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Friday, November 01, 2013
Ind. Decisions - Use of Initials in Indiana Appellate Opinions: Inconsistency and Its Consequences
Commentary by Joel Schumm, professor at Indiana University's Robert H. McKinney School of Law
A recent motion filed with the Indiana Court of Appeals on behalf of a woman who was the victim of invasion of privacy (violation of a protective order) highlights significant concerns with the protection of crime victims and others whose names often appear in very public, easily accessible, appellate opinions.
A Long-Standing Problem
Several years ago I wrote the following in an introduction to a law review article: “Appellate courts are leading purveyors of incredibly intimate and embarrassing information about both adults and children who happen to be pulled into the judicial system. . . . In light of the nature of information disclosed and the ease with which it can be obtained, one might expect carefully crafted rules or procedures to protect the privacy of persons thrust into the judicial system, such as the use of initials or pseudonyms instead of names. There are, however, few and sometimes inconsistent rules or procedures applied by appellate courts in deciding whose identity will be protected and whose will be exposed in very public judicial opinions that will follow them for the rest of their lives.”*
When the article was written Indiana appellate courts were doing a good job of preserving the anonymity of victims of sexual assault and juveniles in delinquency cases, but protection for others, such as respondents in civil commitment proceedings and victims of other crimes likely to cause embarrassment, was at best inconsistent.
Indiana Administrative Rule 9
Indiana Administrative Rule 9 has been a marked improvement, but is not a panacea. That rule restricts public access to many records. As regards appeals, Rule 9(G)(4) provides (my emphasis added in underline):
in cases as of or commencing after January 1, 2009, parties, counsel, the courts on appeal, and the Clerk of the Supreme Court, Court of Appeals, and Tax Court (“Clerk”) shall have the following obligations:Does subsection (d) impose a duty on the appellate courts to exclude the names of individuals in opinions “except as essential to the resolution of litigation . . . .” in all appellate cases? Or must it be read in conjunction with subsections (a) – (c), applying only to those cases in which public access has been restricted? (The more recent approach to identifying parties in unemployment compensation cases, for example, seems to suggest the latter.)
(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(b) Cases in which a portion of the record is excluded from public access by statute or by rule. In any case in which a portion (but less than all) of the record in the case has been excluded from public access by statute or by rule of the Supreme Court,
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) the parties and counsel shall not disclose any matter excluded from public access in any document not itself excluded from public access; to the extent it is necessary to refer to excluded information in briefs or other documents that are not excluded from public access, the reference shall be made in a separate document filed in compliance with Trial Rule 5(G); and(c) Cases in which any public access is excluded by trial court order. * * *
(ii) the parties, counsel, and the Clerk shall have the respective obligations set forth in (a)(i) and (a)(ii) to the extent necessary to comply with the statute or rule.
(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.
A recent motion seeking to redact an opinion issued more than a year earlier, though, takes the broader view of subsection (d). On September 3, this motion, which I have redacted, was filed by counsel on behalf of the victim in Slavin v. State, No. 49A04-1111-CR-569 (Ind. Ct. App. Aug. 7, 2012), a not-for publication memorandum decision. The motion noted the woman’s full name was used in the court’s opinion, which “became available on-line and has caused [her] embarrassment.” The motion explained:
a simple search for her name in search engines such as Google and Yahoo will reveal the memorandum decision as one of the first listed results. A search through the Westlaw database reveals not only the memorandum decision but parties’ briefs. The briefs set forth additional facts that potentially harm [her] social standing. Additionally, [she] believes that the revelation of the details surrounding this case will adversely affect her employment prospects.The motion cited other cases where the Court of Appeals had used initials to identify victims of invasion of privacy. Asserting she was an “affected” person under Administrative Rule 9(G)(4)(d), the motion posited that initials or some other identifier could be used in the place of her name to explain the court’s ruling.
The Court’s Order
The Court of Appeals granted the motion on October 1, issuing a redacted opinion and directing the Clerk “to send a copy of this order to all parties and counsel of record, the trial court, Thomson Reuters West Publishing Company, all other sources to which decisions and opinions of this Court are sent, and the Marion Circuit and Superior Courts Clerk.” Judges Bailey and Mathias concurred; Chief Judge Robb dissented.**
A Month Later
A month after the Court of Appeals issued its redacted opinion, the opinion on Lexis has been redacted. The Westlaw opinion has not been changed. It is unclear how many entities may pull opinions from the Court’s website and would not have been notified of the Court’s October 1 unpublished order, which is not posted anywhere. M.M’s full name remains on at least one prominent site, which I will not link to here.
Concerns in Other Cases
The opinion in Slavin was not-for-publication, which limits its reach in some ways. There is no bound N.E.2d volume with M.M.’s full name, which could never be changed. (Very few people go to the library to look at those anymore, though.) More concerning, if the case had been published and citable, is the prospect that a later opinion would have used M.M.’s name in discussing the Slavin case. Withdrawing and replacing the Slavin opinion would not change those later opinions.*** Finally, if media stories or blogs had excerpted the original opinion, issuing a redacted opinion is very unlikely to fix the problem. The bell can’t be unrung.
The concerns highlighted above could be addressed in at least a couple of different ways. First, one of the parties (or a non-party, as in the Slavin case) could petition the appellate court to use only initials when referring to a person likely to be embarrassed by the use of their name in an opinion. This should happen early in a case. Once the appellate opinion is posted on the web, it will be very difficult, if not impossible, to put the genie back in the bottle.
Second, if broader protection is desired the Indiana Supreme Court could amend Administrative Rule 9(G)(4) to make clear it applies to all cases—not just those impacted by subsections (a)-(c). The Court could also delineate certain categories of offenses (perhaps crimes such as invasion of privacy, stalking, domestic battery) where the victim’s name should not be used. In the absence of a more specific rule, it seems likely that lawyers and appellate judges will continue to take different approaches to the use of initials in some types of cases.
*Joel M. Schumm, No Names Please: The Virtual Victimization of Children, Crime Victims, the Mentally Ill, and Others in Appellate Court Opinions, 42 Ga. L. Rev. 471 (2008). Unfortunately, the article is not available on the Georgia Law Review website. It is available on Westlaw, Lexis, Hein Online, etc.
**The motion also sought to prohibit access to the court’s records in the case. The panel unanimously denied that request, noting “[t]he public record for this matter is not available online and M.M. provides no specific reason why her request should be granted under the parameters of the [sic] Administrative Rule 9(H).
***An August 8 post highlights similar concern raised by provisions of the 2013 expungement statute.
Posted by Marcia Oddi on November 1, 2013 02:45 PM
Posted to Schumm - Commentary