationale Judge Baker had written about a month earlier. She wrote that her colleagues on that panel, Judges Michael Barnes and Cale Bradford, aren’t persuaded that court rules and statute allow for the use of names.

In the S.S. decision, Judge Crone noted that the appellate clerk agrees with that interpretation by using the caption “Company v. Review Board” on the online docket. Judge Crone encourages the justices to revisit the issue by court opinion or rule change to provide proper guidance, and that is something that Schumm agrees should happen because this issue has the potential to come up in other types of cases, such as parental custody cases.

“The same rules on anonymity should apply consistently to litigants and not vary based on the panel they happen to draw,” Schumm said.

But Justice Brent Dickson, chair of the Records Management Committee, said that isn’t likely after the panel discussed the issue earlier this year and decided not to take action.

If the issue comes up in an appeal, the court could address it in that manner, he said, but Justice Dickson doesn’t foresee the committee or justices going beyond that.

“We did discuss it and felt that this is governed by statute that clearly declares what is confidential,” he said about the committee action. “We respect what the Legislature has done and abide by that, and even with the legitimate concerns expressed by the Court of Appeals, we would prefer that any internal debate be handled at that level.”•

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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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