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Supreme Court grants 3 transfers

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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.

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  1. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. 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

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