« Ind. Courts - "Judicial Commission Admonishes Carroll Circuit Court Judge Currie" | Main | Ind. Decisions - Court of Appeals issues 7 today (and 16 NFP) »
Tuesday, May 27, 2008
Ind. Decisions - Supreme Court requires AG's CID to be by verified petition or other admissible evidence presented at a hearing
In Nu-Sash of Indianapolis, Inc. d/b/a McKee Sunroom Designs v. Steve Carter, Indiana Attorney General, a 6-page, 4-0 opinion, Justice Boehm writes:
The Attorney General is authorized by statute, Ind. Code §§ 4-6-3-1 to -12 (2004), to seek a court order enforcing a civil investigative demand for information relevant to an investigation of potential violations of specified laws. In addition to meeting the requirements listed in sections 4 and 5 of the statute, the Attorney General must meet the requirement in section 6 that the Attorney General “demonstrate to the court that the demand is proper.” We hold that section 6 requires that the Attorney General establish by evidence or other procedure authorized by the Indiana Trial Rules that an investigation is being conducted concerning potential violation of a statute enforced by the Attorney General, and that there are reasonable grounds to believe that the person to whom the CID is directed has information relevant to the investigation. * * *The parties dispute whether filing an unsworn petition is a sufficient showing for enforcement of a CID, assuming the requirements of sections 4 and 5 of the statute are met. Nu-Sash points to the requirement in section 6 that the Attorney General “demonstrate to the court that the demand is proper.” Nu-Sash contends that this language “puts some type of affirmative burden on the attorney general other than simply the filing of the Petition to Enforce.” Nu-Sash explains that if the Attorney General needed only to file a petition, alleging that the CID met the statutory requirements, the trial court would serve merely as a “rubber stamp.” Nu-Sash points out that the statute does not permit the Attorney General to enforce a CID without judicial action, and argues that the need to invoke the judicial process is in place to protect citizens and businesses from unnecessary intrusion and the expense of responding to unjustified CIDs.
We agree with Nu-Sash that the requirement of section 6 that the Attorney General “demonstrate to the court that the demand is proper” places a burden, albeit a small one, on the Attorney General. The Attorney General needs to establish only that there is an investigation and that there are reasonable grounds to believe that the person to whom the CID is directed has information relevant to that investigation. * * * Demonstration can be by a verified petition, affidavit, or testimony or other admissible evidence presented at a hearing. But naked allegations in a petition are insufficient. * * *
There is no allegation of abuse in this case, but history teaches that power can be and has been abused. Requiring the Attorney General to provide at least a verified petition to enforce affords all citizens some protection against “fishing expeditions” or retaliatory or abusive CIDs that are unrelated to legitimate investigations, and imposes a mild deterrent to arbitrary use of government authority. * * *
The order of the trial court requiring compliance with the CID is reversed.
Shepard, C.J., concurs, understanding that had the petition in this case been verified the trial court’s order would have been affirmed.
Dickson and Sullivan, JJ., concur.
Rucker, J., did not participate.
Posted by Marcia Oddi on May 27, 2008 02:01 PM
Posted to Indiana Decisions