Bartholomew County judges say they will ask the Indiana Supreme Court to review a proposed rule change for the Bartholomew County Courthouse that would ban cell phones and other types of audio and video recording equipment from the courthouse.
The judges, Bartholomew Superior Court 1 Judge James Worton, Bartholomew Circuit Judge Kelly Benjamin and Bartholomew Superior 2 Judge Kathleen “Kitty” Tighe Coriden, issued the local rule for public comment until Dec. 15.
Exceptions to the ban would allow court staff, prosecutor’s office staff, clerk’s staff, court services, law enforcement, Department of Child Services staff and attorneys to have cell phones and recording devices, according to the proposed rule, which is schedule to go into effect Jan. 1.
“All the Bartholomew County Courts reserve the right to grant exceptions to this rule on a case-by-case basis,” according to the proposal, but the rule does not say who would decide whether the public or media could have cell phones, where they would be allowed to have cell phones and for what reason, or how they would ask for an exception.
[sc:text-divider text-divider-title=”Story continues below gallery” ]
The new local rule appears to violate an opinion from Indiana’s Public Access Counselor Luke Britt, who ruled in 2018 that a similar ban in Cass County violated Indiana’s public meetings statute. Cass County officials subsequently rescinded their ban after Britt issued his opinion.
Britt ruled that the public policy of Indiana’s Open Door Law is that official action of public agencies be conducted and taken openly, unless otherwise expressly provided by statute, in order that people may be fully informed.
“Simply put, unless an exemption applies, all meetings of the governing bodies of public agencies must be open at all times for the purpose of permitting members of the public to observe and record them,” Britt’s ruling states.
There are public meetings conducted in the Bartholomew County Courthouse, including public meetings in the clerk’s office and in other areas of the building which are routinely covered by The Republic and other media, and attended by the public.
“Local ordinances should not usurp Indiana statutes,” Britt ruled. “While the Open Door Law does not specifically state than an individual may use a cell phone to record a meeting, denying a citizen the ability to record a public meeting using their cell phone violates the public policy intentions of the Open Door Law.”
Britt ruled the Cass County commissioners were in violation of the Open Door Law for instituting its cell phone ban in its courthouse.
In a conference call to The Republic by all the judges on Monday, Worton said he would turn the proposed rule over to the Indiana Supreme Court for a ruling, and also said the judges would not do anything that is not lawful.
However, he argued that the judges had the right under the state rules of judicial conduct to enforce the ban of cell phones in the building and to determine the “exceptions.”
When asked about the Cass County ruling by the public access counselor, he called it only an advisory opinion and one that was without the rule of law. He did acknowledge that a favorable ruling for a citizen or the media by the public access counselor may be used in a lawsuit to challenge public access violations by public officials, including judges.
The decision to ban all types of recording equipment and devices was made entirely by the judges after they met with the commissioners outside of their weekly public meeting, commissioners chairman Rick Flohr said. Unless there is other pressing business, the commissioners hold a work session Thursdays at 10 a.m. without setting out agenda.
However, Circuit Court Judge Benjamin wasn’t in the last work session when the policy was finalized, and discussions were held on how to move forward, Circuit Court office manager Tammy Johannesen said.
Bartholomew County Attorney Grant Tucker said the judges did consult with the commissioners about their concerns and those of the clerk’s office regarding cell phones and other recording devices in their courtrooms and the clerk’s office. The courthouse security staff was also consulted, he said.
“The offshoot of that discussion was that if the judges and the clerk felt that action to prohibit cell phones and other recording devices in their courtrooms and offices was warranted, the commissioners would not oppose the passage of a local court rule to do so, Tucker said.
The county commissioners, who are in charge of all county buildings including the courthouse, did not formally vote on the phone ban, Flohr said.
“We didn’t disapprove it,” Flohr said. “I believe we said we were leaving the matter up to the judges,” he said.
When asked why the the judges felt the ban was needed, Flohr said there has been instances when cellphones would go off during hearings, and the judges found the disturbance irritating and disruptive.
There have also been issues regarding recordings being made outside courtrooms, such as those in the clerk’s office, by people “who did not have the right intentions” while recording conversations with staff members, Flohr said.
Several of those recordings have been posted on social media, but the people making the recordings have not been cited for contempt by the judges, although in one recording Benjamin is seen warning the individual that recording on a cell phone in a courtroom is prohibited. Indiana law prohibits cameras or recording devices inside courtrooms, but does not extend that ban to the entire building where the courtrooms are housed.
Flohr also said the complaints that led to the ban were not the result of the media violating state or local laws about cell phone use.
The proposed rule also prohibits the broadcasting, televising, recording or taking of photographs in all courtrooms and areas near courtrooms, although the rule does not specify what “near courtrooms” means and the distance that would be considered as a violation to the rule.
“Any distribution of audio or video recordings of court proceedings or an area near a courtroom, including posting the audio or video recording on any social media platform, shall not occur without the Court’s permission and any appropriate Orders about those recordings,” the rule states.
The rule says these acts are punishable through a contempt of court proceeding.
[sc:pullout-title pullout-title=”The proposed judicial rule” ][sc:pullout-text-begin]
Cell phones and any other type of audio or video recording equipment or device, are not permitted in the Bartholomew County Courthouse except in certain circumstances.
All Court staff, Bartholomew County Prosecutor’s staff, Bartholomew County Clerk’s staff, Bartholomew County Court Services staff, law enforcement officers, Department of Child Services staff, and attorneys admitted to the Indiana bar may bring cell phones into the Bartholomew County Courthouse. All the Bartholomew County Courts reserve the right to grant exceptions to this rule on a case-by-case basis.
Rule 2.17 of the Indiana Code of Judicial Conduct prohibits the broadcasting, televising, recording or taking of photographs in all courtrooms and areas near the courtrooms. Any distribution of audio or video recordings of court proceedings or an area near a courtroom, including posting the audio or video recordings on any social media platform, shall not occur without the Court’s permission and any appropriate Orders about those recordings. Any distribution of photographs taken in a Bartholomew County Courtroom or area near a courtroom, including posting the photograph to any social media platform, shall not occur without the Court’s permisson and any appropriate Orders about the photograph.
Unauthorized distribution of such audio and video recordings or photographs may be punishable through a contempt of court proceeding. Any person who aids, induces or causes the unauthorized recording of Court proceedings or any person who possesses or distributes any unauthorized recording or photograph of court proceedings may also be subject to contempt of court proceedings.
Effective Jan. 1, 2020
COMMENTS
On the cover page, there is contact information for comments:
Comments may be made until Dec. 15 to Judge James D. Worton at 234 Washington St., Columbus, IN 47201 or by email at [email protected].
Source: Bartholomew County Clerk’s office
[sc:pullout-text-end]
