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Man's suit filed after all statutes of limitations

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The Indiana Court of Appeals agreed a Logansport resident has standing to sue his city over the operation and management of a city park, but that his suit is barred by statutes of limitations.

In State of Indiana on the relation of Michael Berkshire v. City of Logansport, Ind., et al., No. 09A02-0911-CV-1139, resident Michael Berkshire, upset that alcohol was being sold in Dykeman Park, filed a verified complaint for writ of mandate and declaratory and injunctive relief in April 2009 against the city and its Parks & Recreation Board. Berkshire claimed the park wasn't being maintained and operated as was directed by the will of Cass County Circuit Judge David D. Dykeman and the resolution passed by the city in 1915 adopting Judge Dykeman's request.

Judge Dykeman had left his farm to the city to be used as a public park. He requested the city spend $1,500 a year to maintain it and that it be controlled by three park commissioners appointed by the Board of County Commissioners of Cass County, the Cass Circuit Court, and the common council.

Those three appointments were never made and eventually the oversight of the park was maintained by the Board of the Department of Parks and Recreation, which was created in 1979 and has five members. The city did maintain the park and spend at least $1,500 on it throughout the years.

The trial court granted partial summary judgment for Berkshire, finding he did have standing to sue, but also ruled that the statute of limitations for him to bring the suit had expired.

Berkshire argued on appeal that Logansport's response to his summary judgment motion didn't comply with the designation of evidence requirements of Indiana Trial Rule 56(C). The appellate court relied on the recent Indiana Supreme Court ruling in Reiswerg v. Statom, No.49S02-0906-CV-280, in which the high court determined that defendants didn't waive a statute of limitations defense when they failed to assert it in a response to the plaintiff's motion for partial summary judgment. Logansport did assert its defense in its answer to the complaint and in the motion to dismiss, wrote Chief Judge John Baker.

The Court of Appeals also affirmed that Berkshire had standing to bring his suit - he as well as other Logansport residents have a public right in the enjoyment of the park. But, Berkshire didn't bring his suit in time to comply with any of the possible statutes of limitations. It could be argued that the suit had to have been brought within 20 years of 1917 or within 20 years of when the Parks and Recreation Board was created in 1979.

The appellate court noted that the city had complied with two out of the three requests laid out in Judge Dykeman's will - the land was designated as Dykeman Park and the city has spent more than $1,500 a year on improvements, wrote the chief judge.

"Thus, it is reasonable to conclude that Logansport's operation of Dykeman Park for over ninety years has amounted to substantial compliance with the agreement and the provisions of the Will," he wrote. "Even more compelling, it is apparent that Logansport has fulfilled Judge Dykeman's intent as a result of its agreement to establish and operate the park. As a result, the trial court properly granted Logansport's motion to dismiss Berkshire's action."

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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