ILNews

Justices accept 5 cases

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court has granted transfer to five cases, including a first impression issue dealing with Social Security income and restitution.

In Rebecca D. Kays v. State of Indiana, No. 42S05-1107-CR-441, the Indiana Court of Appeals reversed the restitution order entered against Rebecca Kays following her conviction of misdemeanor battery. The trial court ordered she pay $1,500 to the victim but didn’t adequately consider her ability to pay. Kays lived on $647 in monthly Social Security benefits.

The appellate court found that 42 U.S.C.A. Section 470(a) precludes the trial court from considering SSI in determining the ability to pay restitution. Judge Melissa May wrote this approach follows the purpose of Social Security benefits, which is to assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that person. The case was remanded to the trial court to determine how much Kays is able to pay.

In Sheila Perdue, et al. v. Anne W. Murphy, et al., No. 49S02-1107-PL-437, the COA found the Family and Social Services Administration’s adverse notices pertaining to public benefits programs that do not name specific missing eligibility documents don’t comport with the requirement of procedural due process.

The American Civil Liberties Union of Indiana sued the FSSA on behalf of people who have applied for or receive public benefits. The lawsuit seeks to enjoin the state agency from issuing adverse action notices regarding Medicaid, Temporary Assistance to Needy Families and the Supplemental Nutrition Assistance Program.

If an applicant is denied benefits, he will receive a generic notice alleging failure to cooperate, but the notice does not specify what verification document was missing. A Marion Superior court found the FSSA procedures as a whole satisfied procedural due process, but issued a declaratory judgment and injunction against FSSA because the agency had violated federal law governing SNAP by utilizing a “failure to cooperate” standard as opposed to a “refusal to cooperate” standard. The COA reversed on the due process issue and affirmed the declaratory judgment and injunction regarding SNAP.

In Rodney Nicholson v. State of Indiana, No. 55S01-1107-CR-444, the Court of Appeals was divided in reversing Rodney Nicholson’s stalking conviction. The decision looked at the term “repeated” in Indiana’s anti-stalking laws and the majority held that the state didn’t prove Nicholson’s conduct under the stalking statute was “repeated or continuing” harassment. The majority noted that the Legislature hadn’t put definitive time limitations in the statute.

Judge Cale Bradford dissented, believing the gap of time between the repeated conduct aimed at the same victim is a “non-factor” under the wording of the statute.

In Harold J. Klinker v. First Merchants Bank, N.A., No. 01S04-1107-PL-438, the Court of Appeals affirmed summary judgment for First Merchants Bank in its complaint for fraud and damages against Harold Klinker, who had borrowed money to buy cars for his used car dealership. Although the trial court should have considered Klinker’s affidavit in opposition to the motion for summary judgment, as the appellate court found the affidavit was properly designated in his memorandum, the trial court was correct in granting summary judgment for the bank.

The justices also took Hugh David Reed v. Edward Reid, Reid Machinery Inc., et al., No. 40S01-1107-PL-436, a civil case out of Jennings County that has not been heard by the Court of Appeals.

The high court denied transfer to 25 cases. The justices didn’t accept or deny any cases for the week ending July 15.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  2. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  3. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  4. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  5. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

ADVERTISEMENT