Tuesday, June 16, 2009
Ind. Decisions - Supreme Court decides three, including Terre Haute mayor case and CAFO case
Kevin D. Burke v. Duke Bennett, a 6-page, 5-0 opinion, Justice Dickson writes:
Duke Bennett became the Mayor of Terre Haute, Indiana, after defeating the incumbent, Kevin Burke, in the November 6, 2007 general election. On November 19, 2007, Burke filed this action to contest the election, asserting that Bennett was ineligible. Following a bench trial, the trial court rejected Burke's challenge and declared Bennett elected as the qualified candidate who received the highest number of votes. The Court of Appeals reversed and remanded for a new election. Burke v. Bennett, 896 N.E.2d 505 (Ind. Ct. App. 2008). We granted transfer and now affirm the trial court's confirmation of Bennett's election as Mayor. * * *In Elizabeth Thomas v. Blackford County Area Board of Zoning Appeals and Oolman Dairy, LLC, a 4-page, 5-0 opinion, Justice Boehm writes:
The parties disagree on whether, during the pre-election campaign, the connection between Bennett's work for the Hamilton Center and its Head Start program was sufficient to subject him to the candidacy limitations of the Little Hatch Act. We need not resolve this dispute to decide this case, the outcome of which is controlled by the language of the Indiana disqualification statute. * * *
The disqualification statute provides two reasons why Burke cannot prevail in this election contest. First, as he is seeking to use the statute not to prevent Bennett's candidacy but to prevent his assumption of office, the statutory disqualifiers are to be assessed as of the time the office is to be assumed. Among its supporting findings, the trial court found: "At the time of taking mayoral office, Bennett will no longer be employed at the Hamilton Center. Thus, when he is assuming office, he will no longer be employed by the Hamilton Center and, consequently, will not be subject to the Little Hatch Act." Burke does not contest this finding. Second, when as here an election victor's Little Hatch Act involvement is being asserted to establish disqualification, the issue is not whether a successful candidate was subject to the Act or had been in violation of it when the candidate became or remained a candidate. Rather, it is whether the election winner is subject to the Act and whether he would violate it by becoming or remaining a candidate. This ground for disqualification requires proof that a person would, in the future, violate the Act by becoming or remaining a candidate. Clearly this disqualifier is inapplicable to establish ineligibility in a post-campaign election contest. From the time Burke filed his election contest action to Bennett's anticipated assumption of the position of Mayor, it is undisputed that Bennett was no longer a candidate. From the undisputed facts, it was thus impossible for Burke to establish that Bennett "is subject to" and "would violate" the Little Hatch Act "by becoming or remaining" a candidate, the elements for disqualification under section (5)(c) of the disqualification statute, upon which Burke predicated his election contest.
We affirm the trial court’s conclusion that a property owner lacked standing to challenge a Board of Zoning Appeals ruling, and we address the procedural steps available to raise standing issues. * * *In Brenda Spar v. Jin S. Cha, M.D., a 14-page, 5-0 opinion, Justice Boehm writes:
This case is governed by the framework set out in Bagnall. Indiana Code section 36-7-4-1003(a) requires that a person be “aggrieved” to seek judicial review of a board of zoning appeals’s decision. * * *
Thomas’s contention that she was aggrieved hinged on her claim that the proposed CAFO would significantly impair the value of her home. * * *
The trial court evaluated this conflicting evidence and concluded that Thomas had not established that she was an “aggrieved party.” We cannot say this conclusion was clearly erroneous and therefore affirm the trial court.
We hold that, with possible exceptions not relevant here, incurred risk is not a defense to medical malpractice based on negligence or lack of informed consent. We also hold that the plaintiff‘s consents to prior surgeries were admissible to counter her lack-of-informed-consent claim to the extent that claim was based on failure to inform her of typical risks in the procedure. We reverse and remand for a new trial.
Posted by Marcia Oddi on June 16, 2009 01:00 PM
Posted to Ind. Sup.Ct. Decisions