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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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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