IN THE ELKHART CIRCUIT COURT STATE OF INDIANA v CAUSE NO. 20C01-1409-MR-005 FREDDIE D. RHODES, Defendant. Motion 70 ENTER RULING AS FINAL JUDGMEN’ OR, IN THE ALTERNATIVE, TO CERTIFY INTERLOCUTORY APPEAL ‘The Truth Publishing Company, Ine., d/b/a the Elkhart Truth (the “Truth"), and its reporter, Emily Pfund (“Pfund”), respectfully request that this Court’s ruling denying in part their Emergency ‘Motion to Quash be entered as a final judgment under Ind, Trial Rule 54(B). In the alternative, the ‘Truth and Pfand request the Court to certify an immediate interlocutory appeal pursuant to Ind, Appellate Rule 14(B)(1X¢). An appeal is necessary to resolve claims of rights granted by constitution, statute rule, and common law that will be irreparably lost without an immediate appeal For the reasons set forth below and in the Motion to Quash, relief is requited to permit Truth and fund the opportunity to vindicate their rights in an immediate appeal. 1, This Court’s Order of May 5, 2015 deni part the Truth and Pfand’s motion to quash, Although the hearing for which Ms. Pfund was subpoenaed did not go forward on May 6, it is highly likely that the issues decided by the Court’s May 5 Order are not resolved. The prosecution has reserved the right to renew the Subpoena to Pfund should Defendant re-file his Motion to Suppress, and made clear that she will subpoena Ms, Pfund as a potential trial witness in any event.! ' The undersigned counsel conferred with Deputy Prosecutor Becker on May 8, 2015 to seek an understanding regarding the scope of any testimony by Ms. Pfand, Ms. Becker was unwilling to agree that2. The Indiana Constitution grants all Hoosiers the “absolute right” to an appeal. Ind, Const, Art. VIL § 6. In the unique circumstances of this ease, that right would be denied to the ‘Truth and Pfund unless they are permitted immediately (o appeal this court’s ruling denying their Motion to Quash, As shown below, there are two alternative procedures available to the trial court to seoure the Truth and Pfund’s right (o an appeal -- (i) entry of a final judgment under Trial Rule 54(B), ot (i) certification of an interlocutory appeal under Appellate Rule 14. The Indiana Court of Appeals has identified these procedures as the exclusive means of interlocutory review under these circumstances, See in re Indianapolis Newspapers, Ine. v. Miller, 980 N.E.2d 582, 587- 58 (Ind, Ct. App. 2012) (denying an appeal of right to media nonparty when nonparty failed to seek relief under Trial Rule 54(B) and Appellate Rule 14(B) authorizing an appeal before entire case is isposed). I. Trial Rule $4(8). 3. Trial court rulings disposing of less than an entire case are not ordinarily appealable. Id, at 895, 857, A trial court may, however, declare certain rulings as final, and immediately appealable, through an explicit written statement that judgment is entered and no just cause exists to delay the appeal. Id. at 857, 861; Berry v, Huffinan, 643 N.E.2d 327, 329 (Ind, 1994), Trial Rule 54(B) states: When more than one claim for relief is presented in an action . .. the court may irect the entry of a final judgment as to one or more but fewer than all of the claims. only upon an express determination that there is no just reasons for delay and upon an express direction for the entry of judgment. Ms. Pfuand’s testimony would not include questions demanding her to reveal unpublished information that the ‘Truth and Pfund continue to maintain is protected from disclosure by Indiana law. 2Rule 54(B) provides an exception from the general policy disfavoring partial or piecemeal appeals where awaiting a final resolution of all matters may cause unduly harsh or unjust results. See Williams v. County of Dakota, 687 F.3d 1064, 1067-68 (8th Cir. 2012); O'Bert ex rel. Estate of O’Bert v, Vargo, 331 F.3d 29, 40-41 (2d Cir. 2003). 4. ‘The Court’s ruling is a final disposition of the Truth and Pfund’s legal interests and claims for protection for the information they are being compelled to provide to the prosecution. A Rule $4(B) entry is appropriate where, as here, there is nothing more for the would-be appellant to do but await conclusion of the remaining aspects of the litigation, See Curtis-Wright Corp. v. General Elec. Co,, 446 U.S. 1,7, 100 $.Ct. 1460, 1464 (1980); MCI Consiruetors, LLC v. City of Greensboro, 610 F.3d 849, 855 (4th Cir. 2010). For Rule $4(B) purposes, the putative appellants interest includes all legal grounds based upon closely related facts, and entry of final judgment is, appropriate where, as here, different types of relief are requested or are capable of being separately enforced as to the appellant. See Marseilles Hydro Power, LLC v. Marseilles Land and Water Co.. 518 F.3d 459, 464 (7th Cir. 2008), 5, Here, Truth and Pfund’s only legal interests at issue have been disposed by the Court’s ruling on their Motion to Quash, ‘The Court, therefore, upon ordering compliance and denying the Motion to Quash, clearly and finally resolved all rights and claims of both the Truth and Pfund with respect to this litigation, Absent an immediate appeal, the Truth and Pfund will have no opportunity to obtain effective appetiate review because compliance with the Subpoena is, in effect, imveversible, Disclosure of information cannot be undone. 6. Nor should the Truth and Pfund be placed in the untenable position ~ particularly as nonparties and bystanders to the litigation ~ of having to suffer the risks of noncompliance with the Court’s Order as the sole available means of vindicating their rights. “[A] rule that would only 3permit review of the underlying discovery order when there has been intentional non-compliance would reward disobedient parties with a broader basis for appellate review while punishing, disobedient parties,” and should be rejected. White-Rogers v. Kindle, 925 N.E.2d 406, 411 (Ind. Ct. App. 2010). An appeal after this matter is tried will not be an effective remedy in these circumstances. Innocent nonparties should not be placed in the prejudicial position of choosing between compliance accompanied by disclosure of unpublished information, and non-compliance ‘and potential contempt sanctions. 7. Further, in accordance with Rule 54(B), there is no just cause for delaying an appeal by the Truth and Pfund, The Court should weigh the equities in the ease in light of judicial administrative concerns (avoiding piecemeal appeals). While this analysis is made on a case-by- case basis, where a delay of appeal presents some risk, hardship or injustice, a finding of “no just cause” for delay is proper. See Nystedt v. Nigro, 700 F.3d 25, 30 (Ist Cir. 2012); Taco John’s of Huron, Ine. v. Bix Produce Co., 569 F.3d 401, 402 (8th Cir, 2009). 8. As previously stated, denying an immediate appeal at this juncture would imeparably deny the Truth and Pfund their legal and constitutional rights and/or require them to defy a court order in order to obtain an effective appeal. An appeal after they have been compelled to disclose their sources and provide testimony contrary to their rights would not provide them just or effective relief if the Court’s ruling is determined to be in error. 9, Trial Rule 54(B) requires that the trial court expressly direct entry of final judgment and a finding that there is no just reason to delay that entry. The proposed Order submitted herewith includes such required language.IL Certification of an Interlocutory Appeal. 10, Appellate Rule 14(B) provides an alternative route to an appeal by the Trath and Phund. See Indianapolis Newspapers, 980 N.E.2d at 857. Appellate Rule 14(B) requires that the vial court certify its ruling for appeal before the court of appeals has jurisdiction to accept the appeal. A trial court may certify an interlocutory order for immediate appeal if [e]he appellant will suffer substantial expense, damage or injury if the order is erroneous and the determination of the error is withheld until after judgment ... [t]he order involves a substantial question of law, the early determination of which will promote a more orderly disposition of the ease .. . [or]... [t]he remedy by appeal is otherwise inadequate.” App. R. 14(B)(I)(@)(@-Lili). As noted above, Truth and fund's position as nonparties appearing purely to contest the Subpoena makes clear that the ordinary appeals process would inadequately protect their interests and, as such, fully satisfies criteria of Appellate Rule 14(B)(I)(e}Gil). See State v. Bailey, 714 N.E.2d 1144 (Ind. Ct. App. 1999) (citing to trial court order stating: "Since Southlake Center is not a party to this cause, the usual remedy of appeal after judgment is inadequate and this Order should be certified for interlocutory appeal”). 11. The Court's ruling on the Motion to Quash also satisfies the alternative basis for certification. See, e.g., Lundy v. State of Indiana, Opinion 49402-1405-CR-307 (Ind. App. February 20, 2015) (Superior Court’s interlocutory certification of its denial of a motion to quash not questioned as improper); In re Stearns v. Zuilka, 489 N.E.2d 146 (Ind. App. 1986) (A denial of a motion to quash may be appealed on an interlocutory basis.). There is no question that the issues raised in the Motion to Quash are questions of law—indeed, they are substantial legal questions involving the interpretation of the Shield Law and protections for the media recognized byWTHR-TY v. Cline, 693 N.P.2¢ | (Ind, 1998) and implicating First Amendment freedoms of the press and expression and Article I, Section 9 of the Indiana Constitution. 12, Reversal now, on an interlocutory appeal, as opposed to later, after a jury verdict is, entered, would make further involvement by Truth and Pfund and any enforcement proceedings (contempt) unnecessary, saving all involved time, expense and the chilling effect of punishment that may result from noncompliance, An interlocutory appeal therefore presents a more orderly means of resolving the questions and issues raised by the Motion to Quash because it would come at a time when a reversal would have meaningful impact on the course, and cost burden, of these proceedings, including possible loss of liberty of nonparties. See Indianapolis Newspapers, 980 N.E.2d at 863 (Pyle, J. dissenting) (“due process interests should trump concerns about expediting litigation.”) Accordingly, certification pursuant to Ind. R. App. P. 14(B)(1)(@)(i) and (ii) is also warranted. Conch For the foregoing reasons, the Court should enter final judgment under Trial Rule 54(B) as to the Truth and Pfund, In the alternative, the trial court should certify its ruling for an immediate interlocutory appeal under Ind. Appellate Rule 14(B). Respectfully submitted, JY @ yy i va Me Yi / } Ves Steven M. Badger (#1635449) Badger Law 12730 Meeting House Road, Suite 200 Carmel, IN 46032 sbadger@badgercounsel.com (317) 708-0681 (phone) 317) 708-0688 (fax)CERTIFICATE OF SERVICE Thereby certify that on the _/2/Aday of May, 2015, a copy of the foregoing Motion to Enter Ruling as Final Judgment or, in the Alternative, to Certify Interlocutory Appeal, and proposed Order thereon, was served upon the following persons, by first-class United States mail Douglas M. Grimes Vicki B. Becker Douglas M. Grimes, P.C. Deputy Prosecuting Attorney 6941 Ironwood Office of the Prosecuting Attorney Gary, IN. 46403 301 8. Main Street Elkhart, IN 46516