Indiana Court Decisions — March 1-14, 2018

7th Circuit Court of Appeals

March 2

Civil Plenary — Noncitizen Transgender Name Change

John Doe, formerly known as Jane Doe v. Eric Holcomb, in his official capacity as Governor of the State of Indiana, et al.


A Mexican native with asylum in the United States cannot continue with his suit against various Indiana officials challenging the citizenship requirement in Indiana’s name-change statute after a divided panel of the 7th Circuit Court of Appeals found he lacked standing to bring his case.

John Doe, a biological woman, came to Indiana in 1990 and has lived here ever since, most of that time publicly identifying himself as Jane Doe, a woman. But in 2012, Doe told his family that he is transgender and began to live openly as a man under the name John.

Doe was granted asylum in the U.S. in 2015 after alleging that he would face persecution in Mexico as a transgender woman. All of Doe’s official U.S. documents, including his Indiana I.D. and his immigration papers, denote him as male, yet his name is still listed as “Jane.” That discrepancy has been a constant source of trouble for Doe, he claims, and has created heightened symptoms of anxiety and gender dysphoria.

Thus, in 2013, Doe began the process of legally changing his name, but hit an immediate snag when he learned he had to provide proof of his U.S. citizenship. The citizenship requirement is found in Indiana Code section 34-28-2-2.5, enacted in 2010 through House Enrolled Act 1047.

Though he has legal asylum, Doe told Indiana Lawyer in 2016 that he is still a few years away from obtaining full citizenship. Rather than continuing to legally live as Jane until that time, Doe filed suit against the state, alleging the citizenship requirement violated his free speech, equal protection and due process rights.

Doe found support for his case in Indianapolis attorney Barbara Baird and in the Mexican American Legal Defense and Educational Fund and the Transgender Law Center, two national legal organizations. However, the Indiana Southern District Court dismissed Doe’s suit nearly one year ago for lack of standing.

A divided 7th Circuit Court of Appeals panel upheld that decision, with Judge Michael Kanne addressing standing as it related to each of the four defendants named in their official capacities — Gov. Eric Holcomb, Attorney General Curtis Hill, Mary Willis, executive director of the Indiana Supreme Court Office of Judicial Administration, and Myla Eldridge, Marion County Clerk.

Looking first to the claims against Holcomb — who replaced then-Gov. Mike Pence as a defendant — Kanne wrote Doe’s claims may have been more successful had he sued the governor to enjoin the enforcement of Bureau of Motor Vehicle requirements that prohibit the issuance of an I.D. with a name that is different than the name listed on the applicant’s legal documents. Though he sued Holcomb as head of the BMV, Doe’s complaint sought to enjoin him from enforcing the name-change statute, which the governor is not specifically tasked with enforcing, Kanne said.

Similarly, Hill — who replaced former Attorney General Greg Zoeller as a defendant — has authority only to join prosecutions, not to initiate them to enforce laws such as the name-change statute, Kanne wrote. Further, there are no penalties for violating the statute, so there is nothing Hill, in his official capacity, could do to prosecute Doe under the statute, he said.

Doe also sued Lillia Judson, the now-retired head of the Indiana Supreme Court Division of State Court Administration, who has since been replaced by Willis. The Mexican native alleged Willis’ office, now known as the Office of Judicial Administration, “prevent(s) or discourage(s) non-citizens from accessing changes of legal name” by generating a form that requires name-change applicants to provide proof of citizenship. Those forms, however, are not connected to the enforcement of the statute, the circuit court found.

Finally, turning to Eldridge, the circuit court first wrote that as a county official, the clerk is not protected under the 11th Amendment. But though Doe did allege an injury in fact — the denial of a legal name change due to his citizenship status — he failed to prove a causal connection between Eldridge and his injury because she does not have the ability to deny or approve name-change petitions, only to process them.

Thus, the majority joined by Judge Joel Flaum affirmed the dismissal of Doe’s complaint. But in a dissenting opinion, Chief Judge Diane Wood wrote the majority’s opinion overlooks the “significant roles played by the Attorney General, Executive Director, and Clerk in enforcing the name-change statute and preventing Doe from securing official recognition of his identity.”

First addressing Willis and Eldridge, Wood said the court must accept Doe’s assertion that Eldridge’s office regularly rejects non-citizens’ applications for a legal name change based on instructions on the form — generated by Willis’ office — that require proof of citizenship. Further, looking to Hill’s role, Wood noted that both fraud and perjury — for which Doe could be convicted if he lied about his citizenship — are crimes punishable independent of the name-change statute.

Finally, though Wood agreed that Holcomb should be dismissed as a defendant, she also wrote she would allow Doe to amend his complaint to name other executive branch officials — namely, the commissioner of the BMV.

“In the end, I believe that the majority has attached too much importance to the fact that the state courts are the ones charged with the duty of issuing name-change orders,” Wood wrote. “The fact that this responsibility is lodged in the courts does not mean that Doe’s suit is nonjusticiable.”

“The underlying principle Doe is trying to vindicate is an important one, which has a broader application than may be initially apparent,” she continued. “I therefore respectfully dissent.”

March 7

Civil Tort — Right of Publicity/Certified Question

Akeem Daniels, Cameron Stingily, and Nicholas Stoner v. FanDuel, Inc., and DraftKings, Inc.


A federal right-to-publicity lawsuit brought against online fantasy sports sites by three former college football players — including a former Indiana University player — may hinge on a question certified to the Indiana Supreme Court by the 7th Circuit Court of Appeals.

The three former players — ex-IU receiver Nick Stoner and ex-University of Northern Illinois players Akeem Daniels and Cameron Stingily — sued FanDuel and DraftKings for allegedly using their names, photos and statistics in their fantasy football wagering programs without the players’ consent. The athletes alleged Indiana’s right-of-publicity statute gave them control over the commercial use of their names, but the Indiana Southern District Court disagreed and dismissed their case in October.

Specifically, Judge Tanya Walton Pratt found the players’ on-field performances were “newsworthy” and of “general or public interest,” exempting them from the statute, Indiana Code section 32-36-1-8. That ruling meant FanDuel and DraftKings could use the players’ names in fantasy games and general advertising.

On appeal in Akeem Daniels, et al. v. FanDuel, Inc., and DraftKings, Inc., 17-3051, Stoner and the Northern Illinois players argued the fantasy sports operations were illegal gambling enterprises unable to take advantage of any statutory exemptions. They also noted that producers of video games such as Madden NFL are required to obtain players’ consent before including their information in the games.

But Judge Frank Easterbrook wrote that the central question is whether the players’ photos and information appear “in … (m)aterial that has … newsworthy value” or “in connection with the … reporting of an event … of general or public interest,” as would be required for the statutory exemptions to apply. He also noted a dearth of Indiana caselaw regarding right-to-publicity cases involving athletes.

Thus, the appellate court certified the case to the Indiana Supreme Court, pursuant to Indiana Rule of Appellate Procedure 64, to answer this question: “Whether online fantasy-sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in contests, in advertising the contests, or both.”

“We appreciate the possibility that the answer to the question we have framed may not end this case,” Easterbrook wrote. “Defendants say that the Constitution supersedes any right of publicity that Indiana may recognize.”

“It would be inappropriate for us to decide that question, however, without knowing exactly what it is that state law provides,” the judge continued. “Otherwise we are at risk of issuing an advisory opinion.”

March 8

Civil Tort — Police Shooting

Dawne A. Sanzone, Personal Representative of the Supervised Estate of Keith R. Koster, Deceased v. James Gray, in his official and individual capacities


The Indiana Southern District Court must enter judgment in favor of an Indianapolis police officer who fatally shot a man while on duty after the 7th Circuit Court of Appeals determined the officer acted reasonably and is entitled to qualified immunity.

In January 2014, Indianapolis Metropolitan Police Department officers, including James Gray, responded to a call about a man, Keith Koster, vomiting and having trouble breathing. The officers were given keys to Koster’s apartment, but when they entered the unit Koster began shouting for them to go away.

Despite reassurances that the officers were there to help, Koster, who was holding a gun, threatened to shoot them if they entered his apartment. A hostage negotiator then arrived and tried to convince Koster to put down the gun, but he refused and eventually threatened to fire a warning shot.

According to Gray’s testimony, Koster then extended his arm and pointed the gun at the officers, so Gray fired three shots at his head, two of which struck and killed him. After Koster’s death, his sister, Dawne Sanzone, filed Fourth Amendment excessive force claims against several of the officers present at the shooting, including Gray.

Each defendant moved for summary judgment on the basis that they were entitled to qualified immunity, and Judge Tanya Walton Pratt granted those motions as to the other defendants. But in Gray’s case, she determined he was not entitled to qualified immunity, finding he “used greater force than was reasonable because he did not take cover or wait for the less-lethal option before shooting.”

The 7th Circuit, however, found in Dawne A. Sanzone v. James Gray, 17-2103, that Gray did not violate Koster’s Fourth Amendment rights considering Koster’s threat of a warning shot and his action of pointing his gun at the officers. Thus, he was entitled to qualified immunity.

“Gray did not need to wait and hope that Koster was a skilled marksman before taking action to shut down Koster’s threat,” the panel — including Notre Dame Law School professor and now-Judge Amy Coney Barrett — wrote in a per curiam opinion. “Indeed, these circumstances place this case handily among others in which the court has sanctioned the use of deadly force.”

The appellate panel reversed the denial of Gray’s summary judgment motion and remanded the case to the district court for entry of judgment in his favor.

March 12

Civil Tort — Union Pension Liability

Indiana Electrical Workers Pension Benefit Fund, et al. v. ManWeb Services, Inc.


A federal judge in Indianapolis has been ordered to take a closer look at whether a successor company can be held liable for money allegedly taken from a union pension benefit fund.

The 7th Circuit Court of Appeals remanded for a second time a ruling in favor of Indianapolis-based ManWeb Services, Inc., the defendant in a suit brought by the Indiana Electrical Workers Pension Benefit Fund. The pension fund claims ManWeb’s predecessor, known as Freije, withdrew from the pension fund and owes a liability of $661,978.

The union sued ManWeb as a successor in interest, but District Senior Judge Sarah Evans Barker granted summary judgment in favor of ManWeb, concluding the fund had not shown sufficient continuity of service to support successor liability.

“We find ourselves in respectful disagreement with our colleague on the District Court,” the 7th Circuit panel wrote Monday in Indiana Electrical Workers Pension Benefit Fund, et al. v. ManWeb Services, Inc., 16-2840.

“In the totality of relevant circumstances, ManWeb’s purchase of and use of Freije’s intangible assets — its name, goodwill, trademarks, supplier and customer data, trade secrets, telephone numbers and websites — and its retention of Freije’s principals to promote ManWeb to existing and potential customers as carrying on the Freije business under ManWeb’s larger umbrella, weigh more heavily in favor of successor liability than the district court recognized. We vacate the district court’s decision and remand for further consideration of this equitable determination,” Judge David Hamilton wrote.

Senior Judge Daniel Manion concurred in a separate opinion.

Indiana Court of Appeals

March 5

Criminal — Abstract of Judgment

Hakeen Hogan v. State of Indiana


An Indiana trial court must enter an amended abstract of judgment for an offender recommended for the Indiana Department of Correction’s Purposeful Incarceration program after the Indiana Court of Appeals determined the initial order did not explicitly allow for a sentence modification.

In Hakeen Hogan v. State of Indiana, 71A05-1702-CR-278, Hakeen Hogan pleaded guilty to two counts of Class B felony robbery and two counts of Class B felony robbery, and the St. Joseph Superior Court sentence him to 46 years, with 16 years suspended to probation. At the end of the sentencing hearing, the trial judge told Hogan he would note on the abstract of judgment that he could be a candidate for the Purposeful Incarceration program if he completed a therapeutic community.

The final abstract of judgment recommended that Hogan be evaluated for therapeutic community and noted he “appears to be an appropriate candidate for the DOC’s Purposeful Incarceration program.” Hogan, however, filed a pro se motion to amend that order to reflect that he should be placed in the Purposeful Incarceration program and that the court would consider sentence modification when he completed the therapeutic community program.

The trial court denied the motion, finding it was a motion for modification of sentence. The Indiana Court of Appeals, however, agreed with Hogan that the Abstract of Judgment should have included language explicitly telling the DOC that the court would allow Hogan’s placement in the purposeful incarceration program and that it would consider sentence modification.

“The absence of such language rendered Hogan’s abstract of judgment erroneous,” Judge Melissa May wrote. “…We reverse the trial court’s denial of Hogan’s motion and remand for the trial court to enter an Abstract of Judgment that recommends Hogan be placed in Purposeful Incarceration and states that, after Hogan successfully completes an appropriate therapeutic program, the court will consider a petition to modify Hogan’s sentence.”

Expungement — Post-Conviction Records

In Re: The Petition for Expungement of Conviction Records of: B.S. v. State of Indiana


The Indiana Court of Appeals has overturned the denial of a man’s request for expungement of his post-conviction relief proceedings after determining the Allen Superior Court erred in finding PCR records are not covered by Indiana’s expungement statutes.

After being convicted of a Class A misdemeanor in April 2011, B.S. was granted post-conviction relief in August 2010. B.S. then petitioned to expunge all records related to his misdemeanor conviction in July 2017, but the Allen Superior Court agreed to expunge only the records related to his conviction, not the PCR proceedings.

The trial court found post-conviction proceedings could not be expunged under Indiana Code section 35-38-9-1, but the Indiana Court of Appeals disagreed. Judge Melissa May, writing on an issue of first impression, said the relevant statute states “no information” related to expunged cases can be maintained, and “any records” must be sealed or redacted.

“Here, the intent and the policy underlying Indiana Code section 35-38-9-1 are the same as the intent and policy analyzed in (J.B. v. State, 558 N.E.3d 336 (Ind. Ct. App. 2015)), i.e., expungement allows an individual, who satisfies certain criteria, to escape the stigma of a criminal conviction by ‘sealing off the paper trail establishing that there ever was a conviction,’” May wrote. “B.S. because he qualifies for expungement under the statute, is able to escape the stigma of his now-overturned criminal conviction; however, in order to do so, all records pertaining to that conviction must be sealed.”

Thus, the appellate court reversed the partial denial of B.S.’s expungement petition and remanded In Re: The Petition for Expungement of Conviction Records of: B.S. v. State of Indiana, 02A05-1710-XP-2262, with instructions to issue a new order in accordance with its opinion.

March 7

Criminal – Public Intoxication/Evidence

Jeffrey S. Morris v. State of Indiana


A Knox County man convicted of public intoxication after being found in public wearing only underwear has won his appeal after the Indiana Court of Appeals found insufficient evidence to support the Class B misdemeanor.

In Jeffrey S. Morris v. State of Indiana, 42A05-1709-CR-2059, Vincennes police were dispatched in June 2017 to investigate a report of a man wearing only underwear in public. When Officer Robert Hammond arrived at the scene, he found Jeffrey Morris standing in the road in his underwear, sweating and displaying signs of paranoia.

Though Hammond instructed Morris to stay in his house, he received four more calls about Morris’ behavior on the same day. He eventually arrested Morris for public intoxication and testified during the ensuing trial about his belief that Morris was “potentially under the influence of bath salts.”

Based on that testimony, the Knox Superior Court entered judgment against Morris for a Class B misdemeanor. The Indiana Court of Appeals, however, reversed that conviction, with Judge Melissa May writing the state failed to prove Morris was under the influence of a controlled substance.

“Officer Hammond described Morris as ‘profusely sweating … and acting paranoid,’ and testified he believed Morris was ‘potentially under the influence of bath salts,’” May wrote. “While bath salts can contain a controlled substance, our system of justice does not permit citizens to be convicted of potential illegality.”

The state could have proven Morris was intoxicated by a controlled substance through chemical testing or the testimony of an expert witness, May said, but no such evidence was offered. Thus, the appellate court reversed Morris’ conviction.

Civil Tort — Duty to Protect

Amber Hamilton v. Steak ‘n Shake Operations Inc.


In a case watched closely by both the plaintiffs and defense bar, the Indiana Court of Appeals reversed summary judgment for Steak ‘n Shake after determining the chain owed a duty to a customer at an Indianapolis restaurant who was shot in the face during an escalating conflict with another patron.

In December 2012, Amber Hamilton and her brother Dustyn were at an Indianapolis Steak ‘n Shake when another group of people, including Ricky Jackson, entered the restaurant. Jackson began harassing the siblings because of Dustyn’s sexual orientation and tried to goad Dustyn into fighting him.

A server and a cook working that evening were aware of ongoing argument, but did not call for help until 30 minutes later when it seemed the argument would turn physical. The cook, who was acting as the manager, asked both groups to leave, but they ignored her and a fight ensued between the feuding men.

Hamilton also joined the fray until Jackson shot her point blank in the face, causing serious injuries. She survived, but filed a negligence suit against Steak ‘n Shake, alleging the restaurant failed “to take affirmative action to control the wrongful act of third parties.”

Steak ‘n Shake filed a motion for summary judgment, which was initially denied, but granted more than a year later on a motion to reconsider.

In an appeal that drew amicus petitions from both the Indiana Trial Lawyers Association and Defense Trial Counsel of Indiana, the Indiana Court of Appeals reversed in Amber Hamilton v. Steak ‘n Shake Operations Inc., 49A02-1704-CT-776, in light of recent Indiana Supreme Court caselaw.

Specifically, Judge Robert Altice wrote Wednesday that the cases of Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016) and Rogers v. Martin, 63 N.E.3d 316 (Ind. 2016), establish the analytical framework for deciding the instant case. Those cases evaluated foreseeability as it relates to the duty a landowner owes an invitee in negligence actions and determined that a “foreseeability analysis should focus on the general class of persons of which the plaintiff was a member and whether the harm suffered was of a kind normally to be expected — without addressing the specific facts of the occurrence.”

Applying that framework here, the Court of Appeals defined the “broad type of plaintiff” as a restaurant patron who, like Hamilton, was subject to taunts and threats, while the “broad type of harm” was resulting injuries. Under those definitions, the court found Steak ‘n Shake had a duty to provide for Hamilton’s safety considering the 30-minute conflict that led up to Jackson shooting Hamilton.

“Steak ‘n Shake did not have to know the precise harm that would befall its customer, only that there was some probability or likelihood that one of its patrons could be harmed and that the potential harm was serious enough that a reasonable person would have been induced to take precautions to avoid it,” Altice wrote. “An escalating thirty-minute encounter that included verbal threats and taunts, blocking of the exit, and pounding on windows in an effort to incite a physical altercation, all of which Steak ‘n Shake had knowledge, clearly created some likelihood that one of Steak ‘n Shake’s patrons could be harmed and that the potential harm could be serious.”

Thus, the grant of summary judgment was reversed and the case remanded for further proceedings on Hamilton’s negligence allegations.

Civil Tort — Fire Insurance Subrogation

Hoosier Insurance Company v. Nicole R. Riggs and Michael J. Riggs


The Boone Superior Court must reconsider a subrogation claim arising from a fire on leased property after the Indiana Court of Appeals remanded the case for further examination of whether the property owners’ insurer has the right to seek damages from the tenants who caused the fire.

In June 2013, Frank and Leah Harker leased a Boone County property to Nicole and Michael Riggs, who shared the property with Dustin Blevins. Two years later, the property sustained nearly $43,000 in fire damage after Blevins allegedly left burning incense unattended.

The property was insured by Hoosier Insurance Company, which paid the full amount of damages to or on behalf of the Harkers for repairs. The insurance company then filed a damages complaint against the Riggses, alleging they had breached the lease.

The Riggses responded with a Trial Rule 12(B)(6) motion to dismiss, which the Boone Superior Court granted. The insurance company appealed in Hoosier Insurance Company v. Nicole R. Riggs and Michael J. Riggs, 06A01-1708-CT-1969, and the Indiana Court of Appeals reversed the dismissal.

The crux of Hoosier Insurance’s argument was that because it paid damages to or on behalf of the Harkers, it had become subrogated to the Harkers’ landlord rights and, thus, was entitled to seek damages from the Riggses. Judge Michael Barnes — relying on the case-by-case approach to analyzing subrogation claims advocated in LBM Realty, LLC v. Mannia, 19 N.E.3d 379, 386 (Ind. Ct. App. 2014) — wrote for the unanimous appellate panel that it did not appear “to a certainty of on the face of the complaint that Hoosier is not entitled to any relief … .”

There are two main questions that must be answered to decide the case, Barnes said: whether the lease explains who should bear the risk of fire loss, and whether the Harkers’ right to seek damages inures to Hoosier Insurance. Thus, on remand, the appellate court instructed the trial court to analyze the lease, “weigh and balance the equities” and determine the Riggses’ liability.

March 13

Miscellaneous — Nursing Home Moratorium

Mainstreet Property Group, LLC; Mainstreet Realty, LLC; and 7105 E SR 334, LLC v. Pam Pontones, in her official capacity as Interim Commissioner of the Indiana State Department of Health; et al.


A moratorium on new nursing home licenses passed by the legislature in 2015 that applied to proposals seeking approval prior to the bill’s passage was affirmed by the Indiana Court of Appeals.

The moratorium was made to take effect retroactively to March 1, 2015, meaning any proposals pending Indiana State Department of Health licensing review after that date would not be permitted. The moratorium has been extended until June 30, 2019.

Carmel-based Mainstreet Property Group, LLC, and its affiliated entities had nine nursing home projects across the state in various planning stages when the moratorium took effect. None of the plans had been submitted to the Department of Health by March 1, 2015. Mainstreet had executed land purchase agreements for sites in Zionsville, Jeffersonville, Fort Wayne and New Haven, but closing on those properties had not taken place.

Mainstreet in 2016 filed a complaint for declaratory and injunctive relief against the Department of Health and other entities, which was dismissed by the trial court. The appellate court upheld that ruling.

“We hold that the Moratorium did not impair any contractual obligations or vested rights” of Mainstreet. “Because (Mainstreet) failed to show that the Moratorium impaired any of their contractual obligations, we affirm the trial court’s dismissal of the contract clause claims and need not delve further into (Mainstreet’s) argument,” Judge Terry Crone wrote for the panel.

Further, Mainstreet failed to demonstrate that it had vested rights in any of the projects. The court also rejected Mainstreet’s claims that it had spent millions of dollars developing the proposed properties. The company’s “evidence regarding the expenditure of money, time, and effort could be characterized as normal business efforts expended to investigate future business opportunities,” as the trial court held, Crone wrote, noting the company was reimbursed all earnest money on properties where purchase agreements had been secured.•

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