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Wednesday, October 08, 2008

Ind. Courts - Update on the sealing of records in the Clerk of the Courts Office

Readers may recall a series of ILB entries last spring, decrying "the total disappearance of some cases from the Clerk's docket, so that even the fact of their existence is no longer discernible," as stated in this April 3rd post. See also this post from April 2, and this followup from the same day.

Within a few weeks of these posts, all information on juvenile cases, adoptions, termination of parental rights, and perhaps others, had disappeared from the online Clerk's Docket. There was not even a notation that the information about the case was no longer available online.

This has worked a hardship on attorneys, who could not check the status of their cases online. And that is basically what the Clerk's docket is, a list of the counsel in a case, the parties, and a list of dates when filings were made. This has also worked a hardship on anyone who is interested in whether a petition for transfer has been filed in one of these "undocketed" cases -- although the opinion issued by the COA is available, there is no docket, meaning that there is no way to check online to see whether a petition has been filed.

This major change in the Clerk's Docket came as a surprise to some judges on the Court of Appeals, who were still advising attorneys, via opinion footnotes, to check the online docket for the status of their appeals, long after that information had been removed by the Clerk. For instance, this ILB entry from April 30th includes this comment:

NOTE that this case was lost in the Clerk's office until last month. And although the Court urges attorneys to check the online docket to make sure their briefed cases have been submitted to the judges, the Clerk has inexplicably been removing entire categories of appeals, such as juvenile appeals, completely from the online docket.

For example, here is an opinion issued last Friday, April 25th, in the case of In The Matter of B.F. and T.F., Children in Need of Services, Audrey Faver v. Marion County Department of Child Services, and Child Advocates, Inc. . The docket number is 49A05-0709-JV-515. The ILB just looked up that case in the online Clerk's docket. It does not exist in the docket.

In other words, anyone looking to see if the case had been appealed would not find it in the docket; the first notice of the appeal would have been the issuance of the COA's opinion. And no attorney in the case would have been able to check the online docket, as the COA appeals has been suggesting, because there is no docket at all for the case.

I had occasion to ask the Clerk of the Courts, Kevin S. Smith, about the docket in early September. I wrote that at some point I planned to write about:
* * * the taking the juvenile cases off the docket entirely. I don't understand the problem with listing the cases, with initials only, along with the information that is contained in the docket - names of attorneys, filing dates, etc.

I've read that you made this decision based on a reading of the public records law. Could you point me to the provisions you believe prohibit the judicial branch from posting the docket information?
Mr. Smith responded:
Sure thing. Please see Admin. Rule 9(G)(1)(b)(i) (which references I.C. 31-19-19-1 et. seq.), and Admin. Rule 9(G)(1)(b)(vi)-(vii) (which reference, among others, I.C. 31-39-1-1 and -2).
Here is IC 31-39-1-1 and 2. Sec. 1 says that "Legal records" subject to this chapter include "(b)(2) index entries." Sec. 2 says in part " All juvenile court records subject to this chapter are confidential and are available only in accordance with IC 31-39-2." IC 31-39-2-8 lists juvenile court records available to the public, and includes "index entries."

Today the Supreme Court has filed two orders that hopefully will put the Clerk's Docket back the way it was. Here are the Orders, which are effective January 1, 2009*: (1) Order Amending Rules of Appellate Procedure (9, 15, 53, and sample form 15-1); and (2) Order Amending Administrative Rules (9 and 10),

See, for instance, the new Adm. Rule 9(G)(4):

(a) Cases in which the entire record is excluded from public access by statute or by rule. In any case in which all case records are excluded from public access by statute or by rule of the Supreme Court,
(i) the Clerk shall make the appellate chronological case summary for the case publicly accessible but shall identify the names of the parties and affected persons in a manner reasonably calculated to provide anonymity and privacy; and

(ii) the parties and counsel, at any oral argument and in any public hearing conducted in the appeal, shall refer to the case and parties only as identified in the appellate chronological case summary and shall not disclose any matter excluded from public access.

I'm not clear, however, about subsection (c), which deals with "Cases in which any public access is excluded by trial court order." Does this mean that in these sealed cases, even the existence of the case on appeal will be sealed -- i.e. a secret docket?

In all cases, however, as provided in subsection (d):

(d) Orders, decisions, and opinions issued by the court on appeal shall be publicly accessible, but each court on appeal should endeavor to exclude the names of the parties and affected persons, and any other matters excluded from public access, except as essential to the resolution of litigation or appropriate to further the establishment of precedent or the development of the law.
What does all this mean? Hopefully, it means that the entries for juvenile cases, adoptions, termination of parental rights, etc. which were removed from the Clerk's Docket last spring, will be restored as quickly as they were taken down. And it would seem to me that initials, as used before, would be enough -- the Clerk's appellate docket is simply a list of acts done. Thoughts?
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*Note that the Court's page listing the orders erroneously indicates (as of this writing) that they are effective Jan. 1, 2008.

Posted by Marcia Oddi on October 8, 2008 07:34 PM
Posted to Indiana Courts