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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. OK, now do something about this preverted anacronism

  2. William Hartley prosecutor of Wabash county constantly violates people rights. Withholds statement's, is bias towards certain people. His actions have ruined lives and families. In this county you question him or go out of town for a lawyer,he finds a way to make things worse for you. Unfair,biased and crooked.

  3. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  4. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  5. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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