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Tuesday, May 25, 2004

Indiana Decisions - Three Court of Appeals Decisions Posted Today

Mark Murfitt v. Vickie Murfitt (4/15/04 IndCtApp) [Family Law; Constitutional Law]
Sullivan, Judge

Mark Murfitt appeals pro se from the trial court’s order distributing the marital property following the trial court’s granting of Mark’s wife’s petition for dissolution of marriage. He presents three issues for our review, two of which we consolidate into the sole issue addressed in this decision: whether the trial court erred in denying Mark alternative methods, including the appointment of counsel, to represent his interests at trial. We reverse and remand. * * *

On May 29, 2001, the day that Vickie filed her petition for dissolution of marriage, Mark was incarcerated. * * * Mark subsequently filed a motion requesting alternative hearing methods so that he could take part in the hearing. * * *

Upon appeal, Mark claims that the trial court should have granted the motion for alternative means for conducting a hearing so that he could take part and defend his interests. In his motion, Mark noted that the trial court could not secure Mark’s attendance at or transportation to a civil action unrelated to the case resulting in the incarceration. [cites omitted] In that same motion, Mark also noted some alternative means by which the hearing could be conducted, including: (1) a telephonic conference, (2) securing someone else to represent him, (3) postponing the hearing until he was released, or (4) submitting the case to the court by documentary evidence.

This court has noted on several occasions the constitutional right of a prisoner to bring a civil action as provided by Article 1, Section 12 of the Indiana Constitution. * * * As stated in [Zimmerman v. Hanks], some means must exist by which an individual may prosecute his claim while still incarcerated; otherwise, that individual would be denied the constitutional right to bring a civil action. “A trial court should not be able to deprive a prisoner of his constitutional right to maintain a civil action by denying motions that the court can properly deny while concurrently ignoring the prisoner’s requests for other methods that would allow the prisoner to prosecute from prison.” There is no reason to believe that Mark could not himself take part in this action through one of the alternative methods while he is incarcerated. He has shown remarkable skill and clarity in drafting his motions and in writing his brief. Nonetheless, we reserve the decision as to how the new hearing should be conducted for the trial court. Upon remand, the trial court should determine what manner of hearing is most appropriate and feasible and whether Mark is entitled to counsel. The judgment of the trial court is reversed and the cause remanded for new proceedings not inconsistent with this decision.
ROBB, J., and RATLIFF, Sr.J., concur.

Derrick L. Jenkins v. State of Indiana (5/25/04 IndCtApp) [Criminal Law & Procedure]

Indiana Association of Beverage Retailers, et al. v. Indiana Alcohol and Tobacco Commission, et al. (5/25/04 IndCtApp) [Administrative Law]
Baker, Judge

Here the Indiana Association of Beverage Retailers, Inc. (IABR) appeals the trial court’s dismissal of its petition for judicial review of the Indiana Alcohol and Tobacco Commission’s (ATC) order granting Thornton Oil Corporation’s (Thornton) application for a beer and wine permit.

Thus, IABR seeks a reversal and remand of the trial court’s order for a determination on the merits whether ATC’s decision to grant Thornton’s application must be set aside. Concluding that IABR did, indeed, have standing in this case, we reverse the order of dismissal and remand with instructions that the trial court consider the propriety of ATC’s decision to grant Thronton’s application.

IABR is a non-profit association whose membership is comprised of retail package liquor stores. Thornton is the owner of a gas station and convenience store in Lawrence that has been in business for more than five years. Thornton also operates thirteen similar stores in other Indiana locations that hold alcoholic beverage permits.

On January 9, 2001, Thornton filed its application for a beer and wine permit so that it could “compete on a level playing field with other convenience grocery stores that sell alcoholic beverages.” Thereafter, the Marion County Local Board (Local Board) investigated the application, and a hearing was held on August 6, 2001. IABR remonstrated against Thornton’s application, arguing lack of desire or need for the permit and maintained that the permit should be denied because Thornton did not operate a pharmacy or grocery store.

Although the Local Board denied the permit, the ATC reversed and granted Thornton’s application for the alcohol permit IABR filed its verified petition for judicial review with the trial court. In the end, the trial court dismissed the case and ruled that IABR had failed to demonstrate that it had standing on its own to bring suit. Further, it said IABR’s membership, as competitors of Thornton Oil Corporation also lacked standing to object to the granting of an alcohol permit. The Court here states:
Unlike the provisions of the AOPA, it is apparent that there was only one class of persons entitled to standing under the AAA. With the enactment of the AOPA, however, the statute with regard to standing has been clarified and expanded to include the appropriate categories that had previously been omitted.
After referencing a number of decisions, the Court states:
In light of the above, it is apparent to us that the cases relied upon by the trial court in dismissing IABR’s petition for judicial review and those cited by the ATC are distinguishable from the circumstances here and do not provide authority for the trial court’s order denying IABR standing to obtain judicial review of the order. Moreover, we note that in accordance with 905 I.A.C. 1-36-2(a), a remonstrator is entitled to notice of the Local Board or ATC’s decision to grant or deny an application for an alcoholic beverage permit. Further, a remonstrator is entitled to participate in appeals to the ATC from a local board decision. 905 I.A.C. 1-36-3(b).

Finally, we note that IABR has cited to this court’s opinion in Huffman v. Dept. of Envtl. Mgmt., 788 N.E.2d 505, 509 (Ind. Ct. App. 2003), for the proposition that the judicial doctrine of standing applies to lawsuits filed in a trial court and to matters not covered by the AOPA. * * * IABR acknowledges in its reply brief that our supreme court has recently granted transfer in Huffman. To date, no opinion has been issued. We note, however, that even if the supreme court determines that Huffman’s petition was properly dismissed because of the lack of standing, we do not find that the circumstances in that case should control the outcome here. * * * That said, we do not find the Huffman rationale controlling here, and we thus conclude, in light of our discussion above, that the trial court erred in dismissing IABR’s petition for judicial review.
Reversed and remanded to the trial court for a determination of whether the ATC’s decision to grant Thornton’s application on contravention of the Local Board’s recommendation should be set aside.
FRIEDLANDER, J., and BAILEY, J., concur.

Posted by Marcia Oddi on May 25, 2004 01:55 PM
Posted to Indiana Decisions