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COA offers suggestion about judicial notice rule

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A paternity and child custody case has given the Indiana Court of Appeals a chance to examine a newly amended evidence rule for the first time, while simultaneously offering guidance to trial judges about using publicly accessible information to dispose of cases.

The state’s intermediate appellate court issued a ruling today in Paternity of P.R. and A.R.; H.B. v. J.R., No. 36A01-1005-JP-255, which for the first time gave a three-judge panel an opportunity to rule on a 2010 amendment to Indiana Evidence Rule 201 allowing courts to take judicial notice of any records from a court within this state.

This case out of Jackson Superior Court involves a mother and father who dated for four years but never married, and had two children in July 2004 and September 2005. Paternity was established in 2007 and the mother received sole custody, while the father was ordered to pay $150 per week in child support. In late 2009, the father asked to modify custody and support, based on the 27-year-old mother living with a man who had a past felony conviction for battery on a minor less than 14 years old, a conviction for supplying alcohol to a minor, and was reportedly being investigated by child protective services for alleged child abuse.

After a custody modification hearing, the trial court not only took that testimony into consideration but also a protective order that the mother had obtained against another man she had recently dated, relating to a felony battery conviction. The mother didn’t request a hearing or file any objection on that issue as allowed by Rule 201(e).

The trial court awarded custody to the father and allowed the mother parenting time, and also ordered that the father should receive a $60 per week credit to his child support arrearage for about 15 months.

On appeal, the mother argued that the trial court erred in considering the substance of the protective order she’d previously obtained because that document wasn’t admitted into evidence in this ongoing paternity and custody case.

The Court of Appeals noted that Evidence Rule 201 was amended in late 2009 and went into effect Jan. 1, 2010, meaning this is the first chance an appellate court has had to consider a case where it applies. Before the revision, a court could not take judicial notice of its own records in another case previously before it, even on a related subject with related parties. The revision states that the judicial notice can happen at any stage of the proceedings, and that a party doesn’t have to be notified before a court takes judicial notice.

The trial court properly took judicial notice of the protective order filed, the appellate judges found, and it doesn’t matter that the notice happened after the hearing was concluded.

“Although Mother was not afforded an opportunity to be heard before the court took judicial notice, Rule 201(e) provides that Mother could have made a timely request after judicial notice was taken,” Judge Nancy Vaidik wrote. “She, however, did not do this.”

Though the appellate panel concluded the trial judge correctly took judicial notice here, the appellate judges pointed out that a better course of action in this case would have been for the court to have given the parties notice and an opportunity to be heard before taking judicial notice and issuing an order.

“Undoubtedly, our information technology explosion has allowed our courts, as never before, to access reliable information that may aid in the just disposition of cases,” Judge Vaidik wrote. “Our Supreme Court, recognizing this, has encouraged courts to communicate with one another by establishing family courts and creating JTAC (Judicial Technology and Automation Committee), while liberalizing the judicial notice rule. But the danger of having a broad spectrum of information at the disposal of courts is that mistakes in input, inscription, and transmission can occur. To alleviate the danger of such errors, litigants must be given the opportunity to explain or respond to judicially-noticed information. We understand that the Indiana Rules of Evidence allow litigants to respond to this information at any stage of the proceeding, but we believe that, where practicable, the best practice is for courts to notify the parties before taking notice of and issuing a ruling which utilizes this information.”

Aside from that judicial notice issue, the appellate court also examined the custody modification and how the lower judge had issued findings on why changes were warranted under state statute and precedent. The panel affirmed the trial court’s ruling unanimously.
 

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  1. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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