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Supreme Court grants 3 transfers

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The Indiana Supreme Court granted three transfers Thursday to cases involving what manner an appellate court could reverse a revocation of probation, how to calculate guardian ad litem fees, and whether there is a rebuttable presumption that children ages 7 through 14 can't be found contributorily negligent.

At issue in Cornelius Cooper v. State of Indiana, No. 49A02-0709-CR-780, is whether Cornelius Cooper's probation should have been revoked and by what manner the appellate court was authorized to reverse a revocation. A majority believed Cooper was denied due process as a fundamental error, allowing the appellate court to review his untimely appeal of the revocation order. Judge Nancy Vaidik, in her concurring result in a separate opinion, believed Cooper's appeal should have been reviewed under Indiana Post-Conviction Rule 2. Judge Vaidik also noted in her opinion the disagreement in the Court of Appeals on whether a probation revocation order is appealable under Post-Conviction Rule 2, but she believed that right existed.

In the issue of first impression in the case In re: The paternity of N.L.P., No. 45A03-0805-JV-226, the appellate court ruled on guardian ad litem fees and ruled a GAL must differentiate between attorney and non-legal work when billing in a paternity case. The trial court in the case reduced court-appointed GAL Jill Swope's fees from $34,800 to $20,000 but didn't explain why it chose to reduce the fees to $20,000. The Court of Appeals remanded for further analysis of the fees based on the appellate opinion, which instructed trial courts to consider guidelines set out in Indiana Professional Conduct Rule 1.5 when deciding how to compensate for fees and expenses.

In Clay City Consolidated School Corp. v. Ronna Timberman and John Pipes II, No. 11A04-0802-CV-96, the Court of Appeals found a trial court committed reversible error in a suit against a school for the death of a student when it instructed a jury that Indiana law has a rebuttable presumption that children ages 7 through 14 can't be found contributorily negligent. Timberman and Pipes sued the school corporation after their 13-year-old son died during a basketball practice. He had fainted two days earlier during practice but hadn't seen a doctor before his next practice. His death was attributed to ventricular fibrillation. His parents sued under Indiana's Child Wrongful Death Statute and won $300,000 following an order on remittitur from the court reducing the damages.

Noting that the trial court "reopened the proverbial can of worms" with this issue, the appellate court examined Indiana caselaw to conclude that state law doesn't conclusively contain a presumption either in favor or against 7- to 14-year-olds with respect to whether they can be found liable for negligent acts. The trial court misstated Indiana law when it informed the jury that state law contains a rebuttable presumption that children between the ages of 7 and 14 can't be found contributorily negligent. The Court of Appeals remanded for a new trial.

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  1. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  2. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  3. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

  4. Well, I agree with you that the people need to wake up and see what our judges and politicians have done to our rights and freedoms. This DNA loophole in the statute of limitations is clearly unconstitutional. Why should dna evidence be treated different than video tape evidence for example. So if you commit a crime and they catch you on tape or if you confess or leave prints behind: they only have five years to bring their case. However, if dna identifies someone they can still bring a case even fifty-years later. where is the common sense and reason. Members of congress are corrupt fools. They should all be kicked out of office and replaced by people who respect the constitution.

  5. If the AG could pick and choose which state statutes he defended from Constitutional challenge, wouldn't that make him more powerful than the Guv and General Assembly? In other words, the AG should have no choice in defending laws. He should defend all of them. If its a bad law, blame the General Assembly who presumably passed it with a majority (not the government lawyer). Also, why has there been no write up on the actual legislators who passed the law defining marriage? For all the fuss Democrats have made, it would be interesting to know if some Democrats voted in favor of it (or if some Republican's voted against it). Have a nice day.

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