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Indiana Sen. Mike Delph's bills raise brows in legal community

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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.
 

delph-mike-mug Delph

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.”•
 

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  1. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  2. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  3. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

  4. When I hear 'Juvenile Lawyer' I think of an attorney helping a high school aged kid through the court system for a poor decision; like smashing mailboxes. Thank you for opening up my eyes to the bigger picture of the need for juvenile attorneys. It made me sad, but also fascinated, when it was explained, in the sixth paragraph, that parents making poor decisions (such as drug abuse) can cause situations where children need legal representation and aid from a lawyer.

  5. Some in the Hoosier legal elite consider this prayer recommended by the AG seditious, not to mention the Saint who pledged loyalty to God over King and went to the axe for so doing: "Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints: Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience. Sit with me at my desk and listen with me to my clients' tales. Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul. Pray that my family may find in me what yours found in you: friendship and courage, cheerfulness and charity, diligence in duties, counsel in adversity, patience in pain—their good servant, and God's first. Amen."

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