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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. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

  2. As an adoptive parent, I have to say this situation was as shameful as it gets. While the state government opens its wallet to the Simons and their friends, it denied payments to the most vulnerable in our state. Thanks Mitch!

  3. We as lawyers who have given up the range of First amendment freedom that other people possess, so that we can have a license to practice in the courts of the state and make gobs of money, that we agree to combat the hateful and bigoted discrimination enshrined in the law by democratic majorities, that Law Lord Posner has graciously explained for us....... We must now unhesitatingly condemn the sincerely held religious beliefs of religiously observant Catholics, Muslims, Christians, and Jewish persons alike who yet adhere to Scriptural exhortations concerning sodomites and catamites..... No tolerance will be extended to intolerance, and we must hate the haters most zealously! And in our public explanations of this constitutional garbledygook, when doing the balancing act, we must remember that the state always pushes its finger down on the individualism side of the scale at every turn and at every juncture no matter what the cost to society.....to elevate the values of a minority over the values of the majority is now the defining feature of American "Democracy..." we must remember our role in tricking Americans to think that this is desirable in spite of their own democratically expressed values being trashed. As a secular republic the United States might as well be officially atheist, religious people are now all bigots and will soon be treated with the same contempt that kluckers were in recent times..... The most important thing is that any source of moral authority besides the state be absolutely crushed.

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