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Tuesday, January 29, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 10 NFP)

For publication opinions today (3):

In Seth Anderson v. Huntington County Board of Commissioners, a 12-page opinion, Judge Baker writes:

In this case, we are presented with an issue of first impression, namely, what suffices as “reasonably particular” in a request for public records submitted under the Access to Public Records Act (APRA). Here, appellant-plaintiff, Seth Anderson, submitted four requests for emails pursuant to the APRA. Each request was identical – all seeking the emails sent or received within a four and one-half month time span – the only difference between the requests was that each named a different employee.

About one week later, appellee-defendant, the Huntington County Board of Commissioners (the “Commissioners”), sent a letter through counsel to Anderson, requesting further clarification and assuring Anderson that once clarification was received, the appropriate records would be provided. Instead, Anderson filed a formal complaint with the Public Access Counselor, who upheld the Commissioners’ decision, insofar as Anderson’s request was not “reasonably particular” as required by the APRA.

Anderson filed a complaint to compel access to the public records, seeking a court order to compel the Commissioners to supply the records as originally requested and for attorney fees and costs. The Commissioners informed Anderson that they intended to comply with his requests as written. Anderson concedes that he has received all requested information but not before a hearing was held after which, the trial court concluded that the Commissioners did not improperly deny Anderson’s requests because they were not “reasonably particular” and denied his request for attorney fees and costs.

We conclude that, inasmuch as a county employee spent ten hours and purchased new software to retrieve 9500 emails that then had to be turned over to human resources for further redaction, we agree with the Public Access Counselor and the trial court that Anderson’s requests were not reasonably particular. Likewise, we conclude that Anderson has not substantially prevailed under the APRA and is, therefore, not entitled to attorney fees, court costs, and reasonable expenses * * *

It is noteworthy that while the Commissioners agree with Anderson that the Public Access Counselor’s decision is not binding on the trial court or this Court, in the absence of case law or adequate statutory authority, this Court should give considerable deference to the opinions of the Public Access Counselor. The Commissioners point out that in other areas of administrative law, “with respect to an agency’s interpretation of statutes and regulations that [it] is charged with enforcing, such interpretation is entitled to great weight . . . .” Austin v. Ind. Family & Soc. Servs. Admin., 947 N.E.2d 979, 982 (Ind. Ct. App. 2011). Nevertheless, the Commissioners concur with Anderson that unlike other cases under the Administrative Orders and Procedures Act, the trial court reviews an opinion of the Public Access Counselor de novo. I.C. § 5-14-3-9. * * *

Although the Commissioners ultimately spent the time and expense compiling and reviewing 9500 emails, they did not necessarily have a legal obligation to do so, and, as argued above, the Public Access Counselor’s opinions state the opposite. To be sure, the fact that the Commissioners provided the information exactly as Anderson requested it does not define the APRA. Indeed, we agree with the Public Access Counselor’s opinion that Anderson’s requests were not reasonably particular under the APRA, and the Commissioners were under no legal obligation to provide to him the information as he requested. Consequently, this argument fails.

In John Alden v. State of Indiana , a 7-page opinion, Judge Pyle writes:
John Alden (“Alden”) appeals the trial court’s denial of his petition to reduce his Class D felony conviction for operating while intoxicated to a Class A misdemeanor. We affirm. * * *

Alden argues that his petition should have been granted because there was sufficient evidence to show that he met all of the statutory requirements for reduction of his felony conviction to a misdemeanor. The State argues that the statute in question grants the trial court discretion in deciding whether or not to grant this type of petition. * * *

It seems clear that the General Assembly has adopted a policy wherein trial courts can reward good behavior by removing the stigma of certain Class D felony convictions. See State v. Brunner, 947 N.E.2d 411 (Ind. 2011) (modification of conviction for good behavior may be equitable and desirable, but only after legislature grants authority to courts). However, the language used in the statute does not create a right to the reduction of one’s Class D felony conviction to a misdemeanor. The word “may” shows an intent by the legislature to give trial courts the discretion to grant or deny a petition, even if all of the statutory requirements have been met by the Petitioner. While it is best for trial courts to keep in mind the policy preference of rewarding good behavior with a reduction of a Class D felony conviction to a Class A misdemeanor, trial courts are free to deny a petition as long as the denial is supported by the logic and effect of the facts.

In Michael L. Curtis v. State of Indiana , a 7-page opinion in a pro se appeal, Sr. Judge Sharpnack writes:
Michael Curtis appeals the denial of his Indiana Trial Rule 60(B) motion for relief from judgment following the forfeiture of his truck. We reverse. * * *

In his 60(B) motion, Curtis stated that his attorney failed to inform him of the forfeiture order and argued that seizure of his truck was not authorized by the forfeiture statute because the pirated movies he sold did not constitute stolen property. Assuming the truth of his claim that his attorney did not inform him of the final judgment, Curtis may have been unable to file a timely notice of appeal. He did, however, file a motion for a belated appeal, in which he notified the trial court for the first time that his attorney did not inform him of the forfeiture order and argued that the copyright infringement was not theft, but the trial court did not rule on the motion. * * *

Here, the forfeiture of Curtis’s truck was based on the assumption that the content of the pirated movies sold out of the truck constituted “stolen . . . or converted property.” Ind. Code § 34-24-1-1(a)(1)(B). We must disagree. As noted in Dowling, “the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple goods, wares, or merchandise.” 473 U.S. at 217 (quotation omitted). Moreover, Section 34-24-1-1(a)(1)(B) clearly allows forfeiture in cases of theft or conversion but says nothing about copyright infringement or even fraud, the crime to which Curtis pleaded guilty. See Chan v. State, 969 N.E.2d 619, 621 (Ind. Ct. App. 2012) (“[F]orfeitures are not favored in the law, and statutes authorizing forfeitures are strictly construed.”).

The State nonetheless asks us to affirm the trial court on two alternative grounds. First, it argues that Curtis has waived any arguments on appeal for failure to present a cogent argument. In his brief, Curtis argues that the trial court abused its discretion by denying his Rule 60(B) motion and further cites relevant portions of Dowling. This is sufficient to avoid waiver. Second, the State argues that Curtis cannot challenge the forfeiture inasmuch as he already pleaded guilty to committing the underlying crime with his truck. The crime to which Curtis pleaded guilty, however, was not theft or conversion, and the forfeiture provision here allows seizure only in cases of stolen or converted property.

As the forfeiture of the truck was not authorized by statute, we conclude that Curtis has established extraordinary circumstances justifying relief.

NFP civil opinions today (4):

In Re: The Paternity of K.G.; J.G. and S.S. and A.S. (NFP)

Accessabilities, Inc. v. Review Board of the Indiana Dept. of Workforce Development (NFP)

Denise Polak and Dianne Rose and Dianne Rose, Lake County Trust Co., as Trustee for Trust #6041, and Jeanne Collins Living Trust, Dianne Rose, Trustee v. Tiffiny Jordan (NFP)

Ray Ortega v. Susko Corp., Inc., d/b/a Our Place (NFP)

NFP criminal opinions today (6):

Jeffrey A. Booth v. State of Indiana (NFP)

Kelly Coots v. State of Indiana (NFP)

Rudy J. Smith v. State of Indiana (NFP)

Clarence Johnson v. Juana Johnson (NFP)

Madelyn Smith v. State of Indiana (NFP)

Lanard E. Foster v. State of Indiana (NFP)

Posted by Marcia Oddi on January 29, 2013 10:51 AM
Posted to Ind. App.Ct. Decisions