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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that “the records of the department relating to the unemployment tax or the payment of benefits is confidential and may not be published or be open to public inspection in any manner revealing the individual’s or the employing unit’s identity.”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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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