Thursday, February 16, 2017
Ind. Decisions - Tax Court decides one today
In The University of Phoenix, Inc. v. Indiana Department of State Revenue, a 9-page order, Judge Wentworth writes:
After having successfully defended against and prosecuted discovery enforcement motions either in whole or in part, both the University of Phoenix, Inc. and the Indiana Department of State Revenue claim that an award of expenses pursuant to Indiana Trial Rule 37(A)(4) is warranted. The Court agrees. * * *
The Court, having considered the requirements of Trial Rule 37(A)(4) and the parties’ evidence, arguments, and levels of non-cooperation, awards the University a reimbursement for its expenses in the amount of $9,850.50 for successfully resisting the Department’s second motion for protective order. See Shelby’s Landing-II, Inc. v. PNC Multifamily Capital Institutional Fund XXVI Ltd. P’ship, 65 N.E.3d 1103, 1112 (Ind. Ct. App. 2016) (indicating that the Court may consider several factors in assessing a reasonable fee, including the judge’s own personal expertise, the responsibility of the parties in incurring the fees, and the hours worked or rates charged). In addition, the Court awards the Department $12,900.00 to reimburse its expenses for successfully resisting the University’s motion to compel.
Ind. Decisions - 7th Circuit decides one Indiana case today, re threats on Facebook wall - Posner
In USA v. Samuel Bradbury (ND Ind., Simon), a 7-page opinion, Judge Posner writes:
On June 8, 2014, Jerad and Amanda Miller, originally of Lafayette, Indiana, shot and killed two police officers and one civilian in Las Vegas. The couple died in an ensuing shootout with police, Amanda committing suicide after Jerad was shot. At approximately 11:15 p.m. on June 19, 2014, Samuel L. Bradbury, a Lafayette resident, placed the following message on his Facebook “wall,” where it was readable by his Facebook “friends,” who could moreover take screenshots of the message to convey to others: * * *
On the basis of these discoveries, and the threats in the Facebook post, Bradbury was indicted on federal charges of threatening to use explosive materials to kill law enforcement officers and state court judges and destroy a courthouse and police vehicles, all by means of the thermite found in his bedroom—thermite ignitable by the magnesium also found there. But a superseding indictment changed the charges to “willfully mak[ing] any threat” and “maliciously convey[ing] false information.” The jury trial that ensued resulted in Bradbury’s acquittal of the first charge and conviction of the second. The judge sentenced him to 41 months of imprisonment to be followed by two years of supervised release.
The count of which he was convicted was based on 18 U.S.C. § 844(e), which provides, so far as relates to this case, that “whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate or foreign commerce, … maliciously conveys false information knowing the same to be false, concerning an attempt or alleged attempt being made or to be made to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property, by means of fire or an explosive, shall be imprisoned for not more than 10 years or fined under this title, or both.” The judge instructed the jury that to act “maliciously” means “to act intentionally or with deliberate disregard of the likelihood that damage or injury will result.” He added that the jury should find the defendant guilty if it concluded that he’d intentionally “conveyed false information, knowing the same to be false,” that “the false information was conveyed maliciously and via an instrument of interstate commerce,” and that it “concerned an alleged attempt to kill or injure law enforcement officers or to damage or destroy the Tippecanoe County Courthouse or other public property by use of fire or explosives.” And so the jury found.
Bradbury argues that the judge’s definition of “maliciously” allowed the jury to convict him merely for posting the message (an intentional act) even if he didn’t intend the post to cause harm—in other words if his Facebook post was a joke and so there was nothing malicious about it, just as in United States v. Hassouneh, 199 F.3d 175, 182 (4th Cir. 2000), which vacated a conviction under the Bomb Hoax Act, 18 U.S.C. § 35(b), in which a similar instruction had been given to the jury and the defendant had argued that the false statements about a bomb in his airline luggage were jokes. * * *
It’s true that the word “maliciously” is not precise; if you google “maliciously synonyms,” Thesaurus.com gives you 16 words, ranging in gravity from “crookedly” to “roguishly.” See www.thesaurus.com/browse/maliciously (visited Feb. 16, 2017). But at least “malice” and “malicious” are reasonably clear and they in turn guide interpretation of “maliciously.” “Malice” is the noun, “malicious” the adjective, and “maliciously” the adverb—and so to act maliciously is to act with malice, or equivalently to be malicious. All three cognates well describe Bradbury’s post, which he knew might be read by people not all of them his pals and communicated by them to the police and to the persons named in the post as intended victims of him and his cronies. Most hoaxes are harmless, but a hoax based on a threat of harm is criminalized by 18 U.S.C. § 844(e), as explained by the district judge, even if the harm that ensues is fright rather than physical injury. AFFIRMED
Ind. Decisions - Court of Appeals issues 2 opinion(s) today (and 10 NFP memorandum decision(s))
For publication opinions today (2):
In Town of Knightstown v. Dudley Wainscott , an 18-page opinion, Judge Barnes writes:
In this interlocutory appeal, the Town of Knightstown (“Town”) appeals the trial court’s partial denial of its motion for summary judgment regarding a claim by Dudley Wainscott (“Wainscott”). On cross-appeal, Wainscott appeals the trial court’s partial grant of the Town’s motion for summary judgment. We affirm in part, reverse in part, and remand. * * *In Christopher A. Neeley v. State of Indiana, a 16-page opinion, Judge Brown writes:
Wainscott substantially complied with the ITCA notice requirements, and the trial court erred when it granted the Town’s motion for summary judgment on his negligence and equity claims. The trial court properly denied summary judgment on Wainscott’s nuisance claim, but it erred when it denied summary judgment on Wainscott’s breach of contract claim. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.
Christopher A. Neeley appeals his convictions for intimidation as a level 6 felony and resisting law enforcement as a class A misdemeanor. Neeley raises two issues, one of which we find dispositive and revise and restate as whether the trial court abused its discretion in admitting officer testimony. We reverse. * * *NFP civil decisions today (3):
Ind. Code § 34-28-5-3 gives an officer the authority to detain a person who the officer believes in good faith has committed an infraction for “a time sufficient” to inform the person of the allegation, obtain the person’s identification, and allow the person to execute a notice to appear. A stop predicated on a traffic violation becomes an unlawful and unreasonable seizure if it is “prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation.” Rodriguez, 135 S. Ct. at 1612 (internal quotations and brackets omitted). We find that, in each instance of charged criminal conduct, such conduct occurred well after the stop had progressed from what would be a lawful traffic detention to an unlawful seizure under the Fourth Amendment. Thus, even if the stop constituted a lawful traffic detention, our conclusion would be the same, that the court abused its discretion in admitting into evidence the relevant officer testimony.
NFP juvenile and criminal decisions today (7):
Ind. Decisions - "Indiana AG says ruling on same-sex parent birth certificate issue creates confusion"
WISHTV 8 reports in a story that begins:
Newly-elected Indiana Attorney General Curtis Hill is making headlines after appealing a federal judge’s ruling that would allow female same-sex spouses to be listed on a child’s birth certificate.The WISHTV story follows on the Feb. 1st Indianapolis Star story, quoted here in the ILB, that the State is appealing to the 7th Circuit the decision by U.S. District Court Judge Tanya Walton Pratt in Henderson v. Adams.
Judge Tanya Walton Pratt ruled that requiring a same-sex spouse to adopt a child in order to gain parental rights is unconstitutional. The state currently recognizes the birth mother, but not a same-sex spouse on the birth certificate. That spouse would have to go through the often expensive adoption process to be included on the certificate. Parenting rights make it easier to enroll kids in school and even add them to insurance.
Hill says he’s appealing this decision because Pratt’s ruling creates law that doesn’t exist.
Ind. Decisions - Supreme Court issues 1 today, re sports injuries
In Tresa Megenity v. David Dunn, an 8-page, 5-0 opinion, Chief Justice Rush writes:
Our decision in Pfenning v. Lineman, 947 N.E.2d 392 (Ind. 2011), established a limited new rule: Indiana courts do not referee disputes arising from ordinary sports activity. Instead, as a matter of law, when a sports participant injures someone while engaging in conduct ordinary in the sport—and without intent or recklessness—the participant does not breach a duty. Id. at 404. Today we clarify that under Pfenning ordinary conduct in the sport turns on the sport generally—not the specific activity.
Here, during a karate class drill, David Dunn jump-kicked a bag, injuring Tresa Megenity, who was holding the bag. Since jump kicks are ordinary in the sport of karate generally, and no evidence supports intent or recklessness, Megenity cannot show breach as a matter of law. We thus affirm summary judgment for Dunn. * * *
The trial court granted summary judgment for Dunn, noting that the jump kick was “ordinary behavior of participants in karate within the context of a ‘kicking the bag’ drill.”
Megenity appealed, and a divided panel of the Court of Appeals reversed summary judgment because (1) the “‘general nature of the conduct reasonable and appropriate for a participant’ in a karate practice drill is not ‘commonly understood and subject to ascertainment as a matter of law’” and (2) questions of fact remained as to whether Dunn’s jump kick breached a duty. Megenity v. Dunn, 55 N.E.3d 367, 373 (Ind. Ct. App. 2016) (emphasis added) (quoting Pfenning, 947 N.E.2d at 403–04). Judge Riley dissented, believing that jump kicks are ordinary behavior within karate as a whole. Id. at 374 (Riley, J., dissenting).
We granted Dunn’s petition to transfer, thereby vacating the Court of Appeals decision. Ind. Appellate Rule 58(A). * * *
Like the wayward drive in Pfenning, Dunn’s jump kick may reflect poor technique or faulty execution. But it was ordinary conduct in the sport of karate generally, and no evidence shows intent or recklessness. We therefore find no breach as a matter of law and affirm summary judgment.
Ind. Cts. - "Marion Co. Traffic Court bailiffs accused of forging documents to get tickets dismissed" [Updated]
Posted this morning by Fox 59, a story that begins:
Two former Marion County Traffic Court bailiffs are accused of forging judges’ signatures in order to get traffic tickets and violations dismissed. One of them accepted bribes, prosecutors say.[Updated at 12:00 PM] Here is a story from the Indianapolis Star.
Evelyn Hughes is charged with 49 counts including bribery, forgery and official misconduct. Carnetta Arthur faces 14 counts, including forgery and official misconduct.
The charges against the former bailiffs are the result of a report from the Marion County Superior Courts to the Marion County Prosecutor’s Grand Jury Division.
According to the probable cause affidavit, the bailiffs forged judges’ signatures on documents to dismiss infraction charges in court. They forwarded those documents to the Bureau of Motor Vehicles to clear suspensions and reinstatement fees. Prosecutors said Hughes accepted money from people so that their cases would be dismissed.