*1 pits can- RUCKER, J., HydroTech’s backfilling dissenting. on the facts before us. not be sustained for contempt held in to be In order samples, the for soil record As order, party the court’s failure to follow they taken from the unclear whether were the court willfully disobeyed must have restraining before or after the order site High Athletic Ass’n See Ind. Sch. order. further, the is si- issued. And record (Ind. Martin, 1288, 1241 765 N.E.2d actually this soil was test- lent on whether 2002). must been so clear The order have or whether Witt would used ed no certain that there could be and the case. such test results evidence do, do, must or not party as to what the Essentially evidence there insufficient no question regard be and so there could support finding the trial court before id. ing order violated. See whether the contempt on sam- plaintiffs’ based soil contempt A held party pling activities. ambiguous or comply with an failing agree In the I with the end Court Major, City Gary indefinite order. conduct did not Appeals plaintiffs’ 165, 170 Other constitute willful violation of terms wise, contempt held order. I there- temporary restraining ambiguous good order in faith. respectfully and would reverse fore dissent Id. judgment of the trial court. Here, restraining temporary order plaintiffs alleged were to have dis- SULLIVAN, J., concurs. part in relevant obeyed dictated that Witt HydroTech enjoined were “from con- removal, excavation, ducting UST soil investigation environmental ” App.
remediation activities.... Joint Importantly, Ap- as the Court of
50-51. noted, peals defendants drafted the order “ Indiana, Appellant, STATE plaintiffs it did not to ‘cease ” and desist’ all work activities.... Witt Petroleum, Inc., Jay INTERNATIONAL BUSINESS argue (Ind.Ct.App.2011). Plaintiffs CORPORATION, MACHINES supports backfilling the record Appellee. safety the sites was needed to maintain No. 49S00-1201-PL-15. groundwater pits issues. The and address depth, were several feet width and Supreme Indiana. Court of day before the trial court issued order, HydroTech had pumped out several gallons groundwater.
thousand In es- although restraining
sence order clear-
ly enjoined certain environmental investi- activities,
gation and remediation
prohibit activity to ensure the site pose public safety.
would not a threat finding
In my view a of willful disobedi- restraining
ence of the basis *2 Rusthoven, officials, Maley, signed the John R. document Peter J. LLP, Indianapolis, concerning Barnes & Thornburg public made several statements IN, Attorneys Appellant. App. at the same. *3 2009, the State 612. On October Zoeller, Attorney General
Gregory F. terminating notified IBM that it was Fisher, Gen- Indiana, M. Solicitor Thomas App. at 729. On eral, McVeigh, Deputy Appellant’s At- contract. Hagan Heather General, Harwel, torney Ashley Tatman May against filed State suit General, Indianapolis, Attorney Deputy County Superior in Marion IBM the Court IN, Sup- Attorneys for Amicus Curiae among breach of contract other asserting port Appellant. separate claims. IBM filed a suit Hull, Burke, its were K. Hoo- claims consolidated Daniel Andrew W. IN, LLP, Jay Indianapolis, P. complaint. ver Hull .originally-filed with the State’s LLP, Lefkowitz, Ellis New Kirkland & e.g., at Appellant’s App.
York, NY, Shumsky, D. Kirkland Michael the record is not clear con Although DC, LLP, Attorneys Washington, & Ellis date, cerning at precise point some Appellee. IBM notice on the Governor to take served See Ind. Trial deposition.
his testimonial 30(A). 18, 2011, On State protective pursuant moved for a RUCKER, Justice. 26(C). Trial Rule The State as case we consider whether any deposition serted that of the Governor provid- section Indiana Code 34-29-2-1— prohibited based on Governor’s ing of the State of unqualified from on civ “privilege! arrest from on civil “privileged Indiana is arrest process, obeying any subpoena il and from any subpoena process, and from 34-29-2-1(6),1 § testify,” Ind.Code preclude a trial court testify” operates — alternatively, that not overcome compel an order to the Gover- issuing high imposed common bar dispute nor’s in a contract prohibiting testimony upper-level law brought by of Indiana executive officials. government branch it contractor. We hold that does. at The trial App. History Facts Procedural court issued a “Protective Order Preclud On the State of December Time,” Deposition at ing of Governor This agency Indiana on behalf of its the Indiana hand, reasoning: “On one Family Social Services Administration above Code section [Indiana 34-29-2-1] entered into a contract International clearly of a precludes sitting (“IBM”) Corporation Machines Business hand, governor. excep On other improve the modernize and State’s welfare since it reason might be established at system. Appellant’s App. 933. Mitchell to expect able chief executive to have Daniels, E. Jr. was Governor of Indiana at unique knowledge personal first-hand State entered into the con- the time the experience management project of a today. tract in that and continues office Governor, magnitude of such as this IBM contract.” along several originally provision 1. This of the code was section I. ch. enacted in 1852 as Ind. Rev. Stat. 430. The court held defer to a trial interpretation court’s of [a] current evidence does not allow the statute’s meaning.” Elmer Buchta Truck-
Court to determine whether the Governor ing, Inc. v. Stanley, deposed this case under We therefore “independently purported exception to the statute.” Ap- review the statute’s apply pellant’s App. at 430. to the facts of the case under review.” Id. sum, because a of statutory September
On after conducting interpretation a question constitutes over four months of additional discovery, law, we review it de novo. IBM moved to the Governor’s de- *4 15, position. 2011, On December the trial Discussion court issued an granting order IBM’s mo- tion with certain In designed interpreting statute, limitations our “prevent any goal is to upon undue burden” determine and give Gov- effect to the intent of legislature. Dev., ernor. at 1465. In Porter 866 order, this the trial court N.E.2d at In found the lan- determining legislative intent, guage of we Indiana Code section “consider the objects 34-29-2-1 pur and poses of ambiguous interpreted and the statute to as well as the effects repercussions ascertain the and legislature. intent of the of’ our interpretation. Bushong Williamson, While recognizing that underlying 790 N.E.2d (Ind.2003). policy goals 471 legislative of the Statute “The clearly in- intent as protection clude the public provision of various ascertained from the offi- as a whole private prevails cials over during individuals the strict literal meaning official significant duties or word or term.” public responsibili- Id. These precepts ties,” guided the court statutory concluded that us in applica- interpretation its in “unprecedented century. tion over a e.g., case” would be Parvin v. public” Wimberg, “unfair to the 130 Ind. 30 N.E. 793 —which have been the Assembly’s (noting General that when legislative intent. intent ascertained, is App. at “it prevail 1465. On the will over State’s motion, import the trial court certified its and the strict letter statute”). interlocutory appeal And where pursuant meaning is uncer 14(B). tain, Appellate Indiana Rule “the courts will The State look also to the situa sought emergency Court, transfer to this circumstances under which [the which granted. enacted, we Appellate statutes, statute] See Ind. to other if 56(A). there are upon the same subject, passed whether before or after the statute Standard of Review consideration, under whether in force or general, we review a challenge not, as well history as to the of the coun to a discovery trial court’s order for abuse try, carefully and will consider in this con of discretion. See Terre Reg’l Haute nection purpose sought to be accom Trueblood, Hosp., Inc. v. 600 N.E.2d plished.” Healthcare, Id. Inc. Cf. D & M (Ind.1992). However, 1362 we review Kernan, (Ind.2003) 911 novo, questions Dev., of law de Porter LLC (rejecting literal construction of Indiana v. First Nat’l Valparaiso, Bank 866 provision Constitutional light history (Ind.2007), N.E.2d 778 and the inter of the provision and subsequent practice). pretation of a statute a question is of law. Tyler 903 outset, N.E.2d 467-68 n. 4 At the we note that (Ind.2009). “[AJppellate courts need not “privileges Indiana are statutory in nature exceptions. See N.E.2d Assembly’s of no admits the General within
and it is Subpoena In re create them.” power to Inc., N.E.2d
Crisis in this case Ultimately, grant A a trial court’s order down to whether boils policy of that scope And the Legislature. choices “subpoena” from to a which amounts constitutional, poli- choices of the result Indiana Code privileged Governor purview of the solely within the cy are parties engage section 34-29-2-1. & Envtl. Heavy Legislature. Shook about enlightening debate spirited Kokomo, 632 City Grp. Constr. at the time of (Ind.1994).2 creating By original the statute’s enactment Legislature has de- statutory privilege, interplay as the between the well is im- interest Trial Rules. particular termined statute and essence, time enough justify the State at the portant enacted, the statute was See Crisis Connec- prescribed scope. *5 compel tion, the mechanism available to N.E.2d at 793. witnesses, of and therefore the attendance case, provides a grant gov- to Legislature the intended the to be free governor privilege an absolute possible a all mech- ernor privilege process, on civil and from from “arrest today compulsion, anisms of which would testify.” to any subpoena I.C. obeying compel order to include a trial court’s 34-29-2-1(6). § contrast to other sub 1852, deposition. responds statute, place which clear of the sections wit- provided also statutes per privilege given to other limits on testify upon to compelled ness could be sons, includes no such limi subsection 2 Ind. Stat. party. “notice” of a Rev. 2, 14, 266; 15, § Compare, e.g., 1, § § I.C. 34-29-2- art. tations. ch. art. 296. pt. 1(1) legislators “from arrest on And notice was served on the Gover- (privileging here deposition. to for a appear civil and from sub nor testimonial process, testify” According privilege to IBM because poena “during to their attend no “no- privilege statute contains “going and re to[ ] at” while ance[ ] tice,” Legislature not intend to of turning meeting from” the General privilege against grant 34-29-2-1(2) § Assembly); (granting I.C. through compulsion means than sub- “during same to voters at IBM also that even if the poena. at, to, returning going tendance did intend to immunize a Legislature 34-29-2-1(7) elections”); § (similarly I.C. governor against non-subpoena means en privileging persons actually “[a]ll while compulsion, subsequent re-adoption gaged military duty”), discharge of the promulgation this statute after the 34-29-2-1(6) § (granting I.C. Legisla- Indiana Trial Rules evinces the governor, same to treasur “[t]he to modify ture’s intent state, state, secretary er auditor light statute in of the Trial Rules. state, superintendent of public instruc qualifying language tion” with no whatso The slightly We have a different view. ever). words, provided In other the Governor’s 1852 Act attendance statute, ... duly like all when summoned privilege under this the victim witnesses 2 Ind. be enforced attachment.” advocate Crisis is unconstitutional. IBM asserts no claim the statute at issue here 2. 1, 13, § art. Both to pt. Stat. ch. one’s time interferences the deli-
Rev. witnesses could be party non-party process. e.g., Stagman berative (7th “in compelled testify Cir.1999) the same manner.” Ryan, 176 F.3d 994-95 15, § Rev. ch. art. pt. 2 Ind. Stat. (recognizing deposition that the of a high statutory Although scheme official ranking disrupt state would his given to a party that “notice” was to schedule); 1 McCormick Evidence deposed par- both when adverse (Kenneth Brown, ed., § S. 6th witnesses, non-party see Ind. Rev. ty 2006) (recognizing protecting ed. offi- 266; § pt. ch. art. Stat. art. processes cials’ deliberative enhances the com- § “notice” was not the means of governmental quality of decision-making). testimony today. nor is it pelling Second, Rules, under our Trial “notice” of Then, now, compulsion was accom- deposition is all necessary that is for a by a court order —whether called a plished court clerk issue a subpoena a wit- subpoena, to compel,” an “order or some- 45(D). ness. See Ind. Trial Rule “Notice” thing else. That the court’s order to deposition of a the Trial Rules in this provides therefore all necessary that is arose from case the Governor’s failure to a issue. For purposes of the respond to IBM’s “notice” of statute, “notice” and of no therefore moment. reference accomplish essentially same goals— “subpoena” in Indiana Code section 34-29- and thus would be privileged essentially encompasses 2-1 the order at issue here. the same manner. A reading *6 thus the agree origi- We with trial court’s would, in the statute “clearly nal declaration that (and reasoning, IBM’s force the Governor precludes deposition sitting gover- a a statute) protected others under the give to nor.” at 430. a upon “notice” of a or To hold would be a otherwise to elevate upon some other pro- court instruction — “subpoe- literal strict word subpoena vided no as is clearly issued Legislative na” over clear intent provide to 45(D). by permitted Trial Rule Such a gubernatorial privilege against a compelled understanding statute the would testimony. Surely Legislature not produce an absurd result. command, that any mean court it provided The existence of the Governor’s not “subpoena,” denominated would however, not, privilege preclude does to statutory privilege. suffice evade the from ensuring court interests subpoena IBM unique is in justice are litigation. served in this In may it by contempt be enforced deed, courts the right “[t]rial is, by physical order —that detention of the duty manage to before proceedings them person subject to the —whereas expedition fairness, to insure both an order of the kind at issue here cannot granted must be a wide discretion car by contempt enforced finding. be And rying duty.” out that v. Glaros H.H. Rob Legislature IBM contends that the intend- (Fed.Cir. Co., ertson 797 F.2d 1573 protect ed to from physi- 1986). include, among This could disagree detention. rea- cal We with this First, things, limitations on soning. the introduction of policy behind executive fact, beyond privilege protection extends from certain evidence. even where priv protection to encompass ileges important detention from all as Fifth Amend privilege against manner of interference with ment one’s official self-incrimination ranging from interferences implicated, proceedings courts civil duties — 212 shield,” Harney rather litiga- as a “sword than steps ensure that to
have taken (Ind.1837) Owen, 338 4 Blackf. in a manner consistent proceeds Phinney, (quoting Badger 15 Mass. e.g., Baxter v. justice. the interests (1819)). And, course, privileges are 363 96 S.Ct. Palmigiano, 425 U.S. subject to constitutional limitations. See (recognizing L.Ed.2d 810 (In Subpoena re to Crisis State Fromme Amendment does not forbid “the Fifth Inc.), parties civil against inferences adverse re- testify they refuse actions when evidence probative sponse to case, I think neces- do not it is this them”); Wansong Wansong, Mass. at all sary to rule on the issue (1985) (affirm- IBM because the information seeks not use of certain plaintiffs ing restriction in the relevant or material issue he case where invoked evidence divorce 26(B) (discovery case. See Ind. Trial self-incrimination). his subject- matters to the limited to “relevant involve- Governor’s extensive Citing the action”). pending matter involved in the formation, implementation,
ment damages Here the State seeks IBM ultimately the of the con- termination alleging breach contract and that IBM tract, argument IBM makes an intricate procure false information why explaining contract; IBM fees it claims seeks However, af- necessary. reim- State owes under the contract and 34-29-2- forded Indiana Code section it equipment bursement for claims 1(6) although may is absolute. And be says retained. improperly has waived, any party once invoked expressly regarding that “the Governor’s statements may protected by simply performance his IBM’s bear assessment give testimony. The Gov- compelled directly on the merits of State’s claim may ernor’s involvement damages, of breach and demand for questions relevant to the raised *7 directly put the State’s other claims relevant, litigation. court If will Appel- Governor’s state mind issue.” remedial meas- appropriate determine Br. 9. not Resp. lee’s This is correct. Nei- justice ures ensure that the interests ther the Governor’s “assessment IBM’s are served. nor performance” his “state mind” bear Conclusion any way or not IBM breach- whether ed the contract or the State owes IBM We reverse the of the trial court.
fees or reimbursement. See Vernon Fire SHEPARD, C.J., and DICKSON and Sharp, & Cas. Ind. Ins. Co. JJ., DAVID, concur. 607-08, (“[A] promisor’s motive his con- breaching SULLIVAN, J., concurs result generally regarded tract as irrelevant separate opinion. promissee compensated because the will SULLIVAN, Justice, concurring re- proximately all damages resulting from sult. (citations promisor’s breach.” omit- ted)). I To the extent that Governor holding would refrain from has privileges might All information relevant privilege is “absolute.” disclosure, subject voluntary whether or not IBM false infor- to waiver 501(b), certainly mation he is not a and when see Ind. Evidence regard defensively— unique than witness offensively used rather —there competitive procurement for this con- information tract where all of the
provided would have been bid docu- (In
ments. See State v. Cline re WTHR- (Ind.1998) (materiali-
TV), 693 N.E.2d
ty evidence “embraces also evalua- relevance, theoretical but availability
also information sources”). testimony
Because Governor Daniels’s relevant or material issue in case, I concur in the result of the opinion.
Court’s AUDITOR,
MARION COUNTY Investments, LLC,
McCord
Appellants-Petitioners, CREEK,
SAWMILL LLC Saw a/k/a Investments, LLC,
Creek
Appellee-Respondent.
No. 49S02-1106-CV-364.
Supreme Court of Indiana.