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Wednesday, April 01, 2009

Ind. Courts - Re the Appellate Clerk's docket, has the other shoe finally dropped? [Updated]

Almost exactly one year ago, on April 2, 2008, the ILB posted a note from a attorney-reader, raising the alert that the attorney's "cases that deal with juvenile delinquency matters and TPR/CHINS matters" has suddenly begun disappearing from the Appellate Courts' online docket, "even the case's very existence." More:

What seems particularly odd to me is that juveniles' names are initialed in all of our filings, in the opinion itself, and on the online docket in order to maintain their anonymity. Why would there be a further need to completely remove the online docket information? Furthermore, how are we as attorneys supposed to make sure our cases are "transmitted" to the Court of Appeals in a timely fashion if we cannot check their progress on the online docket?
Another reader, noting the post, wrote to the ILB on the same day:
I agree with many of the concerns you posted from a reader earlier today. Some of my juvenile cases have disappeared from the docket; others are still there. Although I am quite concerned about juvenile privacy rights, I would never have suggested removing a case from the docket. The online docket in no way violates a juvenile's privacy rights. It does, however, provide very important and timely information to counsel. I'm not sure who made this decision or when, but I think it is ill-advised and hope it will be changed.
See also this post from April 3rd, 2008.

The Court of Appeals was unaware of the fact that docket information was no longer available. In fact, during this same period, the Court was urging attorneys to use the docket. The COA had become aware of problems in the Clerk's office, leading on occasion to delays of months between transmission of fully-briefed cases to the Court itself. In a number of opinions, the COA admonished counsel via footnotes to be sure to "check the Clerk's online docket ... to confirm that the case has, in fact, been transmitted to this court after being fully briefed." But, as I noted in this April 30, 2008 entry:

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.

The first shoe dropped six months later and is well-documented in this ILB entry dated Oct. 8, 2008, which is well worth reading in full. After giving the background, the entry continues:
Today the Supreme Court has filed two orders that hopefully will put the Clerk's Docket back the way it was. * * * 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.
That was six months ago. What has happened since? Has the other shoe dropped yet? No, not yet. As of this weekend, some of the missing dockets have been reentered. I wrote to an attorney yesterday:
Q - Is it your impression that this puts things back the way they were before the Clerk's office started removing them?

A - I don't think so. All my juvenile cases from 2007 and before, which were previously on the docket before all this, aren't back up.

So the ILB did a check, using the case cited earlier in this entry: The docket number is 49A05-0709-JV-515. This was the docket response:
No records found for this search.
Case Number entered was: 49a050709jv00515
On the other hand, for another example, on 3/25/09 the Supreme Court issued an opinion in the case of In Re the Paternity of K.I., and J.I. v. J.H. A check of the docket for 13S05-0805-JV-213 yields a lengthy docket, but it only goes back to 4/30/08, when the transfer appeal was granted. After locating the COA case number*, I was able to access the COA docket, where the first entry is 6/14/07.

Hopefully, the Clerk's docket will be restored in full, except for the substitution of initials for party names, within the next few days so that cases are treated consistently. Right now, someone doing a search may not even know that some cases are missing, as there is no docket entry at all, and no explanation of a rationale.
___________
* I haven't listed the COA case number because the docket continues to list the names of several of the parties.


[Updated at 2:00 PM] Kevin Smith, Clerk of the Appellate Courts, has answered some of my questions. Here is our correspondence:

ILB - Kevin - I'm doing a post and [1] have discovered that for 13 A 05 - 0706 - JV - 00329, which is the COA entry for the Supreme Court opinion earlier this week where the adult party names hadn't been removed when the opinion was posted the first time, still has the adult party names rather than initials.

Second, are you planning to restore all the juvenile, etc. dockets that were removed last year?

KS - Thanks for the head's up Marcia. [1] Because the Court of Appeals' opinion in Matter of K.I. was issued prior to Admin. R. 9(G)(4)(d)'s effective date of Jan. 1, 2009, the Court of Appeals' opinion was not governed by Admin. R. 9(G)(4)(d) and will not be revised (as that rule only applies to appellate opinions handed down on or after Jan. 1, 2009). Please see the final sentence of footnote one in the Supreme Court's Matter of K.I. opinion, which makes reference to the fact that the Court of Appeals' opinion was issued prior to the rule's effective date.

[2] As for the chronological case summaries (CCSs) in juvenile and adoption appeals that were taken off-line last year to bring our appellate courts' dockets into compliance with the requirements of Administrative Rule 9(G)(1)(b)(i), (vi), and (vii), appellate CCSs are now publicly available in all juvenile and adoption appeals that were pending as of, or filed on or after, January 1, 2009 (the effective date of Admin. R. 9(G)(4)(a)(i)). With regard to those "pending" appeals, it was a very time-consuming and
laborious process to bring their CCSs into compliance with 9(G)(4)(a)(i), but we are happy to report that we completed the project this past weekend.

ILB - Thanks Kevin - I'm planning to post this, unless you object. In addition Re #2, should I read your answer to "Second, are you planning to restore all the juvenile, etc. dockets that were removed last year? to mean that only those that were pending as of, or filed on or after, January 1, 2009 have been restored, and that any others that were removed will not be restored?

KS - Marcia, I will have to check with the Supreme Court to see if it contemplates that sort of endeavor with regard to its understanding of compliance with Admin. R. 9(G)(4)(a)(i).

Posted by Marcia Oddi on April 1, 2009 10:20 AM
Posted to Indiana Courts