`

City owes man legal fees for ‘meritless, possibly frivolous’ case

August 22, 2016

The Indianapolis Metropolitan Police Department and the city’s Office of Corporation Counsel pursued a ‘wholly meritless, possibly frivolous argument’ in a public-records case, the Court of Appeals ruled Monday. The city will pay the legal fees of a man who sued to obtain records after he was denied.

David Heber was one of two men robbed at gunpoint in Indianapolis in May 2015. After he received an incident report for police, he asked for more investigative records, which were denied after multiple requests. The Indiana Public Access Counselor opined that Heber was entitled to the particular records he requested, but IMPD and the city refused to turn them over.

At this point Heber sued, but the city argued that as a public agency, IMPD and the OCC could not be sued. The trial court dismissed, and Heber filed the instant appeal. Judge Michael Barnes noted that the city defendants didn’t file an appellate brief, but rather stipulated the case should be reversed on the basis of Lane-El v. Spears, 13 N.E.3d 859 (Ind. Ct. 2014). But they could have done so much sooner.

“The Appellees failed to disclose Lane-El in its legal memorandum to the trial court accompanying its motion to dismiss. There is no contrary authority regarding the propriety of suing entities such as the Appellees under the [Access to Public Records Act],” Barnes wrote. Lane-El “was final for nearly eight months before the Appellees filed their motion to dismiss, which claimed solely, and contrary to Lane-El, that they could not be sued under the APRA.”

The panel reversed dismissal in David Heber v. Indianapolis Metropolitan Police Department, and City of Indianapolis Office of Corporation Counsel, 49A02-1603-PL-549, finding the failure to cite controlling authority and the erroneous ruling necessitated expense and delay. Heber is entitled to fees under Indiana Appellate Rule 67.

“Although we commend the Appellees for now conceding that the motion to dismiss must be reversed, the fact remains that the motion was granted and Heber had to pursue this appeal because of a wholly meritless and possibly frivolous argument by the Appellees,” Baker wrote. The case is remanded for a calculation of fees.
 

ADVERTISEMENT

Recent Articles by Dave Stafford