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High court takes 4 cases

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The Indiana Supreme Court has granted transfer to four cases, including two dealing with whether a trial court should assert exemptions in garnishment actions on behalf of pro se debtors.

The justices took Quincy and Shannon Branham v. Rodney Varble and Norman Chastain, No. 62S01-1103-SC-141, and Quincy and Shannon Branham v. Rodney and Carol Varble, No. 62S04-11034-SC-139, in which Quincy and Shannon Branham argued the trial court acted contrary to law when it ordered them to pay $50 a month toward small-claims judgments, make repeated court appearances, and required that Quincy seek five jobs per week.

The Indiana Court of Appeals judges agreed that the part of the order requiring Quincy to seek five jobs a week should be reversed. The majority in both cases upheld the rest of the order and Judge Terry Crone dissented. The judges split over the application of Mims v. Commercial Credit Corp., 261 Ind. 591, 307 N.E.2d 867 (1974). In Mims, the Indiana Supreme Court acknowledged that the general rule is that the burden is on the debtor to claim the exemption. If the debtor is represented pro se, then the court must determine which exemption would be least burdensome.

Judge Crone believed that Mims unambiguously requires that trial courts assert exemptions on behalf of pro se debtors and that the majority construed it far too narrowly in the instant case. But the majority felt that to adopt Judge Crone’s view would essentially recast the role of the judiciary from traditional decision-making to one of advocacy for the parties and that the procedure proposed in Mims was specific to the case before it. No other case has adopted the interpretation of Mims proposed by Judge Crone.

The justices also accepted Allstate Insurance Company v. Timothy Clancy, et al., No. 45S03-1103-CV-138, in which the majority of COA judges reversed the order granting a motion to compel the production of documents from Allstate. The trial court found that by raising an advice of counsel defense, the insurance company had waived the attorney-client privilege, and therefore the documents could be produced.

The majority held that the “fairly debatable” defense, absent any other connection to reliance upon advice of counsel, is tantamount to a good-faith defense and insufficient to waive attorney-client privilege. Judge Margret Robb dissented, writing that when an insurer asserts a claim that is “fairly debatable” refers to a legal issue, it necessarily relies on the advice of counsel and waives the attorney-client privilege.

The Supreme Court granted transfer and released an opinion March 10 in David K. Murphy v. State of Indiana, No. 18S02-1103-CR-142, in which they affirmed that the trial court should be the one to determine whether a defendant who completes an educational degree before sentencing is entitled to educational credit time.

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  1. 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

  2. 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

  3. 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

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

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