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Tuesday, April 11, 2017

Ind. Decisions - Court of Appeals issues 3 opinion(s) today (and 4 NFP memorandum decision(s))

For publication opinions today (3):

In Indiana Bureau of Motor Vehicles, et al. v. Daniel N. Newlin , a 6-page opinion, Judge Bradford writes:

On January 25, 2016, as the result of a case out of Kosciusko County, Daniel Newlin’s driving privileges were suspended by Appellant-Respondent the Indiana Bureau of Motor Vehicles (“BMV”) for two years due to his refusal to submit to a chemical test. On June 24, 2016, Newlin filed a verified petition for specialized driving privileges in Lake County. The trial court granted his motion. The BMV filed a motion to correct error arguing that Newlin was ineligible for specialized driving privileges pursuant to Indiana Code subsection 9-30-16-1(a)(2). The trial court denied the BMV’s motion.

The BMV argues that the trial court’s grant of specialized driving privileges to Newlin with respect to this two-year suspension for refusing to submit to a chemical test was not supported by sufficient evidence and was contrary to law. We agree that the grant of specialize driving privileges to Newlin was contrary to law and not supported by the evidence. Consequently, we reverse and remand with instructions.

In Jalen Lee, A Minor Child, by and through his Next Friend, Crystal Estes and Crystal Estes, Individually v. Bartholomew Consolidated School Corporation, City of Columbus, et al., a 37-page, 2-1 opinion, Judge Riley writes:
Appellants-Plaintiffs, Jalen Lee (Lee)—by his next friend, Crystal Estes—and Crystal Estes individually, appeal the trial court’s summary judgment in favor of Appellee-Defendant, City of Columbus (City). We reverse and remand.

Lee raises four issues on appeal, which we consolidate and restate as the following single issue: Whether the trial court erred in granting the City’s motion for summary judgment. * * *

Conclusion. Based on the foregoing, we conclude that the trial court erred in granting summary judgment on the basis of contributory negligence. We further conclude that the City is entitled to statutory immunity with respect to its plans for improvements to the crosswalk and its decision to enact a certain speed limit and to not erect a stop sign or station crossing guards at the crosswalk. Nevertheless, we conclude that summary judgment is improper because there are genuine issues of material fact as to whether the City breached its duty of reasonable care by installing conflicting speed limit signs and whether such a breach, if any, proximately caused the accident. Therefore, we remand this case for further proceedings.

Altice, J. concurs
Crone, J. dissents with separate opinion [which begins, at p. 35] I respectfully dissent. If a plaintiff who files a tort claim against a governmental entity, such as the City, “is negligent to even a small degree and that negligence proximately contributes to his claimed damages, contributory negligence will operate as a complete bar to his action.” Hill, 54 N.E.3d at 406. Although generally a question of fact, contributory negligence may be “a question of law appropriate for summary judgment if the facts are undisputed and only a single inference can be drawn therefrom.” Id. at 406-07. The relevant facts here are undisputed, and I believe that the only inference that can be drawn from them is that Lee was contributorily negligent and therefore the City is entitled to summary judgment as a matter of law. * * *

I would also affirm on the basis that any negligence on the City’s part with respect to the speed limit signs did not proximately cause Lee’s injuries as a matter of law. The majority acknowledges that “McLeod did not see Lee until after the impact; thus, this is not a situation where the speed limit affected McLeod’s ability to apply his brakes fast enough.” Id. at 32. McLeod did not know precisely how fast he was going when he hit Lee, and the notion that he would have driven more slowly and not hit Lee if the posted speed limit had been twenty miles per hour is mere speculation, which cannot create a question of fact on summary judgment. Beatty v. LaFountaine, 896 N.E.2d 16, 20 (Ind. Ct. App. 2008), trans. denied (2009).

In C.J. v. State of Indiana , a 10-page opinion, Judge Najam writes:
C.J. appeals from the juvenile court’s order modifying a dispositional decree following his adjudication as a delinquent child for battery, as a Class A misdemeanor when committed by an adult. C.J. presents a single issue for our review, namely, whether the juvenile court abused its discretion when it placed him with the Department of Correction (“DOC”). However, because C.J. has been released from the DOC since he initiated this appeal, we dismiss the appeal as moot. * * *

C.J. has been released from the DOC, and, were we to review the merits of this appeal, we would be unable to grant C.J. the relief he requests if we agreed with his arguments. As such, his appeal is moot, and C.J. does not allege that this appeal presents a question of great public interest to justify consideration of the merits of his appeal. We reject C.J.’s contentions that his appeal is not moot in light of possible negative collateral consequences. We dismiss his appeal as moot.

NFP civil decisions today (1):

Maria Linstrom v. Golden Living Center - Woodlands (mem. dec.)

NFP juvenile and criminal decisions today (3):

David Howard v. State of Indiana (mem. dec.)

Alacia Johnson v. State of Indiana (mem. dec.)

Dusty R. Owens v. State of Indiana (mem. dec.)

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Ind. App.Ct. Decisions

Ind. Decisions - Still more on: En banc 7th Circuit reverses Hively v. Ivy Tech

Updating this ILB post from April 5th, I've pulled quotes from several analyses that highlight the significance of Ivy Tech's decisions not to appeal the 7th Circuit decision in Hively.

From JDSupra Business Advisor, an April 7th article by Allison Sues of SmithAmundsen LLC headed "Seventh Circuit Issues Landmark Decision Holding that Title VII Prohibits Discrimination Based on Sexual Orientation":

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

The seventh circuit decision is significant as the first of its kind. The United States Supreme Court has never ruled whether Title VII prohibits discrimination based on sexual orientation, and the seventh circuit, as well as the other United States Circuit Courts of Appeals had previously established a long line of precedent holding that claims alleging sexual orientation discrimination fail to state a claim under Title VII. * * *

Ivy Tech has indicated that it will not appeal the decision to the Supreme Court and instead plans to defend the case on its merits following the remand to the trial court. Therefore, Hively will be the law of Illinois, Indiana, and Wisconsin until a different sexual orientation discrimination case makes it way to the Supreme Court – an event likely to happen now that there is clear division between the circuit courts on this issue.

Employers in Illinois and Wisconsin should already maintain policies prohibiting discrimination based on sexual orientation because Illinois and Wisconsin state law prohibit this type of discrimination. Nevertheless, all employers, especially private employers in Indiana who are not currently bound by a state sexual orientation non-discrimination law, should ensure that all employee handbooks, non-discrimination policies, and job application forms explicitly state that the company will not discriminate based on sexual orientation, and should train management and human resources personnel on the same. Following the reasoning of Hively, employers should be cautious to guard against discrimination or harassment based not only on sexual orientation, but also sexual identity.

From Lexology, an article by Laura B. Bacon, Brittany A. Bogaerts and Brian V. Alcala of Nixon Peabody LLP headed "Seventh Circuit extends Title VII protections to sexual orientation discrimination: what employers need to know":
The Seventh Circuit Court of Appeals became the first federal appeals court to hold that Title VII of the Civil Rights Act of 1964 protects against workplace discrimination on the basis of sexual orientation. Here’s what employers need to know about the landmark ruling. * * *

The immediate legal impact of this ruling will vary state-by-state. Of the three states falling within the Seventh Circuit’s jurisdiction (Illinois, Wisconsin, Indiana), Indiana is the only state that does not already offer state law protection for sexual orientation discrimination. In both Illinois and Wisconsin, state law has long prohibited employers from engaging in discrimination on the basis of sexual orientation. In 1981, the Wisconsin legislature added protection for sexual orientation discrimination to its Fair Employment Law. In 2005, the Illinois legislature followed suit, adding sexual orientation as a protected class to the Illinois Human Rights Act.

As a result, the Hively decision will most directly affect employers in Indiana, adding legal protection for sexual orientation discrimination that their employees did not have previously. For employers in other states, however, the Seventh Circuit’s decision does not automatically create federal protection for sexual orientation discrimination across the country. The prohibition of sexual orientation discrimination will continue to primarily be governed by state and local law.

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Ind. (7th Cir.) Decisions

Ind. Gov't. - "Controversial bill to cut solar incentive heads to Gov. Eric Holcomb's desk"

That is the headline to Stephanie Wang's story this morning in the Indianapolis Star. Some quotes:

One of the most heated, most talked-about pieces of legislation this year imposes new regulations on the small but burgeoning niche of renewable energy producers — while benefiting big utility companies.

With a 37-11 vote Monday, the Indiana Senate sent Senate Bill 309 to Gov. Eric Holcomb.

Holcomb's office declined to comment on his stance, but a spokeswoman said he has been watching the legislation.

The legislation reduces the rate that utility companies pay for excess energy that homeowners, schools and small businesses with solar panels or wind turbines sell back to the grid, an exchange known as net metering. * * *

The original proposal had sought to eliminate net metering credits, which would require homeowners to sell their energy to the grid and buy back what they needed. But lawmakers amended it to expand the cap on net metering but provide a smaller financial incentive, postponing the rate change for existing customers, those who install renewable energy technology by the end of the year, and those who might buy those participating properties before the grandfathering provision ends.

Supporters and opponents bickered over "misconceptions" of the proposal, unable to agree, for example, on whether other utility customers shoulder the price of net metering (as utility companies argue), or whether the legislation will encourage or discourage solar energy in the state.

"The bill recognizes solar is an increasingly competitive means of generation," said state Sen. Brent Hershman, R-Buck Creek, who authored SB 309.

The Senate yesterday concurred in House amendments, so this March 31st printing is the final version; it will be enrolled before sending to the governor.

For background, start with this ILB post from March 23rd.

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Indiana Government

Ind. Law - On Friday, future of U.S. Constitution at Indiana University symposium in Bloomington

"[L]eading scholars who will participate in the Indiana University Maurer School of Law's symposium on constitutional issues." See the news release here. More:

"The Future of the U.S. Constitution" will begin at 9 a.m. April 14 at Baier Hall on the IU Bloomington campus. Convened by the Maurer School of Law, the American Constitution Society and the Indiana Law Journal, the symposium will bring together 16 of the nation's premier authorities on the U.S. Constitution and the challenges facing the country with Donald Trump as president. The public is invited to attend. * * *

The symposium will be livestreamed on the Maurer School's YouTube channel, and participants will be blogging in advance of the event on the American Constitution Society and Indiana Law Journal blogs, where a full schedule of events is available.

Note that the symposium appears to offer 5 CLEs at no charge.

Posted by Marcia Oddi on Tuesday, April 11, 2017
Posted to Indiana Law