Indiana Supreme Court
Civil Plenary – Parole Board
David Bleeke v. Bruce Lemmon, in his capacity as Commissioner of the Indiana Department of Correction; Thor R. Miller, as Chairman of the Indiana Parole Board; et al.
The Indiana Supreme Court ordered a trial court to enjoin the Indiana Parole Board from enforcing the conditions of a man’s parole that prevent him from associating with minors. But the justices denied his request to find the Sex Offender Management and Monitoring program is unconstitutional.
In 2005, David Bleeke was convicted of residential entry and attempted criminal deviate conduct related to an adult victim. He was released from incarceration in 2008 and placed on parole until 2015. Several of his parole conditions prohibited him from having contact with any children – including his own. After a legal challenge, Bleeke may now have contact with only his children.
Bleeke challenged the specific conditions restricting his access to minors as being unconstitutional, and argued that others fail to comply with certain statutory requirements. He also claimed that several of the parole statutes are facially unconstitutional in the manner by which they classify sex offenders. He also argued that the SOMM program is both facially unconstitutional and unconstitutional as applied to him.
The Court of Appeals found that Bleeke shouldn’t be considered as an offender against children based on his attempted criminal deviate conduct conviction because the statute dictating that classification is only applicable to offenses committed after July 1, 2006. It also held the SOMM program violated Bleeke’s Fifth Amendment rights. He challenged having to sign a form that allowed a polygraph examiner to share the results of his test with a probation officer.
The justices agreed that enforcement of conditions 4,5,17,19 and 20 must be enjoined because no evidence was presented that shows Bleeke is, was, or will be a threat to children – his own or otherwise.
Regarding his SOMM challenge, Justice Steven David wrote for the unanimous court, “The question before us thus becomes whether this threat to Bleeke–answer the potentially incriminating questions or face re-incarceration–so compelled (or will compel) his answers that it violates the Fifth Amendment unless he is provided immunity. ... Regardless, we agree with those other state and federal courts applying McKune (v. Lile, 536 U.S. 24(2002)), and holding that this form of disciplinary response does not constitute a ‘penalty’ such that Bleeke would have been compelled to yield his Fifth Amendment privilege.”
“And so while he was incarcerated, the State was permitted to present Bleeke–and all SOMM inmates–with a constitutionally permissible choice: participate in the SOMM program and maintain a more favorable credit status and/or privileges within the prison system or a favorable assignment in a community transition program, or refuse to participate and instead serve out the full term for which he had been lawfully convicted,” David continued.
The case was remanded for further proceedings.
Attorney Discipline – Employment Agreement
In the Matter of: Karl N. Truman
A Clark County attorney was reprimanded by the Indiana Supreme Court over terms of a separation agreement he enforced against an associate who left the firm.
“The Court concludes that Respondent violated Indiana Professional Conduct Rule 5.6(a) by making an employment agreement that restricted the rights of a lawyer to practice after termination of the employment relationship,” the per curiam opinion states. “For Respondent’s professional misconduct, the Court imposes a public reprimand.”
According to the court, the agreement “provided that only Respondent could notify clients that Associate was leaving, prohibited Associate from soliciting and notifying clients that he was leaving, and prohibited Associate from soliciting and contacting clients after he left. The Separation Agreement also included provisions for dividing fees if Associate left the firm that were structured to create a strong financial disincentive to prevent Associate from continuing to represent clients he had represented while employed by the firm.”
The associate left the firm after six years in 2012, and the opinion notes that he contacted clients, informed them of his departure, and told them they could choose to be represented by him or Karl Truman. Later, Truman filed a complaint with the Disciplinary Commission against his former associate. That matter was settled through mediation.
“Immediately after the Commission began its investigation in this matter, Respondent discontinued his use of the Separation Agreement, and he has not enforced any similar provisions against any other former associates,” the opinion notes.
Parties stipulated that Truman also violated Rule 1.4(b), failure to explain a matter to the extent reasonably necessary to permit clients to make informed decisions regarding representation.
In a footnote, the court explained, “Without addressing the exact parameters of this rule, the Court accepts the parties’ stipulation that Respondent violated this rule for the purposes of resolving this case.”
Criminal – DNA Evidence
Martin Meehan v. State of Indiana
The Indiana Supreme Court reinstated a conviction vacated by the Indiana Court of Appeals. The high court unanimously affirmed a conviction of Class C felony burglary with a habitual offender enhancement, finding a glove at the crime scene with the suspect’s DNA was sufficient for a jury to determine guilt.
Martin Meehan was convicted in St. Joseph Superior Court of breaking into a mechanical contracting business. An employee called police after seeing obvious signs of forced entry, and when police arrived they found a glove on the floor inside the business. The employee testified that the glove wasn’t there when he locked up the previous day, and testing revealed the glove contained only DNA that matched Meehan.
When the Court of Appeals reversed, it held that affirming the conviction “would be creating a precedent that would make it relatively easy for criminals to frame other individuals; all they would need to do is obtain an object with someone else’s DNA and leave it at the crime scene.”
“Here is where we disagree,” Justice Steven David wrote for the unanimous Supreme Court. “The existence of the possibility of being ‘framed’ does not amount to a lack of substantial evidence of probative value from which the jury could reasonably infer that Meehan committed the burglary.
“Because there was substantial evidence of probative value from which the jury could reasonably infer that Meehan was guilty of burglary beyond a reasonable doubt, we will not disturb the jury’s verdict,” David wrote. The case was remanded to the trial court, however, with instructions to order a prohibited consecutive habitual offender enhancement instead be served concurrent with a prior such enhancement.
Indiana Tax Court
Tax – Filing Deadlines
Larry G. Jones and Sharon F. Jones v. Jefferson County Assessor
The Indiana Tax Court denied the Jefferson County assessor’s request that a couple’s appeal of the assessment of their residential real property be dismissed, finding the assessor waived her objection to the timeliness of the couple’s administrative record request.
When Larry and Sharon Jones filed their complaint with the Indiana Tax Court on Aug. 28, 2013, they did not include a request that the Indiana Board of Tax Review prepare a certified copy of the administrative record. Under Indiana Tax Court Rule 3, they had until Sept. 27, 2013, to file a separate request for the administrative record to be prepared.
The Jefferson County assessor argued in her motion to dismiss that because the Joneses failed to meet that September deadline, they “have not properly initiated their action before this Court” so the complaint should be dismissed.
“In this case, it would have been revealed by the end of September that the Joneses had not filed a separate request for the administrative record in compliance with Indiana Tax Court Rule 3. Nonetheless, the Assessor waited until mid-December to raise an objection,” Judge Martha Wentworth wrote. “Additionally, the Assessor and her attorney had already had numerous communications with the Court by that point, as they had filed her answer on October 2, participated in the telephonic case management conference on October 23, and had filed the October 29 response opposing the Joneses’ motion for default judgment. Given these particular facts, the Court finds that the Assessor has waived her objection to the timeliness of the Joneses’ administrative record request.”
“The Court hereby instructs the Joneses to file no later than April 28, 2014, a request for the Indiana Board to prepare a certified copy of its administrative record in the case. In accordance with Indiana Tax Court Rule 3(E), the Joneses shall then file the record with the Clerk of the Tax Court within thirty (30) days after they have received notification from the Indiana Board that the record has been prepared. Once the Court receives the Indiana Board’s record, it will schedule another telephonic case management conference to discuss the need for additional briefing and oral argument.”
Tax – Discovery/Documents
Nick Popovich v. Indiana Department of State Revenue
The Indiana Tax Court granted an alleged professional gambler’s motion to compel the Department of State Revenue to comply with nearly all of his discovery requests in his quest to deduct certain business expenses.
The department audited Nick Popovich in 2007 for the 2002 through 2004 tax years, explaining that because he was not a professional gambler, he wasn’t entitled to deduct gambling losses as business expenses and other certain business expense deductions.
In his appeal to the Tax Court, Popovich served the department with discovery requests. At issue are 53 of his discovery requests that the department sought to protect from disclosure through a protective order. The DOR claimed the information was confidential under I.C. 6-8.1-7-1 or protected by the work-product, attorney-client and deliberative process privileges.
The department argued that Popovich’s requests fail to address the sole issue in this case – whether Popovich was a professional gambler. Popovich, however, claimed that the information and documents he seeks are discoverable because all of the department’s objections to disclosure lack merit. The Tax Court agreed with Popovich with one exception – interrogatory No. 4. It seeks the internal documentation and communications between DOR employees and legal counsel. Judge Martha Wentworth sustained the department’s objections to disclosing this under the work-product and attorney-client privileges only to the extent that the DOR identifies the communications with enough specificity for the parties to determine that they are indeed work-product or attorney-client communications.
Wentworth found that the work-product and attorney-client privileges don’t preclude disclosure in response to the rest of Popovich’s discovery requests. She also rejected the DOR’s argument that Indiana recognizes a deliberative process privilege applicable to the discovery rules. She said it’s up to the Legislature to elevate public policy regarding the protection of deliberative processes into a privilege.
The department must fully respond to his discovery requests within 45 days.
In a separate order in the same matter, Wentworth denied Popovich’s second motion to compel filed after the DOR did not bring original documents to a deposition.
Indiana Trial Rule 26(F) requires a party seeking to compel discovery to attempt to resolve the discovery dispute before seeking court intervention and to document its attempts in the motion. Popovich did not provide the required showing in his motion to meet the rule’s requirements, Wentworth found. He did not make a reasonable effort to resolve the discovery dispute before filing this motion to compel.
Indiana Court of Appeals
Criminal – Expungement
Jason Taylor v. State of Indiana
Finding that the word “shall” in Indiana Code 35-38-9-2(d) is mandatory language requiring expungement, the Indiana Court of Appeals reversed the denial of a man’s petition to expunge his 2004 misdemeanor sexual misconduct with a minor conviction.
The issue is while I.C. 35-38-9-2, which applies to misdemeanor convictions, may appear clear and unambiguous on its face, it is ambiguous when read in conjunction with I.C. 35-38-9-9(d), which requires the court to consider the victim’s statement before making its determination. Section 2 says that the court “shall order the conviction records described in subsection (b) expunged in accordance with section 6 of this chapter,” as long as conditions outlined in the section are met.
The trial judge denied Jason Taylor’s request to expunge his Class A misdemeanor conviction based on the victim’s testimony. Taylor met all the other conditions outlined in Section 2 and the state agreed his conviction should be expunged.
He pleaded guilty to a sexual misconduct charge as a Class D felony that was later reduced to the Class A misdemeanor.
The interpretation of Section 2 is an issue of first impression for the appeals court.
“We agree with Taylor that Section 35-38-9-2(d) unambiguously requires expungement when all of the statutory requirements are satisfied. Section 35-38-9-2(d) states that the trial court ‘shall order’ the conviction records expunged when all statutory requirements are met. Had the legislature intended the expungement of conviction records under Section 35-38-9-2(d) to be discretionary, it would have used the word ‘may’ instead of the word ‘shall,’” Chief Judge Nancy Vaidik wrote.
This decision does not render Section 9-9(d) meaningless, as the state had argued, because it applies to other sections under Chapter 9 where the trial court is required to consider a victim’s testimony before granting expungement, Vaidik continued. The court reissued its opinion in this case April 24.
Criminal – Driving While Suspended/Necessity Defense
Charrise Belton v. State of Indiana
Because a woman’s conviction for driving while suspended was based in part on trial court speculation that she had driven farther than was necessary to put herself out of harm’s way, the Indiana Court of Appeals reversed the conviction.
Charrise Belton was in her boyfriend’s vehicle, which was parked outside of an Indianapolis home in an area of the city unfamiliar to her. When he came out, she could tell he was under the influence of a drug and was angry. He started yelling at her and she feared he might assault her as he had done twice in the past. When he got out of the car again, she moved to the driver’s seat and drove toward a part of town where her relatives lived.
Approximately a half mile later, she was pulled over by police on the belief the registration for the car was expired. She admitted to driving on a suspended license, explained the situation, and the officer gave her a summons.
Belton was charged with and convicted of Class A misdemeanor driving while suspended. Belton doesn’t dispute that she drove on a suspended license but argued she did so out of manifest necessity.
The Court of Appeals found the state didn’t present sufficient evidence to dispute her necessity defense. The judge questioned at what point does the necessity to leave end and how far must she drive to be out of harm’s way. The judge wondered if Belton could have found a gas station or some other place to stop before one-half mile, but no evidence was presented that those were options.
“Our review of the record demonstrates that the trial court’s determination that the circumstances had abated to a point where it was no longer necessary for Belton to drive in the instant matter are not based upon evidence presented by the State to negate Belton’s necessity defense but rather on the trial court’s speculation that Belton had driven further than necessary, i.e., past a safe location where she could have stopped and called police,” Judge Cale Bradford wrote.
Civil Tort – Bad Faith/Attorney Fees
Geico General Insurance Company v. Laura B. Coyne, Cheryl A. O’Mailia, and James O’Mailia
The Indiana Court of Appeals found a trial court erred in awarding attorney fees to a couple that sued their insurer following a car accident. The trial court ruled that GEICO litigated the claim in bad faith.
Cheryl and Jim O’Mailia brought an underinsured motorist claim under their policy with GEICO after Cheryl O’Mailia was injured while riding as a passenger in someone else’s car. A week before trial, GEICO’s attorneys discovered on Florida Department of Public Health’s public website that Jim O’Mailia’s medical license was under investigation based on allegations he forged prescriptions for his wife, referred to as the Florida Information in the court record. He pleaded nolo contendere to violating five counts of Florida law by uttering a forged instrument and entered into a settlement.
GEICO did not alert the O’Mailias of the Florida Information it had found, and apparently the O’Mailias did not tell their counsel about the same. On cross-examination of Jim O’Mailia, the GEICO attorney brought up the Florida Information, leading to an objection by the O’Mailias. The GEICO attorney told the court their attorney did not disclose the information because he did not believe there was any obligation to based on trial rules.
Cheryl O’Mailia received a $125,000 judgment. The trial court denied the O’Mailias’ request for a new trial but awarded attorney fees under Ind. Code 34-52-1-1(b)(3), finding that GEICO litigated the action in bad faith with regard to its decision to not disclose the Florida Information. The court concluded that this failure to disclose ran afoul of Ind. Professional Conduct Rule 8.4(d).
GEICO argued that it did not litigate in bad faith, and it pointed to the fact that it researched whether it had a duty to disclose and decided that there was none. The O’Mailias claimed that GEICO’s focus on the Indiana Trial Rules and Rules of Evidence is misplaced because the court found that GEICO’s counsel’s “actions were a breach of professionalism and courtesy and were prejudicial to the administration of justice.”
Based on the statements by GEICO’s counsel, the appellate court concluded that the decision not to disclose the Florida Information was not borne out of ill will, and was not dishonest or immoral, but instead was strategic in nature and believed to be within the bounds of the law.
“Indeed, the O’Mailias, as well as the court, agreed with the results of GEICO’s research that neither the Trial Rules nor the Rules of Evidence compelled GEICO to disclose the information, nor has case law been uncovered imposing such a duty. We cannot say that such circumstances are indicative of litigating in bad faith,” Judge Elaine Brown wrote.
Judge Michael Barnes concurred, writing, “I do so with some hesitation, though, because I believe that trial by ambush and rabbit-out-of-the-hat moments are not to be favored in our courtrooms.”
Civil Plenary – Use of Former School Building
Old Utica School Preservation, Inc., Kenneth Morrison, Scott Sandefur, and Pamela Sandefur v. Utica Township, John Durbin, Utica Township Trustee, Jacobs Well, Inc., Kevin Williar, John Posey, et al.
Clark County residents who sued township officials over how a former school in the Ohio River community of Utica was being used will get to plead their case, the Indiana Court of Appeals ruled, reversing a trial court order for the township.
The Court of Appeals said the case also points to a need for the General Assembly to address the disposition of old school buildings.
Plaintiffs sued officials of Utica Township because they said the former school wasn’t being used for recreation or park purposes as required by statute. The township had leased the building to a nonprofit that plaintiffs argued intended to use the school as “temporary housing or a halfway house for criminal offenders.”
Special Judge Glenn G. Hancock granted summary judgment for the township defendants in Clark Circuit Court, finding that plaintiffs lacked standing. The Court of Appeals panel found otherwise.
“(W)e conclude that the Citizens, and others residents of the township, have an interest in the proper administration of the School for park and recreation purposes. It is apparent that a public right, the enjoyment of the School for park and recreation purposes, is at issue because the statutory language in Indiana Code section 20-23-6-9(d) states that the school property is to be offered to the township as a gift for park and recreation purposes and that the deed shall state that the township is required to use the property for park and recreation purposes,” Judge James Kirsch wrote for the panel.
“We, therefore, conclude that the Citizens have standing to proceed with their claim under the public standing doctrine.” The matter was remanded for proceedings on the claim.
Judge Mark Bailey concurred as did Judge Ezra Friedlander, who wrote separately to stress the majority view that statutes offer no guidance for what to do with former schools that no longer can feasibly be used for park or recreational purposes.
“This case illustrates that the statutes enacted by our legislature fail to address certain situations and circumstances that might arise when disposing of school buildings. Although it is not relevant to our holding in the present case, I agree with my colleagues that these gaps merit the General Assembly’s attention,” Friedlander wrote. “Subject to these comments, I fully concur in the lead opinion.”
Miscellaneous – Subject Matter Jurisdiction/Environmental Cleanup
Moran Electric Service, Inc., and Threaded Rod Company, Inc. v. Commissioner, Indiana Department of Environmental Management, City of Indianapolis, Ertel Manufacturing Corp.
Businesses neighboring an Indianapolis industrial property that was forced to clean up hazardous chemicals were improperly shut out of litigation involving the city and state, the Indiana Court of Appeals ruled.
The panel ruled Moran Electric Service and Threaded Rod have an immediate and direct interest in the proceedings and that Marion Superior Judge Michael Keele erred in determining the court didn’t have subject matter jurisdiction. The panel remanded the matter for further proceedings.
The lawsuit involves environmental cleanup ordered for the Ertel property and litigation dating to 2008, when Indianapolis sued Ertel to recoup the environmental cleanup costs. The former industrial property in the Martindale-Brightwood neighborhood was contaminated with lead, petroleum, asbestos, PCBs and other toxins.
As the cleanup proceeded along administrative and court tracks, Ertel, the city and state settled, and the court approved. Insurance ultimately provided $1 million. Of that, $140,000 reimbursed Indiana Department of Environmental Management for its cleanup fees, and $860,000 was placed in escrow for contingencies. IDEM in 2012 released $846,000 to the city for future cleanup costs.
Moran and Threaded Rod claimed IDEM’s settlement with Ertel required the agency to address contaminants that flowed from the Ertel site onto their properties, but the court denied their motions to intervene.
“The heart of the issue is whether the trial court properly ordered the remaining $846,000 in funds distributed to the City, which is dependent upon whether IDEM properly issued a (No Further Action) Letter regarding the Ertel property,” Judge Michael Barnes wrote for the panel.
“The current parties of the two civil actions are IDEM, the City, Ertel, and various insurance companies. Ertel, having been released from liability, has no incentive to represent Appellants’ interests. IDEM’s and the City’s interests in issuing the NFA Letter and distributing the remaining escrowed funds to the City, also appear to conflict with Appellants’ interests in using the remaining escrowed funds to remediate Appellants’ properties,” Barnes wrote.
“Consequently, we conclude that the representation of Appellants’ interests by the existing parties is inadequate. In sum, we conclude that the trial court abused its discretion by denying Appellants’ motions to intervene.”
Domestic Relation – Parallel Parenting Time Order
Shelly Bailey v. Lance Bailey
In reversing a trial court’s modification of the custody agreement even though neither parent requested a change in custody, the Indiana Court of Appeals split over how much discretion a Parallel Parenting Time Order grants a court.
The Fulton Circuit Court gave joint physical and legal custody to Shelly Bailey and her ex-husband Lance Bailey after the pair had traded contempt petitions and Shelly Bailey petitioned to restrict Lance Bailey’s visitation.
On appeal, Shelly Bailey charged the trial court should not have modified physical custody because neither party made such a request.
The Court of Appeals agreed, finding that although Shelly Bailey agreed that the trial court could enter a Parallel Parenting Time Order, it was not a concession that the lower court could modify the children’s physical custody. Neither parent filed a petition requesting a change in custody nor presented any arguments for changing custody arrangements.
“Most importantly for purposes of this case, nothing in the new Parallel Parenting provision demonstrates any intent that it should affect the amount of parenting time awarded, except for possible elimination of mid week parenting time, makeup parenting time, and opportunities for additional parenting time that appear elsewhere in the Parenting Time Guidelines,” Judge Michael Barnes wrote for the majority.
In his dissent, Judge John Baker asserted the Parallel Parenting provision would affect the amount of parenting time by reducing the father’s visitation. He also pointed to the instructions accompanying the Parallel Parenting Time Orders that the best interests of the children are paramount and the court recognize one parent could create a high-conflict situation.
Baker contended the trial court was trying to satisfy the best interests of the children as well as prevent further destructive behavior.
Criminal – Expungement
Jason Taylor v. State of Indiana
The Indiana Court of Appeals reissued its decision finding the trial court should have granted a man’s petition for expungement. The court originally handed down the opinion April 17.
The opinions are almost identical, except the April 24 opinion has been rewritten to emphasize the statutes at the time when Taylor filed his petition and references I.C. 35-38-9-9(d) as “former “Section 35-38-9-9(d)”.
A footnote in the opinion says, “As later explained in this opinion, subsection (d) has since been amended, and the final sentence is no longer contained in the amended version.” That final sentence is, “The court shall consider the victim’s statement before making its determination.”
This opinion also held the trial court was required to grant Taylor’s petition for expungement of his Class A misdemeanor conviction.
Juvenile – Delinquency/Fourth Amendment
J.K. v. State of Indiana
The Indiana Court of Appeals wanted to make a point “loud and clear”: Suspicion of criminal activity is not an exception to the warrant requirement. The majority reversed a teen’s adjudication as a delinquent based on acts of illegal possession of alcohol, illegal consumption of alcohol, and aiding illegal consumption of alcohol.
Police received reports of teens riding around in a shopping cart at 1 a.m. being loud and causing dogs to bark. Police saw a shopping cart in a truck parked in front of J.K.’s house. The truck belonged to T.T. Believing the cart to be stolen, the officers called for a tow truck. While waiting for the truck, officers went around the house to make sure no one would flee. Inside, officers saw empty alcohol containers. Police knocked on the front door for nearly an hour until T.T. came out. He only came out because he saw the tow truck. J.K. also came outside at that point; both appeared intoxicated. The officers then went inside and did a sweep of the house and found additional evidence of underage drinking.
J.K. argued that evidence was admitted at his fact-finding hearing in violation of his rights under the Fourth Amendment to the United States Constitution. The COA addressed three warrantless entries: entry onto J.K.’s curtilage by two officers; the nearly hour-long span during which the officers remained on J.K.’s front porch and yard, knocking and yelling into the house; and the officers’ entry into J.K.’s residence.
The state argued the officers’ warrantless entries onto J.K.’s curtilage and into his home were justified by exigent circumstances – to make sure suspects didn’t flee. But the officers didn’t see anyone fleeing from the back of the house. As such, the evidence obtained as a result of the violation – the sight of empty alcohol containers – and any suspicion resulting from that evidence is tainted and subject to the exclusionary rule, Judge Margret Robb wrote for the majority.
The knock-and-talk was an unconstitutional search in violation of the Fourth Amendment. The officers’ actions in this case extended well beyond the implied invitation to approach a citizen’s front door, the majority held. The officers had no reason to believe someone inside was injured or in danger. Underage drinking is not a circumstance that as a general matter creates a threat of imminent injury. The majority also rejected the state’s claim the officers’ conduct was justified because they believed the shopping cart in the truck was stolen.
“There is no doubt that the officers’ conduct in this case went far beyond anything that would ordinarily be expected to occur on one’s doorstep. If three men with guns and flashlights were to surround the average person’s home in the wee hours of the morning, knock for over forty-five minutes, and yell inside demanding the occupants open the door, this situation would … inspire that homeowner to call the police,” Robb wrote.
Senior Judge Randall T. Shepard dissented, believing it was reasonable for the officers to wait for the tow truck to arrive. He also found it reasonable for the officers to arrest J.K. and T.T. once they stepped outside and appeared to be under the influence.
“The trial judge concluded that the officers, having seen T.T. and J.K. in this state, were warranted in entering the home to assure the safety of the other occupants. It seemed highly likely there were other occupants in light of the large number of cars parked out front, and we read almost daily about the sad consequences of teenage drinking parties,” he wrote.•