Sunday, March 23, 2008

Dare Not Speak Ill Of Thy Payne

Apparently, Hoosiers don't have free speech rights when it comes to speaking out against Indiana's Department of Children Services. The Star's Tim Evans brings us a troubling story of how a Fountain County judge granted a prior restraining order against the airing by Fox 59's WXIN of an interview with a father who is critical of the agency. Evans writes:

Mark McGaha wanted to share his frustrations about the Department of Child Services with the public, but he never got the chance.

McGaha did an interview with an Indianapolis TV station, but a Fountain County judge issued a restraining order barring the station from airing his complaints or even showing his face -- apparently without even having seen the footage . . .

A legal scholar called Judge Susan Orr Henderson's action unconstitutional and said it "borders on judicial misconduct."

"Quite simply, a judge does not have the authority to stop the press from publishing or airing a story," said Henry Karlson, a professor at Indiana University School of Law-Indianapolis. "Any person has a right to contact the press and say a public agency is not treating them right."

Karlson said the judge's action amounted to "prior restraint," or government censorship, which is a violation of the First Amendment . . .

Maliska said the court order was sought by the guardian ad litem who represents McGaha's children in a Child in Need of Services case in Fountain County.

The guardian ad litem, Covington attorney Sue White, did not return calls from The Indianapolis Star, and the court would not release a copy of the order. Bailiff Dianne Cotten said it was part of the confidential records of the CHINS case and could not be made public.

However, a copy obtained by The Star showed that Henderson barred WXIN "from broadcasting any portion of an interview involving Mark McGaha and his minor children until such time as the guardian ad litem and/or court has an opportunity to review" the report.

The order said the injunction was issued to protect the best interests of the children. Karlson said that does not provide the constitutional standard for such an order.

"I see no basis on which a prior restraint could have been imposed," he said. "He has an absolute right to complain about his treatment by the court or any other government agency."

Judge James Payne, who's in charge of DCS, says don't blame him, blame the judge. "He said DCS has no control over the judge's actions and that parents who have a beef with the agency or court have a number of avenues to have their concerns addressed," Payne told Evans. Doesn't your agency employ the person who petitioned for the restraining order?


Chris Worden said...

Uh oh! I just had a commentary on Judge Payne. I guess I should expect some repercussions!

Unknown said...

Anyone who has ever been to law school knows the judge cannot do what she did. I don't know what she was thinking. But judges make mistakes all the time. The one I would blame in this matter is Payne. If he is afraid of criticism as a public servant, he needs to move to the private sector.

Jon E. Easter said...

On the surface, this sounds like a denial of First Amendment rights. Certainly the judge knew that when she ruled, so it makes you wonder if there isn't more to the story.

On the face of it, though, this is an awful ruling that tramps on the Constitutional rights of an individual.

Mann Law, P.C. said...

Have you read the order? Did the judge make the necessary findings to make an ex parte order? What steps did the GAL take to notify father in advance that the petition was being filed? Did the judge and the lawyer violation the judicial canons and the rule of professional responsibility?

On another note "a legal scholar"?

Soldier'sWoman said...

I have read the order, and the judge hastily did this order at the moment at the behest of the GAl. The GAL decided to go ahead and file her motion without providing a copy of the motion to his lawyer. As far as he can tell, Sue White decided to only file the motion with the Court in order to have it granted on the day that the story was to run, of the writing of this a copy of the motion has yet to be received by either McGaha or his lawyer so it is unknown what justification was given to have the order issued. This also means that since his attorney was unaware of the motion (he in fact first heard of it when McGaha called him on the 14th), he could not contest it.

The Judge issued the order on March 13th, 2008 and the GAL sent the order via fax to only the news station that was set to broadcast the story that day. It stated, “It is therefore ordered, adjudged, and decreed by this Court that Fox 59 News is here by enjoined from broadcasting any portion of an interview involving Mark McGaha and his minor children until such time as the GAL and/or the Court has had an opportunity to review the portion of the interview that the news channel intends to broadcast to determine whether the best interests of the minor children would be adversely affected by said broadcast.”

The order itself was not given to Mark until he found out about it from Fox59, he told his lawyer and his lawyer finally got a copy from the GAL on the 20th.

Soldier'sWoman said...

Also Karlson teaches law at IU, does that not make him "a legal scholar"?