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Friday, August 23, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 0 NFP)

Woops, forgot about these till just now!

For publication opinions today (2):

Adam Morris v. State of Indiana, a 7-page, 2-1, opinion on rehearing, Judge Barnes writes:

The State petitions for rehearing following our decision in Morris v. State, 985 N.E.2d 364 (Ind. Ct. App. 2013). We now issue this opinion granting rehearing on the issue of restitution only.

In our original decision, we held that, because the plea agreement was completely silent on the issue of restitution, the trial court lacked the authority to order Morris to pay $14,972.45 in restitution toward the burial expenses of Morris’s fiancée, Jennifer, who was killed when she was thrown from the ATV that Morris was operating while intoxicated. * * *

We therefore now affirm the award of restitution against Morris in the amount of $14,972.45. * * *

RILEY, concurs.
BAKER, J., dissent with separate opinion. [that concludes] In my view, as we noted in our original opinion, applying the order of restitution to the class C felony charge that was dismissed as a part of the plea bargain was error. As a result, I vote to deny the State’s petition for rehearing. Finally, I would emphasize—as does the majority—that “plea agreements ideally should be more artfully drafted in cases such as this if the State wishes to seek restitution.”

In Jordan Parker, a minor, individually, and by James Parker and Cheryl Parker, as Natural parents and next friends of Jordan Parker v. Indiana State Fair Board, an agency of The State of Indiana, a 24-page opinion, Judge Barnes writes:
Jordan Parker, a minor, individually, and by James Parker and Cheryl Parker, as his parents and next friends (collectively, “the Parkers”) appeal the trial court’s denial of their petition for judicial review of a decision by the Indiana State Fair Board (the “Board”). We affirm in part, reverse in part, and remand.

The Parkers raise several issues. We reorganize and restate the dispositive issues as:
I. whether application of the Indiana State Fair’s Handbook violated the Administrative Orders and Procedures Act (“AOPA”);
II. whether the administrative proceedings were improper due to ex parte communications; and
III. whether the Parkers were denied their due process rights. * * *

Jordan’s lamb won the Grand Champion Market Lamb and participated in the Sale of Champions, where it sold for $23,300. The lamb was then transported to the Purdue Meat Lab, where it was slaughtered and drug testing samples were taken. * * * Two urine samples tested negative for foreign substances. However, a retinal sample tested positive for the presence of Zilpaterol, which is not FDA-approved for sheep. Zilpaterol is a feed additive used in cattle to “enhance leanness and growth rates.” * * *

I. Applicability of the Handbook and Its General Terms and Conditions. We first address the Parkers’ argument that the Handbook’s General Terms and Conditions, which include the statement that the drug testing results are final and binding, were void because the Board did not follow the AOPA rule-making procedures in creating the General Terms and Conditions. According to the Parkers, the Board acted in excess of its statutory jurisdiction and authority.

The Parkers did not raise this argument in their motion for summary judgment. In their response to the Board’s motion for summary judgment, the Parkers briefly mentioned the “rulemaking provision” of the AOPA, but they never argued that the General Terms and Conditions were void or that the Board acted in excess of its statutory authority. * * * We conclude that the Parkers waived this issue by failing to raise it before the Board. Consequently, for purposes of this appeal, we apply the General Terms and Conditions.

II. Ex Parte Communications. The Parkers argue that the administrative proceedings were improper because of communications between Dr. Hibberd and the Board during the Board’s deliberations. At the beginning of the hearing before the full Board, Dr. Hibberd recused himself. The Board president noted that Dr. Hibberd would not participate or vote on the matter but would be allowed to hear the arguments. After arguments by counsel, the Board discussed the matter. At that time Dr. Hibberd made comments regarding the testing procedures. The Parkers’ counsel objected to Dr. Hibberd giving testimony, but Dr. Hibberd continued with his comments. * * *

The Parkers have not demonstrated how they were harmed by Dr. Hibberd’s comments. Although Dr. Hibberd’s comments were improper because he had recused himself from the Board’s deliberations and the Board was incorrect in allowing him to speak, we conclude that the error was harmless.

III. Due Process Rights. The crux of the Parkers’ argument is that Jordan was denied his due process rights. * * *

A. Waiver
Even if we assume, for purposes of this appeal, that the Parkers had a constitutionally protected property right here, we conclude that they waived their alleged constitutional rights. * * *

B. Zero Tolerance Policy
The Parkers argue that the “final and binding” provision regarding the drug test results is an unconstitutional “zero tolerance policy.” * * *

The Parkers have failed to demonstrate that the “final and binding” policy results in a due process violation.

C. Evidentiary Hearing
The Parkers argue that Jordan was improperly denied his due process rights because he did not receive an evidentiary hearing. * * *

We conclude that the Board improperly granted full summary judgment here.

We remand for the Board to conduct an evidentiary hearing regarding the penalties imposed on Jordan. We note that, even in this appeal, the Parkers’ main focus remains challenging the admissibility of the drug test results. However, we conclude that issue was properly resolved in summary judgment proceedings. Consequently, on remand, the Parkers may not challenge the admissibility of the drug test results or the policy that the drug test results are “final and binding.” Because of our remand for an evidentiary hearing regarding the penalty imposed by the ALJ Panel, we need not address the Parkers’ equal protection and excessive penalty arguments.

Conclusion. The Parkers waived their argument that the Handbook’s General Terms and Conditions are void. Further, they agreed to be bound by the Handbook, including its requirement that the drug testing was “final and binding.” We also conclude that any error in Dr. Hibberd’s comments during the Board’s deliberations was harmless error. However, because the summary judgment motions addressed only the admissibility of the drug test results, we conclude that Jordan was entitled to an evidentiary hearing regarding the penalties imposed on him. We affirm in part, reverse in part, and remand for further proceedings.

NFP civil opinions today (0):

NFP criminal opinions today (0):

Posted by Marcia Oddi on August 23, 2013 02:50 PM
Posted to Ind. App.Ct. Decisions