Doe v. Town of Plainfield

• Decision Date: 06 February 2007
• Docket Number: No. 32A01-0605-CV-188.,32A01-0605-CV-188.
• Parties: John DOE, Appellant-Plaintiff, v. TOWN OF PLAINFIELD, Indiana, Appellee-Defendant.
• Court: Indiana Appellate Court

860 N.E.2d 1204

John DOE, Appellant-Plaintiff, v. TOWN OF PLAINFIELD, Indiana, Appellee-Defendant.

No. 32A01-0605-CV-188.

Court of Appeals of Indiana.

February 6, 2007.

Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, William O. Harrington, Danville, IN, Attorneys for Appellant.

Melvin R. Daniel, James B. Chapman II, Dann Pecar Newman & Kleiman, Indianapolis, IN, Attorneys for Appellee.

OPINION

SHARPNACK, Judge.

John Doe brings this interlocutory appeal from the trial court's grant of the Town of Plainfield's ("Plainfield") motion to reconsider an earlier order that had allowed Doe to proceed anonymously. Doe raises one issue, which we revise and restate as whether the trial court abused its discretion when it granted Plainfield's motion to reconsider and denied Doe's request to proceed anonymously. We reverse and remand.

The relevant facts follow. On or about November 25, 2002, Plainfield adopted Ordinance No. 16-2002, which establishes the rules and regulations for parks and other recreational areas in Plainfield and provides in pertinent part:

Section 18. PROHIBITED PERSONS

Individuals listed on State of Indiana Sex Offender Registry published and disseminated by the Indiana Criminal Justice Institute are prohibited from all parks and other recreational areas of the Town of Plainfield.

* * * * * *

Section 20. Penalties

* * * * * *

B. Any person who violates Sections 16, 17, or 18 of this Ordinance shall be fined One Hundred ($100.00) Dollars for the first offense and Two Hundred Dollars ($200.00) for each offense thereafter. A separate offense shall be deemed committed for each day during which or on which a violation occurs or continues to occur.

Appellant's Appendix at 17-18.

Doe is a resident of Marion County. In 2001, Doe was convicted of the offense of child exploitation and possession of child pornography. After a period of incarceration, Doe was placed on probation, which expired in August 2004. Doe's name is listed on Indiana's Sex Offender Registry. Doe has joint custody of his six-year-old son. Doe and his son have visited Splash Island and Hummel Park, which are both owned by Plainfield. In June 2005, a Plainfield police officer contacted Doe and informed him that he was not allowed in the parks in Plainfield because his name was on Indiana's Sex Offender Registry. In the summer of 2005, Doe wrote a letter to Plainfield's Chief of Police that notified Plainfield that he had previously sued other entities and threatened to sue Plainfield.

On November 17, 2005, Doe filed a complaint against Plainfield seeking a declaratory judgment that Section 18 of the ordinance is unconstitutional and injunctive relief prohibiting Plainfield from enforcing Section 18. Doe also filed a verified motion to allow him to proceed anonymously. The trial court granted Doe's motion and also ordered that Doe's counsel serve a copy of "the Verified Motion to Allow Plaintiff to Proceed by Anonymous Name signed by plaintiff in his actual name on [Plainfield]'s counsel." Id. at 26. On December 27, 2005, Doe's attorney sent a letter to Plainfield's attorney which revealed Doe's actual name.

On January 31, 2006, Plainfield requested the trial court to reconsider its order. Doe filed a memorandum in opposition to Plainfield's motion to reconsider and attached newspaper articles regarding the lawsuit and an affidavit that stated that Doe and his child had been subject to threats of violence. The trial court granted Plainfield's motion and ordered that the disclosure of the identity of Doe be stayed for thirty days or until a ruling on any interlocutory appeal. Upon Doe's request, the trial court certified the order for interlocutory appeal. Thereafter, we accepted jurisdiction of the interlocutory appeal pursuant to Ind. Appellate Rule 14(B).

Although anonyms have appeared in Indiana state cases,¹ there is no reported Indiana decision where the use of an anonym has been challenged. Hence, we have no specific criteria to apply. There is, however, a body of federal law on the issue of when the use of an anonym is permitted. We find that law helpful and look to it for guidance in resolving the issue here. A trial court's ruling on a request to proceed anonymously is reviewed for an abuse of discretion. See M.M. v. Zavaras, 139 F.3d 798, 799 (10th Cir.1998) (addressing "whether the district court abused its discretion by denying plaintiff leave to proceed under a pseudonym"); Doe v. Indiana Black Expo, Inc., 923 F.Supp. 137 (S.D.Ind.1996) ("[T]he federal courts of appeal and a number of district courts have recognized that a district court may have the discretion to permit a party to proceed under a fictitious name.") (emphasis added); Doe v. Frank, 951 F.2d 320, 322-323 (11th Cir.1992) (addressing whether a plaintiff may proceed under a fictitious name under an abuse of discretion standard); Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1125 (10th Cir.1979) (considering plaintiff's "right to proceed under the fictitious John Doe name to preserve his anonymity" and holding "[w]e believe that the proper standard of review upon appeal is whether the trial court abused its discretion"), cert. denied, 444 U.S. 856, 100 S.Ct. 116, 62 L.Ed.2d 75 (1979). The trial court abuses its discretion if its decision is clearly against the logic and effect of the facts and circumstances before it or if the trial court has misinterpreted the law. McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind.1993).

The Indiana Trial Rules address the use of names when filing a pleading. Ind. Trial Rule 10, which addresses the form of pleading, states in pertinent part:

(A) Caption—Names of parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(A). In the complaint the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.

Ind. Trial Rule 17 states in pertinent part that "[e]very action shall be prosecuted in the name of the real party in interest."

Ind. Trial Rules 10 and 17 are similar to Federal Rules of Civil Procedure 10 and 17.² "The Indiana Trial Rules were patterned after the federal rules of civil procedure, and thus, because of the lack of Indiana case law on point, it is helpful to look at decisions in the federal system." Brewer v. Brewer, 403 N.E.2d 352, 354 (Ind.Ct.App.1980); see also Reeder v. Harper, 788 N.E.2d 1236, 1241 (Ind.2003) (finding cases interpreting the federal rules of civil procedure persuasive in interpreting the Indiana trial rules).

In federal courts, the use of fictitious names is disfavored. Doe v. Blue Cross & Blue Shield United of Wisc., 112 F.3d 869, 872 (7th Cir.1997). Federal Rules of Civil Procedure 10 and 17 "are not a matter of mere administrative convenience for court staff and counsel. They also protect the public's legitimate interest in knowing which disputes involving which parties are before the federal courts that are supported with tax payments and that exist ultimately to serve the American public." Indiana Black Expo, Inc., 923 F.Supp. at 139. "Notwithstanding the powerful presumption in favor of open proceedings where the parties are identified, the federal courts of appeal and a number of district courts have recognized that a district court may have the discretion to permit a party to proceed under a fictitious name." Id. "This unusual practice has been permitted in exceptional cases where the party has a privacy right so substantial as to outweigh the customary and constitutionally-embedded presumption of openness in judicial proceedings." Id. (internal citation omitted).

"There is no simple formula for determining when this unusual procedure is appropriate." Id. "Courts dealing with requests to proceed under fictitious names have avoided trying to articulate any mechanical legal test." Id. at 140. "They have instead identified a number of factors that should be considered to determine whether a plaintiff's interest in privacy is so significant as to outweigh the strong presumption favoring public identification of litigants." Id.

These factors include: (1) whether the plaintiff is challenging governmental activity; (2) whether the plaintiff would be required to disclose information of the utmost intimacy; (3) whether the plaintiff would be compelled to admit his or her intention to engage in illegal conduct, thereby risking criminal prosecution; (4) whether the plaintiff would risk suffering injury if identified; (5) whether the party defending against a suit brought under an anonym would be prejudiced; (6) whether the interests of children are at stake; (7) whether there are less drastic means of protecting legitimate interests of either the party seeking anonymity or the opposing party; (8) the extent to which the identity of the litigant has been kept confidential; and (9) the public interest in knowing the litigant's identities. See Indiana Black Expo, Inc., 923 F.Supp. at 140 (relying on Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y.1996)); Doe v. Stegall, 653 F.2d 180, 186 (5th Cir.1981), reh'g denied; James v. Jacobson, 6 F.3d 233, 241 (4th Cir.1993)); Doe v. Provident Life & Accident Ins. Co., 176 F.R.D. 464, 467-468 (E.D.Pa.1997). These factors are not meant to comprise an inclusive list of factors to be exclusively considered when determining the propriety of anonymous litigation. Provident Life & Accident Ins. Co., 176 F.R.D. at 468.

"[A] judge presented with a request to proceed under a fictitious name should carefully review all the circumstances of the given case and then decide `whether the customary practice of disclosing the plaintiff's identity should yield to the plaintiff's privacy concerns.'" Indiana Black Expo, Inc., 923 F.Supp. at 140 (quoting Frank, 951 F.2d at 323). "Against the backdrop of the...