ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Peter J. Rusthoven Andrew W. Hull
John R. Maley Daniel K. Burke
Barnes & Thornburg LLP Hoover Hull LLP
Indianapolis, Indiana Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE Jay P. Lefkowitz
IN SUPPORT OF APPELLANT Kirkland & Ellis LLP
Gregory F. Zoeller New York, New York
Attorney General of Indiana
Michael D. Shumsky
Thomas M. Fisher Kirkland & Ellis LLP
Solicitor General Washington, DC
Heather Hagan McVeigh
Deputy Attorney General
FILED
Mar 21 2012, 9:07 am
Ashley Tatman Harwel
Deputy Attorney General
Indianapolis, Indiana
CLERK
of the supreme court,
court of appeals and
______________________________________________________________________________ tax court
In the
Indiana Supreme Court
_________________________________
No. 49S00-1201-PL-15
STATE OF INDIANA,
Appellant,
v.
INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Appellee.
_________________________________
Appeal from the Marion Superior Court, No. 49D10-1005-PL-021451
The Honorable David J. Dreyer, Judge
_________________________________
Civil Transfer of Appeal of Interlocutory Order
_________________________________
March 21, 2012
Rucker, Justice.
In this case we consider whether Indiana Code section 34-29-2-1 – providing that the
governor of the State of Indiana is “privileged from arrest on civil process, and from obeying any
subpoena to testify” – operates to preclude a trial court from issuing an order to compel the
Governor’s deposition in a contract dispute brought by the State of Indiana against a contractor.
We hold that it does.
Facts and Procedural History
On December 27, 2006, the State of Indiana on behalf of its agency the Indiana Family
and Social Services Administration entered into a contract with International Business Machines
Corporation (“IBM”) to modernize and improve the State’s welfare system. Appellant’s App. at
933. Mitchell E. Daniels, Jr. was Governor of Indiana at the time the State entered into the
contract and continues in that office today. The Governor, along with several other State
officials, signed the document and made several public statements concerning the same.
Appellant’s App. at 933, 586, 609, 612. On October 15, 2009, the State notified IBM that it was
terminating the contract. Appellant’s App. at 729. On May 13, 2010, the State filed suit against
IBM in the Marion County Superior Court asserting breach of contract among other claims.
IBM filed a separate suit against the State, and its claims were consolidated with the State’s
originally-filed complaint. See, e.g., Appellant’s App. at 3, 5, 6.
Although the record is not clear concerning the precise date, at some point IBM served
notice on the Governor to take his testimonial deposition. See Ind. Trial Rule 30(A). On March
18, 2011, the State moved for a protective order pursuant to Indiana Trial Rule 26(C). The State
asserted that any deposition of the Governor was prohibited based on the Governor’s unqualified
“privilege[ ] from arrest on civil process, and from obeying any subpoena to testify,” Ind. Code §
34-29-2-1(6),1 and alternatively, that IBM could not overcome the high bar imposed under the
common law prohibiting testimony of upper-level executive branch government officials. See
Appellant’s App. at 303, 306. The trial court issued a “Protective Order Precluding Deposition
of Governor at This Time,” reasoning: “On one hand, the statute above [Indiana Code section
34-29-2-1] clearly precludes a deposition of a sitting governor. On the other hand, an exception
1
This provision of the code was originally enacted in 1852 as Ind. Rev. Stat. ch. 5, section I.
2
might be established since it is reasonable to expect any chief executive to have unique personal
first-hand knowledge or experience in the management of a project of such magnitude as this
IBM contract.” Appellant’s App. at 430. The court held “[t]he current evidence does not allow
the Court to determine whether the Governor may be deposed in this case under any purported
exception to the statute.” Appellant’s App. at 430.
On September 6, 2011, after conducting over four months of additional discovery, IBM
moved to compel the Governor’s deposition. On December 15, 2011, the trial court issued an
order granting IBM’s motion with certain limitations designed to “prevent any undue burden”
upon the Governor. Appellant’s App. at 1463, 1465. In this order, the trial court found the
language of Indiana Code section 34-29-2-1 ambiguous and interpreted the statute to ascertain
the intent of the legislature. While recognizing that “[t]he underlying policy and goals of the
Statute clearly include the protection of various public officials and private individuals during
official duties or significant public responsibilities,” the court concluded that its application in
this “unprecedented case” would be “unfair to the public” – which could not have been the
General Assembly’s intent. Appellant’s App. at 1465. On the State’s motion, the trial court
certified its order for interlocutory appeal pursuant to Indiana Appellate Rule 14(B). The State
sought emergency transfer to this Court, which we granted. See Ind. Appellate Rule 56(A).
Standard of Review
In general, we review a challenge to a trial court’s discovery order for abuse of
discretion. See Terre Haute Reg’l Hosp., Inc. v. Trueblood, 600 N.E.2d 1358, 1362 (Ind. 1992).
However, we review questions of law de novo, Porter Dev., LLC v. First Nat’l Bank of
Valparaiso, 866 N.E.2d 775, 778 (Ind. 2007), and the interpretation of a statute is a question of
law. Tyler v. State, 903 N.E.2d 463, 467-68 n.4 (Ind. 2009). “[A]ppellate courts need not defer
to a trial court’s interpretation of [a] statute’s meaning.” Elmer Buchta Trucking, Inc. v. Stanley,
744 N.E.2d 939, 942 (Ind. 2001). We therefore “independently review the statute’s meaning and
apply it to the facts of the case under review.” Id. In sum, because a question of statutory
interpretation constitutes a question of law, we review it de novo.
3
Discussion
In interpreting a statute, our goal is to determine and give effect to the intent of the
legislature. Porter Dev., 866 N.E.2d at 778. In determining legislative intent, we “consider the
objects and purposes of the statute as well as the effects and repercussions of” our interpretation.
Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind. 2003). “The legislative intent as ascertained
from the provision as a whole prevails over the strict literal meaning of any word or term.” Id.
These precepts have guided us in statutory interpretation for over a century. See, e.g., Parvin v.
Wimberg, 30 N.E. 790, 793 (Ind. 1892) (noting that when legislative intent is ascertained, “it
will prevail over the literal import and the strict letter of the statute”). And where meaning is
uncertain, “the courts will look also to the situation and circumstances under which [the statute]
was enacted, to other statutes, if there are any upon the same subject, whether passed before or
after the statute under consideration, whether in force or not, as well as to the history of the
country, and will carefully consider in this connection the purpose sought to be accomplished.”
Id. Cf. D & M Healthcare, Inc. v. Kernan, 800 N.E.2d 898, 911 (Ind. 2003) (rejecting literal
construction of Indiana Constitutional provision in light of history of the provision and
subsequent practice).
At the outset, we note that in Indiana “privileges are statutory in nature and it is within
the General Assembly’s power to create them.” In re Subpoena to Crisis Connection, Inc., 949
N.E.2d 789, 793 (Ind. 2011). A grant of privilege and the scope of that privilege are policy
choices of the Legislature. And provided the result is constitutional, choices of policy are solely
within the purview of the Legislature. See Shook Heavy & Envtl. Constr. Grp. v. City of
Kokomo, 632 N.E.2d 355, 359 (Ind. 1994).2 By creating a statutory privilege, the Legislature
has determined that a particular interest is important enough to justify the privilege in the
prescribed scope. See Crisis Connection, 949 N.E.2d at 793.
In this case, the statute provides a governor an absolute privilege to be free from “arrest
on civil process, and from obeying any subpoena to testify.” I.C. § 34-29-2-1(6). In contrast to
other subsections of the statute, which place clear limits on the privilege given to other persons,
subsection (6) includes no such limitations. Compare, e.g., I.C. § 34-29-2-1(1) (privileging
2
IBM asserts no claim that the statute at issue here is unconstitutional.
4
legislators “from arrest on civil process, and from obeying any subpoena to testify” “during their
attendance[] at” and while “going to[] and returning from” a meeting of the General Assembly);
I.C. § 34-29-2-1(2) (granting the same privilege to voters “during attendance at, going to, and
returning from elections”); I.C. § 34-29-2-1(7) (similarly privileging “[a]ll persons while actually
engaged in the discharge of military duty”), with I.C. § 34-29-2-1(6) (granting the same privilege
to “[t]he governor, treasurer of state, secretary of state, auditor of state, and superintendent of
public instruction” with no qualifying language whatsoever). In other words, the Governor’s
privilege under this statute, like the victim advocate privilege in Crisis Connection, admits of no
exceptions. See 949 N.E.2d at 795.
Ultimately, the question in this case boils down to whether a trial court’s order to compel
the Governor’s deposition amounts to a “subpoena” from which the Governor is privileged under
Indiana Code section 34-29-2-1. The parties engage in a spirited and enlightening debate about
the meaning of “subpoena” at the time of the statute’s original enactment in 1852, as well as the
interplay between the privilege statute and the Indiana Trial Rules. In essence, the State argues
that at the time the statute was enacted, a subpoena was the only mechanism available to compel
the attendance of witnesses, and therefore the Legislature intended to grant the governor a
privilege against all possible mechanisms of compulsion, which would today include a trial
court’s order to compel a deposition. IBM responds that in 1852, Indiana statutes also provided
that a witness could be compelled to testify upon “notice” of a party. See 2 Ind. Rev. Stat. pt. 2,
ch. 1, art. 14, § 266; art. 15, § 296. And here notice was served on the Governor to appear for a
testimonial deposition. According to IBM because the privilege statute contains no privilege
against “notice,” the Legislature did not intend to grant the governor a privilege against
compulsion through means other than subpoena. IBM also argues that even if the 1852
Legislature did intend to immunize a governor against non-subpoena means of compulsion, the
subsequent re-adoption of this statute after the promulgation of the Indiana Trial Rules evinces
the Legislature’s intent to modify the meaning of the statute in light of the Trial Rules.
We have a slightly different view. The 1852 Act provided that “[t]he attendance of all
witnesses when duly summoned . . . may be enforced by attachment.” 2 Ind. Rev. Stat. pt. 2, ch.
1, art. 13, § 234. Both party and non-party witnesses could be compelled to testify “in the same
manner.” 2 Ind. Rev. Stat. pt. 2, ch. 1, art. 15, § 295. Although the statutory scheme provided
5
that “notice” was to be given to a party when the adverse party deposed both party and non-party
witnesses, see 2 Ind. Rev. Stat. pt. 2, ch. 1, art. 14, § 266; art. 15, § 296, “notice” was not the
means of compelling testimony in 1852, nor is it today. Then, as now, compulsion was
accomplished by a court order – whether called a subpoena, an “order to compel,” or something
else. That the trial court’s order to compel the Governor’s deposition in this case arose from the
Governor’s failure to respond to IBM’s “notice” of deposition is therefore of no moment. The
reference to “subpoena” in Indiana Code section 34-29-2-1 encompasses the order at issue here.
We thus agree with the trial court’s original declaration that the statute “clearly precludes a
deposition of a sitting governor.” Appellant’s App. at 430.
To hold otherwise would be to elevate a strict literal meaning of the word “subpoena”
over clear Legislative intent to provide a gubernatorial privilege against compelled testimony.
Surely the Legislature did not mean that any court command, provided it was not denominated
“subpoena,” would suffice to evade the statutory privilege. IBM argues that a subpoena is
unique in that it may be enforced by a contempt order – that is, by physical detention of the
person subject to the subpoena – whereas an order of the kind at issue here cannot be enforced by
a contempt finding. And IBM contends that the Legislature intended only to protect a governor
from physical detention. We disagree with this reasoning. First, the policy behind executive
privilege extends beyond protection from detention to encompass protection from all manner of
interference with one’s official duties – ranging from interferences with one’s time to
interferences with the deliberative process. See, e.g., Stagman v. Ryan, 176 F.3d 986, 994-95
(7th Cir. 1999) (recognizing that the deposition of a high ranking state official would disrupt his
schedule); 1 McCormick on Evidence § 108, at 483 (Kenneth S. Brown, ed., 6th ed. 2006)
(recognizing that protecting officials’ deliberative processes enhances the quality of
governmental decision-making). Second, under our Trial Rules, “notice” of a deposition is all
that is necessary for a court clerk to issue a subpoena to a witness. See Ind. Trial Rule 45(D).
“Notice” of a deposition under the Trial Rules therefore provides all that is necessary for a
subpoena to issue. For purposes of the privilege statute, “notice” and “subpoena” accomplish
essentially the same goals – and thus would be privileged in essentially the same manner. A
literal reading of “subpoena” in the statute would, under IBM’s reasoning, force the Governor
(and others protected under the statute) to give a deposition upon “notice” of a party or upon
6
some other court instruction – provided no subpoena was issued as is clearly permitted by Trial
Rule 45(D). Such a literal understanding of the statute would produce an absurd result.
The existence of the Governor’s privilege does not, however, preclude the trial court
from ensuring that the interests of justice are served in this litigation. Indeed, “[t]rial courts have
the right and duty to manage proceedings before them to insure both expedition and fairness, and
must be granted a wide discretion in carrying out that duty.” Glaros v. H.H. Robertson Co., 757
F.2d 1564, 1573 (Fed. Cir. 1986). This could include, among other things, limitations on the
introduction of certain evidence. In fact, even where privileges as important as the Fifth
Amendment privilege against self-incrimination are implicated, courts in civil proceedings have
taken steps to ensure that the litigation proceeds in a manner consistent with the interests of
justice. See, e.g., Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (recognizing that “the Fifth
Amendment does not forbid adverse inferences against parties to civil actions when they refuse
to testify in response to probative evidence against them”); Wansong v. Wansong, 478 N.E.2d
1270, 1272 (Mass. 1985) (affirming restriction of plaintiff’s use of certain evidence in divorce
case where he invoked his privilege against self-incrimination).
Citing the Governor’s extensive involvement in the formation, implementation, and
ultimately the termination of the contract, IBM makes an intricate argument explaining why the
Governor’s deposition is necessary. However, the privilege afforded by Indiana Code section
34-29-2-1(6) is absolute. And although it may be expressly waived, once invoked any party
protected by the privilege simply may not be compelled to give testimony. The Governor’s
involvement may or may not be relevant to the questions raised in this litigation. If relevant, the
trial court will determine the appropriate remedial measures to ensure that the interests of justice
are served.
Conclusion
We reverse the order of the trial court.
Shepard, C.J., and Dickson and David, JJ., concur.
Sullivan, J., concurs in result with separate opinion.
7
Sullivan, Justice, concurring in result.
I would refrain from holding that any privilege is “absolute.” All privileges are subject to
waiver by voluntary disclosure, see Ind. Evidence Rule 501(b), and when used offensively rather
than defensively – as a “sword rather than a shield,” Harney v. Owen, 4 Blackf. 337, 338 (Ind.
1837) (quoting Badger v. Phinney, 15 Mass. 359, 363 (1819)). And, of course, privileges are
subject to constitutional limitations. See State v. Fromme (In re Subpoena to Crisis Connection,
Inc.), 949 N.E.2d 789, 795 (Ind. 2011).
In this case, I do not think it is necessary to rule on the privilege issue at all because the
information IBM seeks is not relevant or material to any issue in the case. See Ind. Trial Rule
26(B) (discovery limited to matters “relevant to the subject-matter involved in the pending ac-
tion”). Here the State seeks damages from IBM alleging breach of contract and that IBM pro-
vided false information to procure the contract; IBM seeks fees it claims the State owes under the
contract and reimbursement for equipment it claims that the State improperly has retained. IBM
says that “the Governor’s statements regarding his assessment of IBM’s performance bear direct-
ly on the merits of the State’s claim of breach and demand for damages, and the State’s other
claims directly put the Governor’s state of mind at issue.” Appellee’s Resp. Br. 9. This is not
correct. Neither the Governor’s “assessment of IBM’s performance” nor his “state of mind” bear
in any way on whether or not IBM breached the contract or the State owes IBM fees or reim-
bursement. See Vernon Fire & Cas. Ins. Co. v. Sharp, 264 Ind. 599, 607-08, 349 N.E.2d 173,
180 (1976) (“[A] promisor’s motive for breaching his contract is generally regarded as irrelevant
because the promissee will be compensated for all damages proximately resulting from the
promisor’s breach.” (citations omitted)). To the extent that the Governor has information that
might be relevant to whether or not IBM provided false information to the State, he is certainly
not a unique witness in that regard – there was a competitive procurement for this contract where
all of the information IBM provided would have been in the bid documents. See State v. Cline (In
re WTHR-TV), 693 N.E.2d 1, 7 (Ind. 1998) (materiality of evidence “embraces also an evaluation
of not only theoretical relevance, but also the availability of the information from other
sources”).
Because Governor Daniels’s testimony is not relevant or material to any issue in this
case, I concur in the result of the Court’s opinion.
2