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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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