Monday, January 18, 2016
Ind. Decisions - Upcoming oral arguments this week and nextThis week's oral arguments before the Supreme Court (week of 1/18/16):
- 9:00 AM - Bruce Ryan v. State of Indiana (49A02-1501-CR-2) When the Court of Appeals reversed Ryan’s convictions, the trial court granted an appeal bond with certain restrictions, such as GPS monitoring. Later, this Court vacated the Court of Appeals opinion and reinstated the convictions. See Ryan v. State, 9 N.E.3d 663 (Ind. June 3, 2014). At that point, Ryan requested an award of credit time for the period he had been subject to the terms of the appeal bond. The Marion Superior Court denied that request. The Court of Appeals affirmed that ruling and also held that Ryan’s challenge to the terms of the appeal bond was untimely. Ryan v. State, ___ N.E.3d ___, No. 49A02-1501-CR-2 (Ind. Ct. App. Aug. 26, 2015), trans. pending. Ryan has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: The ILB had this interesting post on the Ryan decision, where one of the issues was the impact of prosecutorial misconduct, on June 3, 2014.
- 9:45 AM - Virginia Garwood v. Indiana Department of Revenue (82S10-1505-TA-330) Virginia Garwood filed an appeal in the Tax Court, alleging she is owed a tax refund of more than $100,000 because the Department of State Revenue seized her dogs and sold them for less than their fair market value, and the difference exceeds the amount of her tax liability. The Department refunded the amount of the sale proceeds and the money seized from Garwood. The Department then moved for summary judgment, arguing that the remaining amount Garwood seeks is a claim for compensatory damages over which the Tax Court has no subject matter jurisdiction. The Tax Court denied the motion and certified its order for interlocutory review. The Supreme Court has granted a petition to review the order.
ILB: For background, see this long list of ILB posts on the Garwood cases.
- 10:30 AM - Andy Mohr West, Inc., et al. v. Indiana Secretary of State (49S02-1511-PL-668) When the Auto Dealer Services Division of the Office of the Indiana Secretary of State dismissed the claims of three automobile dealers who protested the proposed relocation of a fourth dealer, the three protesting dealers petitioned for judicial review, and the Marion Superior Court affirmed the Division. The Court of Appeals reversed and remanded to the Division for further proceedings on the protesting dealers’ claims. Andy Mohr W., Inc. v. Office of Indiana Sec'y of State, --- N.E.3d ---, 2015 WL 4760455 (Ind. Ct. App. Aug. 13, 2015), vacated. The Supreme Court has granted petitions to transfer the case and has assumed jurisdiction over the appeal.
ILB: Transfer was granted to both Appellee - Toyota Motor Sales, U.S.A., Inc. and Appellee - Secretary of State. This was an August. 13th 2-1 opinion presenting a question of first impression regarding an interpretation of the Indiana Dealer Services statutes.
- 9:00 AM - City of Beech Grove v. Cathy J. Beloat (49A02-1409-CT-605) Beloat brought a negligence action against the City for injuries suffered after she stepped in a pothole and fell while crossing the street. The Marion Superior Court denied the City’s motion for summary judgment. A divided panel of the Court of Appeals reversed and remanded, the majority holding that the City was entitled to discretionary function immunity under the Indiana Tort Claims Act. City of Beech Grove v. Beloat, 39 N.E.3d 691 (Ind. Ct. App. 2015), trans. pending. Beloat has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: From the dissent to this 2-1 July 16, 2015 COA opinion: "In short, simply filling a pothole does not strike me as the kind of “piecemeal repair” that was set aside in favor of the overall improvement project, assuming that the City in fact made the policy decision to eschew repairs of any kind. It is not a matter of repaving several feet of a lane of traffic or realigning an intersection, for example."
- 9:45 AM - Whistle Stop Inn, Inc., and Louise Liford d/b/a Thirsty Turtle v. City of Indianapolis, Mayor Greg Ballard, Indianapolis City-County Council and Hoosier Park, LLC (49A02-1407-MI-519) The City of Indianapolis passed an ordinance banning smoking in public areas with exceptions including a business with a license under Indiana Code 4-31-5.5 to operate a satellite facility, commonly referred to as an off-track betting facility, or OTB. Bar owners sought to have the ordinance declared unconstitutional on grounds the exception for an OTB violates the Equal Privileges and Immunities Clause of Indiana's Constitution. The Marion Superior Court upheld the exception and entered summary judgment for the City and Hoosier Park, LLC. The Court of Appeals reversed, declaring the OTB exception unconstitutional. Whistle Stop Inn, Inc. v. City of Indianapolis, 36 N.E.3d 1118 (Ind. Ct. App. 2015), trans. pending. Hoosier Park, with the support of the City, has petitioned the Supreme Court to accept jurisdiction over the appeal.
ILB: This is a June 24, 2015 COA opinion.
- 10:30 AM - Kristy Burnell v. State of Indiana (29S02-1512-CR-707) After Burnell failed field sobriety tests, she was offered the opportunity to take a chemical test. The Hamilton Superior Court suspended her license for refusing the chemical test. See Ind. Code § 9-30-6-7(a). The Court of Appeals lead opinion held that “anything short of an unqualified, unequivocal assent to a properly offered chemical test constitutes a refusal.” The suspension was affirmed. Burnell v. State, ___ N.E.3d ___ (Ind. Ct. App. 2015), vacated. The Supreme Court has granted a petition to transfer the case and has assumed jurisdiction over the appeal.
ILB: This was a 2-1, 3-opinion, Sept. 24 COA decision. See ILB summary here (4th case). From the majority opinion of J. Pyle: "We affirm the trial court’s order, holding, as a matter of first impression, that any answer short of an unqualified, unequivocal assent to a properly offered certified chemical test constitutes a refusal."
This week's oral arguments before the Court of Appeals (week of 1/18/16):
Wednesday, January 20
- 10:00 AM - B.S. v. Indiana Department of Child Services (13A01-1505-JM-363) B.S. is the mother of three children. In early 2015, the Indiana Department of Child Services received several reports of neglect of the children from an undisclosed source. In response, the DCS conducted assessments of B.S., her boyfriend, and her home but found no evidence to support the reports. Nonetheless, DCS requested to interview B.S.'s two oldest children. B.S. refused to allow the interviews, and DCS sought a court order. Pursuant to Indiana Code section 31-33-8-7, the trial court granted DCS authority to interview the children. B.S. appeals that order. Although this court has previously held that the statute is not unconstitutional on its face, see In re A.H., 992 N.E.2d 960 (Ind. Ct. App. 2013), trans. denied, B.S. contends that the statute is unconstitutional as applied to her because it violates her substantive and procedural due process rights under the Fourteenth Amendment to direct the care and upbringing of her children. Specifically, citing a decision of the Seventh U.S. Circuit Court of Appeals, she claims it was error to grant the order when there was no evidence to support the request for interviews of the children. The State argues that this appeal is moot because events subsequent to the initiation of this appeal led B.S. to consent to the interviews. The State also argues that the application of the statute did not violate B.S.’s constitutional rights.
The Scheduled Panel Members are: Judges Robb, Barnes and Altice. [Where: Court of Appeals courtroom (WEBCAST)]
- 1:30 PM - Sportsdrome Speedway, Inc. v. Jason Clark (10A01-1505-CT-341) In June 2011, Jason Clark performed services for Sportsdrome Speedway, Inc.'s racetrack. In connection with his responsibilities, Clark signed a release that allowed him to stand in restricted areas of the racetrack during races. A crash occurred during one of the races at which Clark was working, causing a race car to be propelled into the crash barrier, ultimately injuring Clark. Clark brought a personal injury action against Sportsdrome, claiming that Sportsdrome was negligent and, further, had engaged in willful and wanton misconduct. Clark subsequently conceded that the release barred his negligence claim and agreed to proceed only on his claim of willful and wanton misconduct. Sportsdrome filed a motion for summary judgment, which the trial court denied. Sportsdrome brings this interlocutory appeal, contending that the trial court erred when it found that there was a genuine issue of material fact regarding whether Sportsdrome or its agents engaged in willful and wanton misconduct. The Scheduled Panel Members are: Judges Kirsch, Mathias and Brown. [Where: Court of Appeals courtroom (WEBCAST)]
Next week's oral arguments before the Court of Appeals (week of 1/25/16):
Tuesday, January 26
- 1:00 PM - Drapeau v. State (82A01-1506-CR-616) On January 18, 2015, Blake Drapeau was arrested at his mother's apartment for attempted battery against a public safety officer; resisting law enforcement; and criminal trespass. After a bench trial, he was convicted on all three counts. On appeal, he argues there was insufficient evidence to sustain his convictions for criminal trespass and resisting law enforcement. He also argues there was a material and fatal variance between the crime of criminal trespass charged in the information and the theory and evidence of criminal trespass presented at trial. The Scheduled Panel Members are: Judges Baker, Najam and Altice. [Where: Vincennes University, Shircliff Hall, Vincennes, IN]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.
The past COA webcasts which have been webcast are accessible here.
NOTE: For a printable version of this list of upcoming oral arguments, click on the date in the next line. Then select "Print" from your browser.
Posted by Marcia Oddi on January 18, 2016 09:35 AM
Posted to Upcoming Oral Arguments