ILNews

Supreme Court grants 3 transfers

Back to TopE-mailPrintBookmark and Share

The Indiana Supreme Court granted transfer this week to three cases, including a first impression case involving whether someone who has drugs within 1,000 feet of a youth program center run in a church can have their conviction enhanced.

In Walker Whatley v. State of Indiana, No. 49A02-0809-CR-808, the Indiana Court of Appeals reversed Walker Whatley's Class A felony conviction of possession of cocaine, ruling he wasn't within 1,000 feet of a "youth program center" because the building is a church running mostly faith-based programs. The issue of felony enhancement for a violation of a "drug free zone" defined as a youth program center hadn't been the subject of an Indiana decision.

Whatley argued because the church doesn't bear an identifier to say it's a "youth program center," the statute provides no basis for people to know if they are within 1,000 feet of one.

Examining cases from other jurisdictions, the appellate court unanimously decided the church was and remains a church and isn't converted into a youth program center by reason of its faith-based activities for young people. The pastor of the church even testified that all of the services and events for children are essentially faith based.

In Travelers Indemnity Company of America v. Jerry Jarrells, No. 29A02-0807-CV-669, the appellate judges couldn't agree on the application of a previous case involving the set-off of workers' compensation payments, which led to a split court and three separate opinions. The case involved Travelers Indemnity Co.'s attempt to recoup a portion of workers' compensation benefits following a jury trial.

Judges Carr Darden, Nancy Vaidik, and Patricia Riley disagreed as to the application of Pendleton v. Aguilar, 827 N.E.2d 614, 621 (Ind. Ct. App. 2005), to the instant case. The majority - Judges Darden and Vaidik - found Travelers was entitled to summary judgment but for different reasons. The majority presumed the jury followed the trial court's instructions and applied the law contained within it; thus, Travelers is entitled to a statutory lien and or reimbursement, wrote Judge Darden. Judge Patricia Riley dissented, writing the majority attempts to distinguish Pendleton on the basis it involves an insurer seeking a pro rata reimbursement, but she believes Pendleton is on point for the situation in the instant case.

The majority remanded the case with instructions to enter judgment in favor of Travelers and to determine the value of Travelers' lien and pro rata share for purposes of reimbursement.

In Foundations of East Chicago Inc., et al. v. City of East Chicago and State of Indiana, No. 49A02-0711-CV-987, the appellate court affirmed the trial court order dismissing Foundations of East Chicago's complaint challenging legislation that allowed the city of East Chicago to exercise its authority to select recipients of economic funding provided by a riverboat casino. The city has always had the authority to enact an ordinance to modify the arrangement between casino operators, organizations, and the city, regardless of Section 302 of the 2007 Budget Act. Judge Elaine Brown concurred in result with Chief Judge John Baker in the appeal; Melissa May dissented, for the same reasons as she did in City of East Chicago v. East Chicago Second Century, Inc., 878 N.E.2d 358, 365-68 (Ind. Ct. App. 2007).

Foundations asked for transfer for the high court to decide whether the decision usurped the Gaming Commission's regulatory authority and the attorney general's power to investigate local development agreement issues on the commission's request; whether in holding East Chicago could "always" alter or terminate the agreement contravenes the Supreme Court's ruling in Zoeller v. East Chicago Second Century Inc., 904 N.E.2d 213 (Ind. 2009); and whether other issues involving the 2007 Budget Act merit the high court's review in resolving an overall controversy in which it has granted transfer in two related cases, one awaiting a decision. Foundations also questions whether the ruling in the instant case interferes with the high court's exclusive transfer jurisdiction and prior decisions that judgments are res judicata pending appeal until reversed.

ADVERTISEMENT

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. 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

ADVERTISEMENT