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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. Just an aside, but regardless of the outcome, I 'm proud of Judge William Hughes. He was the original magistrate on the Home place issue. He ruled for Home Place, and was primaried by Brainard for it. Their tool Poindexter failed to unseat Hughes, who won support for his honesty and courage throughout the county, and he was reelected Judge of Hamilton County's Superior Court. You can still stand for something and survive. Thanks, Judge Hughes!

  2. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  3. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  4. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  5. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

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