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Judges disagree on attorney fee provision

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A legal battle that was once about Indiana's requirements to obtain a driver's license or state identification turned into a tug-of-war appeal about attorney fees.

Both times, three illegal immigrants won their case before the Indiana Court of Appeals.

In Joel Silverman, in his official capacity as Commissioner of the Indiana Bureau of Motor Vehicles v. Miguel Villegas, Betty Doe, Mary Smith, et al., No. 49A02-0708-CV-754, the court decided 2-1 today that plaintiffs are prevailing parties for succeeding on a state statutory claim that is pendent to a substantial federal constitutional claim arising from the same case.

The ruling follows a previous appellate court decision in August 2005 first going in the plaintiffs' favor. Following a 2002 rule change about what documents were required to get an ID, the American Civil Liberties Union of Indiana sued on procedural and constitutional grounds to have the rule thrown out. The appellate court found the rule wasn't properly enacted and didn't address the larger constitutional issues, though the rule was ultimately adopted properly in early 2006.

After the first win, the plaintiffs filed a motion to enter judgment in their favor and then to secure attorney fees and costs as the prevailing party pursuant to 42 U.S. Code 1988 (Section 1988). The trial court granted that motion and ordered $112,468 be paid, but the Attorney General's office appealed and argued the plaintiffs hadn't suffered any injury through federal claims and the provision didn't apply.

The appellate panel affirmed the lower decision, finding that the court left the federal claim undecided three years ago and that the successful state law claim entitled them to "prevailing party" status for purposes of the attorney fee argument because it was part of the same "common nucleus of operative fact."

But Chief Judge John Baker disagreed, writing that the majority's opinion goes against the rationale of the attorney fee provision in the U.S. Code. He wrote the parties shouldn't be considered prevailing parties because they didn't succeed on the federal claims and the rule-making grounds the plaintiffs did succeed on weren't related to the underlying issues they'd sued over.

"The majority seemingly takes the view that a claimant need only advance 'some' type of constitutional claim and succeed on a non-related state claim to become entitled to attorneys' fees. ... To me, such a notion contradicts the spirit of the Section 1988 provisions," the chief judge wrote.

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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