Tuesday, September 22, 2009

Indiana Judge Unlawfully Closes Court to the Public

Upon the retirement of former Boone Superior Court II Judge James Detamore in 2005 Indiana Governor Mitch Daniels appointed former Boone County Prosecutor Rebecca McClure to take that position on 01 January 2006. McClure has since been elected to a six year term while running unopposed.

Indiana has no test for judges. There is a requirement that a candidate for judge must have a law degree and have passed the BAR examination. When a judge makes what can be no less than deliberate and conscious violations of the publics' right to access court records one must wonder if a more stringent qualification is necessary.

The Indiana General Assembly has established a policy that our state shall operate openly and accessible to the people. In doing so they have stated - "A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. Providing persons with the information is an essential function of a representative government and an integral part of the routine duties of public officials and employees, whose duty it is to provide the information."

What brings about this latest discussion on the openness of the courts is McClure's most recent ruling to deny the public access to a case in her court. In cause number 06D02-0703-OV-0285 McClure made a blanket declaration prior to trial that she believed the Plaintiff's attorney and primary witness.

In a 41 page Motion for Relief from Judgment Pursuant to Rule 60(B) the defendant made accusations that he had been denied procedural due process. The Motion exhaustively cited the court transcript and included 18 supporting documents. Included in the recitation of the transcripts was an argument between the defendant and Judge McClure.

The word-for-word exchange is in the Motion showing that McClure allowed the Plaintiff to use an exhibit that had not been admitted into evidence and told the defendant that he was wrong for objecting to its use. Additionally, the Motion contains numerous other recitations that McClure was fully aware that the proceeding was in violation of due process requirements.

The Motion specifically details how McClure could not have not known of the due process violations and that she made a prejudicial ruling. On 08 September 2009 McClure ordered the Motion sealed denying the public the opportunity to view that pleading.

McClure unlawfully denies the public access to criminal trial

This wasn't the first time McClure has sought to deprive the public of access. In December of 2007 a friend of mine was on trial in McClure's Court. McClure ordered me out of the courtroom for the trial citing a separation of witnesses request by the prosecutor. I was only named as a witness for this purpose and was never called to testify. The prosecutor, once I was ordered out of the courtroom, said I was free to go home as he never intended to call me as a witness. In fact, I had never been served with a subpoena.

That day I filed a request using Indiana's Access to Public Records Act to get a copy of the recordings of the trial. Not for appellate use, since the jury acquitted my friend in well under an hour, but to file a disciplinary complaint against McClure for alleged violations of the Canons of Judicial Conduct during the trial. Prior to trial my friend and I had both been successful in having the Boone County Prosecutor Todd Meyer charged with misconduct in the case.

McClure wouldn't allow a copy of the trial recording to be made available to me or the public. All the documents and details about that can be seen on the Indiana Coalition for Open Government's website. Briefly though, McClure tried to argue that trial recordings are confidential.

In a response dated 14 December 2007 McClure stated, "Pursuant to I.C. 5-14-3-4(a)(8) and Indiana Rules of Court, Criminal Procedure Rule 5, the record you requested is confidential and can not be disclosed to you." That rule shows that it was last amended effective in 1989 and does not make the recording confidential. Clearly McClure was wrong and I was correct. The Public Access Counselor also agreed with me that the court should allow a copy to be made.

Armed with that information McClure still denied to me the right to make a copy of that proceeding. She specifically stated that I could come listen to the recording but could not bring my own recording equipment and that "You will not be permitted to tape record the proceedings". McClure was sued by me on 01 February 2008 for that violation. The case is still pending in Hamilton Superior Court III.

McClure unlawfully denies the public access to complaints against police

Earlier in 2007 McClure had ordered that I could not use the Access to Public Records Act to seek information from the Town of Thorntown about complaints against police officers for stalking or harassing women in town. One officer had already been ordered to stay away from my neighbor and was not allowed to patrol that end of town.

Although the Town of Thorntown had sued me for placing election related signs in my yard critical of the Town Council that suit was in no way related to a request for public records about window peeping police. The Indiana Court of Appeals clearly affirmed this in the case of Kentner v IPEP stating that they didn't care if Kentner requested the records "to supplement his case in the Federal Litigation, or to paper the walls of his house with and write a song about, has absolutely no bearing on whether he is entitled to those documents." This is well known case law within the courts. Thorntown and Judge McClure have both been sued for that violation also.

McClure may not know this but information about the confidentiality of court proceedings can be found in a document titled "Indiana Court Rules - Administrative Rules". These are the rules that judges are to follow in the administration of the courtrooms. Rule 9 provides the guidance to judges about the confidentiality of court records and includes commentary with examples.

McClure unlawfully denies the public access to case pleadings

Now, getting back to McClure's latest denial of the right of Indiana citizens to access public records we shall first examine the portion of Rule 9 allowing a judge to seal a court record which is section (H);

(H) Prohibiting Public Access to Information In Court Records.
(1) A verified written request to prohibit public access to information in a court record, may be made by any person affected by the release of the information.  The request shall demonstrate that:
(a) The public interest will be substantially served by prohibiting access;
(b) Access or dissemination of the information will create a significant risk of substantial harm to the requestor, other persons or the general public;
(c) A substantial prejudicial effect to on-going proceedings cannot be avoided without prohibiting public access, or;
(d) The information should have been excluded from public access under section (G) of this rule.

Attorney for the Town of Thorntown, Cy Gerde, on 31 August 2009 sought to have the Rule 60(B) Motion sealed alleging that it defamed the Town of Thorntown by mailing such to the Court. That would be section 9(H)(1)(b). I have been told that McClure sealed that Motion on 08 September 2009 within a week of receiving Gerde's Motion to Seal. Rule 9(H) continues;

The person seeking to prohibit access has the burden of providing notice to the parties and such other persons as the court may direct, providing proof of notice to the court or the reason why notice could not or should not be given, demonstrating to the court the requestor’s reasons for prohibiting access to the information.  A party or person to whom notice is given shall have twenty (20) days from receiving notice to respond to the request.

Here is where we encounter "Court Math". This was a theory that Einstein worked on exhaustively but could not formulate the theory in a written equation. It goes something like this - The difference of 8 and 1 is equal to the greater of 20 or more than 20 during such time that the sitting judge feels it is in her best interest for it to be so. Einstein made it about this far: X-Y=>20+a~Jf[g/2] The rule continues;

(2) A court may deny a request to prohibit public access without a hearing.  If the court does not initially deny the request, it shall post advance public notice of the hearing.  A court may grant a request to prohibit public access following a hearing if the requestor demonstrates by clear and convincing evidence that any one or more of the requirements of (H)(1)(a) through (H)(1)(d) have been satisfied.  An order prohibiting public access to information in a court record may be issued by the court having jurisdiction over the record.  An order prohibiting public access to information in bulk or compiled records, or in records under the jurisdiction of multiple courts may be issued only by the Supreme Court. 

If you are reading the same words I am then you saw where this rules requires that notice of a hearing be posted. My response characterizes Thorntown's failure to meet the procedural requirements of Rule 9(H). The rule then provides some Commentary;

This section is intended to address those extraordinary circumstances in which information that is otherwise publicly accessible is to be excluded from public access.  This section generally incorporates a presumption of openness, and the need for demonstrating compelling grounds to overcome the presumption.

This is in keeping with the Legislature's stated policy that the functions of government are to be open to the people. Next comes an interesting note;

Parties should be aware that their request is not retroactive.  Copies of the public record may have been disseminated prior to any request, and corrective action taken under the provisions of this rule will not affect those records.

What makes this interesting is that Cy Gerde has prepared a motion to have me held in contempt for posting that Rule 60(B) Motion on the Internet. You may want to download it just in case it does get lawfully sealed. On second thought that really isn't necessary. The Rule 60(B) Motion was uploaded here before it was filed with the Court.

Notice requirements for this section correspond to those requirements found in Trial Rule 65(b) and are intended to be consistent with T.R. 65(b).  Posted notice requirements correspond and are intended to be consistent with those found in Ind. Code § 5-14-2-5 which requires that: “[t]he court shall notify the parties of the hearing date and shall notify the general public by posting a copy of the hearing notice at a place within the confines of the court accessible to the general public.”

Today I have asked the Boone County Commissioners to provide to me a copy of the notice and any document stating when and where it was to be posted.

I am sure they don't have that information but I am now providing notice that a public hearing in the Boone Superior Court II matter of Town of Thorntown v Stuart Showalter will be held on 05 October 2009 at 9:00 in the Boone County Courthouse.


Indiana Custodial Rights Advocates

©2009 Stuart Showalter, LLC. Permission is granted to all non-commercial entities to reproduce this article in it's entirety with credit given.

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