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Thursday, December 17, 2015

Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (2):

In Monarch Beverage Company, Inc. v. David Cook, in his official capacity as Chairman of the Indiana Alcohol and Tobacco Commission, et al., a 14-page opinion, Judge Kirsch writes:

Indiana’s Alcoholic Beverages Law, which consists of several statutory provisions (“the Prohibited Interest Provisions”), prohibits alcohol wholesalers from holding interests in both beer and liquor permits. Monarch Beverage Company, Inc. (“Monarch”) filed a complaint against David Cook, in his official capacity as Chairman of the Indiana Alcohol and Tobacco Commission, et al. (“the State”), alleging that the Prohibited Interest Provisions violate the Equal Privileges and Immunities Clause of the Indiana Constitution because the statutes discriminate on their face against beer wholesalers by prohibiting beer wholesalers from seeking a permit to distribute liquor and such restraint is not based upon an inherent difference between beer and liquor wholesalers. The trial court granted summary judgment in favor of the State and against Monarch, finding the statutes to be constitutional. Monarch appeals the trial court’s order, alleging that the trial court erred in its determination that the statutes are not unconstitutional. We affirm.
In Jerrell Antonio Key v. State of Indiana, a 15-page opinion, Judge Bailey writes:
Key presents two issues for our review, which we consolidate and restate as: whether the trial court erred in denying his motion to correct error, where the State objected to Key’s petition for expungement, but the trial court did not set the matter for a hearing before denying the petition. * * *

We think the statute is clear and unambiguous. After an expungement petition is filed, the prosecuting attorney must reply within thirty days of receipt. I.C. § 35-38-9-8(f). If the prosecutor does not object, the court may grant the petition without a hearing. I.C. § 35-38-9-9(a). The term “may” in a statute ordinarily implies a permissive condition and a grant of discretion. Alden v. State, 983 N.E.2d 186, 189 (Ind. Ct. App. 2013) (citation and quotation marks omitted), trans. denied. Thus, the court may, in its discretion, grant an unopposed petition for expungement. However, if the prosecutor objects, “the court shall set the matter for hearing.” I.C. § 35-38-9-9(c) (emphasis added). “It is well settled that the use of the word ‘shall’ is construed as ‘mandatory language creating a statutory right to a particular outcome after certain conditions are met.’” Taylor, 7 N.E.3d at 365 (quoting Alden, 983 N.E.2d at 189). Thus, when the prosecuting attorney objects to a petition for expungement, the statute grants the petitioner a due process right to a hearing on the petition. * * *

It is a fundamental rule of Indiana law that when a procedural statute conflicts with a procedural rule adopted by the supreme court, the latter shall take precedence. Bowyer v. Ind. Dep’t of Natural Res., 798 N.E.2d 912, 916 (Ind. Ct. App. 2003). Thus, when a procedural statute conflicts with the Indiana Rules of Trial Procedure, the trial rules govern, and phrases in statutes that are contrary to the trial rules are considered a nullity. Id. at 917. “To be ‘in conflict,’ it is not necessary that the rule and the statute be in direct opposition.” Id. The rule and statute need only be incompatible to the extent both could not apply in a given situation. Id. * * *

Finally, we observe that Subsection 35-38-9-9(c) is more than a procedural rule, as it grants the petitioner a due process right to a hearing when the prosecutor objects to the expungement petition. Key was entitled to a hearing under the plain and ordinary meaning of Indiana Code section 35-38-9-9(c).

Conclusion. The trial court erred when it denied Key’s contested petition for expungement without first setting the matter for a hearing. The court therefore erred when it denied Key’s motion to correct error. We accordingly remand for further proceedings not inconsistent with this opinion.

NFP civil decisions today (2):

Barry B. Eskanos and Ami B. Eskanos v. Washinton Mutual Bank, FA and JPMorgan Chase Bank, N.A. (mem. dec.)

In the Matter of T.D. (Minor Child), A Child in Need of Services, and W.D. (Father) v. The Indiana Department of Child Services (mem. dec.)

NFP criminal decisions today (2):

Montrail Williams v. State of Indiana (mem. dec.)

Timothy L. Bye v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on December 17, 2015 11:19 AM
Posted to Ind. App.Ct. Decisions