Monday, February 06, 2017
Ind. Decisions - Transfer list for week ending February 3, 2017
There were no transfer dispositions last week, and hence, there is no transfer list.
Ind. Decisions - Tax Court posts two, one from today and one from Friday
In The University of Phoenix, Inc. v. Indiana Department of State Revenue, a 12-page opinion, Judge Wentworth writes:
The University of Phoenix, Inc. has moved to compel the Indiana Department of State Revenue to produce information and documents regarding 1) Section 14 of House Bill 1349 (“H.B. 1349”), 2) the Tax Competitiveness and Simplification Report of September 2014 (the “Report”), and 3) a presentation on the Report (the “Presentation”) as well as to compel the designation of a proper 30(B)(6) witness. Upon review, the Court grants the University’s motion in part and denies it in part.In Hamilton County Assessor v. Charles E. Duke, an 8-page opinion filed 2/3/17, Judge Wentworth writes:
This case concerns whether the Indiana Board of Tax Review erred when it determined that, for the 2009, 2010, and 2011 tax years (the “years at issue”), Charles E. Duke’s real property qualified for an educational purposes exemption, but did not qualify for a religious purposes exemption. The Court reverses the Indiana Board’s determination on the educational purposes exemption, and affirms its determination on the religious purposes exemption.
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 3 NFP memorandum decision(s))
For publication opinions today (2):
In Jessica Szamocki v. Anonymous Doctor and Anonymous Group, and Stephen Robertson, Commissioner, Indiana Department of Insurance, a 16-page opinion, Judge Crone writes:
Jessica Szamocki filed a proposed medical malpractice complaint against Anonymous Doctor and Anonymous Group (collectively “A.D.”). A.D. sought summary judgment on the ground that Szamocki’s complaint was barred by the applicable statute of limitations. Following a hearing, the trial court granted summary judgment in favor of A.D. Szamocki now appeals. Concluding that Szamocki’s claim is indeed time-barred, we affirm summary judgment in favor of A.D. * * *In State of Indiana v. James Parrott, a 17-page opinion, Judge Crone writes:
The undisputed facts show that Szamocki was expressly told by doctors on April 9, 2013, and September 17, 2014, and perhaps additional dates in between, that there was a reasonable possibility that mesalamine prescribed by A.D. may be the cause of her renal failure. On those dates, Szamocki possessed enough information that, in the exercise of reasonable diligence, should have led to the discovery of the alleged malpractice. The record simply does not support Szamocki’s contrary assertions. Szamocki has asserted no fraudulent concealment, incapacity or obstacle to initiating litigation, or any other facts that would suggest that it was not reasonably possible for her to file her claim at the very latest by December 10, 2014.6 Accordingly, Szamocki’s claim is time-barred, and we affirm the trial court’s entry of summary judgment in favor of A.D.
A police officer detected a strong odor of raw marijuana emanating from James Parrott’s vehicle during a traffic stop. The officer had Parrott exit the vehicle, handcuffed him, searched him, and found raw marijuana and other contraband in his pockets. The State charged Parrot with marijuana possession and other crimes. Parrott filed a motion to suppress the evidence seized during the search, arguing that the officer did not have probable cause to conduct a warrantless search because the officer did not smell marijuana on him after he exited the vehicle. The trial court granted Parrott’s motion. The State did not dismiss the charges and appealed the ruling.NFP civil decisions today (0):
Parrott filed a motion to dismiss the State’s appeal, arguing that the State was required to dismiss the charges before it could appeal the suppression order. Because the ultimate effect of the order is to preclude further prosecution of the drug-related charges, at a minimum, we deny Parrott’s motion to dismiss.
The State argues that the trial court erred in granting Parrott’s motion to dismiss, asserting that the officer had probable cause to arrest Parrott based on the strong odor of raw marijuana emanating from his vehicle and conduct a warrantless search incident to that arrest. We agree and therefore reverse and remand for further proceedings.
NFP criminal decisions today (3):
Ind. Courts - More on: House adopts HB 1036, intended to replace Marion County judicial selection law declared unconstitutional by the 7th Circuit
The previous system for selecting judges in Marion County was so flawed a federal judge threw it out. Now some say the proposed solution is little better.
Black legislative leaders say House Bill 1036, which revises the way Marion County's 36 Superior Court judges are selected, would disenfranchise voters in largely black and Democratic Marion County, and limit diversity on the bench.
Under the bill, a merit-selection committee would nominate judges to be chosen by the governor, duplicating the process used in appellate courts. It has been received with equal amounts of praise, criticism and cautious approval in Indiana's legal community. * * *
Supporters of House Bill 1036 say it's a well-balanced approach that gives voters, party leaders and members of the legal community some control over the judicial selection process. * * *
Under the proposed system, a 14-member Marion County Judicial Selection Committee would consider applicants for a vacancy and recommend three finalists to the governor, who would select the judge.
Appointments to the selection committee would be made by Republican and Democratic legislative leaders, various law groups and political party chairs. A member of the Indiana Supreme Court and the Court of Appeals also would be on the committee.
While the selection process relies on the committee and the governor, voters will have a role in retention elections every six years. Additionally, the committee will be involved in reviewing judges who seek retention and can make informed recommendations against retention when appropriate.
The bill, co-authored by Rep. Brian Bosma, Rep. David Frizzell and Rep. Edward DeLaney, passed the Courts and Criminal Code Committee last week, ans passed the House by a vote of 68-to-29.
The proposed bill comes after a federal judge ruled that the current judicial election system is unconstitutional. The 7th U.S. Circuit Court of Appeals upheld that ruling. * * *
Under the previous selection system, the two major political parties conducted primary elections in which they nominated candidates for the exact number of judicial seats to be filled – split evenly between Democrats and Republicans. By contributing money to their respective parties, the judicial candidates had a much better chance of securing an endorsement and winning a judicial seat in the election.
There are concerns, however, that the proposed selection process may not be fair to Democrats when a Republican governor will ultimately sign off on committee-chosen judges.
There are also considerations of a potential lack of diversity in county courts as well as potential voter disenfranchisement. * * *
Marion County Prosecutor Terry Curry said he has "mixed feelings" about the bill but believes it could face a legal challenge.
Curry says HB 1036 would make Marion County the fifth county to adopt merit selection. The four other counties — Allen, Lake, St. Joseph and Vanderburgh — all have large numbers of minorities, as well as Democrats.
The other counties, many with fewer minorities and Democrats, elect their judges.
"I want quality judges, period," Curry said. "However, if it were thrown into an election, Democrats would win all of the seats (in Marion County) – there could very well be a challenge."
Like Curry, others expressed mixed feelings. "I think it’s a good but not perfect bill," said Joel Schumm, a professor at Indiana University Robert H. McKinney School of Law.
Schumm argues that the proposed bill addresses the need for diversity. "Unlike the statutes for some other selection processes, it expressly requires the committee to consider 'whether the candidate reflects the diversity and makeup of Marion County.'”
Schumm said most of the process is public and transparent and has worked in selecting judges for the appellate and Supreme Court as well as judges in Lake and St. Joseph counties. "The approach is much better than the alternatives," Schumm said. * * *
Julia Vaughn, policy director for Common Cause Indiana, said while she supports HB 1036, it could go further to support diversity on the bench.
"I am disappointed that the bill isn't stronger in ensuring that the selection committee itself should be diverse," she told IndyStar. "We do have reservations, because we need to make sure women and minority groups are adequately represented on the bench."
She wouldn't go so far as to leave judgeship completely up to voters.
"Judges shouldn't be accountable to voters – certainly they should undergo retention votes," she said.
She added that overall she is in favor of the proposed system, "and it's probably the best we can expect out of the legislature we have."
Ind. Gov't. - "There are three bills in the House and Senate that would restrict womens' access to abortion"
Although House Bill 1134, sponsored by Goshen Republican Rep. Curt Nisly, which would totally ban abortion, will not get a hearing this session, Fatima Hussein of the Indianapolis Star reports that three other abortion-related bills are pending:
Currently in Indiana there are three bills in the House and Senate that would restrict womens' access to abortion:
Senate Bill 404, authored by Sens. Erin Houchin, Travis Holdman and Jeff Raatz, would impose restrictions on minors seeking abortions by removing, in some cases, a judge’s ability to ensure their privacy. Along with requiring parental consent, the bill would make it a criminal offense for a physician or a religious leader to counsel a minor on whether or not to have an abortion.
House Bill 1128, authored by Rep. Ronald Bacon, would require that a pregnant woman be informed orally and in writing before a chemical abortion that the procedure could be reversed or stopped.
Senate Bill 118, authored by Sens. Dennis Kruse and Liz Brown, would require a mandatory ultrasound before an abortion, and, notably, the bill would require the pregnant woman to view the fetal ultrasound imaging and listen to fetal sounds. Currently women can opt out of this procedure.
Opponents say the bills serve no medical purpose and their sole purpose is to restrict women's access to abortion. "These bills are so unnecessary and don't contribute to the safety of the procedure," said Sue Ellen Braunlin, co-director of the Indiana Religious Coalition for Reproductive Justice.
"The bill affecting minors is really worrisome," Braunlin said, because it removes an opportunity for judges to waive parental notice for young women who are at-risk in their own home.
Ind. Gov't. - "Notre Dame remains exempt from records law: PAC declines to rule on complaints filed against Notre Dame"
Margaret Fosmoe reported Feb. 3 in the South Bend Tribune in a long story that builds on her Nov. 17, 2016 story that was headed "Could there be more to Notre Dame police records issue? Legislators inadvertently make campus police subject to public records law."
Here are some quotes from the long Feb. 3rd (Friday) story:
Police departments at the University of Notre Dame and other private universities in the state will remain exempt from Indiana's public records law for the foreseeable future.ILB: Some comments:
With Indiana lawmakers showing no inclination to introduce legislation that would require private university police to follow the same public records laws as city, county and state police agencies, that situation is unlikely to change.
In response to a complaint filed against Notre Dame by the South Bend Tribune, Indiana Public Access Counselor Luke Britt this week deferred to the General Assembly. * * *
Notre Dame in November won a widely watched court case filed by ESPN seeking access to records of the campus police department related to cases involving student athletes. The Notre Dame Security Police department was not a "public agency" under Indiana law and did not have to provide information about investigations the sports media company requested in 2014, the Indiana Supreme Court ruled.
In an ironic twist, in what may have been an inadvertent action, the Indiana General Assembly last winter changed the state's Access to Public Records Act definition of a "public agency" to include a private university police department. The wording was included in HEA 1019, which concerned public access to body cameras worn by police officers.
To test that law, the South Bend Tribune in November filed a request with Notre Dame seeking basic details about four cases reported to NDSP between July 1 and Nov. 21, 2016. The four cases, all listed on the online campus crime log but with no details provided, included a domestic battery case, a rape reported in a men's residence hall, an arrest for disorderly conduct and a motor vehicle theft at the Morris Inn.
Notre Dame spokesman Dennis Brown rejected the Tribune's request, saying in a written reply that the university is not a public agency and not subject to requests for public records. To support that argument, he cited the Indiana Supreme Court ruling in the ESPN vs. Notre Dame case.
Brown referred to the apparently inadvertent change in state law making private university police subject to APRA as a "technical printing error" that would be quickly reversed when the 2017 General Assembly convened and would be retroactive to July 1, 2016.
After Notre Dame's denial, the Tribune filed a formal complaint with the PAC office, requesting a formal opinion on whether the university was required to adhere to the new wording of the state law defining private university police departments as public agencies. * * *
[Britt] noted that his office became aware of the changed "public agency" definition included in HEA 1019 in July, after which he began advising the public that the amended APRA had the full force of law.
Shortly thereafter, the Indiana Legislative Council began taking steps to declare the changed definition a "technical error," to be reversed in the 2017 session. The error is included in HB 1181, the 2017 technical corrections bill. That measure has been referred to the judiciary committee, but has not yet been passed.
The question becomes whether the legislative mistake amounts to good law and subjects NDSP to public access consideration, specifically to providing the same level of details in its crime log as other Indiana police agencies, Britt wrote.
"I hesitate to to categorize it as a simple scrivener's error, however, it appears to be done in error," Britt wrote. [ILB emphasis]
"Given the likelihood of the law's amendment and the clear intent of the General Assembly to strike it from Code, I will defer to the General Assembly on the matter. If the revision passes as proposed, the issue is moot. If the bill is altered and the APRA is not changed, I will revisit this matter in the future," he concluded.
- As noted in this Nov. 18, 2016 ILB post, substantive statutory changes, even those which may have been inadvertent, are generally not included for resolution in "technical correction" bills, but are dealt with individually. (This may be particularly true when the change is controversial.)
- Although cases may exist, the ILB in a quick Google Scholar search did not locate an Indiana Supreme Court case identifying a scriviner's error in a statute (as opposed to, for example, a deed).
- Further, as noted in the Nov. 18th post, "for clarity, a court will in a footnote acknowledge any subsequent changes to the provision at issue and state that they are not relevant to the decision at hand." That practice was not followed in the [Supreme Court's ESPN opinion], there is no reference to the subsequent amendments to IC 5-14-3-2.
Ind. Decisions - Upcoming oral arguments this week and next
This week's oral arguments before the Supreme Court (week of 2/6/17):
- No oral arguments currently scheduled.
Thursday, February 16
- 9:00 AM - Bob Leonard v. State of Indiana (02S00-1604-LW-00185) After a change of venue from Marion County, a jury trial was held in the Allen Superior Court, where Leonard was convicted of murdering two people, conspiracy to commit arson, and multiple counts of arson. Leonard received a sentence of life imprisonment without parole and a term of years. In this direct appeal, Leonard challenges his murder convictions and life sentence.
This week's oral arguments before the Court of Appeals (week of 2/6/17):
- No oral arguments currently scheduled.
Wednesday, February 15
- 1:00 PM - Admiral Insurance Company v. Joseph Banasiak, et al. (45A05-1604-PL-00859) In April 2014, the Estate of Dr. Zadeh filed a complaint for declaratory judgment, argued that Admiral was obligated to satisfy any award imposed against Dr. Zadeh due to his alleged negligence because it failed to notify the Commissioner of the Indiana Department of Insurance of the early cancellation of the policy, and requested the court to declare that Admiral was required to defend and indemnify Dr. Zadeh against the claims asserted by Muehlman. In May 2015, Admiral filed a motion for summary judgment and argued that the Estate’s complaint for declaratory judgment was untimely filed under the policy, that Dr. Zadeh had failed to provide timely notice of Muehlman’s claim to Admiral, and that Ind. Code § 34-18-13-4 did not render ineffective the policy’s reporting and notice provisions. The trial court found that the cancellation of the policy was ineffective as to Muehlman’s claim because Admiral failed to comply with Ind. Code § 34-18-13-4, denied Admiral’s motion for summary judgment, and granted the Estate’s request for declaratory judgment. Admiral now appeals. The Scheduled Panel Members are: Chief Judge Vaidik, Judges Bradford and Brown. [Where: Court of Appeals Courtroom (WEBCAST)]
- 10:00 AM - Roman Allen v. State of Indiana (87A05-1606-CR-01277) Roman Allen challenges his conviction for resisting law enforcement. He argues that the State failed to present sufficient evidence to prove beyond a reasonable doubt that he forcibly resisted arrest. He also argues that if he did resist arrest, he was privileged to do so because the arresting officers used excessive force against him. The Scheduled Panel Members are: Judges Baker, Robb and Altice. [Where: Ivy Tech Community College, Indianapolis Culinary and Conference Center, 2820 N. Meridian St., Indianapolis, IN 46208]
- 1:30 PM - Angel Shores Mobile Home Park, Inc. v. Crays, et al. (79A02-1605-CT-01106) Angel Shores Mobile Home Park, Inc. appeals the award of attorney’s fees and costs to John and Megan Crays under the Child Wrongful Death Act (CWDA). Angel Shores argues the award is not authorized under the CWDA. The Crays argue the attorney’s fees and costs were allowed under the CWDA, or, in the alternative, Angel Shores’ appeal should be dismissed because both parties signed an Agreed Stipulation indicating they would not appeal the trial verdict. In response, Angel Shores argues the attorney’s fees and costs were not covered by the Agreed Stipulation. The Indiana Trial Lawyers Association has filed an amicus brief in support of the inclusion of attorney’s fees and costs under the CWDA. The Scheduled Panel Members are: Judges Najam, Bailey, and May. [Where: Court of Appeals Courtroom (WEBCAST)]
ONLY those Court of Appeals oral arguments presented in the Supreme or Court of Appeals Courtrooms generally will be accessible via videocast.Past Court of Appeals oral arguments 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.