Jordan Ex Rel. Jordan v. Deery

Instead, and that error was harmless. along

we will now move to a third decade judicial assessing effort aimed not at guilty Azania but rather appropriate penalty. on an

settling

DICKSON, J., concurs. D.

Shelamiah JORDAN next friend Lynn Jordan,

Geneva JORDAN and

Appellants (Plaintiffs), DEERY, M.D., Reiss,

Michael Warren

M.D., Clinic, Lake Shore Keim Hous M.D.,

er, Holy Hospital, Appel Cross (Plaintiffs).

lees

No. 75S05-0106-CV-310.

Supreme Court of Indiana.

Nov. date, her

one week before Mother began experiencing uterine contractions. early morning hours of December Holy Hospital in went to Cross she Indiana, where was Plymouth, she exam- room and by emergency ined staff advised go hos- home. Mother returned Green, Taylor and Taylor, Bessie M. day was pital at 7:00 a.m. same and Grimes, IN, Attorneys for Gary, Douglas again go examined and advised to home. Appellants. time, however, This she decided wait Lewis, Newby, Ka- Lienhoop, Mark A. hospital examined twice more and was LaPorte, Jones, IN, Edward A. minski & day. Finally, throughout course Kuehl, Spald- Chapleau, Chapleau & David p.m., at 6:10 was admitted into the Mother Bennett, Palmer, May, ing, Robert Jane hospital patient Ap- active labor. Lorber, Bend, IN, Karl & South Oberfell after proximately twenty minutes attach- Bingham Quay-Smith, Nana Mulvaney, monitors, the ing electronic fetal nurses LLP, Spilman India- Welsh & Summers Dr. signs noted of fetal distress. Reiss IN, Attorneys Appellees. napolis, Bend then transferred Mother to South Hospital in case a Caesarian de- Memorial CIVIL TRANSFER Houser, M.D., livery necessary. was Keim Me- call Bend obstetrician on South RUCKER, Justice. morial, Mother and determined examined action involv- malpractice This medical delivery unnecessary. that a Caesarian generated has three ing a disabled child Following delivery complicated shoul- emergency an appellate opinions, the umbilical cord dystocia1 der and Appeals, stay hearing and in the Court of neck.2 around the infant’s Shela- wrapped original an action this Court. and miah born at 2:17 a.m. on Jordan was litigation today we ongoing hold thereafter, Shortly December 1986. I, Consti- Article 20 of distress, as- diagnosed with fetal she was tution, all provides that “[i]n palsy of phyxia, palsy, cerebral and Erb’s cases, by jury shall re- the left arm. inviolate,” main Ind. ancillary includes the 3, 1988, December Geneva Jordan On courtroom both the Jordan, parents of Lynn Shelami- damage of trial. ah, malpractice proposed filed a medical Department of with the Indiana complaint History

I. and Procedural Facts alleged Insurance. The Jordans (“Mother”) Reiss, Deery, Lake prenat- of Dr. Dr. negligence was a Geneva Jordan Clinic, Dr. M.D., Hospital, and Holy Cross patient Deery, Michael and Shore al (referred collectively Reiss, M.D., prac- both of whom Houser Warren Providers”) occurring during “Healthcare medicine at Clinic family ticed Lakeshore 8, 1986, personal in- Culver, delivery resulted in labor and Indiana. On December R. at dystocia See 1. Shoulder occurs when infant's lodged the mother's shoulder becomes behind through impedes progress pubic bone Merck Manual 1906 the birth canal. The Berkow, M.D., ed., (Robert ed. 16th juries Cir.1985), to both Mother and Shelamiah. On the Court 4,May Review Medical Panel adopted of Appeals two-pronged test opinion issued a unanimous favor of which must be satisfied before trial court Healthcare Providers. may exclude from the courtroom (1) liability phase of trial:

Thereafter, on their behalf own and act- friends, party seeking the exclusion must ing as next show Shelamiah’s Jor- complaint malprac- dans filed a for medical plaintiffs poten- has a In response, tice court. tially prejudicial jury; effect on the and summary Healthcare Providers for moved the trial court must determine whether the judgment, granted. which the trial court plaintiff can proceedings understand the appealed, Shelamiah and the Jordans in any meaningful assist counsel way. Appeals the Court of affirmed the trial However, Gage, 505 N.E.2d 67. if the court. Deery, Jordan v. 590 N.E.2d 669 trial finds that court can un- transfer, (Ind.Ct.App.1992). On this Court derstand proceedings and assist coun- concluded that although summary sel in any meaningful way, plain- then the judgment granted motion was properly on tiff cannot be excluded regardless of the the Jordans’ claims because statute prejudicial impact. Id. limitations, the motion was improperly granted response to Healthcare Providers’ Shelamiah’s claims. Jordan v. (Ind.1993). motion, Deery, argued Shelamiah before the trial We remanded the trial. Gage cause for court that did not survive enactment of the Americans with Disabilities Act of Prior to Healthcare Providers filed (“ADA”), § 42 U.S.C. seq. et motion to bifurcate the and dam- The ADA provide is intended “to a clear ages phases. granted The trial court and comprehensive national mandate for motion. Healthcare Providers then filed a the elimination of against discrimination motion in limine requesting that Shelamiah with individuals disabilities.” Id. from excluded the courtroom during the 12101(b)(1). § ADA, Title II of liability phase of trial. According to Providers, public portion Act, services Healthcare Shelamiah un- was counsel, provides able to consult with pres- pertinent part: her “no qualified ence prejudice jury.3 shall, would individual a disability by with reason disability, of such partic- excluded motion, In support of their Healthcare ipation in or be denied the benefits Bozarth, Gage Providers cited services, programs, public or activities of a (Ind.Ct.App.1987), trans. de- entity, subjected or be by discrimination nied. In that case the trial court excluded entity.” § such Id. A “quali- 12132. the seven-year-old plaintiff from the court- fied disability” individual with a is “an room during the liability phase who, individual a disability with record showed that the child was a without quadriplegic who was reasonable only able to breathe modifications help with the Id. meets requirements ventilator. at 65. the essential eligibility Citing Laboratories, Helminski Ayerst receipt the partic- services or 42-43, The record shows: Shelamiah suffers from and a R. at walker. 1149. There is a palsy cerebral in all dispute four extremities and as whether Shelamiah can under- arm, talk, palsy Erb’s in the left cannot proceedings makes stand the and communicate with sounds, involuntary sight movements and laptop computer. counsel with the use of a impaired, 73, 76, and walks with the use of braces R. at judgment the trial provided now reverse the or activities ipation programs 12131(2). court. entity.” public Gage court determined that The trial II. Discussion conducting law and after good still juris- observe that a number of We first two-part test set hearing found that employ two-pronged dictions still Hel- had satisfied. in that case been forth test, Appeals which the Court of minski granted Accordingly, adopted Gage, face of the even in limine. Healthcare Providers’ motion See, e.g., Props., ADA. Inc. v. Preferred the court for then moved Shelamiah Estates, Inc., 790, River 276 F.3d Indian stay pend its and a certification of order — (6th denied, Cir.2002), 797 cert. U.S. appeal. The motion was denied. On ing -, 2663, 122 S.Ct. L.Ed.2d 838 153 7, 1998, July day the first of Shela- Pablo, (2002); Hosp. v. Rubert-Torres San petition with the emergency miah filed an Inc., (1st Cir.2000); 472, F.3d 478 205 Appeals. granted The court the Court of Hosp., Green v. North Arundel 126 Md. motion, (1999) 221, an the’trial staying 394, entered order App. (listing 730 A.2d Helminski). adopted and scheduled the proceedings, courts that have 10, Further, July the ADA has argument although matter oral on been decade, than a our re-' the effect for more Following argument, oral court, that no state or feder stay search shows the Appeals of dissolved Court al, decided whether the Helminski test has for trial. Before tri remanded cause See, light e.g., of ADA. viable 13, 1998, Shelamiah July al resumed Colorado, 1020, Thompson Court, original with this filed an action — denied, Cir.2001), - cert. U.S. day. the same which we dismissed State 1960, -, 152 L.Ed.2d 1021 122 S.Ct. Ct., rel. v. Starke Cir. No. ex Jordan (2002) pro that (recognizing Helminski 1998). (Ind. July 75S00-9807-OR-391 category rights required tects of The of concluded on of accommodation un given degree some July and the returned pro due der the Fourteenth Amendment’s in favor Healthcare Providers. verdict of recognizing cess while also that clause argu- renewed her appeal, Shelamiah On does not contain process clause ment test did not survive Gage ADA); Title II of general mandate of unpublished In of the ADA. an enactment Green, (assuming at 233 n. A.2d decision, Ap- of memorandum Court that the Helminski test deciding without trial court. Jordan v. peals affirmed the ADA); of Mat- the enactment survived 75A05-9807-CV-342, 742 Deery, No. Sokol, Oneok, Inc.: Cary A. Okla- thew (Ind.Ct.App. Dec. N.E.2d 45 Upholds Supreme homa Plaintiffs noted, pro- ADA the Court “The doing so Trial, 19 L.Rev. Right Attend Pace activities hibits the forced exclusion from (“The (1998) issue of partake with reasonable of those who could cognizable cause gives rise [ADA] modifications, neither a promulgates but plaintiff who is excluded from for a action per nor se rule of per fact, se rule of inclusion yet litigated.”). Slip op. at 8. The Court of suggests exclusion.” that the Hel- weight authority Gage test Appeals also test survived enactment minski has concluded Nonetheless, after considerable de- the enactment the ADA survived ADA. liberation, we agree satisfied this case. Shelamiah the test was law, transfer, but for Gage longer good no we previously granted Having reason, namely: entirely years, Article And the next one different hundred 20 of Constitution. kings Magna English reaffirmed 1600s, thirty-eight Carta times. By A. Buies Construction Constitutional founded, when the thirteen colonies were questions arising un Generally, “had become one der the Indiana are to be Constitution palladiums great English liberty.” by examining the resolved intent of the English regarded Id. at The “ framers, language of the text in the liberty, ‘as a bulwark of and as a means ” history surrounding context of the preventing oppression by Crown.’ ratification, drafting and and case law in Landsman, Stephan Jury Civil terpreting provisions. specific McIn America: Scenes An Unappreciated (Ind. Melroe, tosh v. Histo'i’y, Hastings L.J. 2000). However, these “constitutional tal Scott, Austin (quoting by Jury W. Trial are guideposts always ismans” in Procedure, and the Civil Reform of circumstances, such structive. Under (1918)). L.Rev. Harv. appropriate elsewhere, it becomes to look including case law from brought other states inter The colonists the right trial preting provisions similar in their constitu by jury with from England. them The Id.; State, Ajabu tions. see also by given 1606 charter I to James the (Ind.1998). 921, Virginia Company incorporated the right by to a jury and 1624 all in trials B. Development Historical of criminal, Virginia, both civil and were by Right by Jury to Trial jury. Bay Col- Massachusetts When the right by jury trial was trials, ony jury right introduced and the incorporated into 1816 and 1851 jury was trial later codified in the Massa- Constitutions, hardly it was nov- Body chusetts of in 1641. Liberties The el concept. Some scholars right trace this Colony West Jersey of New implemented as far back as ancient Greece and the trial by jury Hamp- did New Athenian statesman Solon. Richard Ar- S. Pennsylvania, shire in 1680 and under Wil- nold, by The Jury: Trial Constitutional liam proprietorship, Penn’s in 1682. Ar- Right Jw“y Trials, ato Twelve in Civil of nold, 13; Landsman, at supra, supra, at (1993). 22 Hofstra L.Rev. Other Eventually, 592. all colonies tri- embraced right only scholars trace this to Middle al by jury. Ages of reign and William the Con- Nevertheless, through measures, various queror. Regardless origins, of its at of King England tried by least to dilute the century, eleventh the right to jury to a trial. by jury firmly Beginning was established in mid-1770s, Carta, England. signed The Magna by colonists held a series of King on Runny- congresses John June 1215 at King’s oppres- address the mede, guaranteed jury to a sive congress- behavior.4 The work of the Meeting omitted). 4. (quotation The First Continental at Con- The colonists’ " gress among things jury resolved other 'the re- concern about trials was reiterated in the spective Congress’ colonies are entitled to the common Second Continental Declaration of England, Arms, law especially of more Necessity Taking Up and and Causes of great privilege being and July specifically inestimable of tried issued in chal- " by peers vicinage, according lenged their of the passage Parliament’s of statutes 'de- ” Landsman, supra, course of that law.’ priving [the colonies] ... of the accustomed jury remain by of shall invio- the Declaration Inde- es culminated Indeed, late. July 1776. signed on pendence Independence lists the of

The Declaration of Ind. When ” “ by jury’ benefits of trial denial of ‘the delegates again early met late 1850 and led to the grievances constitution, one of the a new a commit- draft Arnold, supra, of a new nation. creation rights privileges on was formed. tee (both Landsman, 14; supra, with, charged among This committee was Independence The quoting things, deciding Declaration whether to extend of 1776)). (U.S. by jury as it existed in para. 19 of Report the 1816 Constitution. of the colonists actions Considering Proceedings the Conven- Debates and of preserve safeguard took to the Revision the Constitution tion that this by jury, surprise is no to trial (A.H. ed., Brown the State Indiana 226 popular with the exceedingly was primarily The committee focused of the first constitutions drafters should be a minimum there Virginia set independent states. newly controversy before the amount by specifically including in 1776 precedent implicated and whether to both civil criminal civil and criminal majority of rights. in its trials bill within the same sec- should be contained Lands- followed suit.5 quickly other states 352-53; tion. Id. at Journal Con- man, supra, at People the State vention of 80, 90, Indiana to Amend Constitution Surrounding Adoption (Austin 1851) History ed., (reprint C. H. Brown I, end, Article Section version following In the cases, “In all civil prevailed: first constitutional reference The by jury shall remain inviolate.”6 Ind. I, in Article appeared in State trials this Const, I, § art. Constitution, which 5 of the 1816 Section provided: Interpreting Law D. Case I, Section Article cases, in the value in all civil where

That Despite concerning exceed the sum controversy shall the lack debate cases, 20, dollars, I, all twenty and in criminal of Article the enactment this have exam- except petit appellate misdemeanors courts of State occasions. only, provision fine not ex- on numerous punished by shall be ined this dollars, exceptions, the courts have very manner as few ceeding three such With meaning law, it in the context of the addressed prescribe legislature may (1996). Today, majority of slates privilege by jury, in vast inestimable ” property.' by jury in affecting guarantee both to trial civil cases life omitted). (quotation See Ora Fred cases in their constitutions. Harris, Jr., Design Litiga- Complex Product 1788, eight in- By of the eleven states had Fact-Finders, Capable More tion: Need A for by jury corporated to trial 477, (1991). Ky. L.J. Pennsylvania, into their constitutions: cases Massachusetts, Mary- Georgia, Jersey, New land, I, 13(a) of the Indiana Con- 6. Article Section Hampshire, Virginia, and New New by jury to trial guarantees stitution Schwartz, "Everything De- Rachael E. York. See Ind. cases. in "criminal pends Alter- on YouDraw Lines”: An How 13(a). Interpretation the Seventh Amend- native 599, ment, L.J. 617-18 6 Seton Hall Const. of “shall remain inviolate.” Since cases includes therein the ancillary Supreme when the Indiana Court declared stages at all of such a trial.” that “shall remain inviolate” means “con- Id. The court went on to observe that a law, as it at tinue was” common Allen v. judicial physical ap- determination that the Anderson, 388, 389, 57 Ind. 1877 WL 6470 pearance of party “may be the basis (1877), explained the courts have precluding such stage from by jury preserved only fraught danger impli- trial[ ] those cases that were triable cations.” Id. at 118. The concluded See, common e.g., law. State rel. ex Van plaintiff was entitled to a new Ct., Orden v. Floyd Cir. Ind. 412 trial. (1980); Hayworth Lines, Greyhound Florida Inc. v. Bromwell, 239 Ind. 158 N.E.2d Jones, (Fla.1952), 60 So.2d 396 plaintiff (1959); Bottling Coca Works v. Cola injured in an automobile collision and Harvey, 209 Ind. 198 N.E. was brought into the courtroom (1935); State, Reynolds v. stretcher, accompanied by a nurse and (Ind.Ct.App.1998), trans. denied. Oth- hospital object- attendant. The defendant erwise, has not been the ed, arguing plaintiffs presence subject litigation. of much prejudice would the jury. The trial court E. objection ultimately Case overruled the Law Other Jurisdictions jury returned a verdict plaintiff. for the question can Responding to the defendant’s claim on be excluded during from the courtroom appeal that should have been liability phase litigated of trial has been excluded from the courtroom jurisdictions several across the country. Supreme the Florida Court concluded: jurisdictions Some answering this question negative in the have relied on One institutes an action is who entitled provisions in guar- their state constitutions That, when is tried. we anteeing by a jury. For think, is a that should not be tem- example, in County, Carlisle v. Nassau 64 pered by physical the of condition the (1978), A.D.2d 408 N.Y.S.2d 114 the indeed, litigant. It strange, would be to trial court excluded the courtroom promulgate plaintiffs a rule that a during jury plaintiff selection a paraplegic appear to at own depend his trial would who was confined to a wheelchair. Ac- personal attractiveness, on his or that he court, cording to the trial plaintiffs the could excluded from the court room if presence prejudice jury. would the On happened he inju- to be unsightly from appeal, plaintiff the challenged his exclu- ries'which he was trying prove to the analysis, sion. its the court looked to defendant negligently caused. the development historical to Id. at ultimately 397. The court deter- I, trial and Article Section of the plaintiffs mined that the trial at Constitution, New York provides: which proper, any proof absent of “deceit” or by “Trial in all jury cases which has “subterfuge.” neither, Finding judg- guaranteed heretofore been by constitu- ment of the trial court was affirmed. provision tional shall remain inviolate for- Const, ever. ...” factually Id. at 116 (quoting Though N.Y. different from the case 2). I, § art. bar, The court at Huybrechts, concluded thafr“the v. Rozbicki fundamental per- (1991), constitutional aof Conn. 589 A.2d 363 the Con- son jury to have a Supreme trial certain civil necticut Court examined the na- livery asphyxia. in the as a result of defen- party’s right to ture phase unsuccessfully during jury selection dant moved to exclude the courtroom court, infant plaintiff during of trial. Like the Carlisle Con- from the courtroom a Supreme looked to Article to on challenge ruling Court On necticut constitution, I, pro- appeal, simply 19 of its the court axio- “[i]t Section stated that, jury express matic by “The shall absent an wavier or vides: ” circumstances, (quoting unusual a inviolate.... a remain I, § The court then action is entitled to be all during Conn. long recognized stages Finding that it “has that trial.” Id. observed neither, jury a civil party’s a constitutional court affirmed the trial court. encompasses Ry. W. v. Chicago trial See also Great Co. trial, (8th Cir.1945) Beecher, during phases all in the court plaintiff, proceedings prior (holding the trial that a child under including a years age by of the case.” Id. three who was struck the merits train, properly remained the courtroom Oneok, Inc., 940 Cary P.2d during objec- despite the defendant’s (Okla.1997), Supreme the Oklahoma Court tion); Co., Bryant City Rys. Kansas the same conclusion as Roz- reached (holding Mo. S.W. provision relying court on a different bicki plaintiff, four-year-old child with case, In that the trial in its constitution. amputated leg, an should be allowed during excluded from the courtroom remain in the courtroom trial so six-year-old paraded long as he was not in front of the severely by who was burned City gain sympathy); Sherwood v. According water heater. exploding Falls, 10 Sioux S.D. 73 N.W. court, jury might sympathetic (1898) (allowing disfigurement. appeal, On child’s brought into de- the courtroom on cot plaintiff challenged his exclusion. Re- objection spite the defendant’s lying “open on the courts”7 appearance plaintiffs prejudice would constitution, Supreme the Oklahoma jury). “[ajbsent voluntary waiv- concluded only in the of extreme

er we hold case Scope E. Article may be excluded circumstances examining After the historical proceedings.” Id. at 204. Find- from the development of ing neither waiver nor extreme circum- and, importance particular, in to stances, its the court remanded the for cause country, agree with courts, founders of this we Id. at a new trial. 206. Other jurisdictions that held that those have similar have reached conclusions without jury right by state constitutional example, For in great deal elaboration. ancillary present in Moore, right includes the to be Mason v. 226 A.D.2d (1996), liability both the courtroom the infant N.Y.S.2d so phase de- of trial. This is because damage during damage severe brain sustained II, property, reputation, have person, shall Section 6 of the Oklahoma Con- or 7. Article provides part, jus- remedy by stitution in "The courts of law. be due course of Justice shall open every per- tice of the State shall be purchase; freely, administered and without Const, II, Similarly, § 6. son....” Okla. art. denial; speedily completely, and without I, Const, Indiana Article Section of the Constitu- I, (em- § delay.” Ind. art. without provides: open; and tion “All courts shall he added). phasis every person, injury done to him in his SHEPARD, C.J., right present, right without the be and DICKSON and JJ., SULLIVAN, concur. meaningless. becomes We note, also this view is with case consistent J., BOEHM, with separate dissents Appeals. law from our See Court opinion. Gallmeier, Ind.App. Freimann v. BOEHM, Justice. (1945) (“Citation respectfully majority’s dissent. The authority required is not to sustain possibility formulation allows for the that proposition party that a action is “extraordinary circumstances” can war personally present to be in entitled rant of a party. exclusion But if this case he, she, in when a trial is or is a held present extraordinary does not circum record.”); Funkhouser, party Ziegler stances, except litigants for incarcerated 42 Ind.App. 85 N.E. that no seems circumstances could meet (“It right every party litigant practical this test. It thus is in terms an present person upon in court to a trial in absolute civil cases. ”). view, of his case.... In our own I agree majority with the the courtroom dur a trial a very strong presumption includes ing liability both the and damage phase of that a party has the to be physically is, trial is so basic and that it fundamental However, present at the trial. I do not by I, implication, by guaranteed Article believe presumption this stems from the 20. Accordingly, we conclude to a jury trial in a civil Nor case. in Gage test announced is not sufficient my any view does to overcome Shelamiah’s constitutional or state federal constitution' bar exclusion present at her own Rath party if court finds that “ex er, or absent waiver extreme circum traordinary require circumstances” it. Ac stances, party may not be so excluded. cordingly, I would reaffirm the standard announced of Appeals Bozarbh, (Ind.Ct. Gage v. 505 N.E.2d 64 III. Conclusion App.1987), and allow a to be ex I, Article Section 20 of Con- cluded in a bifurcated trial the unusual provides: cases, stitution “In all civil party circumstances when a establishes trial by jury shall remain invio- party’s “appearance another or con late.” Ind. 20. We hold likely prevent duct is ancillary includes also performing duty” and the trial court in the courtroom dur- has determined the other cannot ing “assist damage meaningful way.” of trial. counsel Id. at 67-68. Absent waiver extraordinary circum- stances, party may so excluded. proposition that a is entitled extraordinary Because neither waiver nor at a civil trial seems intuitive here, circumstances judgment exist the of lawyers to most American judges. the trial court is reversed and this cause right, Yet the source of such a if there is for a one, remanded new trial.8 explored. is rarely presumptive The bright-line We decline to articulate a to merely rule We observe that this record ex- determine what are and are what not “ex- traordinary circumstances have not been traordinary circumstances.” Such determi- shown. case-by-case must nations be made on a basis.

1273 First, little authority be there is the litigant of a civil to right or absolute jury right includes an of view that the found in the text at trial is not present present. be are right absolute to There in the federal state either now, federal the some differences between state and Gage was Until constitutions. rights jury. to a civil But I am aware of in state. The precedent the only relevant no between the two constitu that difference Appeals in that case held of procedures in to be if a present to tions the followed right no there is absolute Rather, constitu personal injury jury required. is both of a civil Rather, purport preserve jury right tions party’s presence if did case. counsel, Any it at common differences assisting existed law. purpose not serve types are in lawsuit jury, between the two prejudicing the exclu- but would risk attaches, right jury in which the The federal courts may proper. sion applies. right not to what that entails if it the same rule. See Gonzalez-Ma- follow Bank, Compare Songer v. 771 845 Civitas Equitable Soc’y, Assurance rin v. Life (1st (Ind.2002), Cir.1988); City N.E.2d 61 Monte Helminski F.2d (6th Dunes, Ltd., Labs., v. rey F.2d Del Monte U.S. Ayerst v. Cir.1985). L.Ed.2d 119 S.Ct. (1999). precedent is Accordingly, federal me It seems to source of rights what are determining relevant determining right is instructive right jury to a trial. ancillary to present scope. right I believe determine, I As can no federal far trial, jury right not from to a derives right pres to be court has found due right the federal but from both guaranteed at to a ent trial is concept and the of funda- process law contrary, in a To jury trial civil case. judicial proceedings mental fairness the Seventh Amendment state con- implicit, explicit, is if not our guarantee litigant not a civil does proce- stitution. Because it stems during the present absolute to be fairness, is absolute and dural not prior precedent, like Federal against must be balanced considerations point. precedent, is clear on this result, parties. I to other As fairness Helminski, (noting at 766 F.2d See con- agree with the authorities that have Amendment, process, Seventh if a to be cluded there is present); any right is source meaningfully can communicate with 96-2452, King, Harris v. No. see also counsel, not, but if n U.SApp. LEXIS WL subject balancing is to a test * (8th. Cir.1997) (unpublished); at 3 parties proper is a which fairness to other 205, 207-08 Whitley, Latiolais This balancing fact sen- consideration. (5th Cir.1996), Parale American Inmate sitive and deference should be shown Cline, F.2d gal Ass’n ruling. Accordingly, the trial court’s curiam). Cir.1988) (per court. would affirm the trial if from the Finally, is derived Right I. to be Present Source equally not be right to a would Jury Right A. The Trial I find Although in a bench trial. available authority, it seems to little direct relevant majority concludes that least me that the ancillary the coun- a trial where contrary prece- strong as in bench by jury. think this is the other of fairness to dent, tervailing factor incongruous and also leads to results. 1274 may Warden, Jail,

party weight. be of diminished Thus City hammad v. Baltimore Cir.1988). precedent (4th both lead 107, and reason me to re- F.2d 111-12 849 As a ject as source of the result, an litigant incarcerated civil is often present. right to be sure, barred from the courtroom. To be may summarily the district court not ex- B. Due Process prisoner-plaintiff a clude from the trial of addressing Federal cases have issue civil rights his suit. Ballard v. Spradley, balanced considerations of fairness to the (5th 476, Cir.1977); 480 Stone v. party against any prejudice excluded to Morris, 730, Cir.1976). F.2d Helminski, interests of See others. variety But there are a of factors that (party’s F.2d at 213 appearance in reaching must be balanced this decision. exclude, alone a basis to may but exclusion Just court has discretion to if proper be is no meaningful oppor- there deny prisoner-plaintiffs to be communicate). tunity to liti- Excluding a procedural my grounds, view gant effectively who can communicate with trial deny courts also have discretion to deny counsel would litigant oppor- litigants phases some access to tunity be heard and very frustrate the those rare cases where that action notions fairness the Due Process appropriate. protects. I agree Clause And that there is no merit to the claim that retention of C. Other State Constitutional Sources counsel present. waives the notes, majority As the Indiana constitu 15, County, Carlisle Nassau A.D.2d history light pres tional sheds little on the (1978). 408 N.Y.S.2d if But a vel ence non absolute party cannot in any assist counsel mean- present in a civil Gage only trial and is the ingful way, fairness becomes precedent relevant in this state. Most weight. factor diminished if the And states follow the federal rule in this re it, party’s may, Gage puts spect permit exclusion where commu “prevent from performing its possible. nication is not See Morley v. duty,” parties fairness to the other is also Ariz., Superior Court 131 Ariz. occurs, entitled consideration. If that (1981) (plaintiff P.2d inwas and there is no for opportunity meaningful communicate); coma and unable to Dick communication, tips the balance of fairness Bober, son 269 Minn. 130 N.W.2d exclusion, process favor and due does (1964) (plaintiff compre unable to not bar this Gage, result. express himself); hend trial or Province v. Indeed, weighing in- the interests Center Health Family Women’s & volved barring and then from be- Birth, 20 Cal.App.4th Cal.Rptr.2d ing present occurs some regularity 667, 675 (noting infant unable to trial court level other contexts. For communicate); Green N. Hosp. v. Arundel example, challenges to exclude Inc., Ass’n 366 Md. 785 A.2d litigant prevalent are most in cases (Ct.App.2001) (plaintiff compre could not litigant where a is incarcerated. In such participate hend or proceeding). cases, litigant’s the incarcerated Often this result is reached without dis is not absolute. In deter- what, if cussing any, provi constitutional mining whether exclude litigant, sion relevant. weigh prisoner’s court must need to present against expense, concerns of The majority secu- notes Oklahoma has found rity, logistics and docket control. Mu- grounded Moore, “open In v. counterpart lute. Mason A.D.2d to constitutional (1996), § 12 provision party found Article 641 N.Y.S.2d 195 was not courts” because, Cary part, v. the Indiana Constitution. excluded his (Okla.1997). Oneok, Inc., 940 P.2d necessary experts to assist view, notion my support not Moreover, does testimony. Grey their Fla. Ccm/ present to is absolute. right be Lines, Inc., Bryant v. City hound Kan. the Okla- Cary itself states Co., Indeed (1921), Rys. 286 Mo. S.W. held, do never nor we “ha[ve] homa courts Beecher, Chicago Ry. and v. Great W. Co. present a to party’s right here that be hold (8th Cir.1945), 150 F.2d all involved at 204. courtroom is absolute.” Id. the review of trial court’s refusal to addition, Cary party found that plaintiff. exclude the Because the discre assist counsel. at 205. Under could court, given tion should to the trial be circumstances, agree the bal- those a to upholding decisions refusal exclude do per- tip in favor of of fairness must ance support not an to right pres absolute attend, I do not mitting party to but ent. is “Open provision an a believe Courts” generally, in that result. More factor to Fair Right D. a Trial Open of the Indiana Con- Courts no Although particu- found in the text of litigants opportuni- all stitution assures lar provision, constitutional fundamental ty says nothing about the to be heard but judicial proceedings fairness assumed proceed- manner in which that forum and required by the Indiana Constitution. Nothing in the text ing go forward. State, 514-15 Sanchez proce- supports particular or purpose (Ind.2001). Due Similarly, Process guarantees it a reme- right. dural Rather ap- of the Fourteenth Amendment law,” Clause it dy “by course of but leaves due car- plies judicial proceedings in state prescribe the “law” to what course is due. it Co., with a federal constitutional ries v. Melroe See McIntosh case, (Ind.2000). a fair trial in a civil albeit no Chicago particular result. See Council jurisdictions law from other The case Bauer, Lawyers v. 522 F.2d finding (7th Cir.1975); Innova- Bailey Systems vari distinguishable equally sources (3d Cir.1988) Inc., tion, example, dealt grounds. For Carlisle ous (“[Fjairness in a whether crimi- waives its whether nature, nal civil in is a vital or constitution- counsel, present by choosing competent & D. right.”); al John E. Nowak Ronald deal with and does not whether Rotunda, Law 13.8 Constitutional meaningfully assist counsel. Fla. could 2000) (the guarantees ed. Constitution Lines, Jones, Inc. v. So.2d Greyhownd result). particular procedure, fair not (Fla.1952), states that the court will But this under either the federal physical not exclude a because guarantee the state constitution does not no ba appearance, gives but constitutional Rather, guarantees present. to be v. Huy sis for its decision. Rozbicki parties. A all brechts, fundamental fairness 386, 589 A.2d 363 218 Conn. claim of be evaluated terms (1991), right must who person concerns whether a has impact as well vindica- of its on others has the also dire, of the claimants. tion of the interests voir present during concerns, such When other constitutional question concerning does reach the upon process, infringed cannot be is abso process of the factual rights plaintiff because circumstances of a of the case, particular the defendant meaningfully impaired should have would not be her opportunity court finding convince the absence. This is fact sensi- highly or her to a fair trial will his be in tive and should reviewed under jeopardy plaintiff unless the dur- is barred abuse of discretion standard. Fobar liability phase In ing Vonderahe, (Ind.2002) trial. N.E.2d words, bifurcated, (trial if a and the application court’s law to a fact counsel, plaintiff meaningfully cannot aide inquiry sensitive for an reviewed abuse principle permits this same (trial fairness a discretion), Gage, 505 party the opportunity that a fair show plain- courts have the discretion to exclude requires opposing exclusion of an tiffs). party liability phase. Just as if courts often exclude evidence II. Exclusion in This Case prejudicial its outweighs proba- effect

Here, value, the trial may court made a determina- tive courts exclude a presence tion that can when it be demonstrated that his or “highly prejudicial would be presence Defen- her would be prejudicial and the dants” and “could litigant impair not absence would not testify about events related to guarantees other constitutional because of not presentation and could aid in the party’s inability to assist counsel. Plaintiff[’]s case.” The child has numerous Even if the of party signifi- physical disabilities, and mental including cantly prejudicial, other interests —most palsy cerebral palsy. and Erb’s I do frequently not may assist counsel— suggest that these any conditions in way require nevertheless party’s presence. process diminish her due rights. But But nei- in the absence of showing they interests, ther do impairment overcome the of an of those exclusion opponent to fair may the unusual be ordered. That is a matter circumstance where a cannot mean- court discretion and I would not find it ingfully assist party’s counsel and the abused in this case.

presence may a. impair fair a trial

court judge should be vested with the dis- Here,

cretion to exclude party. judge

trial court the opportunity had

observe the child in videotaped deposi-

tion and ability assess her to aid counsel potential

and the affect of her appearance Roger BOESCH, Defendant-Appellant, a jury. The child also unable was testify about concerning matters

liability of the defendants. do not be- Indiana, Plaintiff-Appellee. STATE of lieve that based on these facts the trial No. 45S00-9909-CR-467. judge abused his discretion in deter- mining appearance, though that her highly Supreme Indiana. relevant damages, proper Nov. liability phase. factor short, the trial court found defendant’s to a fair trial would be

infringed by plaintiffs presence, and that

Case Details

Case Name: Jordan Ex Rel. Jordan v. Deery

Court Name: Indiana Supreme Court

Date Published: Nov 22, 2002

Citation: 778 N.E.2d 1264

Docket Number: 75S05-0106-CV-310

Court Abbreviation: Ind.