In the Matter of Todd E. ECKERT, Respondent.
No. 49S00-1410-DI-620.
Supreme Court of Indiana.
Oct. 2, 2014.
2 N.E.3d 922
Respondent has tendered to this Court an affidavit of resignation from the bar of this State, pursuant to Indiana Admission and Discipline Rule 23(17), which requires an acknowledgement that there is presently pending an investigation into or a proceeding involving allegations of misconduct and that Respondent could not successfully defend himself/herself if prosecuted.
IT IS THEREFORE ORDERED that the resignation from the bar of this State tendered by Respondent is accepted effective immediately. The Clerk of this Court is directed to record Respondent’s resignation on the Roll of Attorneys. Respondent shall fulfill all the applicable duties under Admission and Discipline Rule 23(26)(d).
IT IS FURTHER ORDERED that any attorney disciplinary proceedings pending against Respondent are hereby dismissed as moot because of Respondent’s resignation.
Respondent shall be ineligible to petition for reinstatement to the practice of law for five years from the date of this order. See
The Clerk is directed to forward a copy of this Order to the parties or their respective attorneys and to all other entities entitled to notice under Admission and Discipline Rule 23(3)(d). Thomson Reuters is directed to publish a copy of this order in the bound volumes of this Court’s decisions.
All Justices concur.
EVANSVILLE COURIER & PRESS and Rita Ward, Appellants (Plaintiffs below), v. VANDERBURGH COUNTY HEALTH DEPARTMENT, Appellee (Defendant below).
No. 82S04-1401-PL-49.
Supreme Court of Indiana.
Oct. 7, 2014.
17 N.E.3d 922
Kurt A. Webber, Carmel, for Amicus Curiae Indiana Coalition for Open Government.
Steven M. Badger, Leah N. Wilson, Indianapolis, for Amicus Curiae Hoosier State Press Association Foundation.
Gregory F. Zoeller, Attorney General of Indiana, Stephen R. Creason, Anne Mullin O‘Connor, Deputy Attorneys General, Indianapolis, for Amicus Curiae State of Indiana.
Joseph H. Harrison, Jr., E. Lee Veazey, Evansville, for Appellee.
MASSA, Justice.
This case presents the issue of whether the certificates of death that doctors, coroners, and funeral directors file with county health departments pursuant to
Facts and Procedural History
A. The Creation of Indiana‘s Death Record System
In 1881, preventable diseases caused 25% of deaths in Indiana. 19 Brevier Legis. Rep. 200 (1881). In addition to the obvious human cost, those deaths created an adverse economic impact on the state estimated at over $15 million dollars each year. Id. In an effort to ameliorate this condition, Senator Flavius J. Van Vorhis of Marion, Indiana proposed legislation to create a State Board of Health.1 Id. at 83. Senator Van Vorhis drafted his bill “upon the experience of twenty-two States having preventable disease. He concluded his remarks by saying:
But does it speak well for the intelligence and business sense of the Legislative Department of the State that she is so far behind in all those efforts to protect life and health, and prevent the occurrence of those calamities that increase each year the number required to be cared for by the public charities of the State, and of the Counties of the State? . . . I can not bring myself to believe that any Senator upon this floor, when he comes to consider the subject in the light of the knowledge of the year 1881, will require argument to convince him that the necessity exists for the enactment of some such law as that proposed by this bill for the protection of life and health.
Id. at 201. In the vote immediately following these remarks, the bill passed 36-3. Id.
It also established county boards of health designed to work in partnership with the State Board: “The Board of Health of each county shall act in conjunction with the State Board of Health, and it shall be the duty of the Secretary of such County Boards . . . to report such facts and statistics as may be required under instructions from, and according to, forms and blanks furnished by said Board.” Id. at § 9. When a death occurred, the attending physician or caregiver was required to report the fact and cause of death to the board of the applicable locality. Id. at § 10. A physician making such a report was required to submit “a certificate of the cause of death, and such correlative facts as may be required in the blank forms furnished.” Id. And these death certificates were public records:
It shall be the duty of the Board of Health of each county to keep a complete record, according to the form prescribed by the State Board, of all marriages, births and deaths reported to them under the provisions of this act, and such record shall be open to the inspection of any citizen without fee.
Id. at § 12. Over the decades, the General Assembly amended this statutory scheme many times, but the county boards of health remained responsible for collecting, retaining, and producing individual death certificates, while the State Board compiled and analyzed the records and recommended appropriate public policy.
B. Indiana‘s Contemporary Death Record System
Indiana‘s death record system begins with the death certificate, which contains data used to generate a variety of other records. A certificate of death is created pursuant to
The physician last in attendance upon the deceased or the person in charge of interment shall file a certificate of death or of stillbirth with the local health officer of the jurisdiction in which the death or stillbirth occurred. The local health officer shall retain a copy of the certificate of death.
It must include the decedent‘s cause of death as certified by the attending physician or local health officer.
Once the death certificate is filed, the local health officer must use the information thereon to “make a permanent record” that does not include the cause of death.
Notes
Finally, upon request of a qualifying individual, the “local health officer shall provide a certification of birth, death, or stillbirth registration.”
C. Rita Ward‘s Public Records Request
In June 2012, Rita Ward sent a letter to the Vanderburgh County Health Department requesting “copies of records created under IC [§ ] 16-37-3-3 maintained by the Vanderburgh County Health Department for the month of May, 2012.” App. at 20. The Department denied her request, stating: “pursuant to I.C. [§ ] 16-37-1-10, in order to obtain a copy of a certificate of death, the purchaser must have a direct interest in the matter or the information must be necessary for the determination of a personal or property right or for the compliance with state or federal law.” App. at 21.
The records and files of the division of the state department concerning vital statistics are subject to this article and rules of the state department. Data contained in the records and files may be disclosed only as follows:
(1) The state registrar shall permit inspection of the records or issue a certified copy of a certificate or part of a certificate only if the state registrar is satisfied of the following:
(A) That the applicant has a direct interest in the matter recorded.
(B) That the information is necessary for the determination of personal or property rights or for compliance with state or federal law.
. . .
(2) The state department may permit the use of data contained in vital statistical records for research purposes only, but no identifying use may be made of the data.
(3) In any extraordinary case that the state registrar determines is a direct tangible and legitimate public interest.
The Department‘s letter further stated Ward was free to come inspect any “permanent record” created pursuant to
Ward sought an advisory opinion from the Public Access Counselor of the State of Indiana. The Counselor issued an opinion concluding the Department‘s denial of Ward‘s request was permissible, but one week later, he issued an amended opinion stating the opposite:
It should be noted that I.C. § 16-37-1-10 would only apply to records maintained by the State Department of Health. Thus, the Department could not deny your request pursuant to this section of the statute, as it is not a state department .... From what the law currently provides, while the State Department of Health could deny a similar request under I.C. § 16-37-1-10, the in-
formation as maintained by the local health department has not been afforded the same protections.
App. at 26-27.
The following day, the Evansville Courier & Press newspaper requested access to all Vanderburgh County death records dating from May 2012 that were “created under IC [§ ] 16-37-3-3.” App. at 28. The Department denied that request, stating it did “not have any documents to copy which would be responsive” because the Indiana Death Registration System “eliminated all paper copies and . . . is maintained solely by the Indiana State Department of Health.” App. at 29. Thus, the Department claimed: “Under Indiana law, the County Health Department has no paper documents which it retains concerning I.C. [§ ] 16-37-3-3.” App. at 29. The Department noted the Courier & Press was not qualified to request records pursuant to
Ward and the Courier & Press sued the Department to obtain access to the records they sought. They moved for summary judgment, arguing (1)
The language set forth in I.C. [§ ] 16-37-3-3 conflicts with the specific language in I.C. § 16-37-1-8 and I.C. § 16-37-1-10 regarding who may legally obtain a copy of a death certificate. However, the statutory provision requiring the retention of a permanent record of deaths by all health departments in Indiana, including the County Health Department pursuant to I.C. [§ ] 16-37-3-9, clearly demonstrates the Indiana General Assembly‘s intent to allow the public to inspect and copy certain death record information, but not “cause of death” information . . . unless the person seeking a copy of a death certificate can meet the statutory requirements set forth in I.C. § 16-37-1-8 or I.C. § 16-37-1-10.
App. at 14. The plaintiffs appealed, and in a published opinion, a unanimous panel of our Court of Appeals affirmed the trial court. Evansville Courier & Press v. Vanderburgh Cnty. Health Dep‘t, 993 N.E.2d 302, 306 (Ind.Ct.App.2013).
We granted transfer. Evansville Courier & Press v. Vanderburgh Cnty. Health Dep‘t, 2 N.E.3d 687 (Ind.2014) (table); Ind. Appellate Rule 58(A).
Standard of Review
The trial court must grant a motion for summary judgment “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C). We review a trial court‘s ruling on a motion for summary judgment using that same standard, S. Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903, 907 (Ind.2014), and although the trial court‘s specific findings of fact and conclusions of law assist our review, they are not binding upon us. Kesling v. Hubler Nissan, Inc., 997 N.E.2d 327, 331-32 (Ind.2013). Pure questions of law, like the issues of statuto-
Death Certificates Are Public Records and May Be Freely Obtained from the County Health Department.
Appellants argue the trial court‘s ruling was erroneous because (1) although the Department claims it does not have the requested records,
A. County Health Departments Must Keep a Copy of Each Death Certificate Filed.
In response to the Courier & Press‘s request for death certificates, the Department stated it could not produce the certificates because it did not have them. But Indiana law states “the physician last in attendance upon the deceased or the person in charge of interment shall use the Indiana death registration system established under
Thus, just as in 1881, each county health department has an unambiguous statutory obligation to collect and maintain death certificates. Then, of course, such records were written on paper, copied by hand, and filed in boxes or cabinets. Now, we have modernized the process; the records are typed on computers, viewed on screens, stored on a server, and printed out on machines. This change is one of form, however, not substance. The essence of the law—that the local health department must collect and maintain death certificates—remains the same regardless of the means used to comply with it. Therefore, if the Department truly does not have the death certificates, it is in violation of
B. Death Certificates Are Public Records for the Purpose of APRA.
Appellants contend death certificates, including the cause of death information thereupon, are public records and therefore subject to APRA, which provides: “Any person may inspect and copy the public records of any public agency during the regular business hours of the agency.”
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. This chapter shall be lib-
erally construed to implement this policy and place the burden of proof for the nondisclosure of a public record on the public agency that would deny access to the record and not on the person seeking to inspect and copy the record.
Both parties agree that Ward and the Courier & Press are “persons” and that the Department is a “public agency” as those terms are defined in APRA.3 But the Department contends death certificates are not “public records” pursuant to
1. Section 8
Section 8 prohibits a local health officer from providing “a certification of . . . death . . . registration” unless the officer “is satisfied that the applicant has a direct interest in the matter” and “determines that the certificate is necessary for the determination of personal or property rights or for compliance with state or federal law.”
In Evansville Printing, an Evansville Press reporter requested a death certificate from the Evansville-Vanderburgh County Department of Health. Id. at 438, 332 N.E.2d at 830. When his request was denied, he asked for a “Local Certified Record of Death . . . showing the cause of death.” Id. The local official likewise refused to provide that record, claiming information concerning a decedent‘s cause of death was confidential. Id. at 440, 332 N.E.2d at 831. The Department then initiated a declaratory judgment action, and the trial court concluded the reporter‘s request should have been granted. Id. at 438, 332 N.E.2d at 830.
The Department appealed, but a unanimous panel of our Court of Appeals affirmed the trial court. Id. at 445, 332 N.E.2d at 834. It concluded death certificates were “public records” for the purpose of the Hughes Anti-Secrecy Act, the predecessor to APRA. Id. at 443, 332 N.E.2d at 833. It also determined the death certificate and the certificate of death registration were two different documents. Id. at 441, 332 N.E.2d at 832. The upshot of this decision was that the Department had to give the newspaper a
We see no reason to reach a different conclusion today. As we read the statute, the General Assembly has drawn a distinction between a certificate of death, which is intended to record cause of death data for use by health officials, and a certification of death registration, which is intended to authenticate the death for the purpose of property disposition. The former is a public record, while the latter is confidential. And although his opinion is not binding upon us, we are gratified to note our reading is consistent with the Attorney General‘s interpretation of these statutes. Availability of Death Certificates and Information from those Certificates to the Public, 1998 Op. Ind. Att‘y Gen. No. 1 (Jan. 5, 1998). Thus, we hold Section 8 does not operate to exempt death certificates from APRA‘s disclosure requirements.
2. Section 10
Section 10 prohibits the state registrar from permitting a member of the public to inspect or copy “the records and files of the division of the state department concerning vital statistics” unless the registrar is satisfied “the applicant has a direct interest in the matter recorded” and “the information is necessary for the determination of personal or property rights or for compliance with state or federal law.”
Of course, this conclusion creates an apparent inconsistency. Under our holding today, “a death certificate request with no showing of direct interest or necessity made to the state registrar would be denied while that same request would be granted by a local health officer.” Evansville Courier & Press, 993 N.E.2d at 305. But we cannot say with certainty that this madness has no method. The General Assembly could have intended to distribute the administrative burden of record production among local health departments rather than letting it fall solely upon the State Health Department. Indeed, it has done likewise with regard to other public records; any citizen may obtain criminal records from a county clerk,
* * *
In our society, death is an intimate and personal matter. We recognize that public disclosure of the details of a decedent‘s death may cause pain to his family and friends. We are also mindful of the importance of open and transparent government to the health of our body politic. Our
Conclusion
We reverse the trial court and remand this case for entry of summary judgment in plaintiffs’ favor. Upon remand, the trial court should also determine whether to award plaintiffs their attorney‘s fees and if so, how much.
RUSH, C.J., and DICKSON, RUCKER, and DAVID, JJ., concur.
STATE BOARD OF FUNERAL AND CEMETERY SERVICE, Appellant, v. SETTLERS LIFE INSURANCE CO., Appellee.
No. 49S05-1408-PL-514.
Supreme Court of Indiana.
Oct. 7, 2014.
17 N.E.3d 931
PUBLISHED ORDER
By order dated August 7, 2014, the Court granted a petition seeking transfer of jurisdiction from the Court of Appeals. After further review, including considering the points presented by counsel at oral argument and discussion among the Justices in conference after the oral argument, the Court has determined that it should not assume jurisdiction over this appeal and that the Court of Appeals opinion reported at State Board of Funeral and Cemetery Service v. Settlers Life Insurance Co., 5 N.E.3d 1170 (Ind.Ct.App. 2014), should be reinstated as Court of Appeals precedent. Accordingly, the order granting transfer is VACATED and transfer is hereby DENIED. Pursuant to Appellate Rule 58(B), this appeal is at an end.
The Court DIRECTS the Clerk to certify this appeal as final and to send copies of this order to the Hon. Nancy H. Vaidik, Chief Judge of the Court of Appeals; the Court of Appeals Administrator; and all counsel of record.
The Court further DIRECTS the Clerk to send a copy of this Order to LexisNexis, and to Thomson/Reuters for publication on-line and in the bound volumes of this Court’s decisions.
All Justices concur, except RUCKER, J., who dissents to the denial of transfer.