The Indiana Court of Appeals granted The Indianapolis Star’s request for rehearing regarding the court’s decision to dismiss the newspaper’s appeal of a discovery order, but the court once again voted 2-1 to dismiss the appeal.
Chief Judge Margret Robb signed the eight-page order on rehearing in which Judges Edward Najam and Elaine Brown affirmed the Dec. 7, 2012, published order dismissing appeal over this matter. Judge Rudolph Pyle III dissented as he did previously.
This is the second time this case has come before the COA; the first time, the judges sent the case back to the trial court to determine whether the newspaper has to identify an online user whose comment is part of a defamation lawsuit filed by Jeffrey Miller, former CEO of Junior Achievement of Central Indiana. The trial court has since ordered The Star to produce the name.
The Court of Appeals voted late last year 2-1 that the discovery order isn’t a final judgment and the court has no jurisdiction over the case.
Typically, the appeals court will deny a rehearing petition when a party offers new arguments on rehearing, but the judges decided to address the four arguments raised by The Star in its petition. The newspaper contended that this appeal came to the court by the same procedural route as the first appeal; that In re WTHR-TV, 693 N.E.2d 1 (Ind. 1998), allows the appeals court to disregard Rule 14(B) trial court certification requirement for a discretionary interlocutory appeal and to decide this case on the merits; that the discovery order didn’t comply with Trial Rule 34(C) and the noncompliant order can’t evade the jurisdiction of the COA; and that Appellate Rule 66(B) should be available to save this appeal from procedural default.
The majority held that no authority suggests that the traditional right to appeal preserved in the Indiana Constitution includes the right to a direct appeal from interlocutory orders; that the newspaper’s reliance on WTHR-TV is misplaced; and Rule 66(B) won’t salvage a total failure to comply with Trial Rule 54(B).
The order is In re Indiana Newspapers Inc d/b/a The Indianapolis Star v. Jeffrey M. Miller, et al., 49A02-1211-PL-898.