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Wednesday, June 30, 2010

Ind. Decisions - Court issues five more opinions this afternoon

In Subhen Ghosh v. Indiana State Ethics Commission and Office of the Inspector General, an 8-page, 5-0 opinion, Justice Boehm writes:

This case addresses the jurisdiction of state agencies and the State Employee Appeals Commission (SEAC) to consider ethics code violations in ruling on terminations of state employees. A 2005 statute gave SEAC jurisdiction to review terminations of state employees by either the employee's agency or the Ethics Commission. We hold that this amendment authorized SEAC to consider ethical violations among other grounds for termination in conducting this review, but did not otherwise affect the general rule that the Ethics Commission has exclusive jurisdiction to interpret the state Ethics Code. Ghosh's attempt to review his termination by the Indiana Department of Environmental Management (IDEM) in this subsequent Ethics Commission proceeding is therefore barred by IDEM's earlier unappealed decision to terminate him. We also uphold the Ethics Commission's sanction against Ghosh. * * *

The trial court's holdings that Ghosh is collaterally estopped from challenging his termination, that Ghosh violated the Ethics Code, and the $456.96 penalty are affirmed.
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[ILB - a footnote cites] Sullivan v. Day, 681 N.E.2d 713, 716 (Ind. 1997) (an agency is entitled to great deference on judicial review for its interpretations of its own regulations).

In The Kroger Co. v. Lu Ann Plonski , a 12-page, 5-0 opinion, Justice Rucker writes:

A business invitee of a grocery store was assaulted in the store’s parking lot. The store contends in part that because the assault was not reasonably foreseeable it owes no duty to the invitee. We granted transfer to explore this issue. * * *

Claiming injuries as a result of the assault, Plonski filed a complaint for damages against Kroger on September 30, 2005. After the parties conducted discovery, on March 26, 2007, Kroger filed a motion for summary judgment arguing (i) it owed no duty to Plonski, (ii) if it owed a duty the duty was not breached, and (iii) in any event Plonski’s injuries were not proximately caused by Kroger’s conduct. As a part of its motion Kroger designated, among other things, the affidavits of three Kroger employees: the Risk Manager, the Safety Manager, and the Head Cashier. The affidavits of the Risk Manager and Safety Manager asserted in essence that the Kroger store is located in a part of the city that has a reputation for low levels of criminal activity. And that in the two-year period before October 2, 2003, there was only one report of criminal activity occurring on the store’s premises. Id. The affidavit of the Head Cashier essentially alleged that the assailant who attacked Plonski was not a guest or patron of the Kroger store. * * *

Here, Kroger as the moving party failed to carry its burden of demonstrating that criminal activity on its premises at the time of the Plonski assault was not foreseeable. Thus, Plonski was not required to provide contrary evidence. * * *

Summary judgment is rarely appropriate in negligence actions. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004). And this is so because “negligence cases are particularly fact sensitive and are governed by a standard of the objective reasonable person – one best applied by a jury after hearing all of the evidence.” Id. In this case Kroger has persuaded us no differently.

Conclusion. The trial court properly denied Kroger’s motion for summary judgment. We therefore affirm the judgment of the trial court.

In Curtis F. Sample v. State of Indiana , a 6-page opinion, Justice Rucker writes:
Because the trial court (a) provided over Sample’s objection an instruction which minimized the jury’s power of discretion in making a determination on habitual offender status, and (b) provided a “law and facts” instruction that rendered meaningless the jury’s Article I, Section 19 authority, the trial court committed reversible error. Consequently, Sample is entitled to have the habitual offender adjudication vacated.

Conclusion. We affirm Sample’s convictions and sentences for attempted murder and criminal confinement. However, we vacate the habitual offender adjudication and remand this case to the trial court for a new habitual offender phase of trial.

In Luis E. Duran v. State of Indiana, an 11-page, 5-0 opinion, Justice Boehm writes:
Police attempting to execute an arrest warrant broke into the defendant’s home where they did not find their suspect, but happened on evidence of an unrelated crime. The police acted solely on the basis of uncorroborated information from an anonymous source, and without any immediate need to prevent ongoing crime or flight. We hold that the entry into the defendant’s home violated both the federal and state constitutions and the evidence must be suppressed. * * *

We have determined that the police did not have a reasonable basis for their suspicion that Hernandez was in Duran’s apartment, and thus the degree of suspicion was not high. At the same time, the degree of intrusion into Duran’s personal space was very high, and the degree of law enforcement needs was low. As such, the officers’ selection of and subsequent forceful entry into Duran’s apartment was unreasonable and violated Article I, Section 11 of the Indiana Constitution.

Conclusion. For the reasons set forth in this opinion, the trial court’s denial of Duran’s motion to suppress is reversed.

Dickson, Sullivan, and Rucker, JJ., concur.
Shepard, C.J., concurs in result with separate opinion.[which concludes] I would say that this is a sufficient basis for a belief that Duran was in the apartment where they attempted to arrest him. I join in reversing because it was not a reasonable basis for doing so in the middle of the night to arrest a relatively immobile suspect.

In Austin Knight v. State of Indiana , a 5-page, 3-2 opinion, Justice Rucker writes:
Austin Knight pleaded guilty to several felony offenses for which he was sentenced to an aggregate term of seventy years. Under our constitutional authority we revise the sentence to a total aggregate term of forty years. * * *

Conclusion. We remand this cause to the trial court with instructions to enter a sentence consistent with this opinion.

Shepard, C.J., and Sullivan, J., concur.
Dickson and Boehm, JJ., dissent without separate opinion.

Posted by Marcia Oddi on June 30, 2010 04:54 PM
Posted to Ind. Sup.Ct. Decisions