Indiana Court Decisions: Sept. 2 to 15, 2015

September 23, 2015

7th Circuit Court of Appeals

Sept. 4

Civil – Contraception Mandate

Grace Schools, et al., and Diocese of Fort Wayne-South Bend, Inc., et al. v. Sylvia Mathews Burwell, et al.

14-1430 and 14-1431

A split 7th Circuit Court of Appeals has upheld its own precedent, finding a contraception provision does not violate religious freedom. But the ruling drew a sharp, 35-page dissent from one judge.

In this latest challenge to the Patient Protection and Affordable Care Act’s accommodation for providing birth control, religiously based non-profits in Fort Wayne argued the contraception mandate violates the federal Religious Freedom Restoration Act by substantially burdening their free exercise of religion.

The accommodation excuses eligible organizations, like the Fort Wayne plaintiffs, from contracting, arranging, paying or referring for contraceptive coverage to which they have religious objections.

In federal court, the plaintiffs reiterated the unsuccessful arguments made by the University of Notre Dame that the opt-out accommodation still requires them to facilitate the objectionable services for their employees. Notre Dame presented this assertion twice before the 7th Circuit and lost both times.

Still, the U.S. District Court for the Northern District of Indiana granted a preliminary injunction which prevented the federal government from enforcing the mandate.

The 7th Circuit reversed the preliminary injunction as it had in the Notre Dame cases and the appeal from Wheaton College. The Chicago panel ruled the opt-out provision shifted the legal responsibility to provide contraception coverage from the plaintiffs to their insurers. This, in turn, relieved, rather than burdened, their religious exercise.

“The accommodation has the legal effect of removing from objectors any connection to the provision of contraceptive services,” Judge Ilana Rovner wrote for the majority. “As we noted above, every other circuit court to consider the issue of whether the mandate imposes a substantial burden on religious exercise has come to the same conclusion.”

Joining Rovner was Judge David Hamilton, who sided with the majority in both of the Notre Dame actions.  

Judge Daniel Manion made a strong dissent, claiming the majority only undertook a perfunctory examination of the “long and winding extension cord the government uses to power its contraceptive mandate.”

He contended a thorough examination “reveals that the extension cord gets its power from the nonprofits’ health plans and must be plugged in before it will work.”

Manion did not agree the accommodation removed the nonprofits from providing contraception. Instead, he maintained, it did violate protections on religious freedom, but he saw a simple solution.

“Aside from the fact that the government desires to substantially burden the nonprofits’ religious exercise in furtherance of an exaggerated, misnamed, and misdirected interest, there are, no doubt, less restrictive means of furthering its interest. But why even go there?” Manion wrote. “The government certainly has no compelling interest in forcing contraceptive coverage into the nonprofits’ otherwise wanted and needed health plans when they unanimously assert they don’t want the coverage and don’t need it.

“The obvious solution for these plaintiffs is for the government to extend the religious employer exemption to all religious nonprofits that object to the coverage,” he concluded.

The plaintiffs in this case included the Diocese of Fort Wayne-South Bend Inc.; Catholic Charities of the Diocese of Fort Wayne-South Bend Inc.; Saint Anne Home & Retirement Community of the Diocese of Fort Wayne-South Bend Inc.; Franciscan Alliance Inc.; Specialty Physicians of Illinois LLC; University of Saint Francis; Our Sunday Visitor Inc.; Biola University Inc; and Grace Schools.  

Sept. 9

Civil – Judicial Elections

Common Cause Indiana v. Individual Members of the Indiana Election Commission, et al.


See story on page 1.

Indiana Supreme Court

Sept. 2

Civil Plenary – Local Government/County Ordinance

David Anderson, Joe Wray, John Kennard, Commissioners, and Board of Trustees, Brown County Fire Protection District v. Susanne Gaudin, Janet Kramer, and Ruth Reichmann


The Indiana Supreme Court held Tuesday in long-running litigation out of Brown County that county commissioners in Indiana have the authority to dissolve county fire districts.

“We conclude that, under the Home Rule Act, boards of county commissioners are authorized to amend a fire protection district, even if such amendment dissolves the district,” Justice Brent Dickson wrote for the majority. The ruling was a 4-1 decision yielding three opinions.

In so ruling, the majority rejected a prior 2-2 Supreme Court affirmation of a trial court ruling in favor of landowners who sued Brown County commissioners to block an amendment of the county’s fire protection district. The commissioners’ amendment served to effectively dissolve the district, and prior rulings concluded commissioners lacked such authority.

“While this holding is inconsistent with the reinstated opinion of the Court of Appeals in [the Supreme Court’s 2-2 decision in Gaudin v. Austin, 921 N.E.2d 895, 899 (Ind. Ct. App. 2010)], this Court is now able to review the issue with full participation, and we now disapprove of Gaudin I,” Dickson wrote. “... We conclude that under the Home Rule Act, the Board of Commissioners is not limited in its power to unilaterally amend the ordinance that previously established the District, notwithstanding the landowners’ claim that such amendment constitutes a de facto dissolution.”

Dickson’s majority was joined by Justice Mark Massa and Chief Justice Loretta Rush; Justice Steven David concurred with a separate opinion concluding the same statute empowering commissioners to create the district necessarily vests power to amend it.

Justice Robert Rucker dissented, noting statute provides only one method of dissolving a fire district, and that is through freeholder petition. He said it also was telling that “legislative silence on this issue is instructive,” since lawmakers took no action to disturb prior rulings affirming rulings in favor of landowners who challenged the amendment.

“In any event, noting and agreeing with the trial court’s characterization that the Commissioners ‘gutted’ the Ordinance, the Court of Appeals here reached ‘the inescapable conclusion ... that the ‘amendment’ the Commissioners made to the Ordinance was so extreme and far-reaching as to amount to a de facto dissolution of the Ordinance, in contravention of both section 36-8-11-24 and Gaudin [I],” Rucker wrote. “I agree and would affirm the judgment of the trial court.”

Indiana Court of Appeals

Sept. 2

Juvenile CHINS – Interstate Compact on the Placement of ChildrenIn the Matter of D.B. (Minor Child), a Child in Need of Services: D.B.(Father) v. The Ind. Dept. of Child Services, and Child Advocates, Inc.


A split Indiana Court of Appeals reversed a Child in Need of Services adjudication, ruling the child’s absent, out-of-state father should be presumed to be a fit and capable parent unless the state proves otherwise.

D.B., a 2-year-old, was found to be a CHINS after her mother was murdered by her half-brother’s father. After filing the CHINS petition, the Indiana Department of Child Services began the process set forth by the Interstate Compact on the Placement of Children for both the child’s father and maternal grandmother.

The juvenile court held a fact-finding hearing and found the child was a CHINS, even though at that time the ICPC process had not been completed.

On appeal, the father argued the ICPC does not apply to the placement of a child with an out-of-state biological parent.

The Court of Appeals majority agreed. It ruled the plain language of the statute, Indiana Code 31-28-4-1 Art. III, makes clear the ICPC applies only to the placement of a child in foster care or as a preliminary to a possible adoption.

Subsequently, the appellate court tossed the portion of the CHINS determination that rested on the ICPC process.

Judge Elaine Brown broke with her colleagues over the interpretation of the ICPC. She faulted the majority for concentrating on Article III and pointed to Article VIII which does not preclude the ICPC’s application to agency placements with non-resident parents.

Brown argued the facts in this case support the application of ICPC. Namely, a home study and background on the father had not been completed; the father had little contact with the child and did not regularly pay child support; was not the lessee of the apartment in which he was living; had worked at his current job for only six months; and was essentially a stranger to the child.

She found the juvenile court properly considered and relied upon the fact that the ICPC process had not yet been completed in making its determination.

Sept. 9

Criminal – Child Molestation/Testimony/Coaching

Melvin C. Hamilton v. State of Indiana


A man convicted of three counts of Class A felony child molesting must be retried because the trial court erred by admitting testimony from a forensic interviewer who said there was no evidence the alleged victims had been coached.

The Indiana Court of Appeals reversed the convictions and remanded for retrial. A jury in Posey Circuit Court convicted Hamilton of three counts, but found him not guilty of a Class C felony molestation count on charges that he sexually abused his stepson’s 5- and 10-year-old foster children.

A forensic interviewer who testified that she didn’t observe any evidence that the children had been coached was inadmissible under Sampson v. State, 87S01-1410-CR-684 (July 30, 2015), Judge Michael Barnes wrote for the panel.

“It is clear under Sampson that all of (the interviewer’s) testimony regarding indicators of coaching was inadmissible. It is the type of vouching testimony deemed to improperly invade the province of the jury to assess witness credibility,” Barnes wrote.

“We cannot say that the erroneous admission of (the interviewer’s) vouching testimony was harmless. There was no corroborating evidence of Hamilton’s guilt apart from the testimony of (the alleged victims). The only value of Elfreich’s testimony was to improperly bolster the credibility (of the alleged victims).

“If there is to be a rule barring vouching testimony such as (the interviewer’s), then it is extremely difficult to imagine a scenario in which such testimony, where an objection to it was raised at trial, is harmless in a case such as this where a conviction depends entirely upon assessing the credibility of the alleged victim,” Barnes wrote.

“We conclude that the erroneous admission of (the interviewer’s) testimony likely had a substantial influence on the jury’s guilty verdicts. Therefore, we are compelled to reverse Hamilton’s convictions and to remand for a new trial.” 

Sept. 11

Civil Collections – Authentication of Documents

Gregory Reef v. Asset Acceptance, LLC


After appearing to shrug off the need to authenticate documents, a company claiming to own the appellant’s credit card debt got a lesson in Indiana court rules and precedence.

Asset Acceptance, LLC, asserting it had purchased Gregory Reef’s credit card debt from Citibank, was successful getting a summary judgment from Marion Circuit Court.   

However, Reef appealed, arguing the much of the evidence submitted by Asset Acceptance was inadmissible and not sufficient to warrant summary judgment.

The appellate court found Reef’s argument had merit. It held Asset Acceptance did not properly authenticate its evidence as required by Indiana Evidence Rules 901(a) and 902 and by Indiana Trial Rule 56(E) and 56(E).

Also, Reef complained Asset’s bill of sale agreement and other documents were unreliable because they were heavily redacted, incomplete and failed to establish ownership.

The Court of Appeals found Asset Acceptance “essentially shrugs off Reef’s argument and notes that Reef does not cite a case supporting his argument.” In response, the panel pointed to Marich v. Kragulac, 415 N.E.2d 91, 100 (Ind. Ct. App. 1981), disapproved of on other grounds by Presbytery of Ohio Valley, Inc., OPC, Inc., 973 N.E.2d 1099 (Ind. 2012). There, the Court of Appeals held a document used to support a motion for summary judgment must be exhibited in full and affidavits as to its substance, effect or interpretation are not sufficient.

Concluding Asset Acceptance did not lay an adequate foundation for its documents, the Court of Appeals ruled summary judgment was inappropriate, and it reversed the trial court.

Sept. 15

Civil Tort – Indiana Wrongful Death Statute/Attorney Fees

Hoker Trucking, LLC and Linda L. Phillips v. Pamela K. Robbins, as Administratrix of the Estate of Mike Douglas Robbins Deceased


Attorney fees awarded in a wrongful death suit have been overturned by the Indiana Court of Appeals weeks after the Indiana Supreme Court weighed in on the state statute’s language.

The Court of Appeals reversed the award of attorney fees.

Wayne Superior Court awarded Pamela Robbins $2.4 million in attorney fees and $622,028.11 in prejudgment interest. A jury awarded Robbins $6 million after her husband, Mike, was killed in a tractor-trailer accident.

However, in overturning the recovery of attorney fees, the Court of Appeals pointed to the case of first impression decided by the Indiana Supreme Court, SCI Propane, LLC, et al. v. Frederick, ---N.E.3d ---- (Ind. Aug. 27, 2015). The Supreme Court found the wrongful death statute allows for attorney fees in the child wrongful death provision (Indiana Code 34-23-2-1) but not in the adult wrongful death section (I.C. 34-23-1-2).

Still, the Court of Appeals noted its decision in McCabe v. Commissioner, Indiana Department of Insurance, 949 N.E.2d 816, 819-21 (Ind. 2011) which held the phrase in the adult wrongful death provision - “may include but are not limited to” – does allow for the recovery of attorney fees.

“Even though similar language – ‘may include but are not limited to’ – is included in the first category of the (General Wrongful Death Statute), our supreme court reached the opposite conclusion in SCI Propane based on the distinct application and remedies afforded to the first category of decedents under the GWDS, i.e. those survived by a spouse and/or dependents,” Judge Patricia Riley wrote. “…Accordingly, where, as here, Robbins as the surviving widow, pursues the recovery of attorneys’ fees as compensatory damages under the first category of the GWDS, she is not entitled to an award thereof.”

Criminal – Sexual Abuse/Social Media Evidence

Charles R. Strunk v. State of Indiana


Evidence including a Facebook message sent to a 15-year-old girl was properly admitted in the trial of a man convicted of sexually abusing her at knifepoint, the Indiana Court of Appeals ruled.

The court affirmed Class A and Class B felony counts of sexual misconduct with a minor. A jury in Lawrence County convicted Strunk and sentenced him to 54 years in prison after hearing evidence that included a Facebook message Strunk sent his victim, whose family was friends with him.

Prior to sending the message, Strunk appeared at J.B.’s home after she said she wanted him to take her mushroom hunting sometime. He led her to nearby woods where he brandished a knife and forced her to strip. He drew symbols on her body with a Sharpie before forcing her to engage in oral sex, according to the record. At some point, J.B.’s sister called for her, and she told Strunk she had to check on her. On the way back, Strunk had a seizure.

A few hours later, Strunk sent a Facebook message reading, “im sorry about what happened. But if yoi possibly can we need to finish the ritual. Untill we do i must suffer the aftermath of it all. That is what caused the seizures. And it will only get worse from there. So please save me from this suffering. Please I beg of you.”

The victim then reported she had been molested, after which Strunk was charged and convicted. On appeal, Strunk challenged admission of the Facebook post and trial court rulings that limited his cross-examination of J.B. and the court’s refusal to admit the entire recording of Strunk’s conversation with a deputy.

Strunk argued the evidence would have included allegations that the victim smoked marijuana after she was examined by a sexual assault nurse examiner and that Strunk alleged the victim was upset because he threw out her marijuana.

“The trial court did not abuse its discretion when it limited Strunk’s cross-examination of J.B., admitted Strunk’s Facebook message to J.B., or admitted only an excerpt of Strunk’s statement to the police,” Judge Melissa May wrote for the panel. “We accordingly affirm.”

Strunk waived the argument over his entire statement not being admitted, but even if he hadn’t, the trial court’s ruling would be valid because Strunk did not argue that there was a misleading impression created by admitting just an excerpt of his statement, the court held. Likewise, the court properly limited his cross-examination.

“There is no evidence J.B.’s smoking of a single marijuana cigarette six to seven hours after the molestation impaired her perception, ability to remember, or ability to testify about the molestation,” May wrote.

The Facebook message was properly admitted under the authentication standard in Indiana Rule of Evidence 901: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”•


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