The Court of Appeals has a decision I find a little surprising. In the case of Stoller v. Totton, the trial court awarded attorneys fees of $8,000 on the grounds that the Defendant had maintained a frivolous defense of comparative negligence.

I guess, at the end of the day, I’m a bit concerned that the court deemed “comparative negligence” as an affirmative defense for which a Defendant can be sanctioned if he refuses to admit 100% liability. To me, if the Plaintiff proves only 75% negligence on the part of the Defendant and the Defendant proves nothing, then the Plaintiff should still get only a 75% verdict.

The Defendant in this case engaged in sanctionable conduct. Specifically, he denied a request that he admit he was negligent in the operation of his vehicle resulting in a collision. He denied this request stating, “Mr. Stoller alleges that Mrs. Totton may have been in the right lane and converged into the center lane at the same time that Mr. Stoller converged into the center lane” but he didn’t have or seek any evidence that this was the case. So, I can see sanctions for improper responses to admissions.

But a request to withdraw an “affirmative defense” of comparative negligence is a request to concede 100% liability. Under the facts of the case, I think the Defendant was still entitled to present the question to the jury and that even if he said “I didn’t see her, I moved into the center lane, and I hit her” and presented no other evidence he would still be entitled to have a jury consider the question of comparative negligence. Who knows what might come out on cross examination of the Plaintiff. Maybe she was driving too fast, too slow, had the radio on, was talking on a cell phone, didn’t hit the brakes fast enough, didn’t hit the accelerator, didn’t swerve, didn’t sleep last night. None of this is going to knock a whole lot off the liability question, but if a jury could reasonably conclude any of it and reduce liability by 1 or 2%, then I think it gets to a jury.

In fact, it seems to me that the only way a refusal to withdraw a comparative negligence defense should be sanctionable is where it is absolutely clear that a judge would grant summary judgment on the issue of liability, which, of course, is almost never. And, in fact, I tend to think that the court wouldn’t have granted summary judgment on liability in this case, even had the Plaintiff submitted all of the evidence described and even had the Defendant submitted absolutely no evidence.

IC 34-51-2-7 requires a court to give a jury a comparative fault instruction unless all the parties agree otherwise. It doesn’t say anything about the Defendant meeting a threshhold burden. I’ve done no research here, so maybe there is voluminous case law research telling me otherwise, but because of this statutory provision, I think it’s not quite proper to refer to comparative fault as an affirmative defense.

I think the proper sanction would be for unfounded denials of requests for admission, and I think the Plaintiff should have obtained summary judgment on the issue of liability if it was so clear that it was sanctionable for the Defendant to fail to agree that he wasn’t entitled to a comparative fault instruction.

But, maybe careful review of the case law would change my mind.

The Court of Appeals has Appellate Opinions” href=”http://www.in.gov/judiciary/opinions/appeals.html”>issued an opinion (pdf document) striking down Judge Cale Bradford’s anti-Wiccan dissolution of marriage decree.

Some of you may have read about the case in this prior entry or (more likely) in Kevin Corcoran’s article in the Indianapolis Star. The jist of it is that Marion County Superior Court Judge, Cale J. Bradford, put a provision in a couple’s divorce decree that prohibits the couple from exposing their child to “non-mainstream religious beliefs and rituals.” Both parents practice Wicca, a spiritual belief that concentrates on worship of nature.

The court of appeals decided that it was not necessary to address the constitutionality of Bradford’s decree since they found Judge Bradford abused his discretion by imposing the religious limitation because he did not find that a limitation on Father’s parental authority to determine the religious training of his child was necessary to prevent endangerment to the child’s physical health or significant impairment of the child’s emotional health, which is the standard set forth in the statute.

There is some discussion of the record in the opinion that suggests Judge Bradford was interjecting his own opinion of Wicca into the proceedings rather than making any kind of a rational determination that the religion was dangerous to the child.

[Judge Bradford] All right, while the two of you are free to engage in any kind of behaviors you want to that are lawful, or that you don’t get caught at, I suppose, where you’ve got a child involved, that freedom can be somewhat limited. All right? And in going through this DRCB Report, there are a lot of issues that we have not touched upon yet. First of all I want to get some information and I’ll start with you, sir, from your religion, and how exactly that is practiced and what implication that has on the child. To the extent the child is part of that practice.

. . .

[Father]: The rituals that are part of what my group does . . . consist of – we start out with a grounding and a centering, which is where we stand with our minds. We relax. We gain some focus. Then we create – the best way to put it is – entities, but that’s not really symbols of the elements, the east, south, west and north, representing thought, passion, emotion and intuition, as well as stability. And then we ask for divine intervention. And then we do guided meditations. After that is gone through, then we sometimes chant or drum. Then we share bread and pass with us – juice or water – and then say good bye and thank you to all those entities, characteristics that we’ve asked to come into our lives. That’s how one of our rituals go.

[Trial court]: All right, where do you practice – is there a location in which this is done in a group.

[Father]: It varies. Sometimes it’s outdoors. Sometimes it’s in parks. Sometimes it’s on private property. Sometimes it’s in homes.

. . .

At one point during its questioning of Father, the trial court remarked, “[P]eople might think that you worship to Satan.” Father responded, “I can’t worship something if I don’t believe in it.”

The July edition of the Indiana Register is available. I see that it addresses such spell-binding topics as:

Adds 312 IAC 18-3-19 under the article pertaining to entomology and plant pathology to regulate the giant African land snail (Achatina achatina (L.), Achatina fulica Bowdich, Achatina marginata, and other species of the family Achatinidae (Gastropoda)) as a pest or pathogen and to prohibit the possession, sale, release, or other distribution of
these snails in Indiana.

On the other hand, the Dept. of Local Government Finance appears to be entering into the rule making process on some fairly significant (albeit arcane to me) subjects. It intends to adopt rules on the following:

To amend 50 IAC 8 to add provisions for the annual adjustment of the base assessed value in tax increment finance allocation areas and to establish rules for implementation of certified technology park allocation areas under IC 36-7-32;

Amending the local adjustment rules;

To adopt rules for the establishment of a uniform and common property tax management system among all counties as prescribed by IC 6-1.1-31.5-3.5(e); and

To adopt rules to implement the investment deduction established in IC 6-1.1-12.4.

In some proposals that seem to scream “Budget Crunch,” the Office of the Children’s Health Insurance Program is apparently seeking to adopt rules to eliminate the time limit for collecting past due premiums and to increase the premium an individual’s family must pay to receive benefits under the Children’s Health Insurance Program.

Lots of action concerning professional licensure. Including rulemaking affecting architects, barbers, cosmetologists, manicurists, shampoo operators, pharmacists, plumbers, private detectives, engineers, accountants, and real estate agents.

Also, on July 11 at 11:00 a.m. at the Dept. of Insurance, a hearing will be conducted on a rule that would set the fees for medical record requests. Pages 1-10 = $1 per page; Pages 11-50 = $0.50 per page; and $0.25 per page for anything over 50. Also, the provider may charge a labor fee of $20 but, if it does so, it can’t charge for the first 10 pages. Also, the provider may charge the actual cost of postage. Also, the provider may charge $20 for certifying a record. (Maybe I’ll decline to pay the $20 for certification and just go ahead and subpoena the records administrator to come in and provide foundation testimony for medical records.)

I got a memo from our county clerk today concerning filing fees to file civil actions in the state courts. I’m still reeling from the sticker shock on the small claims actions, so I haven’t even registered what it’s going to cost to file plenary actions. A small claims action will increase from $46 to $70 PLUS $10 for each additional defendant including garnishee-defendants.

So, to take an extreme example, if you’re a landlord with four tenants you want to evict, get a judgment for back rent and property damage, and garnish their wages, it’s going to cost you:
$70 base filing fee, PLUS
$30 for the 3 additional defendants, PLUS
$40 for the 4 garnishee-defendants.
—–
$140 to do what used to cost you $46. That’s more than a 300% increase.

Call it what you want, it sure feels like an increased tax to me.

Here is the Indiana Register for 6/1/05. It’s pretty dry stuff, but that page has a reasonably good summary of the rule changes and whatnot proposed and enacted by the various agencies.

For example, the Indiana Dept. of Health intends to adopt a rule (PDF document) pertaining to the operation and management of abortion clinics.

There is also a proposed rule change (pdf document) relating to rules governing the division for minority and women’s business enterprise development, by adding and amending provisions relating to applications for certification as an MBE or WBE, including those necessary and appropriate to comply with the directives set forth in Executive Order 05-11, amending provisions relating to control determinations and other factors considered for certifications, procedures governing denial or revocation of certification, review of department certifications, and monitoring of subcontractor participation.

I searched the Access Indiana site and could not find a copy of Executive Order 05-11. The failure of the Governor to make his executive orders available online in a centralized location is disconcerting.

Kevin Corcoran for the Indianapolis Star has a follow up article on the judicial decision to prohibit parents from exposing their child to “non-mainstream religions.” The article is entitled, Paganism ruling stirs outcry.

There isn’t a great deal of new information. The article says that legal experts expect the ruling to be struck down. Hon. Cale Bradford, the trial court judge who made the ruling, can’t comment because it’s a pending case. The father, Thomas E. Jones, Jr. said he posted to two pagan web sites asking that people not call the judge’s office to protest.

A relevant passage from the article:

Before the appeals court would consider constitutional issues of religious freedom, however, it’s more likely to fault a decision by one of Bradford’s commissioners to include the one-paragraph restriction without showing actual or potential harm to the child, said an Indiana family law attorney.

“This decision should be frightening to people of any faith, because who decides what’s mainstream?” said Donna Bays, chairwoman of the Family Law Section of the Indiana State Bar Association. “I have never seen a judge put anything like that in any order involving parties who were in agreement.”

The Indianapolis Star weighed in with an editorial that is entitled Judge Goes Too Far on Parents’ Religion and says that Judge Bradford “badly overstepped his authority.”

It’s blatantly unconstitutional for government, including the courts, to forbid parents from sharing their faith with their children. The only exception is in extreme cases when specific practices endanger a child’s health. That is not the situation in this case.

There has to be something else going on here. Otherwise, I just can’t fathom how a judge could think for a second he was acting constitutionally. Kevin Corcoran for the Indianapolis Star has an article entitled Judge: Parents can’t teach pagan beliefs

Marion County Superior Court Judge, Cale J. Bradford, put a provision in a couple’s divorce decree that prohibits the couple from exposing their child to “non-mainstream religious beliefs and rituals.” Both parents practice Wicca, a spiritual belief that concentrates on worship of nature.

The Domestic Relations Counseling Bureau, which provides recommendations to the court on child custody and visitation rights, appears to have gotten the ball rolling on the religious interference by the State of Indiana. The child attends a parochial Catholic school. (It’s not clear whether that school is Bishop Chatard, but the article mentions that the father had attended that Catholic school as a non-Christian.) The Domestic Relations Counseling Bureau put in its report to the court, “There is a discrepancy between Ms. Jones and Mr. Jones’ lifestyle and the belief system adhered to by the parochial school. . . . Ms. Jones and Mr. Jones display little insight into the confusion these divergent belief systems will have upon (the boy) as he ages.”

The father says that the court inserted the religious restrictions on its own, and not at the request of either parent. Hopefully there is more to this story that makes the judge’s order something other than wildly and obviously unconstitutional.

Update Background on Judge Bradford:

The Hon. Cale J. Bradford, Judge, Marion Superior Court, Criminal Division Judge Bradford was first elected as a Superior Court judge in 1996. Prior to becoming a judge, he was an Assistant U.S. Attorney for the Southern District of Indiana from 1990 to 1995 and Chief Trial Deputy for the Marion County Prosecutor’s Office from 1995-96. He also maintained a private practice from 1986-1990. He is a graduate of Indiana University and of the Indiana University-Indianapolis School of Law. As chair of the Marion Superior Court, Judge Bradford has presided over 175 major felony jury trials. He is a respected member of the bench, and has been rated as Highly Recommended in the IBA’s Judicial Evaluation. He is active with the Craine House, Lawrence Youth Football League and the Northeast Youth Soccer League.

Information for the Marion County Domestic Relations Counseling Bureau is available here. The director appears to be (pdf doc) a person by the name of Janice Davidson. As of August 31, 2001 the bureau’s staff consisted of 5 persons with master’s degrees and 2 support staff. The bureau provides child custody and visitation recommendations upon court request. The five-member bureau handled 576 cases in 1998. The cases are referred from juvenile, civil, domestic violence and Title IV-D (Paternity) courts. Parents, who pay for the service on a sliding scale, go through an initial hearing with a social worker to outline the problem. From there, the bureau meets individually with the parents and children over age 4. They also seek information from teachers, doctors and other counselors about the parents. Their recommendations are then presented to the court.

The case is Thomas E. Jones, Jr. v. Tammy U. Bristol, 49D01-0305-DR-000898, in the Marion County (Indiana) Superior Court. The Marion County Online docket search charges for case information. According to the Indiana Court of Appeals No appeal has yet been docketed.

Seems like an interesting case. I’ll try to track this as best I can.

————-
And, cue the blogosphere. So far, I’ve seen entries at:

Kemplog

In the Agora — Be sure to read the comments. Ed Brayton has some excellent commentary.

Indiana Democratic Club

Atrios

Notes in Samsara

Ken Sain

Outside the Beltway

Daily Kos

Left Oblique

Running Scared

Obsidian Wings

Impenitent Atheist

The Agitator

So Anyway

Pesky apostrophe
A Stitch in Haste

The Ward Report

Pandagon

Dispatches from the Culture Wars

Indiana Politico

Spin Dry (previously overlooked!)
—————

Additional News Coverage — The story appears to be getting some additional mainstream news coverage:

The AP has a story with mostly the same information:

A court commissioner wrote the unusual order after a routine report by the court’s Domestic Relations Counseling Bureau noted that both Jones and his ex-wife are pagans who send their son, Archer, to a Catholic elementary school.

In the order, the parents were “directed to take such steps as are needed to shelter Archer from involvement and observation of these non-mainstream religious beliefs and rituals.” The judge let the wording stand.

There are quotes from Barry Lynnn of Americans United for Separation of Church & State as well as Micah Clark of the American Family Association of Indiana. Both say the case looks like overreaching.

WISH-TV 8 has a quote from Ken Falk of the ICLU and says that Judge Bradford said that he couldn’t talk about the case because it’s now in the hands of the Court of Appeals. But I still can’t find anything on the Court of Appeals docket.

The Muncie Star Press has an article entitled I&M gets tough on trees. The article discusses Indiana-Michigan Power’s new policy of clearing trees within 15 feet on either side of a three-phase power line and within 10 feet on either side of a single-phase line. Previously, the company would trim trees every 3 to 5 years.

The article doesn’t get into this, but my thought is that IMP and any other electric utility that behaves in this matter is asking for a fairly expensive class action suit — or at least a wave of individual suits. I guess it depends on how the utility’s easement is worded for a particular piece of property; but my understanding is that, by-and-large, the utility is only allowed to take action as is reasonably necessary to keep the line in good repair. Where trimming is an option, and the utility cuts a tree entirely without the consent of the property owner, it would seem to me that the utility is liable for the difference between the value of the trimmed tree and the value of the cut tree. Heck, maybe you could throw a claim at them for triple damages and attorney’s fees under IC 34-24-3.

I know that utilities get special treatment under the law a lot of times, but I went through the statutes awhile back when my electric utility was making noises about cutting down a bunch of my trees. I couldn’t find anything that let them simply clear cut through the easement with impunity. I pointed out the “reasonableness” provision of the easement, pointed out that the tips of my trees were at least 20 to 30 feet below the power lines, and indicated that they’d need a court order to cut my trees and they seem to have backed off. Maybe they’ll be back. So, if anyone knows how the law plays out in these situations, I’d love to hear about it.

A good article in the Palladium-Item on the community corrections program. Community corrections is a program administered by a county that attempts to rehabilitate (hopefully) low risk offenders. It’s an alternative to locking them up, and it gets them in the habit of keeping a steady job. Whether it’s the best approach, I don’t know enough to say. But, overall, the idea is good. Jail simply isn’t the best solution to every crime.

The Indiana Dept. of Insurance has a proposed rule (pdf) concerning charges a medical provider or a company handling its records can charge for providing medical records. It would add 760 IAC 1-71 to the administrative code.

Charges would be capped at:
1. $1 per page for the first 10 pages.
2. $.50 per page for pages 11 through 50.
3. $.25 per page for copies in excess of 50.
4. Actual costs of mailing.
5. $20 labor fee for requests from someone other than the patient or the patient’s representative.

So, if you’re defense counsel working on a personal injury claim, it’s going to cost you $50 plus postage if you want a 50 page medical record. (The same record will cost plaintiff’s counsel only $30.) I wonder if a court would allow the defense to compel the plaintiff to get the records since plaintiff can do so at 60% of the cost.

The public hearing is scheduled for May 26, 2005 at 11:00 a.m. at the Dept. of Insurance; 311 W. Washington St. Room 300, Indianapolis.