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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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