People v. State

A few days ago the Indiana Supreme Court unanimously granted transfer and adopted a court of appeals’ unanimous opinion reversing a St. Joseph County trial judge’s granting of an adoption of a minor child by the child’s stepmother over the child’s mother’s objection. The court of appeals’ opinion had concluded:

Under the circumstances before us, there is not a single shred of evidence indicating that this adoption could even remotely be considered to be in N.W.’s best interest.

As if that wasn’t already strong enough, the Supreme Court in its order adopting the court of appeals’ opinion went even further, going out of its way to observe:

Additionally, Indiana Code section 34-52-1-1 permits a court in any civil action to award attorney fees to the prevailing party if the court finds that either party: “(1) brought the action or defense on a claim or defense that is frivolous, unreasonable, or groundless; (2) continued to litigate the action or defense after the party’s claim or defense clearly became frivolous, unreasonable, or groundless; or (3) litigated the action in bad faith.” The record before us suggests one or more of these grounds may exist for an award of attorney fees.

As the prevailing party, Mother shall have sixty (60) days from the date of this Order in which to file in this Court a request for attorney fees incurred at trial and on appeal under section 34-52-1-1, should she choose to do so.

Think about what the Supreme Court is saying. It’s suggesting that the stepmother’s suit to adopt the child was so “frivolous, unreasonable, or groundless” that the mother should be entitled to the attorney fees she incurred not only after the court of appeals sided decisively with the mother and the stepmother nevertheless elected to pursue the case in the Supreme Court, but also to the attorney fees the mother incurred at trial and in the court of appeals, even though the trial judge ruled against the mother and for the stepmother. Indeed, it’s hard to imagine how the stepmother’s defense on appeal of her victory in the trial court or her petition to the Supreme Court on transfer to reinstate her victory in the trial court could be “frivolous, unreasonable, or groundless” unless her suit at the trial court level was itself “frivolous, unreasonable, or groundless” to begin with. According to common judicial wisdom, it’s not every day that a trial judge awards victory to a party whose suit is so “frivolous, unreasonable, or groundless” as to merit a punitive award of attorney fees to the other party.

But appellate judges and justices are no more innocent of such radical “fallibility” (to use the most politically correct word I can think of) than are trial court judges. They are all all too human, black robes notwithstanding. To borrow a phrase from the court of appeals’ opinion referenced above, “there is not a single shred of evidence indicating” that judges as a class are any more honest, wise or just than are lawyers and politicians generally; nor is there a single shred of evidence indicating that lawyers and politicians as a class are any more honest, wise or just than are people in general.

For evidence of such radical “fallibility” at the highest appellate levels, see, e.g., Alan Dershowitz’ criticism of this Indiana Supreme Court decision disciplining a lawyer for writing in a brief petitioning the Supreme Court to review a court of appeals’ opinion that “the Opinion is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for appellee . . . and then said whatever was necessary to reach that conclusion (regardless of whether the facts or the law supported its decision),” and for then daring to “contest this [disciplinary] matter through all procedures available” (but also see the admirable opinions of the two dissenting Justices who believed the lawyer’s statement to be protected by the First Amendment); and this fascinating account of a bizarre series of events in 1988 in which one sitting Indiana Supreme Court Justice (who didn’t retire until 1990) publicly accused another sitting Indiana Supreme Court Justice (who was then and is now the Chief Justice) of being a “drunken, pot-smoking queer.”

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