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Monday, May 04, 2009

Ind. Decisions - Court of Appeals issues 4 today (and 7 NFP)

For publication opinions today (4):

In Kevin S. Varner v. Indiana Parole Board, a 19-page opinion in suit brought by a pro se litigant, Judge Robb writes:

Kevin Varner, an inmate at Plainfield Correctional Facility, filed a pro se action for mandate requiring the Indiana Parole Board (the “Board”) to determine his parole eligibility based on a vote of all five Board members. The trial court summarily dismissed that action, either for lack of subject matter jurisdiction or pursuant to Indiana Code section 34-58-1-2(a), a statute requiring trial courts to prescreen the legal sufficiency of claims filed by pro se prisoners such as Varner. On appeal, Varner contends the trial court’s summary dismissal was improper because the relief he seeks – a five-member vote to determine his parole eligibility – is mandated by Indiana Code section 11-13-3-3(b).

For reasons stated below, we conclude the trial court’s summary dismissal was improper because it did not lack subject matter jurisdiction and because Varner’s mandate action states a claim upon which relief can be granted. We also elect to address Varner’s mandate action on its merits, concluding that because Indiana Code section 11-13-3-3(b) requires a five-member vote to determine his parole eligibility, he is entitled to the relief he seeks. Accordingly, we reverse the trial court and instruct it to enter judgment in favor of Varner and to grant him the relief he seeks. * * *

We note in closing that the State’s sole argument that the four-member vote is sufficient is based on the Board’s rules, specifically subsections (a)(3) and (4) of 220 Indiana Administrative Code 1.1-2-2. Those subsections state that “[t]hree (3) members of the board constitute a quorum,” 220 Ind. Admin. Code 1.1-2-2(a)(3), and that “[t]he board shall take no action upon any matter requiring a board action unless at least three (3) board members are in agreement on the action,” 220 Ind. Admin. Code 1.1-2-2(a)(4). However, we are aware of no proposition of law that permits an administrative agency to disregard a clear statutory obligation on the ground that its rules impose a lesser obligation. To the contrary, this court has repeatedly observed that an administrative rule may not trump a statute’s clear mandate. See Lee Alan Bryant Health Care Facilities, Inc. v. Hamilton, 788 N.E.2d 495, 500 (Ind. Ct.App. 2003) (“An agency, however, may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law. Any regulation that conflicts with statutory law is wholly invalid.” (citation omitted)), clarified on other grounds on reh’g, 793 N.E.2d 229; Potts v. Review Bd. of Ind. Employment Sec. Div., 438 N.E.2d 1012, 1015-16 (Ind. Ct. App. 1982) (“Boards cannot enlarge or vary, by the operation of such rules, the powers conferred upon them by the Legislature, or create a rule out of harmony with the statute. If the rules are in conflict with the state’s organic law, or antagonistic to the general law of the state or opposed to the fundamental principles of justice, or inconsistent with the powers confer[r]ed upon such boards, they are invalid.” (citations and quotation marks omitted, correction in original)). We therefore reject the State’s argument that the Board’s administrative rules control its voting obligations.

In Nunn Law Offices v. Peter H. Rosenthal, a 13-page opinion, Judge Bradford writes:
Appellant-Petitioner Nunn Law Office (“Nunn”) appeals the trial court's award of
$1462.88 in attorney's fees in its petition for division of attorney's fees arising out of Nunn's
and Appellee-Respondent attorney Peter Rosenthal's successive representation of Joseph
Carpenter in Carpenter's personal injury action against Terry Rosengarten. Upon appeal,
Nunn claims that the trial court erred in failing to issue written findings of fact and
conclusions thereon pursuant to Indiana Trial Rule 52 and in basing its award upon quantum
meruit rather than upon Nunn's contingency fee agreement with Carpenter. We affirm.
E.D. v. State of Indiana - "The State did not provide evidence establishing whether the gun was in plain view, and there was no evidence to suggest that E.D. made incriminating statements regarding knowledge of the gun or that E.D. made furtive gestures. Accordingly, we reverse E.D.’s adjudication as a delinquent child for possession of a handgun without a license, a Class A misdemeanor if committed by an adult. Reversed. "

Keith Payton v. State of Indiana - "In summary, the delays chargeable to Payton totaled 136 days – 61 days for the delay from December 20 until February 19 to set a trial date, and 75 days for acquiescing in Andre‟s motion for continuance, which resulted in resetting the beginning of trial from July 11 to September 15. This means that, pursuant to Crim. R. 4(C) and (F), the State had 136 days after July 2, or until November 15, 2008, to bring Payton to trial. Inasmuch as trial was held on September 15-17, 2008, Payton was not denied his right to a speedy trial and the trial court did not err in denying his motion to dismiss on that basis. Judgment affirmed. "

NFP civil opinions today (2):

Term. of Parent-Child Rel. of D.B., et al; J.B. v. IDCS (NFP)

Daniel Hoagland, et al. v. Town of Clear Lake, Indiana, et al. (NFP) - Involves dispute between town and Hoagland re operation of a helicopter on the Hoaglands’ private property, which was located within the Town’s limits.

NFP criminal opinions today (5):

James Lomax v. State of Indiana (NFP)

Eric J. Hicks v. State of Indiana (NFP)

Bruce Todd Bowman v. State of Indiana (NFP)

Michael D. Burton v. State of Indiana (NFP)

Gary D. Wilson v. State of Indiana (NFP)

Posted by Marcia Oddi on May 4, 2009 12:36 PM
Posted to Ind. App.Ct. Decisions