Indiana Supreme Court
Criminal — Good Time Credit
Richard D. Shepard v. State of Indiana
Directors of community corrections programs do not have authority to revoke inmates’ good time credit as a disciplinary measure because the Indiana Department of Correction has not yet delegated that authority to community corrections programs, the Indiana Supreme Court ruled. The decision reversed rulings in the trial court and Court of Appeals.
That decision in Richard D. Shepard v. State of Indiana, 84S01-1704-CR-190, came after the director of the Vigo County Community Corrections program deprived Richard Shepard of 225 days of good time credit. The deprivation was the result of Shepard, who was convicted on a drug charge, violating several community corrections rules, such as leaving the facility to go to work, but not immediately returning when he was informed that he was not needed at work.
As a result, the Vigo Superior Court ordered Shepard to be recommitted to the Indiana Department of Correction to serve the balance of his 11-year sentence. Though he was entitled to 190 days of good time credit, the trial court determined that the deprivation of the 225 days zeroed out his good time credit balance. The Indiana Court of Appeals affirmed that decision in January, finding the community corrections director did not lack authority to revoke the good time credit.
But the Indiana Supreme Court disagreed, with Justice Steve David writing Friday that Indiana Code section 35-38-2.6-6(d) would allow a community corrections program to deprive credit if given specific authority by the DOC, but no such authority has been given yet in Indiana.
“In fact, our legislature has provided for the deprivation of good time credit for offenders directly placed in community corrections, but that statute does not expressly give the community corrections director such authority,” David wrote. “Rather, the statute provides that ‘a person who is placed in a community corrections program under this chapter may be deprived of earned good time credit as provided under rules adopted by the department of correction under IC 4-22-2.’ … However, in the absence of such delegation, only the D.O.C. is empowered to deprive an offender directly placed into a community correction program of earned credit time.”
David wrote the court had no reason to believe DOC couldn’t promulgate such a rule, “But for reasons not known to us, the D.O.C. has yet to delegate such authority. Accordingly, the program director here was without authority to deprive Shepard of earned credit time, notwithstanding Shepard’s violations.”
The case was remanded for the trial court to recalculate Shepard’s earned credit time to include the 190 days he earned while serving in the work-release program.
Indiana Court of Appeals
Miscellaneous — Annexation
Town of Cedar Lake, Indiana v. Certain Cedar Lake 2014 Annexation Territory Landowners
The Indiana Court of Appeals has ruled against a northern Indiana lakefront town seeking to annex roughly 2,800 acres for potential economic development, finding the town failed to prove the annexation was needed and could be used for development.
In November 2014, the town of Cedar Lake in Lake County adopted an ordinance that proposed to annex 2,800 acres. A fiscal plan for the annexation that was approved in June 2015 projected a net increase in town tax revenues of more than $350,000 per year.
A group of landowners filed a remonstrance against the annexation, so at a subsequent trial, the town introduced evidence of five major projects that could possibly create future economic development in the territory. Those projects included the construction of an “Illiana Toll Road,” a South Shore commuter rail line, a new Amazon warehouse, an extension of a freight line and a “South Suburban Airport.” However, the town did not introduce evidence that developers had an interest in developing land in the annexation territory.
Instead, the property owners testified they had purchased land from developers for agricultural use. After hearing that testimony, the Lake Superior Court found there was “no probative evidence to support the Town of Cedar Lake’s allegations that the 2014 Annexation Territory is needed and can be used by the (town) for its development in the reasonably near future.”
The trial court set aside the annexation, so the town appealed in Town of Cedar Lake, Indiana v. Certain Cedar Lake 2014 Annexation Territory Landowners, 45A03-1703-MI-589. Cedar Lake claimed the trial court improperly determined the town failed to meet its burden of proving the annexed territory was needed and could be used in the reasonably near future, as is required under Indiana Code 36-4-3-13(c).
But in an Oct. 11 opinion, the Indiana Court of Appeals found the trial court’s decision was proper. Judge Cale Bradford, writing for the unanimous court, first noted the panel was tasked with resolving the appropriate standard of review for the case: “clearly erroneous” or “rational basis.” The court ultimately found the “rational basis” standard the town advocated for “is inappropriate in remonstrance cases because it does not involve the direct review of a legislative act.”
“Instead, we will apply the clearly erroneous standard … in a straightforward manner, keeping in mind, of course, that the Town’s judgment in annexation matters in entitled to be shown some deference,” Bradford wrote.
Using that standard, the appellate panel rejected Cedar Lake’s argument that the trial court did not apply the proper legal standard because it failed to show the proper amount of deference to the town’s legislative judgment. The town failed to establish the trial court did not show sufficient deference, Bradford wrote, yet there was ample evidence that the five projects “were either more in the realm of speculation than reality at this time… .”
“Moreover, the Remonstrators produced evidence tending to prove that no developer had yet expressed interested in the Annexation Territory or purchased any land ...,” Bradford wrote.
Small Claims — Landlord/tenant dispute
Dyamond Harris v. Lafayette LIHTC, LP
A small-claims judge who failed to swear in litigants in a small-change rent lawsuit drew a rebuke and a reversal from the Court of Appeals, who found she not only improperly shifted the burden of proof to the plaintiff, but also belittled and disparaged her.
Dyamond Harris was sued by her landlord in Lafayette who said she owed $38 in rent. Lafayette LIHTC LP’s Romney Meadows apartments also sought to evict her and collect court costs and other fees. At a hearing, Harris disputed the debt and produced copies of money order receipts that she said proved she had paid, but representatives of Romney Meadows disputed this. Tippecanoe Superior Judge Laura W. Zeman ruled for the landlord.
“Harris contends that the trial court committed clear error by improperly shifting the burden of proof and violated her due process right to an impartial decision maker. We agree on both counts and therefore reverse,” Judge Terry Crone wrote for the panel in Dyamond Harris v. Lafayette LIHTC, LP, 79A02-1703-SC-638.
Crone wrote that Harris never admitted she owed past rent, consistently maintained that there was money in her account to cover rent, and the Lafayette landlord’s argument was without merit. The court improperly shifted the burden to Harris. “Consequently, the judgment is clearly erroneous and must be reversed.”
The COA also found the small claims court failed to preside as a neutral, impartial decision-maker, citing Zeman’s conduct from the bench that may have violated Indiana Judicial Conduct Canons 1.2, 2.3(B) and 2.8(B).
“Here, the trial court asked questions and made comments throughout both hearings that were improper. The trial court asked Harris, ‘Who else is paying your rent? Somebody is paying rent. Me as a taxpayer? .... [What] is it about you that requires Section 8 housing such that you can’t keep track of thirty-eight dollars?’ ... The trial court told Harris, ‘Okay, if they say you owe thirty-eight dollars for February just pay them the thirty-eight to get it done’ ... The trial court also commented, ‘You have people who don’t work and free apartments[,] and the rest of us have to work to pay for it. That’s one of the problems in our country.’ ... The trial court asked Harris, ‘Why are you not paying rent? I pay rent. I pay a mortgage. Why don’t you. ... So [you] don’t work you get free rent? ... What a country, what a country.’
“Lafayette contends that ‘none’ of the trial court’s comments are ‘disparaging’ of any person. ... We disagree. The questions and comments belittle Harris for living in government-subsidized housing and not paying Lafayette $38.00. ... We conclude that the trial court failed to preside over the hearing as a neutral, impartial decision maker in violation of Harris’s due process rights. The trial court’s actions and demeanor ‘crossed the barrier of impartiality and prejudiced’ Harris’s case,” Crone wrote, citing in a footnote to the Canons of Judicial Conduct.
“Accordingly, even if we were not reversing the judgment based on the trial court’s error regarding the burden of proof, we would reverse and order a new hearing by an impartial judge.”
Domestic Relation — Quasi-emancipation
Ginger Moell v. Stephen R. Moell
Although the Indiana Court of Appeals sympathized with a trial court’s effort to reduce the stress on two brothers caused by their feuding divorced parents, the appellate panel still found the lower court overstepped its authority.
Lake Superior Court found N.M., the oldest son of Ginger Moell and her ex-husband Stephen Moell, to be a “mature, level-headed young man” who would turn 18 in six months. As such, the court allowed him to determine how much time he spends with each parent, which religious and extracurricular activities he should pursue and make all decisions about his health care.
Before the Court of Appeals, Ginger Moell characterized the trial court’s order as a “quasi-emancipation.” She argued it was not based on any evidence that N.M. was emotionally or financially equipped to make the kind of decisions the court imposed on him.
However, Stephen Moell countered the decision was an exercise of judicial economy because the court was saving time and resources by preventing further litigation since N.M. would reach age 18 in a few months.
The Court of Appeals agreed with the mother in deciding a matter of first impression. Reviewing the state’s emancipation statute, the unanimous panel pointed out the trial court allowed N.M. could make his own decisions about how he would spend his time even though he was still dependent on his parents for financial support, did not live on his own or have a job.
“While the trial court’s order did not amount to emancipation as contemplated in Indiana Code section 31-16-6-6, we are still troubled by the implications of allowing a minor, regardless of age and maturity, carte blanche in making decisions regarding his life while his parents are still legally bound to support him financially,” Judge Melissa May wrote in Ginger Moell v. Stephen R. Moell, 45A05-1704-DR-784.
The Court of Appeals ruled the trial court’s order regarding N.M. contradicted the Indiana Parenting Time Guidelines. It reversed the order and remanded for further proceedings. In addition, the appellate court also affirmed the lower court’s decision to vacate the parties’ original settlement agreements regarding their children’s care and the decision to modify Stephen Moell’s parenting time with N.M.
Juvenile Paternity — Standing
In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B.
An Indiana trial court erred in ordering parties in a paternity dispute to abide by the terms of a mediation agreement because the man who initially brought the paternity action did not have standing to do so, the Indiana Court of Appeals ruled.
S.B. was in a relationship with both M.M. and B.H. when she became pregnant with S.A.M., but on the day S.A.M. was born, M.M. executed a paternity affidavit acknowledging he was the child’s biological father. M.M. went on the share custody of the child, who refers to him as “Dad.”
At some point during S.A.M.’s life, questions regarding his paternity arose, but B.H. died before he could establish paternity through DNA testing or other methods. After B.H.’s death, his father, M.H., filed as the child’s next friend to establish that B.H. was the child’s biological father.
M.H. then filed a “Request for Custody or in the Alternative Request for Grandparent Visitation.” M.M. intervened and filed a motion to dismiss, claiming M.H. was not a person who could file a paternity action under Indiana Code section 31-14-4-1. The Madison Circuit Court denied that motion, then ordered the parties to mediation.
M.M. and M.H. eventually entered a mediation agreement stipulating that B.H. was the child’s biological father, but that M.M. and S.B. would share joint legal custody, while M.M. would have primary physical custody. The agreement also gave M.H. and his wife grandparent visitation while stipulating that M.H. would not discuss “the biological relationships of the parties” with S.A.M. without authorization.
However, when M.M. learned that M.H. had told the child that B.H. was his biological father, M.M. stopped honoring the agreement’s provisions regarding visitation. After a series of motions and hearings, M.M. and S.B. entered into an agreement that established paternity in M.M. and alleged M.H. and his wife had injured S.A.M. by saying the child’s biological father was dead.
Then, at a hearing in April 2017, M.M. moved to set aside the agreement as void. The court, however, denied that motion and found M.H. had standing to bring his petitions as a third party, if not under the grandparent visitation statute. The court also denied M.M.’s motion for attorney fees.
On appeal in In re the Paternity of: S.A.M. (Child), M.M. v. M.H., S.B., 48A05-1704-JP-922, M.M. again argued that M.H. lacked standing to bring the paternity action as S.A.M.’s next friend, so the agreement was void. The Indiana Court of Appeals agreed, reversing the trial court’s ruling.
Drawing on precedent from JR.S. v. Stockton, 886 N.E.2d 611, 614 (Ind. App. Ct. 2008), Judge Melissa May wrote that “it is up to (S.B.) and (M.M.) … to decide whether to initiate a paternity proceeding for S.A.M.”
“Because a lack of standing cannot be cured, the trial court’s order for the parties to conduct mediation, the resulting Mediation Agreement granting visitation rights to M.H., and the trial court’s order approving the agreement, are void,” May said.
Finally, the appellate court remanded the case for the trial court to determine the proper amount of attorney fees M.H. should pay father, as “this case has been allowed to proceed for over four years without M.H. having ever had standing… .”
Civil Plenary — Noncompete agreement
Craig Vickery v. Ardagh Glass, Inc.
While an Indiana commercial court failed to provide sufficient notice to a worker who was being sued by his former employer that sought to enforce a noncompete agreement, the Indiana Court of Appeals found the worker had waived his argument and affirmed a resulting injunction barring him from a new job at a competing company.
The court ruled against Craig Vickery in his suit against Ardagh Glass, finding that even though he didn’t receive sufficient notice that resulted in the same-day initial judgment against him, his objections were not timely. “We find that Vickery received insufficient notice of the temporary restraining order proceeding, but that he has waived the right to seek relief on the issue. We further find that the trial court did not err by entering the preliminary injunction. We affirm and remand for further proceedings,” Judge John Baker wrote for the panel.
The panel also rejected Vickery’s motion presented at the outset of oral arguments last month challenging the constitutionality and jurisdiction of Indiana commercial courts — specialized pilot-project dockets in six courts around the state.
“Vickery acts as though litigating in the Commercial Court is compulsory if the plaintiff files a complaint there. That, however, is patently untrue,” Baker wrote, noting litigants may opt out of commercial court jurisdiction by objecting within 30 days, which Vickery did not do. “Under these circumstances, Vickery has waived the right to challenge the Commercial Court’s jurisdiction or authority and we deny his motion to dismiss.”
Ardagh sent Vickery, a glass mold engineer, an email saying it planned to sue him and seek a TRO preventing him from taking a job in Ohio at a rival glass company. The ex parte TRO was issued hours later by Judge Heather Welch in Marion Superior Court, one of the commercial court venues. While the panel said this notice was insufficient, it let stand the result, while issuing a mild warning.
“(W)e caution attorneys and trial courts around the state to be mindful of the notice requirements surrounding TROs. There are circumstances in which a TRO must truly be granted immediately without affording time to the adverse party to respond, but those circumstances must strictly meet the requirements set forth by Trial Rule 65(B). In all other cases, both the applicant party and the trial court are required by due process and the trial rules to ensure that the adverse party was given legally sufficient notice before final action is taken.”
The court also concluded Ardagh has a right to enforce the noncompete; established a reasonable likelihood of success on the merits of its breach of contract and Indiana Trade Secrets Acts complaints; established it has remedies at law that are inadequate and that it would suffer irreparable harm during the pendency of the action; the threatened harm to Ardagh outweigh the threatened harm to Vickery; and the public interest would not be disserved by granting the injunction.
Criminal — Revocation of Probation
Timothy Allen v. State of Indiana
The Indiana Court of Appeals ordered a trial court to give a Franklin County man a new fact-finding hearing on the petition to revoke his probation after determining he did not voluntarily, knowingly and intelligently waive his right to counsel at the hearing.
In Timothy Allen v. State of Indiana, 24A05-1706-CR-1303, Timothy Allen received a 20-year suspended sentence, to be served on supervised probation, after he pleaded guilty to conspiracy to manufacture methamphetamine. However, Allen was later alleged to have violated his probation by committing new crimes involving various felony drug offenses.
A probation violation petition was filed against him, and at a subsequent hearing he appeared pro se and told the Franklin Circuit Court he needed an attorney. When the court asked him why he could not hire an attorney, Allen said he would attempt to hire counsel, but was currently without the funds to do so. After some discussion in which the court indicated it did not know whether Allen was requesting that an attorney be appointed for him, he finally told the court he would try to save money and hire counsel.
However, Allen appeared at the subsequent fact-finding hearing pro se. The trial court decided to move forward with the hearing, as Allen had indicated he would hire an attorney, but did not do so. The court did not inquire into his ability to pay for counsel or advise him of the dangers of proceeding pro se.
At the end of the hearing, the trial court determined Allen had violated the conditions of his probation and imposed the execution of the previously suspended 20-year sentence. But in a Tuesday opinion, the Indiana Court of Appeals reversed that decision, finding Allen did not waive his right to counsel.
Senior Judge John T. Sharpnack wrote the appellate court agreed with a portion of the state’s appellate brief that read, “The trial court did not establish that Allen understood that he had a right to counsel if he could not afford to retain his own, that he was waiving that right, and that certain dangers inure to proceeding pro se.”
“Without such, we are without an adequate record to establish waiver,” Sharpnack wrote. “We recognize that there are no magic words a trial court must utter to ensure that the defendant appreciates the situation, but the particular facts must show that the defendant understands, based on his background, experience, and conduct, the nature of the situation.”
The case was remanded for a new fact-finding hearing.
Civil Plenary — Sex Offenders and Church
John Doe 1, et al. v. The Boone County Prosecutor, in his official capacity, et al.
Three convicted Boone County sex offenders can return to their church congregations after the Indiana Court of Appeals determined that churches are not considered “school property,” so state statute cannot prohibit the offenders from going to church, even when children are present.
The appellate court handed down that decision in John Doe 1, et al., v. The Boone County Prosecutor, in his official capacity, et al., 06A01-1612-PL-2741. The case dates to 2015, when the Indiana General Assembly passed the “unlawful entry by a serious sex offender” statute, Indiana Code section 35-42-4-14. That statute prohibits “serious sex offenders” from accessing school property.
According to the statute, “school property” is defined as any “nonprofit program or service operated to … benefit children who are at least three years of age and not yet enrolled in kindergarten.” Based on that language, the Boone County prosecutor sent a letter to all registered sex offenders in the county informing them they could only attend church if their churches do not offer classes or services for young children.
But because each of their churches offered children’s programming simultaneously or nearly simultaneously with adult services or Bible studies, three sex offenders known as John Does 1, 2 and 3, filed suit claiming the sheriff’s letter effectively prohibited them from attending church at any time. The Does sought declaratory and injunctive relief, alleging churches don’t meet the definition of “school property,” but the Boone Superior Court denied such relief, finding instead that the churches are only “school property” when children’s programming is in session.
The trial court also rejected the Does’ argument that the statute violates Indiana’s Religious Freedom Restoration Act, which prohibits the government from substantially burdening a person’s religious exercise unless there is a compelling interest and the burden is the least restrictive means of advancing that interest. Though ACLU of Indiana Legal Director Ken Falk, who argued on appeal on behalf of the Does, claimed the offenders’ case could be won on the issue of the definition of school property alone, he also told the judges on appeal that if churches are school property, then the serious sex offender statute would violate their rights under RFRA.
The state, however, argued that because church programs operate to “benefit children,” church buildings can be considered “school property” under that statutory language. Further, Deputy Attorney General Aaron Craft said the state had a compelling interest in protecting children from being victimized by sex offenders, and prohibiting those offenders from accessing children at church was the least restrictive means of accomplishing that interest.
The appellate panel consisting of Chief Judge Nancy Vaidik and judges Margret Robb and L. Mark Bailey seemed skeptical of the state’s claims during oral arguments, and ultimately agreed with the Does’ position in Tuesday’s opinion. Robb, who wrote for the unanimous panel, pointed to language in subsection (1)(D) of I.C. 35-42-4-14, which lists programs such as Head Start, preschool or developmental child care programs, as examples of “school property.”
“A common element among these listed examples, as well as the statute as a whole, is the focus on places or entities traditionally thought of and known as ‘school,’” Robb wrote. “Churches and religious institutions are not school, nor do they become so by use of the popular and common name of ‘Sunday school.’”
Robb also noted the statute specifically applies to entities that are required to be licensed under I.C. 12-17.2 or 31-27, which includes day cares, child care centers, foster homes and other similar entities.
While the appellate panel noted in a footnote that it did not reach the RFRA argument because it determined churches do not meet the definition of “school property,” Robb also wrote that if churches did fall under that definition, the statute would not “further the interest it seeks to redress as applied to these three men.” The case was, thus, remanded to the trial court with instructions to enter a permanent injunction prohibiting the state from arresting or prosecuting the Does if they go to church.
Indiana Tax Court
Tax — Church Exemption
Lake County Trust Co., Trust No. 6, (Flowers for Heaven, Inc.) v. St. Joseph County Assessor
The Indiana Board of Tax Review must reconsider a South Bend pro-life ministry’s appeal of the denial of a tax exemption after the Indiana Tax Court ruled the board erred by dismissing the appeal sua sponte.
In May 2013, Flowers for Heaven, Inc., a pro-life ministry based in South Bend, filed for a charitable tax exemption on its personal property and the land and improvements where it operated. The St. Joseph County Property Tax Assessment Board of Appeals granted the exemption for the personal property, but denied it for the real property. On its denial form, the board listed “Lake County Trust Company, Trust No. 6 (Flowers for Heaven)” as the property owner, then wrote it had denied the exemption because the real property was not in the name of Flowers for Heaven, Inc.
The trust then filed for correction of an error, claiming that it was “just a holding conduit for (Flowers)” and that Flowers had exclusive use of the property. But the St. Joseph County board denied that motion as well, finding that the trust should have filed a petition for review with the Indiana Board of Tax Review when it received the initial denial.
The trust then filed an appeal with the Indiana Board, but the board dismissed the appeal sua sponte, stating the appeal “impermissibly challenged the (St. Joseph County board’s) rationale for denying the … exemption application and failed to assert correctable errors of omission.” The trust sought rehearing, claiming the objective error in its appeal was that the county board denied the exemption to the wrong entity.
The state board denied rehearing, prompting the trust to appeal in Lake County Trust Co., Trust No. 6, (Flowers from Heaven, Inc.) v. St. Joseph County Assessor, 02T10-1604-TA-10, and the Indiana Tax Court reversed the dismissal of the appeal.
In her opinion, Tax Court Judge Martha Blood Wentworth wrote that 52 Indiana Administrative Code 2-10-2 “expresses an absolute that a motion must precede” an order of dismissal. Because no such motion was filed here, Wentworth said the dismissal must be reversed.
She remanded the case for the Indiana board to identify Flowers as the entity requesting exemption and to determine whether it is entitled to the exemption.•