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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. Major social engineering imposed by judicial order well in advance of democratic change, has been the story of the whole post ww2 period. Contraception, desegregation, abortion, gay marriage: all rammed down the throats of Americans who didn't vote to change existing laws on any such thing, by the unelected lifetime tenure Supreme court heirarchs. Maybe people came to accept those things once imposed upon them, but, that's accommodation not acceptance; and surely not democracy. So let's quit lying to the kids telling them this is a democracy. Some sort of oligarchy, but no democracy that's for sure, and it never was. A bourgeois republic from day one.

  2. JD Massur, yes, brings to mind a similar stand at a Texas Mission in 1836. Or Vladivostok in 1918. As you seemingly gloat, to the victors go the spoils ... let the looting begin, right?

  3. I always wondered why high fence deer hunting was frowned upon? I guess you need to keep the population steady. If you don't, no one can enjoy hunting! Thanks for the post! Fence

  4. Whether you support "gay marriage" or not is not the issue. The issue is whether the SCOTUS can extract from an unmentionable somewhere the notion that the Constitution forbids government "interference" in the "right" to marry. Just imagine time-traveling to Philadelphia in 1787. Ask James Madison if the document he and his fellows just wrote allowed him- or forbade government to "interfere" with- his "right" to marry George Washington? He would have immediately- and justly- summoned the Sergeant-at-Arms to throw your sorry self out into the street. Far from being a day of liberation, this is a day of capitulation by the Rule of Law to the Rule of What's Happening Now.

  5. With today's ruling, AG Zoeller's arguments in the cases of Obamacare and Same-sex Marriage can be relegated to the ash heap of history. 0-fer

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