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High court grants 6 transfers

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The Indiana Supreme Court took six cases last week, including two cases of first impression before the Indiana Court of Appeals involving attorney’s fees under the Adult Wrongful Death Statute and the modification of a felony conviction to a misdemeanor.  

In Jeffery H. McCabe, As Representative of the Estate of Jean Francis McCabe, Decedent v. Commissioner, Indiana Department of Insurance as Administrator of the Indiana Patient’s Compensation Fund, No. 49S02-1010-CV-602, Jeffrey McCabe appealed the grant of partial summary judgment in favor of the commissioner, and Indiana Department of Insurance as administrator of the Indiana Patient’s Compensation Fund. The trial court had ruled attorney’s fees and expenses incurred by the attorney representing the personal representative of a wrongful death estate are not recoverable damages under the state Adult Wrongful Death Statute.

McCabe cited Hillebrand v. Supervised Estate of Large, 914 N.E.2d 846 (Ind. Ct. App. 2009), to support his argument, but the appellate court noted Hillebrand is distinguishable from the instant case because it was a probate case deciding from which probate assets attorney’s fees incurred should be paid, and it precedes both the Child Wrongful Death Statute and the AWDS. The judges also relied on Butler v. Indiana Department of Insurance, 904 N.E.2d, 198, 202 (Ind. 2009), in which the Supreme Court held that the “include but not limited to” language doesn’t expand the class of necessitated expenses.

Judge Patricia Riley dissented, believing Hillebrand, Butler, and Estate of Kuba, (508 N.E.2d 1, 2 (Ind. 1987), permitted reasonable attorney’s fees to be considered recoverable damages under the AWDS. A separate panel of judges ruled in September in Indiana Patient's Compensation Fund v. Beverly S. Brown, et al., No. 49A02-1001-CT-80, that attorney’s fees and other costs can be awarded under the AWDS. That panel used Judge Riley’s dissent to support its decision.

In State of Indiana v. Jeffrey Brunner, No. 57S04-1010-CR-603, the Court of Appeals reversed and remanded with instructions the trial court’s modification of Jeffrey Brunner’s criminal sentence from a Class D felony to a Class A misdemeanor nine years after he pleaded guilty to operating a vehicle while intoxicated.

The judges examined Indiana Code Section 35-50-2-7(b), which the trial court used to modify his sentence, and found that the decision on whether to enter judgment on a Class D felony or Class A misdemeanor must be made at the moment of the original entry of the judgment of conviction. Judge Edward Najam said the trial court’s reliance on that statute to grant the requested relief was contrary to the plain meaning of the statute and an abuse of discretion.

In Susanne C. Gaudin, et al. v. J.W. Austin, president, et al., No. 07S04-1010-CV-600, Susanne Gaudin and other plaintiffs sought declaratory and injunctive relief upon learning the Brown County Commissioners enacted an ordinance in January 2009 purporting to dissolve a fire district. That district was created by a September 2007 ordinance. The plaintiffs alleged the dissolution ordinance was void because no petition to dissolve the district or repeal the ordinance establishing it had been filed.

The trial court granted summary judgment for the commissioners, ruling there's no reason to conclude that a governing body with the authority to establish the fire protection district doesn't have similar authority to dissolve it, but the Court of Appeals held county commissioners had no authority to enact the ordinance to attempt to dissolve the fire district.

Chief Justice Randall T. Shepard recused himself from hearing this case based on his involvement in leading the Indiana Commission on Local Government Reform, which provided recommendations for a leaner local government structure in the Kernan-Shepard report.

In Steven and Lauren Siwinski v. Town of Ogden Dunes, No. 64S03-1010-CV-599, the Court of Appeals reversed summary judgment for Ogden Dunes in its complaint against the Siwinskis alleging they violated an ordinance by renting out their house for periods of fewer than 30 days, which constituted a commercial use. The judges held nothing in the designated evidence established that any commerce or other activities not associated with a residence were ever conducted on the Siwinskis' property, nor did the evidence show that, at any time, the property was occupied by more than a single family simultaneously. They remanded for summary judgment to be entered in favor of the Siwinskis.

The Supreme Court granted transfer to two cases involving the same incident. In Damion Wilkins v. State of Indiana, No. 02S03-1010-CR-604, and Cornelius Tyrone Lacey Sr. v. State of Indiana, No. 02S05-1010-CR-601, the Court of Appeals reversed the denial of Damion Wilkins’ and Cornelius Lacey’s motions to suppress evidence obtained during the execution of a search warrant. During a trash pull at a suspected cocaine and marijuana dealer’s home, Lacey, police found mail addressed to Wilkins. He was at Lacey’s home when police decided to serve a search warrant in a “no-knock” fashion for officer safety and rammed the door down.

The appellate judges found there was probable cause for the issuance of the search warrant but the unilateral decision to dispense with the knock-and-announce rule was unreasonable under the Indiana Constitution. The police, if they were worried about their safety, had time to apply for a “no-knock” warrant, but did not. The appellate court took issue with the emergency response team’s policy that authorizes a unilateral decision to enter a home without knocking when there hasn’t been an independent determination regarding the circumstances. Judge Michael Barnes concurred in result in both decisions.

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  1. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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