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Wednesday, January 23, 2013

Ind. Decisions - Court of Appeals issues 3 today (and 8 NFP)

For publication opinions today (3):

In David Bleeke v. State of Indiana, Edwin G. Buss, Gregory Server, Randall P. Gentry, Thor R. Miller, Valerie J. Parker, William R. Harris, Mia Kelsaw, Damita VanLandingham, and Susan Feasby, a 24-page opinion involving a suit against the Indiana Parole Board, Sr. Judge Darden writes:

The following issues are dispositive:
I. Whether Bleeke waived any right to appeal the imposition of additional parole conditions when he signed a document permitting him to move to Ohio;
II. Whether the trial court erred in determining as a matter of law that provisions of Indiana Code Section 11-13-3-4(g) were not overbroad;
III. Whether the trial court erred in determining that the designated evidence supported the imposition of certain additional parole conditions prohibiting Bleeke’s association with children;
IV. Whether the trial court erred in determining as a matter of law that certain other additional parole conditions were neither overbroad nor vague; and
V. Whether the trial court erred in determining as a matter of law that the Indiana Sex Offender Management and Monitoring Program (“SOMM”), as applied to Bleeke, violates his right to due process. * * *

The upshot in this case is that the potential for revocation of parole forces Bleeke to give up his Fifth Amendment privilege or possibly return to prison. And although the five-year statute of limitation for perjury has expired, Bleeke is still subject to the possible use by law enforcement of any other incriminating statements. The SOMM program’s requirements violate the Fifth Amendment.

CONCLUSION. The trial court erred in granting summary judgment in favor of the Parole Board. Further, it erred in denying Bleeke’s motion for summary judgment. We reverse and remand with instructions that the trial court: (1) vacate its order granting summary judgment for the Parole Board and denying Bleeke’s motion for summary judgment; (2) enter an order granting Bleeke’s motion for summary judgment; (3) enter an order enjoining the Parole Board from enforcing any conditions premised on the fiction that Bleeke is a danger to minors; (4) enter an order enjoining the Parole Board from enforcing additional parole conditions 8, 15, 17, and 19 against Bleeke; and (5) enter an order enjoining the Parole Board from requiring Bleeke to incriminate himself as part of the SOMM program. Reversed and remanded.

In Fred C. Feitler, Mary Anna Feitler, and The Feitler Family Trust v. Springfield Enterprises, Inc., J. Laurie Commercial Floors, LLC, d/b/a Jack Lauries Floor Designs, and JM Woodworking Company , a 3-page opinion on a petition for rehearing, Judge Bradford writes:
[W]e now conclude that JM was not required to issue a pre-lien notice in order to hold a mechanic’s lien, and therefore now affirm the trial court on this point. That said, we also deny Appellee J. Laurie’s rehearing petition in full and reaffirm our original opinion in all other respects.
In D.L., Glen Black, Ann Black, Steven Lucas, and K.L., by her Next Friend, D.L. v. Christine Huck, Laura Zimmerman, Angela Smith Grossman, Rhonda Friend, Angyl McClaine, and IN. Dept. of Child Svcs., a 7-page opinion on a petition for rehearing, Chief Judge Robb writes:
Both D.L. (the “Family”) and the Department of Child Services (“DCS”) have petitioned for rehearing in our decision dated October 17, 2012. In our opinion, we held that DCS and its workers were not entitled to quasi-judicial immunity for their removal of a child from the home of relatives in whose care she had been placed and who were in the process of adopting her. D.L. v. Huck, 978 N.E.2d 429, 435 (Ind. Ct. App. 2012). We held that the workers and DCS were, however, entitled to statutory immunity under Indiana Code section 31-25-2-2.5. Id. at 436-36. We grant DCS’s petition only to clarify the purpose of rehearing, and otherwise affirm our opinion as to DCS in all other respects. We grant the Family’s petition in order to re-examine their federal civil rights claims and claims under the Indiana Tort Claims Act. * * *

Conclusion. We grant DCS’s petition for rehearing for the limited purpose of reminding counsel that relevant documents must be made a part of the record on appeal, and the record may not be supplemented on rehearing.

We grant the Family’s petition for rehearing in order to clarify our reading of Indiana Code section 31-25-2-2.5; to allow tort claims against DCS to proceed under a theory of vicarious liability, within the ITCA; and to allow federal civil rights claims to proceed.

We affirm our original opinion as to all matters not revised here.

NFP civil opinions today (3):

In the Matter of the Term. of the Parent-Child Rel. of: A.B. & P.B.; and E.B. v. The Indiana Dept. of Child Services (NFP)

Michael L. Harris v. State of Indiana, Elkhart County Sheriff's Dept. (NFP)

Nathan Abbott, State of Indiana and Indiana State Police v. Michael Mitchell and Leonard Love (NFP)

NFP criminal opinions today (5):

Robert Earl Davis v. State of Indiana (NFP)

Michael Gregg v. State of Indiana (NFP)

Joshua C. Jackson v. State of Indiana (NFP)

Dennis Knight v. State of Indiana (NFP)

Kevin Gene Rotino v. State of Indiana (NFP)

Posted by Marcia Oddi on January 23, 2013 12:21 PM
Posted to Ind. App.Ct. Decisions