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Friday, July 10, 2009

Ind. Decisions - Court of Appeals issues 3 today (and 3 NFP)

For publication opinions today (3):

In Chijoike Bomani Ben-Yisrayl f/k/a Greagree Davis v. State of Indiana , a 20-page opinion, Judge Bradford writes:

Following dismissal of his death penalty, Appellant-Defendant Chijoike Bomani Ben-Yisrayl, f/k/a Greagree Davis, appeals his aggregate sentence of 150 years in the Department of Correction. Upon appeal, Ben-Yisrayl claims that the trial court erred by adopting and imposing the alternative term-of-years sentence provided for in the original sentencing order rather than conducting a new sentencing hearing. In addition, Ben-Yisrayl challenges the appropriateness of his sentence and the trial judge‟s recusal from his case. We affirm in part, reverse in part, and remand for resentencing. * * *

We have concluded that Ben-Yisrayl is entitled to a new sentencing hearing for his murder conviction which comports with the dictates of Blakely, but that he has waived his challenge to Judge Hawkins‟s recusal from his case. Accordingly, we affirm in part, reverse in part, and remand to Court Three for a new sentencing hearing on the murder conviction only.

In Clark C. Campbell v. Board of School Commissioners of the City of Indianapolis, et al. , a 21-page, 2-1 opinion, Judge Mathias writes:
The Board of School Commissioners of the City of Indianapolis (“the IPS Board”) filed in Marion Superior Court a complaint for declaratory judgment against the Indiana State Board of Education, the Indiana Election Commission, Clarke Campbell, Michael Cohen, Elizabeth Gore, and Leroy Robinson. In the complaint, the IPS Board sought an interpretation of Indiana Code section 20-25-3-4 and its effect on the outcome of the May 2008 school board election. The trial court determined that the individuals who received the highest number of votes for the at-large seats should be seated by the IPS Board. Campbell appeals and argues that it violates Indiana law for three members of the IPS Board to reside in the same Board district. Concluding that the individuals who received the most votes for the at-large seats were properly seated by the IPS Board, we affirm. * * *

Under these statutes, there is no dispute that Gore and Cohen were qualified to run for the “incumbent” and “open” at-large seats respectively at the time each formally and legally established her or his candidacy. The issue presented in this appeal arose because Gore and Cohen received the most votes for the two at-large seats, but they also both reside in the same district as the IPS Board member who represents District . Thus, we are faced with a situation in which it is impossible to adhere to both subsections (b) and (e) of section 20-25-3-4. * * *

In this case, we are presented with a situation that the statute simply does not address. The General Assembly addressed normal vacancies on the IPS Board and how those vacancies would be filled in section 20-25-3-4(h), but provided no guidance for the rare, but potentially recurring circumstance in this case where a mid-term resignation by an at-large Board member caused both at-large seats to be vacant in the same election cycle. * * *

Our supreme court recently reaffirmed Indiana’s “longstanding respect for the right of the people to free and equal elections”, and our supreme court’s reluctance “to remove from office a person duly elected by the voters.” Burke v. Bennett, 907 N.E.2d 529, 532 (Ind. 2009). * * *

Furthermore, we cannot agree with Campbell’s assertion that geographic diversity should prevail over the will of the electorate. Each of the five school board districts is represented by a member on the IPS Board. Because two at-large members are also elected, the General Assembly has authorized an IPS Board that lacks uniform geographic diversity. Accordingly, we conclude that geographic diversity was not our legislature’s overriding concern. * * *

For all of these reasons, we conclude that the trial court reached the correct result when it declared that Gore and Cohen should be seated by the IPS Board because they received the “most votes” for their respective at-large seats. In view of the overriding goal “to uphold the will of the electorate” it bears repeating that Gore received 22,942 votes to Campbell’s 15,512 votes, and Cohen received 28,348 votes to Robinson’s 24,442 votes for the respective at-large seats. See Burke, 907 N.E.2d at 532 (noting our supreme court’s reluctance “to remove from office a person duly elected by the voters.”).

Finally, we urge the General Assembly to consider the circumstances presented in this appeal and to formulate a statutory remedy to similar circumstances should they recur in a future election. Affirmed.

BARNES, J., concurs.
BAILEY, J., dissents with opinion. [which begins, on p. 15 of 21] I dissent from my colleagues’ opinion that Michael Cohen is qualified to hold an at-large position on the IPS Board, and I disagree with their determination that Indiana Code Section 20-25-3-4 provides no guidance for the circumstances that occurred in this case.

In The Money Store Investment Corp, et al. v. Neal A. Summers, et al. , a 19-page opinion, Sr. Judge Sharpnack writes:
This appeal involves issues of liens and priorities between Paula Phillips (“Phillips”), a judgment creditor and assignee of a first mortgage holder (“National City”), and The Money Store Investment Corporation, d/b/a First Union Small Business Capital (“Money Store”), the holder of a second mortgage, for the cost of repairs, insurance, and taxes with respect to the mortgaged property owned by Neal Summers, on a part of which Phillips has been operating a restaurant. This is the second appeal of the case and is brought by Money Store from a judgment of the trial court adding to the lien of Phillips as assignee of National City’s mortgages amounts spent to repair the restaurant, insure it, and pay taxes on the mortgaged property during the pendency of the first appeal. * * *

To sum up, we reverse the personal judgment against Money Store; we order an accounting for the profits of the restaurant to be applied to the amount due on Phillips’ first lien; we otherwise affirm the judgment of the trial court; and we remand to the trial court for further proceedings consistent with this opinion.

NFP civil opinions today (0):

NFP criminal opinions today (3):

James Bishop v. State of Indiana (NFP)

Ashlee L. Medlin v. State of Indiana (NFP)

Brent Francis v. State of Indiana (NFP)

Posted by Marcia Oddi on July 10, 2009 10:05 AM
Posted to Ind. App.Ct. Decisions