State Sen. Mike Delph made headlines when he proposed a bill that would have required judges to award attorney fees to prevailing parties in all civil litigation. He made headlines a short time later when he abruptly killed his own legislation.
Many bar members around the state were incensed at Senate Bill 88 and fumed even after Delph withdrew it. “I think they are incredibly dangerous,” Frank Julian, a personal injury attorney at Sweeney Julian P.C. in South Bend, said of SB 88 and similar tort-reform measures. For people of modest means, Julian said, “The courthouse door would be shut and locked forever because of this bill.
“Part of the reason we fought a Revolutionary War way back in 1776 and onward was because we thought it was critical to have a right to a civil jury in our Constitution,” he said.
Amid such rhetoric, Delph, R-Carmel, pulled the bill he said he was carrying at the request of a member of Gov. Mike Pence’s staff.
“My purpose was, I was asked to engage on this. I’ve not really worked on this particular issue. … It’s not something I had a deep-seated passion on,” Delph told Indiana Lawyer. A self-described conservative populist, he said the discussions that ensued made the effort worthwhile and that SB 88 and other bills he’s introduced might not get committee hearings, but they do get attention.
“I don’t introduce every issue to make law,” he said. “Sometimes you introduce a bill when you want to take control of an issue or you want to highlight an issue.” Other times, the bills serve as discussion starters, Delph said. SB 88 got people talking.
Indiana Trial Lawyers Association director Micki Wilson said Delph’s decision to withdraw his own bill was highly unusual. “I don’t know why he did that, but good for him.”
Objection to SB 88 was swift and loud because, “It’s really pretty simple – we support the American rule, not the British rule,” Wilson said. “This is a solution in search of a problem, and I believe upon reflection, the policymakers sort of had a bit of discussion about it … and have concluded there is no problem in this regard.”
Jeff Ahler of Kahn Dees Donovan & Kahn LLP in Evansville, said judges already have statutory discretion to award fees in frivolous litigation and that reducing litigation is a worthy goal. “I wouldn’t doubt Sen. Delph’s heart was in the right place, but the question is, what is the best way to approach the issue?
“Whether or not Indiana needs a loser-pays law, it seems to me it would be appropriate for such a significant issue to be studied by the state bar association, the courts and the other appropriate committees and entities to get their input,” Ahler said. “Indiana is not necessarily known as a hotbed for questionable class-action lawsuits with large verdicts.”
Delph said “people who know my thinking,” including Senate Judiciary Chairman Brent Steele, R- Bedford, whose own similar effort failed in the 1990s, persuaded him to withdraw the bill. But Delph insisted, “I’ve also heard from members of the bar who’ve been on the other side of the courtroom, if you will … silent cheerleaders.”
SB 88 was one of several measures Delph has authored that would fundamentally transform how parts of the judiciary function. Others are:
• Senate Bill 55, which would eliminate grand juries; and
• Senate Joint Resolution 6, which would require Court of Appeals judges and Supreme Court justices receive 67 percent of the vote in a general election to be retained and lift restrictions on their political activities.
Delph said the bills as a whole represent an attempt to reconnect constituents to the judiciary. “The question is, are we doing the best job connecting people (to the judiciary) as opposed to an elite, segregated group of people? … We should not be a walled-off, segregated branch of government.”
“I think the judicial branch has not been in contact with the people paying taxes, and they are the sovereign,” he said.
The proposal to eliminate grand juries, Delph explained, plays to concerns about abuses. “There have been examples you can point to where the grand jury was used as a political shield. … It is a very closed-off, undemocratic process.”
A grand jury indictment carries the presumption of guilt, he said. “I think we have a presumption of innocence in America and in Indiana, and I think that should be backed up by public policy.”
Longtime special prosecutor and former Delaware County prosecutor J.A. Cummins said he understands the argument, but that grand juries are valuable for their investigative powers and independence. “It was always and still is my opinion you can get a lot of good advice from a grand jury,” Cummins said.
Secrecy also is vital, particularly for people who might be fearful of testifying. “A lot of times people will tell you things in a grand jury that they won’t tell you in a police investigation or a prosecutor’s investigation because the law says grand jury proceedings are secret,” Cummins said.
Stanley Levco, a special prosecutor and former prosecutor in Vanderburgh County, said eliminating grand juries would take ordinary people out of the judicial process.
“I know a lot of times you hear people say a grand jury would indict a ham sandwich,” Levco said. “When I took a case to a grand jury, I took it with the idea that it was their decision. If I knew what I was going to do, I would have done it.”
Delph said SB 55 likely will evolve into a summer study committee on grand juries and special prosecutors. Larry Landis of the Indiana Public Defender Council said, “We’re looking at needs for additional safeguards, but we think there are legitimate reasons for grand juries.” He said a key reform proposal is that the grand jury secrecy privilege should end with the filing of charges.
Under another proposal authored by Delph, appellate judges would have to garner 67 percent of the retention vote to remain on the bench. “There’s nothing special about that number,” he said. “It’s a high threshold.”
The same legislation would permit politicking by appellate court judges, contrary to longstanding practice. Current law as it pertains to appellate judges “denies the right to participate in the (political) process,” Delph said, “and I don’t think it recognizes the political nature of human beings.”
Like Delph’s other judiciary proposals, his proposals impacting appellate court judges had not been scheduled for a hearing at IL deadline, but he said that doesn’t mean such legislation should be considered frivolous.
“In this job, people are going to have criticisms of what you do and your motives,” he said. “People are going to make judgments on what all of us do based on a finite amount of information.”•