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Tuesday, October 09, 2012

Ind. Decisions - Court of Appeals issues 6 today (and 9 NFP)

For publication opinions today (6):

In Jeffrey Allen Rowe v. Bruce Lemon, et al , a 15-page opinion in a case with a pro se appellant, Judge Barnes writes:

We restate the dispositive issues before us as:
I. whether Rowe is entitled to pursue monetary damages against the Defendants under either 42 U.S.C. § 1983 or the Religious Land Use and Institutionalized Persons Act (“RLUIPA”); and
II. whether there is a genuine issue of material fact precluding summary judgment on Rowe’s claims under RLUIPA. * * *

Questions concerning diets for prisoners allegedly mandated by their religious beliefs have generated a voluminous amount of federal litigation. The federal courts of appeal have held that “a prisoner’s religious dietary practice is substantially burdened when the prison forces him to choose between his religious practice and adequate nutrition.” Nelson v. Miller, 570 F.3d 868, 879 (7th Cir. 2009) (citing Love v. Reed, 216 F.3d 682, 689-90 (8th Cir. 2000) & McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987)). The key question in this case, therefore, is whether Rowe’s desire for a kosher meal plan was motivated by a sincerely held religious belief, “rather than a preference for the way a given diet tastes, a belief that the preferred diet is less painful for [some] animals, or a prisoner’s desire to make a pest of himself and cause trouble for his captors.” Vinning-El, 657 F.3d at 594. If Rowe is so motivated, then the DOC is required to provide him with kosher meals, particularly given that the Defendants make no argument that there is a compelling state interest in not providing them. * * *

The Defendants have not established as a matter of law that Rowe lacked sincere religious reasons for requesting a kosher diet. Although the sincerity of Rowe’s adherence to “Identity Christianity” and his need for a kosher diet arguably could be eyebrow-raising, such sincerity, or lack thereof, is a question of fact. See Beebe, 749 F.Supp.2d at 594-95. The Defendants also make no argument that they have a compelling governmental interest in refusing to provide a kosher diet to Rowe. As such, the Defendants were not entitled to summary judgment on Rowe’s RLUIPA claims.

For similar reasons, we decline to direct that summary judgment be entered in Rowe’s favor on this point, as he requests. We decline to rule, as a matter of law and based on a paper record, that he is definitely sincere in his beliefs. In other words, there is a genuine issue of material fact regarding the sincerity of Rowe’s religious belief that he is required to eat only kosher meals that are certified as uncontaminated by “forbidden” foods. We reverse the grant of summary judgment against Rowe on his claims under RLUIPA and remand for further proceedings on those claims.

In American Cold Storage, et al v. The City of Boonville , an 18-page, 2-1 opinion, Judge Baker writes:
In this case, a city passed an ordinance annexing additional territory, which a group of landowners vigorously oppose. Indeed, this is the second time that these litigants have been before a panel of this Court. The issue presented to us this time is how to count State-owned parcels of land that now form State-owned right of ways. The trial court concluded that the parcels should be counted individually. We conclude that this was error, inasmuch as it undermines the General Assembly’s intent to provide a mechanism for landowners to oppose annexation.

Appellants-plaintiffs American Cold Storage et al., (collectively, “the Landowners”) appeal the trial court’s ruling dismissing their challenge to an annexation by the appellee-defendant City of Boonville (Boonville) for lack of subject matter jurisdiction. Specifically, the Landowners argue that the trial court erred by individually counting the State-owned parcels that are now State Road 62 rather than counting State Road 62 as a single piece of real estate. According to the Landowners, counting each individual parcel that is now part of a state highway diluted the percentage of signatures necessary to oppose the annexation.

Boonville cross-appeals arguing that the Landowners have waived this issue because it was available to them during the first appeal and they failed to raise it. Declining to find waiver and concluding that the trial court erred by counting each individual parcel that was acquired to build what is now State Road 62, we reverse and remand for further proceedings consistent with this opinion. * * *

ROBB, C.J., concurs.
BRADFORD, J., dissents with opinion. [that begins at p. 14 of 18] First, I would accept Boonville’s argument that the question of how the State-owned parcels should be counted has been waived. Second, I would conclude that the parcels owned by the State should be treated no differently than any other parcel for purposes of the 65% rule of the remonstrance statute. Consequently, I respectfully dissent.

In Thomson, Inc. n/k/a Technicolor USA, Inc., Technicolor Inc., and Technicolor Limited v. Continental Casualty Co., Travelers Casualty & Surety Co., et al., a 7-page opinion, Judge Bradford writes:
Appellants/Plaintiffs Thomson Inc. n/k/a Technicolor USA, Inc., Technicolor, Inc., and Technicolor, Ltd. (collectively, “Thomson”) appeal from the trial court’s judgment in favor or Appellee/Defendant XL Insurance of America, Inc. As restated, Thomson contends that (I) full faith and credit does not require that Indiana courts respect a California trial court’s decision that California law applies to certain insurance policies XL sold to Thomson (“the California decision”), (II) comity does not favor deference to the California decision, and (III) Indiana’s choice-of-law rules require the application of Indiana law to the policies at issue. Concluding that the trial court did not abuse its discretion in applying the principles of comity, we affirm on that basis, and do not reach Thomson’s other arguments.
In Indiana Public Employee Retirement Fund v. Paul Bryson, a 13-page, 2-1 opinion, Chief Judge Robb writes:
Paul Bryson suffered back injuries while on-duty and became unable to perform his duties as a firefighter. After administrative proceedings, the Indiana Public Employees Retirement Fund Board (“PERF”) determined Bryson was entitled to Class 2 impairment disability benefits pursuant to Indiana Code section 36-8-8-12.5. The trial court set aside PERF’s decision and concluded Bryson was entitled to Class 1 impairment disability benefits. PERF appeals, raising the sole issue of whether the trial court erred by setting aside PERF’s decision and concluding Bryson is entitled to Class 1 impairment disability benefits. Concluding the trial court did not err, we affirm. * * *

BAKER, J., concur.
BRADFORD, J., dissents with opinion. [that begins at p. 12 of 13] I agree with the majority’s statutory interpretation that an on-duty personal injury that exacerbates a pre-existing medical condition can “direct[ly] result” in a Class 1 covered impairment under Indiana Code section 36-8-8-12.5(b)(1). However, because I do not believe Paul Bryson’s covered impairment satisfies that standard, I respectfully dissent.

In Jon E. Garcia v. State of Indiana , a 6-page opinion, Judge Barnes writes:
We conclude that a vehicle can be a “place” as contemplated by the criminal recklessness statute. Further, we have no difficulty holding that a vehicle can be a “place where people are likely to gather.” A vehicle, which can transport people, is clearly a location where people could congregate and gather. We conclude that, under Indiana Code Section 35-42-2-2, a vehicle can be unambiguously included as a “place where people are likely to gather.” As a result, the trial court properly denied Garcia’s motion for directed verdict.
In Travis Koontz v. State of Indiana , an 11-page opinion, Chief Judge Robb writes:
Travis Koontz appeals the trial court’s denial of his motion to correct erroneous sentence. He raises one issue for our review, which we restate as whether the trial court erred in denying his motion when his sentence is, on its face, erroneous for exceeding statutory authority. Concluding that Koontz waived any error in his sentence by consenting to the sentence as part of a plea agreement, we affirm. * * *

BRADFORD, J., concurs.
BAKER, J., dissents with opinion. [that begins, at p. 9 of 11, and concludes] Nevertheless, Koontz was exposed to a combined term of imprisonment and probation that exceeded statutory limits. Accordingly, in cases where the offenses are misdemeanors or minor felonies, the potential for abuse could be too great to justify permitting the imposition of illegal sentences through plea agreements. Therefore, I would reverse.

NFP civil opinions today (2):

Ralph Jennings d/b/a A Cut Above Tree Service v. Terrance Kinnard (NFP)

Carl L. Johnson v. Review Board of the Indiana Department of Workforce Development and Williams Systems LLC (NFP)

NFP criminal opinions today (7):

Norman Trent v. State of Indiana (NFP)

Bobbie Buckles v. State of Indiana (NFP)

Paul R. Semenick v. State of Indiana

John Ray Henry v. State of Indiana (NFP)

Victor Smith v. State of Indiana (NFP)

Theothus Carter v. State of Indiana (NFP)

Marion Spencer v. State of Indiana (NFP)

Posted by Marcia Oddi on October 9, 2012 12:50 PM
Posted to Ind. App.Ct. Decisions