IN THE INDIANA COURT OF APPEALS CASE NO. 23S-OR-00302 STATE OF INDIANA ON THE RELATION OF RICHARD ALLEN, Relator, v. THE CARROLL CIRCUIT COURT and THE HONORABLE FRANCES C. GULL, SPECIAL JUDGE, Respondents. ) ) ) ) ) ) ) ) ) ) Case No. 08C01-2210-MR-000001 RELATOR’S RESPONSE TO RESPONDENT’S OBJECTIONS Maggie L. Smith, #197572 - 53 F ROST B ROWN T ODD 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 W IENEKE L AW O FFICE 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 Received: 11/21/2023 8:59 AM R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 2 of 22 TABLE OF CONTENTS T ABLE O F A UTHORITIES .................................................................................................. 3 S UMMARY O F R ESPONSE ................................................................................................. 4 R ESPONSE ........................................................................................................................ 6 I. This Original Action has not been mooted because the November 13 th 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 28 th Order ............................. 10 I.C.2. September 18 th filing......................................................... 12 I.C.3. September 25 th filing......................................................... 15 I.C.4. October 12 th filing ............................................................. 16 I.C.5. October 19 th filing ............................................................. 16 I.C.6. October 25 th and 26 th Filings ............................................ 17 II. Respondent’s procedural objections do not defeat this original action. ........................................................................................ 18 C ONCLUSION ................................................................................................................. 21 R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 3 of 22 T ABLE O F A UTHORITIES 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 R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 4 of 22 S UMMARY O F R ESPONSE 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: R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 5 of 22 Errors and relief requested in petition: Has trial court corrected this error and provided this relief? The excluded court records referenced in the June 28, 2023 Order must be made publicly accessible. No The excluded court records referenced in the June 28, 2023 Order continue to be improperly excluded from public access. Reinstate the September 18, 2023 Franks Memorandum as a publicly accessible filing. No. The trial court reinstated this document but continues to improperly exclude it from public access. Make the State’s September 25, 2023 filing publicly accessible. No. This document continues to be improperly excluded from public access. Make the October 12, 2023 filing publicly accessible. No. This document continues to be improperly excluded from public access. Make the October 19, 2023 filing publicly accessible. No. This document continues to be improperly excluded from public access. Reinstate the four different October 25, 2023 and October 26, 2023 filings as publicly accessible documents. No. The trial court reinstated these documents but continues to improperly exclude them from public access. Every court record excluded from public access must be accompanied by an ACR Form. No None of the court records that are excluded from public access are accompanied by an ACR form. A public access version and a non-public access version of any court record excluded from public access must be filed. No None of the court records that are excluded from public access have a public access and non-public access version. Make the 118 documents on the Zip Drive publicly accessible on the CCS itself. Yes. Make the June 20, 2023 and July 5, 2023 filings publicly accessible. Yes. As this chart reveals, Respondent’s claim that this Original Action has been mooted as a result of its November 13 th Order is wrong . Respondent’s Response instead demonstrates a continued misunderstanding and misapplication of the R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 6 of 22 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. R ESPONSE I. This Original Action has not been mooted because the November 13 th 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: R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 7 of 22 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”). R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 8 of 22 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 19 th 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 R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 9 of 22 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. R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 10 of 22 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 28 th 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”: R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 11 of 22 ( 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 25 th 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 R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 12 of 22 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 18 th 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 19 th 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.) R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 13 of 22 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 13 th and September 25 th 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 R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 14 of 22 exclusion is mandated because the Federal Rules of Civil Procedure 2 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). R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 15 of 22 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 25 th 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). R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 16 of 22 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 12 th 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 19 th 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). R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 17 of 22 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 25 th and 26 th 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 R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 18 of 22 (Record, p.238.) Now recognizing this was impermissible, the trial court has ordered these filings to no longer be removed. B ut 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 25 th and 26 th 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 25 th and 26 th 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. R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 19 of 22 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. R ELATOR ’ S R ESPONSE TO R ESPONDENT ’ S O BJECTIONS Page 20 of 22 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.