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 Banner Goes Unpaid; Appeals Attorney Fees Ruling

May 23, 2007 - Still unpaid four weeks after the judgment was handed down, The Banner has decided to appeal a court order requiring the town of Knightstown and its insurer to pay The Banner's attorney fees and court costs from a public access lawsuit the newspaper won against them.

Concluding The Banner substantially prevailed in its action against the town and its insurer, Henry Circuit Court Judge Mary Willis ruled on March 29 that The Banner was entitled under the Access to Public Records Act to recover reasonable attorney fees and costs. In her ruling, Willis ordered Knightstown and Governmental Interinsurance Exchange and Governmental Insurance Managers to pay $67,612.46 for The Banner's attorney fees and court costs, only 36 percent of the amount requested by the newspaper.

As of Thursday, April 26, however, neither the town nor GIE/GIM had paid anything toward the amount Willis ordered them to pay. The following day, The Banner filed a notice with the Henry Circuit Court advising the court it is appealing Willis' ruling on the attorney fees, as well as two earlier rulings she made in the case.

While Willis ordered the town and GIE/GIM to pay nearly $70,000 to cover The Banner's attorney fees and costs, this was about $58,000 less than had been requested by the newspaper. She also declined to apply a risk multiplier that, due in part to the case's complexity and public importance, would have increased the total award by 50 percent.

This is the second appeal The Banner has taken in this case. In 2005, The Banner appealed a ruling in which Willis concluded a copy of a settlement agreement that ended a former police dispatcher's civil rights lawsuit against the town and its police department was not a matter of public record. In December of that year, the Court of Appeals unanimously reversed Willis and said the settlement agreement sought by The Banner was a public record, a decision the Indiana Supreme Court left standing.

"Hopefully, town officials won't take The Banner's decision to appeal personally," Eric Cox, The Banner's owner and publisher, said. "There had been no effort by the town or its insurer to pay what Judge Willis ordered, and we simply believe that the judge's rulings on the attorney fees and the other two issues were not correct. As the Court of Appeals' ruling in December 2005 showed, this judge is not infallible." In addition to the appeal of Willis' rulings, The Banner's attorney, Kurt Webber, also served a notice of tort claim on the town last week. In the notice, sent via certified U.S. mail May 17, Webber says the newspaper suffered damages as the result of the town's earlier claims that The Banner's public access lawsuit had been frivolous and vexatious. Before a public agency like the town can be sued to recover for these damages of this sort, Indiana law requires the filing of a tort claim notice.

The tort claim notice Webber prepared also included a request for several public records. Included in the request are copies of communications regarding the public access lawsuit between the town and its insurer or the insurer's attorneys, and the town's attorneys and the insurer or the insurer's attorneys. As of Tuesday afternoon, the town had provided no response to this request for records.


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