Received: 11/21/2023 8:59 AM

IN THE
INDIANA COURT OF APPEALS
CASE NO. 23S-OR-00302
STATE OF INDIANA ON THE )
RELATION OF RICHARD ALLEN, )
Relator, )
)
v.
) Case No. 08C01-2210-MR-000001
)
THE CARROLL CIRCUIT COURT
)
and THE HONORABLE FRANCES C.
)
GULL, SPECIAL JUDGE,
)
Respondents. )

RELATOR’S RESPONSE TO
RESPONDENT’S OBJECTIONS

Maggie L. Smith, #197572-53

FROST BROWN TODD LLP
111 Monument Circle, Suite 4500
P.O. Box 44961
Indianapolis, IN 46244-0961
317-237-3800
mlsmith@fbtlaw.com

Cara S. Wieneke, #24374-49

WIENEKE LAW OFFICE LLC
P.O. Box 368
Brooklyn, IN 46111
317-331-8293
Cara.wieneke@gmail.com

Jessie A. Cook, #3715-84

Attorney At Law
3650 N. Washington Blvd.
Indianapolis, IN 46205
812-232-4634
jessieacook@icloud.com

Attorneys for Relator Richard Allen

RELATOR’S RESPONSE TO RESPONDENT’S OBJECTIONS

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................................. 3

SUMMARY OF RESPONSE ................................................................................................. 4

RESPONSE ........................................................................................................................ 6

I. This Original Action has not been mooted because the

November 13th Order corrected only 20% of the existing ACR
Rule errors. ............................................................................................... 6
I.A. A trial court has no discretion to violate this Court’s
ACR Rule mandates and cannot abdicate its duties to
another. .......................................................................................... 6
I.B. Trial courts have an absolute duty to ensure
compliance with the ACR Rules with regard to the
court’s own actions and once the court is made aware
the Rules have been violated. ........................................................ 8
I.C. The trial court continues to misapply the ACR Rules................ 10
I.C.1. Filings related to the June 28th Order ............................. 10
I.C.2. September 18th filing......................................................... 12
I.C.3. September 25th filing......................................................... 15
I.C.4. October 12th filing ............................................................. 16
I.C.5. October 19th filing ............................................................. 16
I.C.6. October 25th and 26th Filings ............................................ 17
II. Respondent’s procedural objections do not defeat this
original action. ........................................................................................ 18
CONCLUSION ................................................................................................................. 21

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TABLE OF AUTHORITIES

Cases

Bedolla v. State, 123 N.E.3d 661 (Ind. 2019) ......................................................... 7

Castillo v. State, 974 N.E.2d 458 (Ind. 2012) ....................................................... 15

Conley v. State, 183 N.E.3d 276 (Ind. 2022)......................................................... 15

Fairbanks v. State, 119 N.E.3d 564 (Ind. 2019) ................................................... 15

Isom v. State, 170 N.E.3d 623 (Ind. 2021) ............................................................ 15

Lane v. Washington Department of Corrections, 2020 WL 7699943, at *3

(W.D.Wash. 2020) ....................................................................................... 14

Morthland v. Lincoln Nat. Life Ins., 25 N.E.2d 325 (Ind. 1940) ........................... 7

Owens v. State, 69 N.E.3d 531 (Ind.Ct.App. 2017) ................................................ 7

State v. Cozart, 897 N.E.2d 478 (Ind. 2008) ........................................................... 6

Weisheit v. State, 109 N.E.3d 978 (Ind. 2018) ...................................................... 15

Rules

ACR Rule 1 ........................................................................................................ 6, 20

ACR Rule 4 .............................................................................................................. 6

ACR Rule 5 ............................................................................................ 7, 11, 12, 14

ACR Rule 6 ........................................................................................................ 7, 16

ACR Rule 8 ........................................................................................................ 9, 16

FRCP Rule 5.2 ....................................................................................................... 14

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SUMMARY OF RESPONSE
Relator appreciates that Respondent’s has corrected a few of the errors that had

left the media and public largely in the dark about this case. Relator, however, is

concerned with both the tone of and the approach suggested by Respondent’s

Objections, both of which indicate a continued misunderstanding and misapplication

of the mandates found in the Access to Court Records (“ACR”) Rules.

Contrary to Respondent’s claims, a trial court has no discretion to ignore the

absolute duties contained in the ACR Rules. Instead, not only are those mandates

unequivocal, but those Rules make the trial court directly responsible for compliance

when—as here—it becomes aware that the ACR mandates are not being followed.

In this regard, a trial court may not abdicate these absolute duties to another

entity and then blame that other entity when the ACR Rules are not followed. This is

particularly true when the trial court itself issues an order expressly instructing that

other entity—here, the Trial Court Clerk—to violate the ACR Rules, and that entity

simply complies with the trial court’s orders.

Moreover, we have now learned that Respondent—in the first instance—chose

to sua sponte inserted itself into policing whether to allow filings the parties

designated as publicly accessible and then decided (improperly) that the documents

were to be excluded and instructed her staff to change the designations and make

them hidden.

Respondent has since issued an order purporting to correct the errors identified

in Relator’s Petition. The chart below, however, shows that the trial court corrected a

mere 20% of those errors:

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 RELATOR’S RESPONSE TO RESPONDENT’S OBJECTIONS

Errors and relief requested in petition: Has trial court corrected this error and
provided this relief?

The excluded court records referenced in the No. The excluded court records referenced in
June 28, 2023 Order must be made publicly the June 28, 2023 Order continue to be
accessible. improperly excluded from public access.

Reinstate the September 18, 2023 Franks No. The trial court reinstated this document
Memorandum as a publicly accessible filing. but continues to improperly exclude it from
public access.

Make the State’s September 25, 2023 filing No. This document continues to be
publicly accessible. improperly excluded from public access.

Make the October 12, 2023 filing publicly No. This document continues to be
accessible. improperly excluded from public access.

Make the October 19, 2023 filing publicly No. This document continues to be
accessible. improperly excluded from public access.

Reinstate the four different October 25, 2023 No. The trial court reinstated these
and October 26, 2023 filings as publicly documents but continues to improperly
accessible documents. exclude them from public access.

Every court record excluded from public access No. None of the court records that are
must be accompanied by an ACR Form. excluded from public access are accompanied
by an ACR form.

A public access version and a non-public access No. None of the court records that are
version of any court record excluded from excluded from public access have a public
public access must be filed. access and non-public access version.

Make the 118 documents on the Zip Drive Yes.

publicly accessible on the CCS itself.

Make the June 20, 2023 and July 5, 2023 filings Yes.
publicly accessible.

As this chart reveals, Respondent’s claim that this Original Action has been

mooted as a result of its November 13th Order is wrong. Respondent’s Response

instead demonstrates a continued misunderstanding and misapplication of the

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responsibilities and requirements of the ACR Rules.

Relator therefore files this Response asking that a Writ of Mandamus and

Prohibition be issued to require that all the errors be corrected and to ensure that the

same errors do not continue to be made in this case as it progresses forward. This

original action provides this court with a unique and much needed opportunity to

educate the bench, the bar, the media, and the public as to the mandates of the ACR

Rules.

RESPONSE
I. This Original Action has not been mooted because the November 13th
Order corrected only 20% of the existing ACR Rule errors.

I.A. A trial court has no discretion to violate this Court’s ACR Rule
mandates and cannot abdicate its duties to another.

Relator agrees that, as a general principle, a trial court has discretion to

manage its docket. But as this Court has made clear, “it should be too plain for

citation to authority that a trial court has absolutely no discretion to disregard the

law.” State v. Cozart, 897 N.E.2d 478, 483 (Ind. 2008).

Respondent’s discretion, therefore, does not extend to disregarding this Court’s

mandates contained in the ACR Rules; these mandates are absolute requirements to

be followed by both the trial court and the parties and include the following:

1. Indiana court records are to be open to and accessible by the

public. ACR Rule 1 & Commentary; ACR Rule 4(A, B).

2. There are only two ways a court record may be excluded in an

otherwise public case:

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A. The court record falls within ACR 5(B) or (C); or

B. “Extraordinary circumstances” exist and all of the

requirements of ACR 6 are met. ACR Rule 6.

3. Parties may not ever “agree” or use Trial Rule 26 to exclude a court
record that otherwise does not satisfy Rule 5 or 6. ACR Rule 5,
Commentary.

4. Every record excluded from public access must be accompanied by

“an ACR Form identifying the specific Rule 5 ground(s) upon which
exclusion is based.” ACR Rule 5(B).

5. Unless every single piece of information in the document can be

properly excluded, there must be a public access version and a non-
public access version of the document—the public access version
has the confidential information redacted but still ensures all of
the non-confidential information is publicly available. ACR 5(E),
Commentary.

(See Brief in Support of Petition for Writs of Mandamus and Prohibition (“Brief”), p.15-

17.)

Finally, nothing in the ACR Rules allows a trial court to abdicate its judicial

functions to another entity—here the Clerk—and then blame that other entity when

the mandates of the ACR Rules are not met.1 This is even more applicable here given

that:

1. The trial court itself issued the order instructing the Clerk
to violate the ACR and Trial Rules and “remove” all of
Allen’s filings from both the CCS and the electronic case file.

1 See Bedolla v. State, 123 N.E.3d 661, 663 (Ind. 2019) (rejecting a trial court’s
attempt to abdicate its duties to another); Morthland v. Lincoln Nat. Life Ins.,
25 N.E.2d 325, 327 (Ind. 1940) (“the court had no power to abdicate its judicial
functions”); Owens v. State, 69 N.E.3d 531, 534 (Ind.Ct.App. 2017) (“We are
dismayed by the trial court’s disregard for the statute that governs a
defendant’s rights during sentencing” making clear this amounted to an
improper “abdication of the trial court’s statutory obligations”).

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2. As discussed below, the trial court has now admitted that it

has sua sponte inserted itself into the determination of
whether the filings must be excluded and instructed its
internal court staff to have the filings changed from public
filings to excluded filings.
3. The trial court turned to its Allen County staff to set up an
alternative website containing the 118 improperly excluded
documents instead of ordering the Clerk to make these 118
documents publicly available on the CCS.

In all of these instances, the Clerk simply complied with the trial court’s orders

and instructions—as the Clerk must.

In summary, the trial court is duty bound to fulfill the mandates of this Court’s

ACR Rules and cannot choose under its “discretion” to either violate those Rules or

make another entity responsible for compliance.

I.B. Trial courts have an absolute duty to ensure compliance with the
ACR Rules with regard to the court’s own actions and once the
court is made aware the Rules have been violated.

Respondent repeatedly claims it has no duty to enforce the mandates of the

ACR Rules. This is not accurate. Relator agrees that it is not the trial court’s

responsibility in the first instance to independently monitor a party’s filings for

compliance with the ACR Rules. But although it had no duty to do so, Respondent has

now revealed that, in fact, it has affirmatively inserted itself into policing whether

documents must be excluded in the first instance.

In the Transcript of the October 19th hearing, the trial court admitted that it

had flagged the Franks filings (discussed below) and sua sponte inserted itself into the

determination of whether the filings must be excluded. (Supplemental Record of

Proceedings in 23S-OR-311, p.5.) Ultimately, the court instructed its internal court

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staff to have the filings changed from public filings to excluded filings (and as

discussed below, did so based on an incorrect application of the ACR Rules). (Id.)

Moreover, when a trial court is made aware that court records have been

improperly excluded from public access—as happened here—the trial court then has

an absolute duty to step in and ensure compliance with the ACR Rules:

Improper exclusion of Court Record from Public Access.

(1) Only Court Records declared confidential pursuant to
5(A), (B), (C), (D), and (E) may be excluded from Public
Access. (2) If a court determines that Court Records are
excluded from Public Access without first satisfying 5(A),
(B), (C), (D), or (E), the Court Records shall be made
available for Public Access seventy-two hours after notice
to the parties and any person affected by the release,
unless the requirements of Rule 6 are thereafter satisfied.
ACR Rule 8(C).

This absolute duty is even more applicable in this case given that the trial

court itself issued the very orders mandating improper exclusion by:

(1) instructing the Clerk to violate the ACR and Trial Rules by
ordering the Clerk to “remove” all of Allen’s filings from both the
CCS and the electronic case file (Record, p.238);

(2) having the Allen County Court Executive set up an alternative

website containing the 118 improperly excluded documents to
“ease the burden on the Clerk of the [Carroll] Court” instead of
ordering the Clerk to make these 118 documents publicly available
on the CCS (Record, p.42); and

(3) inserting itself into the determination of whether the filings must
be excluded and instructing its internal court staff to have the
filings changed from public filings to excluded filings.

Respondent’s argument to this Court that it was the Clerk’s fault that these

documents were not made publicly available on the CCS is not appropriate.

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In short, although Respondent now takes the position before this Court that it

has been a hands-off observer and it is the Clerk’s fault that all these documents have

been excluded, this is not accurate. This trial court has an absolute duty to correct

ACR Rules violations when it becomes aware of them, and if the trial court is going to

direct the Clerk on such matters, then the trial court must comply with the mandates

of the ACR Rules when doing so.

I.C. The trial court continues to misapply the ACR Rules.

On November 13, 2023, Respondent entered an Order purporting to correct the

errors raised in the Original Action. (Supplemental Record of Proceedings

(“Supp.Rec.”) Vol.1, p.5-6.) Respondent then told this Court that this Order “resolves

most of the public access issues raised in the Petition” and moots this Original Action

(Brief in Opposition, p.14.) As set out below, this is not correct.

I.C.1. Filings related to the June 28th Order

In its June 28, 2023 Order, the trial court noted that it was allowing counsel to

“agree” that the Probable Cause Affidavit and Transport Orders would “remain

sealed”:

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(Id.)

First, even if these filings had a legitimate basis to be sealed—and they did

not—every one of these court records must be accompanied by an ACR Form and there

must be a public access version and a non-public access version of these filings. None

of these have been provided.

Second, the agreement between the parties to keep these sealed was based on

their assertion that the Probable Cause Affidavit includes the “names of juvenile

witnesses.” But nothing in ACR Rule 5(B) or any statute allows names of witnesses to

be excluded from public access just because they are child witnesses. Instead, the

ACR Rules provide that only the “names of child witnesses in cases involving sex

offenses shall be excluded from public access.” ACR Rule 5(C)(2).

This case does not involve child witnesses testifying in a sex offense case and

therefore this information cannot be excluded from public access on this ground. This

understanding is confirmed by the fact that the names of these same child witnesses

have been repeatedly made public in other filings, including the State’s June 13 and

September 25th filings and attachments connected to the Motion to Suppress.

Third, there is nothing in ACR Rule 5(B) or any statute that allows Transport

Orders—and the Notices accompanying such orders—to be excluded for “security

reasons.” The Transport Orders themselves consist of a single sentence ordering the

Sheriff to transport the Defendant to court for a hearing on the requested publicly

known date. There is nothing in any of these Orders that tells the timing of the

transport, how it will happen, the conditions of the transport, the route taken, or

anything that is not already publicly known. There are no “security reasons” to

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exclude these even if that was an accepted ACR Rule 5(B) or (C) ground to exclude.

Fourth, counsel cannot ever “agree” to exclude a court record that otherwise

does not satisfy Rule 5 or 6: “A court cannot exclude records otherwise accessible to the

public because the parties agree to do so.” ACR Rule 5, Commentary. If the parties or

the trial court believed that the information in any of these documents should be

excluded from public access, ACR 6 exists to provide the process to make this possible.

This process, however, has never been activated for any of these documents and,

without it, the documents cannot be excluded from public access. Allowing them to

remain excluded from public access violates the ACR Rules.

I.C.2. September 18th filing

On September 18, 2023, Defendant Allen filed what is known as a “Franks”

filing, wherein a defendant seeks to present evidence that the officer who prepared the

probable cause affidavit misled the court to believe probable cause ever existed. He

filed this as a public document, but the trial court thereafter sua sponte instructed her

court staff that it be removed/excluded from public access.

Specifically, in the Transcript from the October 19th hearing, the trial court

confirmed that it had changed the public access designation that counsel had used

when filing and instead made the Franks filings confidential:

THE COURT: I had my staff mark the memorandum

confidential after it had been filed and disseminated to the
public, because the actual warrant was in there, and that’s
covered under a miscellaneous cause number.

(Supp. Rec. in 23S-OR-311, p.5.)

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This is wrong. Miscellaneous cause numbers for warrants are only excluded

from public access until the warrant is executed. After execution on the warrant

happens, the warrant becomes publicly accessible, as demonstrated by the fact that

the State itself has filed these same warrants as public documents in both the State’s

June 13th and September 25th filings.

But even if the warrant could have been excluded, the ACR Rules allow only

the warrant itself to be excluded, not the Motion, Memorandum, and all the other

Exhibits that were also filed on this date. A public and non-public access version of

this filing was required whereby only the warrant was excluded in the public version.

And an ACR Form was required. None of this happened and all of these Franks

documents were properly filed as public documents and should not have been changed

by the trial court.

After this Original Action was filed, however, the trial court abandoned its

former position, ordered the Motion and Exhibits—including the search warrant—

made publicly accessible. The trial court has now changed its reason for sua sponte

excluding the Franks Memorandum.

The sole reason now given for excluding the Franks Memorandum in its

entirety is the fact that “the full first and last names of the deceased minor children

who are the crime victims in this case” appeared three times in the 136-page

document. (Objection, p.17.)

There is nothing in the ACR Rules, Indiana statutes, or other Indiana court rule

that allows the names of deceased children to be excluded from public access.

Recognizing there is no basis in Indiana law to do so, Respondent claims that

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exclusion is mandated because the Federal Rules of Civil Procedure2 require it and,

therefore, ACR Rule 5(B)(1) mandates exclusion. (Id.) Respondent is wrong.

ACR Rule 5(B) explains that exclusion is required when court records have been

declared confidential or excluded from Public Access pursuant to: “federal law” or

“Indiana statute or other court rule.” ACR Rule 5(B)(1) and (2).

ACR Rule 5 makes it clear that the term “federal law” is referring to “federal

statutes” not federal rules of procedure:

To address those limited circumstances where federal

statute … has declared Court Records to be confidential,
this section [Rule 5(B)] provides the mechanism by which
these confidential Court Records are to be excluded from
Public Access.

ACR Rule 5, Commentary. The types of federal law contemplated here are federal

statutes declaring confidential the information contained in education records, certain

tax records, health records, etc.

And while Rule 5(B)(2) references “other court rule,” Respondent implicitly

acknowledges that the modifier “Indiana” at the beginning makes this an “[Indiana]

court rule.” But even if Federal Rule 5.2(a) did qualify as “federal law”—and it does

not—this federal rule speaks to minors in the present tense, leading to the conclusion

that it only applies to living minors, not deceased minors. See Lane v. Washington

Department of Corrections, 2020 WL 7699943, at *3 (W.D.Wash. 2020) (noting that

2 “Unless the court orders otherwise, in an electronic or paper filing with the
court that contains … the name of an individual known to be a minor” … a
party or nonparty making the filing may include only … the minor’s initials.”
FRCP Rule 5.2(a)(3).

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RELATOR’S RESPONSE TO RESPONDENT’S OBJECTIONS

federal courts have adopted local rules making clear that Rule 5.2(a) does not apply to

minors who are “deceased or currently over the age of 18”).

The understanding that Federal Rule 5.2(a) does not operate as a “federal law”

mandating exclusion under the ACR Rules is confirmed by the fact that the State has

repeatedly made public the names of the two deceased girls in court filings. Yet the

trial court has never ordered the Clerk to exclude the State’s filings.

Likewise, the conclusion that the Federal Rule 5.2(a) does not requires names of

deceased children to be excluded from public access is also confirmed by the fact that

this Court regularly uses the names of deceased minor children in its criminal

opinions.3

Finally, even if new counsel is ultimately allowed to abandon the defenses

asserted in the Franks Memorandum, that is not a ground to continue excluding the

original document. New counsel must be ordered to make this document publicly

accessible, even if it decides not to seek further relief on it.

I.C.3. September 25th filing

On September 25, 2023, the State filed a request to exclude all future filings

from public access until the court conducts an in-camera review of each filing and then

excluded this request from public access. (Record, p.25.)

While ACR Rule 6 does allow a Rule 6 request to be excluded for public access

“for a reasonable period of time until the Court rules on the request,” ACR Rule 6(A),

3 For just a few examples, see: Conley v. State, 183 N.E.3d 276 (Ind. 2022); Isom
v. State, 170 N.E.3d 623 (Ind. 2021); Fairbanks v. State, 119 N.E.3d 564 (Ind.
2019); Weisheit v. State, 109 N.E.3d 978 (Ind. 2018); Castillo v. State, 974
N.E.2d 458 (Ind. 2012).

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it has now been two months since it was filed and the trial court has not even set the

ACR Rule 6 hearing, much less ruled on this request. (Record, p.25-33.)

This is not a “reasonable period of time,” and the State’s request should be made

publicly accessible.

I.C.4. October 12th filing

On October 12, 2023, “correspondence” was filed with the trial court and served

on all parties.4 This is a letter from defense counsel explaining why they believed they

should not be disqualified based on the unauthorized distribution of crime scene

photos. This letter was excluded from public access without complying with any of the

ACR requirements.5

Because this letter meets none of the ACR 5(B) requirements and no ACR Rule

6 proceeding was initiated, there are no grounds to exclude it from public access

(which is why it has already been included in the publicly accessible Record of

Proceedings in the second Original Action).

I.C.5. October 19th filing

On October 19, 2023, an Affidavit from Mitchell Westerman—the person who

photographed crime scene evidence that was being stored in Allen’s attorney’s office—

4 Because it was served on all parties, it was not an ex parte communication as

the filing suggested.
5 Relator acknowledges that it was Defendant’s counsel who improperly excluded
these from public access when filed. But once the trial court became aware that
this court record was improperly excluded from public access, the trial court had
an absolute duty to ensure compliance with the ACR Rules. ACR Rule 8(C).

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was filed with the trial court and excluded from public access.6

This Affidavit meets none of the ACR 5(B) requirements and no ACR Rule 6

proceeding was initiated. There are, therefore, no grounds to exclude it from public

access.

I.C.6. October 25th and 26th Filings

On October 25, 2023 and October 26, 2023, Defendant Allen instructed Attorney

Rozzi to file the following documents on his behalf:

 Notice of Continuing Representation

 Motion to Recuse/Disqualify judge

 Praecipe for Transcript

 Motion for Continuance

(Record, p.219-236.)

In accordance with the ACR Rules, all four of the documents were filed as

publicly accessible documents. The trial court, however, ordered the Clerk to “remove”

all of Allen’s filings from both the CCS and the electronic case file and made them

inaccessible to the public:

6 See fn.4, supra.

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(Record, p.238.)

Now recognizing this was impermissible, the trial court has ordered these

filings to no longer be removed. But all of these filings are still excluded from public

access. There are no grounds for these filings to remain inaccessible to the public.

● ● ●

None of the above filings should be excluded from public access, yet they all

remain excluded. Respondent’s statement that this Writ should be denied because it

is moot is not correct.

II. Respondent’s procedural objections do not defeat this original action.

Respondent has raised various “procedural deficiencies” that it claims warrant

the denial of the Writ. These are not persuasive.

First, Relator acted expeditiously. Counsel was contacted almost

immediately after the trial court removed and excluded the October 25th and 26th

filings in violation of the ACR and Trial Rules. This was the intended scope of the

Original Action, which was filed a mere days later, the morning of October 30, 2023.

But when counsel for Relator began drafting the Writ dealing with the October

25th and 26th filings, counsel was shocked to find so many other violations of the ACR

Rules given that: (1) the trial court here was unequivocally informed back in June that

the ACR Rules were being violated and filings were being improperly excluded from

public access; and (2) the trial court issued an order back in June acknowledging those

errors and purporting to correct them.

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Once counsel learned that the ACR violations that were supposedly remedied in

June 2023 had in fact not been remedied—and that the same ACR violations

continued in September and October—counsel was obligated to raise and address

them in this Original Action, which counsel did.

Second, Relator could not comply with the condition precedent for

Original Actions because of the trial court’s own actions that gave rise to the

need for this Original Action in the first place. Relator informed this Court up

front that the condition precedent in Original Action Rule 2(A) had not been met, and

asked this Court to excuse this condition because it was a practical impossibility in

this case. This is because the trial court was refusing to accept any filings made by

Defendant Allen’s chosen counsel and was ordering the Clerk to “remove” anything

they filed.

The trial court thus created the very circumstances that prevented Allen’s

counsel of record from filing anything, yet now the trial court is using this fact to try to

prevent this original action. Having improperly created the circumstances that led to

this impossibility, this Court should not allow Respondent to use the failure to meet

the condition precedent as a sword to defeat this Original Action.

Third, this case presents the extraordinary circumstances and extreme

hardship that Original Actions were designed to address. Contrary to

Respondent’s contentions, this Court has used Original Actions to enforce court rules,

to address a trial court’s failures to adhere to statutory mandates, and to address

matters affecting the “public trust in the integrity of the judicial process.” (Brief,

p.13.) All of these are implicated here.

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The reality is that the broad breadth and scope of the ACR violations and the

trial court’s actions in this case cannot be meaningfully corrected by traditional

appellate proceedings—something that is further compounded by the fact that this is a

criminal proceeding.7 This is important because breaches of the ACR Rules will never

rise to a constitutional violation or affect fundamental rights of a criminal defendant

and, consequently, have no place in any appeal in a criminal case.

Moreover, this is not a situation governed by Appellate Rule 32. That Rule

deals with whether the Clerk’s Record is inaccurate or incomplete, not whether the

trial court has improperly ordered documents excluded from public access.

Finally, this case has widespread applicability. As the presence of the Amici

Curiae demonstrates, the violation of the ACR Rules in this case has significantly

impacted the media and the public. As this Court has explained, “there are strong

societal reasons for allowing Public Access to Court Records and denial of access could

compromise the judiciary’s role in society, inhibit accountability, and endanger public

safety.” A.C.R. 1, Commentary.

This original action thus provides this Court with a unique opportunity to

further educate the bench, the bar, the media, and the public as to the mandates of the

ACR Rules.

7 Every one of the seven reported decisions—only seven cases over the past
fifteen-years—cited by Respondent was a civil case. None of the cases
addressed the ACR Rules currently in effect and instead addressed the
predecessor to the ACR Rules, Administrative Rule 9.

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RELATOR’S RESPONSE TO RESPONDENT’S OBJECTIONS

CONCLUSION
Respondent’s claim that this Original Action has been mooted as a result of its

November 13th Order is incorrect. Instead, Respondent’s Response demonstrates a

continued misunderstanding and misapplication of the responsibilities and

requirements of the ACR Rules. This Court should issue a Writ mandating that:

(1) All of the documents in this case are immediately made

publicly accessible; and

(2) No document may be excluded from public access without

full compliance with the ACR Rules, including an ACR Form
and the submission of a public access and a non-public
access version.

Respectfully submitted,

/s/ Maggie L. Smith

Maggie L. Smith, #197572-53
FROST BROWN TODD LLP
111 Monument Circle, Suite 4500
Indianapolis, IN 46244-0961
317-237-3800
mlsmith@fbtlaw.com

/s/ Cara S. Wieneke

Cara S. Wieneke, #24374-49
WIENEKE LAW OFFICE LLC
P.O. Box 368
Brooklyn, IN 46111
317-331-8293
Cara.wieneke@gmail.com

/s/ Jessie A. Cook

Jessie A. Cook, #3715-84
Attorney At Law
3650 N. Washington Blvd.
Indianapolis, IN 46205
812-232-4634
jessieacook@icloud.com

Attorneys for Relator Richard Allen

Page 21 of 22
RELATOR’S RESPONSE TO RESPONDENT’S OBJECTIONS

VERIFIED STATEMENT OF WORD COUNT

Pursuant to Rule 3(B) of the Indiana Rules of Procedure for Original Actions,

undersigned counsel certifies that the foregoing contains fewer than 4200 words,

exclusive of the items listed in Appellate Rule 44(C), as counted by the word

processing system used to prepare the Brief (MS Word).

By: /s/ Maggie L. Smith

CERTIFICATE OF FILING AND SERVICE

Pursuant to Rule 2(D) of the Indiana Rules of Procedure for Original Actions, the

foregoing was electronically filed using the Court’s IEFS system and on November 21,

2023, was served upon the following through the Indiana Electronic Filing System and

via electronic mail at the following e-mail address:

Matthew R. Gutwein mgutwein@delaneylaw.net

Christopher S. Stake cstake@delaneylaw.net

Margaret Christensen margaret.christensen@dentons.com

Daniel P. Byron dan.byron@dentons.com

Scott R. Leisz scott.leisz@dentons.com

Jessica Meek jessica.meek@dentons.com

/s/ Maggie L. Smith

FROST BROWN TODD LLP

111 Monument Circle, Suite 4500
Indianapolis, IN 46244-0961
317-237-3800

0155627.0779147 4864-0331-9953v1

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