S.S. LLC v. Review Board of the Indiana Department of Workforce Development

597 KIRSCH, car, 7, J., Transcript at is concurs. “[i]t hood of ... error matter of law conclude as a BAKER, J., separate dissents with includes all actions ‘forcibly that resists’ opinion. 908 at 965. passive.” that are not N.E.2d Indeed, Aguirre the record reveals that BAKER, Judge, dissenting. phone. was to answer her cell attempting I must dissent. respectfully While any not indicate evidence record does Aguirre’s of events would version lead requisite that used force via Aguirre one to that is not guilty conclude she means” violent to evade “strong, powerful, enforcement, resisting law this Court is rightful Officer Green’s exercise of her permitted reweigh not the evidence. 607 at 728. Spangler, duties. See N.E.2d And the favorable to evidence most ver- Aguirre There is no evidence stiffened testimony dict Officer Green’s Johnson, arms, her like the defendant in grabbed place when she Aguirre’s hand or threatening, otherwise violent handcuffs, Aguirre pulled hand forcibly resisted Officer Green. away. Officer Green had to force record, our review of the we upon Based Aguirre’s hand into handcuffs. This is that there is insufficient evidence conclude sufficient to Aguirre’s sustain conviction probative from which value the trial resisting law enforcement. See John- reasonably beyond court have could found State, (Ind. 516, son v. N.E.2d 518-19 833 Aguirre a reasonable doubt commit- Ct.App.2005) (affirming the defendant’s ted law enforcement A resisting as a class resisting conviction law enforcement State, See v. misdemeanor. Colvin 916 “ up,’ where the ‘stiffened defendant re- (revers- 306, (Ind.Ct.App.2009) N.E.2d 309 quiring that exert officers force to a ing resisting law enforcement conviction vehicle”). him place transport inside the not support because the “evidence a [did] Therefore, I Aguirre’s affirm would con- reasonable inference Colvin did more viction. officers”), than passively resist trans.

denied; N.E.2d at Ajabu, (holding 496

that while the evidence established some defendant, by the the record

resistance

failed evidence from which to disclose

a fact reasonable trier of could conclude

beyond doubt that the reasonable defen- forcibly dant acted where defendant LLC, Appellant, S.S. turned a little as he onto twisted and held State, flag); his Braster v. N.E.2d (Ind.Ct.App.1992) (holding that the ev- REVIEW OF the BOARD INDIANA support idence was insufficient to a resist- DEPARTMENT OF WORKFORCE ing conviction law enforcement where D.H., Appel DEVELOPMENT and obey refused to defendant commands and lees. an “sweep legs officer had to [defendant’s] out from him” under course No. 93A02-1101-EX-56. denied, arrest), trans. reh’g denied. Appeals Court of of Indiana. reasons, foregoing For the we reverse Aguirre’s resisting conviction for law en- Aug. A

forcement as a class misdemeanor.

Reversed. LLP, Wyatt, M. Baker &

Carol Daniels IN, Indianapolis, Attorney Appellant. for Zoeller, Gregory Attorney F. General of Indiana, Stephanie Rothenberg, Deputy General, IN, Attorney Indianapolis, Attor- neys Appellees.

OPINION NAJAM, Judge.

STATEMENT OF THE CASE (“S.S.”)1 appeals S.S. LLC the decision of the Review Board of the Indiana De- (“Re- partment Development of Workforce Board”) view in favor of D.H. on her claim for unemployment benefits. S.S. raises a review, single issue for our namely, wheth- er the Review Board erred when it con- cluded that D.H. was not terminated for just We affirm. AND

FACTS PROCEDURAL HISTORY applied D.H. compen- sation leaving employ- benefits after ment with S.S. The Indiana Department of Development Workforce issued an initial 23, 2010, July determination of benefits on cases, majority agrees opinion 1. The presenting with the recent but the interest of anoth- issue, position LaDon A. Moore v. Review Board er on this and to facilitate debate, Develop- further discussion and we have of Workforce ment, (Ind.Ct.App.2011), agreed publish opinion 951 N.E.2d 301 using this initials in development the use of names workforce case. Thus, the Re- for un- eligible that D.H. concluding the Adminis- reject Board is free to appealed, S.S. view benefits. (“ALJ”) Judge findings Law of credibili- Judge’s trative Law the Administrative concluded over the presided make its own determinations ty who and to D.H. for discharged S.S. had credibility that of the witnesses at as to the to not entitled that D.H. was cause and hearing.] the appealed D.H. benefits. nursing is a home. Employer The Board, made the follow- which the Review worked full-time for the The Claimant reversing findings and conclusions ing activity director. The Employer as an to D.H.: ALJ’s denial of benefits the Em- began working for the Claimant incorpo adopts and The Review Board 28, July 1997. The ployer on Claimant the Adminis findings the of fact of rates separated from became the extent Judge except to trative Law 24, May and as with this decision inconsistent 24, 2010, Rep- the Employer’s On herein. The Claimant modified resentative and the Assistant Director hearing in the participated present met with the for the Nursing Claimant Employer par The also by telephone. a purpose administering third written hearing by telephone in the ticipated warning. During meeting, Combs, by Perry represented and was employment terminated. Claimant’s Administrator.1 During hearing, Employer’s Review Board footnote 1: The [Internal that the Representative testified Claim- Law an Administrative cannot overturn very upset and walked out of ant became solely on a deter- Judge’s decision based The meeting permission. without credibility. Stan- mination of demeanor policy has a written its Employer Bd., N.E.2d 815 v. Review ley states, “walking handbook that employee parties Because the permission without the off the shift by telephone, hearing in the participated will be considered a your Supervisor deter- implicit credibility or any explicit Ex. E2. voluntary resignation.” Emp. by the Administrative minations made acknowledge- signed an The Claimant her ob- Judge were not based on Law a indicating form that she received ment demeanor. of the witnesses’ servations handbook and un- copy employee credibility as- make an accurate “[T]o Ex. E3. Emp. derstood its contents. demeanor one must sessment based on giv- had not been Because Claimant position in a to observe the witnesses be leave, permission Employer en testify.” Id. No demeanor cred- they as voluntarily re- considered her to have made based ibility determinations can be employment. Employ- The signed her telephone testimony on the offered a Representative er’s also contended lis- hearing. Because the Review Board had no intention dis- Employer Re- hearing recording, tened to during the meet- charging the Claimant as the position view Board is in the same ing. make de- Judge Administrative Law Claimant, however, testified that credibility regarding the terminations of discharged being told she was she was testimony. Of the different witnesses’ within a receiving warnings four credibility, “only demean- components of She further three week time-frame. credibility remains outside the re- that when she received her testified authority’s abilities to assess.” viewing Bd., warning during the meet- N.E.2d third written Wampler v. Review ing, warning Judge stated that she was The Administrative Law found meeting that Claimant walked out of the employment. See discharged permission without in violation of the Emp. Ex. 4. The Claimant also testified Employer’s policy. The Administrative Employer policy has Judge Law determined that the Claim- accumulating three written warn- states ant knowingly violated a reasonable and ings grounds discharge, and she uniformly Employer enforced rule. The warnings. had received three written Judge Administrative Law concluded meeting Employ- left the after the She the Employer discharged the Representative er’s informed her that just Claimant for cause.... had been relieved of her duties she CONCLUSIONS OF LAW: An Admin asked her to leave. istrative Law Judge change cannot the parties presented Because the con- Employer’s stated reason for discharge. testimony flicting regarding the circum- Board, Voss v. Review 533 N.E.2d 1020 separation stances Claimant’s (Ind.Ct.App.1989). v. Foss Review employment, from the Review Board Board, ... employer provided the its a credibility must make determination. employee a written discharge document The Review Board the Claimant’s finds stating discharge that the was for exces testimony more The credible. Review telephone sive usage. At the Adminis Board also finds that the Claimant cor- trative Law Judge hearing, employ the rectly Employer’s testified as to the er advanced other discharge reasons to stated reason for her discharge. employee. the The court held that the Review was considering Board limited to Employer The policy has written [a] employer’s the stated reason for dis states, in its employee handbook that Bd., charge. Accord: Hehr v. Review (3) total of three written warnings “[A] 534 N.E.2d 1122 (Ind.Ct.App.1989); (1) kind, any year in one is for cause Parkinson [Parkison James River ] immediate Emp. termination.” See Ex. Corp., 659 N.E.2d 690 E4. warning, Per the third written case, present In the Employer the policy is page contained on 59 of the presented the Claimant with a third employee Emp. handbook. Ex. E4. written warning which stated that she Also, according to the contents of the being was discharged and informed the warning, third written re- Claimant being Claimant that she was discharged ceived a verbal warning on March for accumulating three written warnings 2010; a warning first written on April discipline violation of policy. its The 15, 2010; and a second written warning warning also previ- listed the Claimant’s 3,May on E4. Emp. Ex. On warnings ous Employer’s policy and the 24, 2010, the Claimant received her third that subjects employees to immediate warning written discharged and was discharge for the accumulation of three employment. from Emp. Ex. E4. warnings year. written in one During Employer’s The Representative pre- however, hearing, the Employer’s why sented no evidence regarding Representative changed Employ- disciplined Claimant was occa- discharge stated reason for er[’]s Employer’s sion. The Representative testified that the employment Claimant’s presented also no evidence regarding walking was terminated for out of the the enforcement of the Employer’s 2010[,] disci- May meeting permis- without pline policy. sion. Just as an Administrative Law had walked By the time Claimant change Employer’s Judge cannot out, with discharge, employment relationship neither can reason for stated Employer. Employer already had been severed. Therefore, not violate the Claimant did discharged from employee an When Indiana, Employer’s policy. walk-out employee unemploy- disqualified will not be Employer The failed to meet its bur- discharge ment benefits unless proof. Employer discharged den meaning within the just for cause proven just the Claimant but not 22-4-15-l(d). § “Dis- Code includes a “know- charge just cause” The decision of Adminis- [the] ORDER: and uni- violation of a reasonable ing Judge trative Law is reversed. The employer, an formly enforced rule of Claimant is entitled regarding rule attendance.” including a benefits. 22-4-15-l(d)(2). The bur- Ind.Code (some Employer prove emphases at Appellant’s App. den was on the 3-5 added). discharge cause to Claim- it had This ensued. Bd., v. Review 419 N.E.2d

ant. Barnett To find that a AND (Ind.Ct.App.1981). DISCUSSION DECISION 249 cause, the Review discharge just was for v. Review Board the Corp. In Stanrail of (1) there was first find that: Board must Development, Workforce of (3) (2) reasonable; rule; the rule was a 1197, (Ind.Ct.App. 735 N.E.2d 1201-02 (4) enforced; uniformly the the rule was denied, 2000), set out the trans. (5) rule; and the knew of the claimant applicable standard of review: knowingly violated the rule. claimant Unemployment Compensa The Indiana Barnett, at 251. 419 N.E.2d ] “[a]ny that provides tion Actc decision Here, Employer the failed to meet its review board shall be conclusive Employer pre- The proof. burden of of fact.” binding questions as to all hearing the during no evidence sented 22-4-17-12(a). § When the Ind.Code discipline the issued regarding of challenged con Board’s decision is as Employer pre- The also Claimant. law, limit trary reviewing court is discipline its sented no evidence into the “suffi two-part inquiry ed to a reasonable, it was policy was ciency of the facts found to sustain uniformly Therefore, it can- enforced. “sufficiency of the evi decision” and the be concluded that the Claimant not findings to sustain the of facts.” dence violated a reasonable and knowingly 4—17—12(f). Under this Ind.Code 22— Employ- rule uniformly enforced of standard, upon to review: we are called er. (1) specific of or basic determinations Furthermore, Employer even if the (2) facts; or in underlying conclusions discharged the Claimant for violat- had facts, or determina ferences from those policy, Employer ing its walk-out (3) facts; and conclu tions of ultimate that the actual- prove failed to Claimant Bd. of law. McClain v. Review sions policy. Employer The ly violated Dev., 693 Dep’t the Ind. of Workforce for discharged claims it the Claimant (Ind.1998). 1314,1317 N.E.2d 24, walking meeting out of the ba- 2010[,] findings Review of the Board’s Em- permission. without The evi- subject fact is to a “substantial however, sic terminated the Claim- ployer, review. Id. In this dence” standard of during meeting. ant’s evi- analysis, reweigh writing we neither and introduced into evidence to credibility of wit- fairly dence nor assess enable this reasonably Court to only consider the evidence nesses and employee review the determination that an findings. to the Board’s most favorable discharged just cause for the Bd. Corp. General Motors Review a- knowing violation of rule. Stanrail Dev., Dep’t the Ind. 671 Corp., 735 N.E.2d at 1205. To have know- Workforce (Ind.Ct.App.1996). N.E.2d We rule, ingly employer’s violated an the em- only will the decision if there is reverse ployee must know of the rule and must no support substantial evidence know that his conduct violated the rule. KBI, findings. Board’s Inc. v. Review at Id. 1203. The Board must make a Dev., Bd. Dep’t the Ind. finding as to whether an employee knew of Workforce 656 N.E.2d an employer his conduct violated rule of ulti- Board’s determinations because the text of Indiana Code Section 22-4-15-l(d)(2) mate facts involve an inference or de- requires “knowing viola- upon findings duction based of basic merely tion” of a rule rather than a viola- typically fact and reviewed to en- [are] tion of a known rule. Id. sure that the Board’s inference is rea- Here, at hearing before the McClain, sonable. 693 N.E.2d at 1317- ALJ, S.S. argue did not that D.H. was logic We examine the of the infer- Instead, discharged S.S.’s ence drawn impose any applicable sole voluntarily contention was that D.H. ques- rule of law. Id. at 1318. Some Thus, resigned. as the Review Board con tions of ultimate fact are within spe- cluded, present S.S. did not evidence that Board, cial competence of the and it is D.H. was discharged knowingly for violat appropriate therefore for us to accord ing a reasonable uniformly and enforced greater deference to the reasonableness rule. See v. Review Coleman Bd. of However, of the Board’s conclusion. Id. Indiana, (Ind.Ct. 905 N.E.2d as to ultimate facts which are not within Combs, App.2009). Perry represen S.S.’s expertise, Board’s area of we are tative telephonic hearing, at the testified likely more judg- to exercise our own part relevant as follows: ment. Id. Q: quit employment? Did [D.H.] Indiana, an unemployed claim A: This is where we were talking to ineligible ant is for unemployment benefits her in meeting a and she walked out of if discharged “just he is for cause.” See facility she didn’t clock out. Ac- Dep’t Russell Review Bd. Ind. handbook, cording to our if somebody Servs.,

Emp’t Training & 586 N.E.2d they walks out voluntarily resign. Here, 948 (Ind.Ct.App.1992). S.S. con tends that it employ terminated D.H.’s just

ment for cause and that the Review Q: What is Exhibit E2? Board erred when it concluded otherwise. E2 A: is a section of our handbook S.S. bore the burden prove that D.H.’s which signed has been that she acknowl- discharge just was for cause. See id. E3, edgement employment [sic] Just cause discharge just stating, includes for a and it’s the circle it says knowing violation of a reasonable and uni absence and occurrences and this defini- formly employer. enforced rule of an Ind. tion does not alter the fact that failure to (d)(2). Code 22—4—15—1 An employer’s walking return from leave of absence or asserted work rule must be reduced to off the permission shift without the your I a vol- me talk. After said this is third will be considered your supervisor she, I handed her warning written untary resignation. paper she thrown it the air and [sic] of the room. walked out E4, says it On Exhibit Okay. A: a Q: only given warning. So was [D.H.] and to eliminate action state corrective discharged She would not have been discharge it says where problem, warning? warranting the incident written, that was employment says you get discharged A: it if if that when I handed Well did not see [D.H.] [sic], you get have one more time to you I to her talking to her. was paper either a discharged. discharge final You can her know this is her letting you can person point word at that dis- warning. I never said one written them, you can them charge give She’s not another being terminated. about her chance, but she did not have the courte- truth. telling the

sy speak me even to her about the to let warning getting. got that she was She Combs, clarify you just could Q: Mr. up policy and our left office dis- Employer’s progressive what is the the facility states she leaves with- if process? cipline permission out it’s considered volun- warning, an oral first writ- get A: You tary off, walk and that’s how I take it. warning, warning, second and a ten added). Transcript (emphases at 6-14 warning you can be dis- third written charged. The Review Board found D.H. more than and concluded that credible Combs notice, Looking warning at the JUDGE: employment. D.H.’s S.S. had terminated Exhibit E4.... Employer’s prove bore the burden to S.S. Right. A: termination D.H.’s warning, ... verbal first has JUDGE: But, con- again, S.S. did not warn- warning, warning, second third D.H. during hearing tend the was ... ing. present And S.S. did not evi- terminated. Right. A: (1) (2) rule; dence that there was a Q: is that the date of And 3/31 (3) reasonable; uni- rule was the rule was warning? verbal (4) enforced; knew of formly the claimant you see at? A: Where do 3/31 (5) rule; knowingly the claimant and Employee top On the JUDGE: Barnett, violated the rule. See 419 N.E.2d dates. Warning there’s claim before the ALJ at 251. S.S.’s sole Oh, warning’s verbal A: voluntarily resigned. 3/31. that D.H. S.S. Yeah, one. Those are different the first argued have in the alternative that could ones, cause, the others. just but it she was terminated for not. did warning on Q: So there was a verbal that correct? Is 3/31/10. determination, In of its the Re- support written, A the first written on

A: Yes. view Board cited v. Review Board Voss 4/5, written on and the second 5/3. Training & Department Employment on 24th Q: warning So this (Ind.Ct. Services, 1020, 1021 533 N.E.2d third written? would’ve been the held that an ALJ or App.1989), where we could’ve, making a determination re- Yes. Review Board would’ve been. A: It may only benefits unemployment garding it. She didn’t let She did not even read eral, grounds for filed a motion an employer’s requesting consider an stated order particular, In that “this employee’s discharge. publish an the names of the parties, employing both individuals and we said units, this, in and in all future cases involv- grounds may other have whether or not ing Department.” published discharge employee’s] existed for [the case, opinion panel in that to chose use employer] irrelevant did [the because parties’ names instead of initials and discharge not exercise its discretion attempted justify the same under exist- employee] grounds on those and [the ing rules and statutes. I believe that neither the Board nor this court can contrary choice was to law. assume it would have done so. Thus the grounds is whether the stated issue To better my position, understand discharge have a basis in fact and consti- would helpful following be to consider the just tute legal provisions govern the confiden- Here, hearing again, during Id. before tiality of certain information Review ALJ, allege not that D.H. S.S. did was Board cases. Indiana Rule Administrative any discharged, grounds let alone state for 9(G)(1) says, following “The information in discharge. merely alleged S.S. case records from public is excluded access voluntarily resigned. D.H. The Review ](xviii) [(b) and is confidential: ... All rec- otherwise, we will Board found not ords of the of Workforce De- reweigh the evidence. We cannot consider velopment by as declared confidential Ind. argument new that D.H. S.S.’s Code 22-4-19-6.” Indiana Code Section was terminated for cause. See Troxel says, 22-4-19-6 Troxel, (Ind.2000) N.E.2d (d) Except provided as subsections (reiterating party well-settled rule that (f) here], [which are not relevant may ap- not raise issue for first time on information obtained or obtained from peal). any person in the administration of this Affirmed. article depart- records of the relating ment to the tax ROBB, C.J., concurs. payment or the of benefits is confidential CRONE, J., separate concurs with may published not be or be open opinion. public inspection manner reveal- ing employing the individual’s or the CRONE, Judge, concurring. identity, except unit’s in obedience to an fully I agree Judge Najam’s with deci- order of a court or as provided however, separately, sion. I write because section. I feel that publish- this decision should be 22-4-19-6(b). Finally, Ind.Code Admin- importance ed to underscore the of com- 9(G)(4)(d)says, istrative Rule plying with Indiana Administrative Rule 9(G)(l)(b)(xviii) by ini- using parties’ Orders, decisions, opinions issued and tials instead of their full names in Review by the court on appeal publicly shall be captions opinions. Board case and accessible, but each court on Court,

In a recent ease before this L.M. should to endeavor exclude the names of Depart- parties Review Board the Indiana persons, and and of affected Development, ment public other matters excluded of Workforce from access, (Ind.Ct.App.2011), N.E.2d 301 the Review except as essential to the resolu- Board, represented by Attorney Gen- tion litigation appropriate or to fur- procedures in accordance with the precedent the establishment ther 5(G) 9(J). Rule Appellate Trial Rule and the law. development Supreme added.) coincidentally, Not (Emphasis on Rules of Practice Committee Court’s the Indiana to note that important It is Administrative adopted and Procedure adopted Administrative Court Supreme 9(G)(l)(b)(xviii) 15, September on Rule 9(G)(l)(b)(xviii) specific at re- Rule 2009, clarify specifically to the rule and Judge of this Chief of a former quest Department of Workforce De- include 2009, judge that August On Court. records, be- provision and velopment Justice Randall a letter to Chief wrote It January came effective follows: Shepard that reads as to how the author of the difficult discern months, our administrative recent adoption of Adminis- requesting letter to struggling with how has been staff 9(G)(l)(b)(xviii) trative Rule also could with Administra- compliance best ensure L.M., ignores the ex- have authored which arising from un- appeals Rule 9 in tive letter and contradicts its istence of decisions of compensation content. the Indiana De- Board of the Review reiterate, in L.M. the Review Board To Development. of Workforce partment an requesting filed a motion order makes section 22-4-19-6 Indiana Code publish par- the names of the “this Court of Work- the records units, ties, employing and both individuals pay- to the Development relating force this, involving in all future cases confidential, it is but ment of benefits The Review Board stated Department.” Rule 9. in Administrative not referenced it “not disclosed the names of had stands, currently Administrative As it appeals units in employing individuals and 9(G)(1)(b) that information requires Rule decisions to the Indiana of Review Board public pursuant from access “excluded Supreme the Indiana Appeals For the Indiana statute” is confidential. with compliance June 2009 in Court” since clarity litigants sake of in two an order from this Court issued courts, the Rule’s list I recommend that further prior cases. The Review Board public access of records excluded suggests proper it that a stated that “now 9(G)(l)(b)(i)- Administrative Rule under 22- section interpretation of Indiana Code (xvii) specific include expanded be protects 4-19-6 is that Board matters and reference to Review from use public records from access and Indiana Code section 22^-19-6. with the while that information resides directed to I also ask that Clerk be “the names of indi- Department” but that treating the entire immediately begin units need not be employing viduals and Board matters as case file in Review involving the kept confidential in actions access, in much the public excluded from system public pro- in an otherwise court way that the handles case same Clerk added.) ceeding.” (Emphasis paternity mat- juvenile records L.M., panel In another of its decision matter, such treat- practical ters. As a Board’s addressed the Review this Court of Review Board cases will be ment parties the names of the publish motion to cumbersome on the Clerk’s much less as follows: office, currently every routes Re- which is di- section 22^-19-6 light not filed on Indiana Code view Board order of Department rected to the Workforce for an order green paper to this Court initially statute Development. parties to re-file their documents to “keep are to true the Review employers party. states that Board is named a Four of those cases have used the full containing and accurate records infor- names of the parties. See Koewler v. [Department mation the considers nec- Dep’t Review Bd. Ind. essary” open that the records are and of of Workforce Dev., 272 (Ind.Ct.App.2011); 951 N.E.2d inspection by representa- an authorized Dep’t Lush v. Review Bd. Ind. § 22- Department. tive of the Ind.Code of of (Ind.Ct. Dev., 944 N.E.2d 492 4-19-6(a). imposes following It then Workforce App.2011); Lake Pub. Inc. v. Re- obligation Department: on the Wolf view Bd. Dep’t Ind. of of Workforce (b) ... obtained or ob- [I]nformation Dev., 930 N.E.2d 1138 (Ind.Ct.App. any person tained from the admin- 2010); Value World Inc. Ind. v. Re- istration of this article and the records Dep’t view Bd. Ind. of Workforce department relating to the un- Dev., 927 N.E.2d 945 payment tax or the 22-4-19-6(b) Section includes an ex- may benefits is confidential and not be court,” ception for “an order of a published open public inspec- or be 9(G)(4)(d) Administrative provides Rule any revealing tion in manner the indi- although courts on “should employing vidual’s or the unit’s identi- endeavor to exclude the names of parties ty, except in obedience to an order of and affected persons, other provided a court or as in this section. access,” matters from public excluded essentially This obligation same they may disclose names “as essential to imposed Depart- has been on the litigation the resolution of or appropriate ment since 1947. to further the prece- establishment of statute, Pursuant unemploy- to this dent or the development of the law.” ment records within the Although there are some who believe always have remained confidential. disclosing the names of parties However, once appealed a case was in this case does not meet provi- either Court, despite obligations sion, we using note that initials or other 22-4-19-6, section which have existed generic every identifiers in case makes sixty years, for over Attorney Gen- virtually indistinguishable one from an- (who Board), represents eral the Review example, other. For designation employers, employees, attorneys other gave Clerk’s Office this case is “L.M. v. Court, before this and both Review Board.” A search of our docket Supreme Court and this routinely by litigant yields name over 100 cases disclosed the parties full names of the designated “Review Board.” If we use pleadings opinions appeal. and in L.M., the descriptive somewhat more 1, 2010, January case,

On initials of Administrative the claimant in this 9(G), Rule which concerns yields thirty-four information in search of the docket court pub- already given records that is excluded from cases that designation. access, lic was amended to incorporate sum, 9(G) Administrative Rule by reference Indiana Code section 22-4- merely incorporated Section 22-4-19-6 19-6. This amendment has led some to as it had interpreted been for decades. believe required that we are now to keep mind, With that in reading authority parties names of the confidential on granted by Administrative Rule 9(G)(4)(d) appeal. disagree. Others Since Janu- together with section 22-4- 1, 2010, 19-6(b)’s ary there have sixteen exception been orders court reported considering cases from this Court in which the Review Board’s inter- I am dubious about the generally, under More obligations own of its pretation this propriety single panel of a Court interpretation as well as the statute single motion in a issuing ruling on a Supreme Indiana by the of the statute privacy rights will affect the case that in cases countless and this Court in unemployment litigants future cases. it is sixty years, we believe for over by relevant governed Such issues must be to use the full for this Court appropriate opinions and written in- procedural rules appeals in routine parties names I those rules. As far as am terpreting Review Board. aware, confidentiality issue not omitted). (footnote N.E.2d at 304-06 before the Re- by parties raised the L.M. in analysis several disagree I with appellate view Board or in their briefs. First, history regard- lesson respects. recently Our Court has debated the use 22-4-19-6 is ir- Section ing Indiana Code in of names instead of initials Review relevant, specifically the statute given that Board cases and has been unable to reach and not this applies Department to the A a consensus. member of our Court recently much more enacted Court. The Supreme appeared before Indiana 9(G)(l)(b)(xviii) does Rule Administrative Management Records Committee Court’s however, Court, I and believe apply to this 13, 2011, request the amend- repealed until it is that we must follow it 9(G)(1)(b) ment of Administrative Rule Supreme Court. by the Indiana (xviii) the use full parties’ to allow Second, “using complaint as for the in Review Board cases. The com- names every generic initials or other identifiers my colleague’s request. mittee denied virtually case indistin- case makes one I Presently, do not see how Administra- another,” may be true guishable from 9(G) tive Rule Indiana Section Code concerned, captions far as the case are as 22-4-19-6 can be read to allow the disclo- easily opinions written are search- but our unemployment sure of the full names of of the by online members able interested employers claimants and in decisions is- event, I do not bar and public. by this of the sued Court. Clerk annoyances are suffi- believe that minor Court, Tax Supreme Appeals, Court of disregarding a rule grounds cient agrees the State of Indiana with Court for court, I by supreme do adopted our my interpretation of Administrative Rule disclosing not the names believe 9(G)(l)(b)(xviii), by caption its as evidenced cases is “essen- parties this case in this Court’s electronic litigation appro- or tial to the resolution v. Review Board.” I “Company docket: prec- the establishment of priate to further of or the position propriety have no on the development of the law” for edent or the written, but I wisdom behind the rule as 9(G). of Administrative Rule purposes that we must follow it until such believe Third, suggests extent L.M. to the repealed by supreme as our time 22-4-19-6(b)’s ex- Section Code encourage supreme court. I would our “an of a court” authorizes ception for order by opinion court to visit this issue court names in parties’ our disclosure of the change give proper guidance rule simply I note that opinions, written would finality matter. to this only to the applies the statute thing

and that an “order” is not same Administrative Rule “opinion,”

as an as

9(G) makes clear.

Case Details

Case Name: S.S. LLC v. Review Board of the Indiana Department of Workforce Development

Court Name: Indiana Court of Appeals

Date Published: Aug 25, 2011

Citation: 953 N.E.2d 597

Docket Number: 93A02-1101-EX-56

Court Abbreviation: Ind. Ct. App.