7th Circuit Court of Appeals
Civil Plenary — Marion County EarlyVoting/Consent Decree
Common Cause Indiana et al. v. Marion County Election Board
The heated dispute ignited by Indiana Attorney General Curtis Hill’s effort to block Marion County’s early voting plan ended with a whimper at the 7th Circuit Court of Appeals after both sides acknowledged a change in the voting method nixed the need for a ruling from the federal appellate bench.
Hill sought to upend an agreement reached in July 2018 between Common Cause Indiana, the Indianapolis branch of the NAACP and the Marion County Election Board that expanded the number of satellite sites for in-person absentee voting. The consent decree called for the board to open at least two satellite voting offices for each primary election and five satellite offices for each general and municipal election started in 2019.
The attorney general moved to intervene, arguing the agreement violated Indiana law. Specifically, Hill contended there was no evidence the election board unanimously approved the early voting plan as required under Indiana Code section 3-11-10-26.5. The election board immediately debunked what is described as a “spurious claim” by offering a video of the meeting where the plan was approved and citing a statement issued after the meeting as well as local media coverage of the board’s action.
In addition the attorney general asserted the consent decree ran afoul of state law by binding every future election board to the early voting schedule. This would deny new board members their right to disapprove of satellite absentee voting.
Hill’s action drew a rebuke from Indiana Sectary of State Connie Lawson. She called his action “reckless” and noted he “did not have the professional courtesy” to advise her office that he intended to move to intervene. After the U.S. District Court for the Southern District of Indiana denied the AG’s motion, Hill appealed to the 7th Circuit.
However, after Hill submitted his brief to the appellate court, the election board changed Marion County’s voting scheme from precincts to vote centers.
Common Cause, the NAACP and the Marion County Election Board then moved to dismiss Hill’s appeal. They argued the vote center plan moots the consent decree, along with the attorney general’s appeal, because to make any change to the plan would require the board to unanimously agree to amend or rescind Marion County’s vote center status.
Even though the attorney general conceded that as long as the consent decree is vacated, he would be happy with the end result, Hill still challenged the plaintiffs’ contention that his appeal was moot. He pushed the appellate court to find the district court did not have the authority to enter the consent decree in the first place.
The 7th Circuit did not see much difference between the opposing sides.
“Though the result they seek differs slightly, in essence, they seek the same relief: a vacatur of the Consent Decree,” Judge Joel Flaum wrote for the court in Common Cause Indiana, et al. v. Marion County Election Board, et al., 18-2735. “… Because both sides ultimately agree that the Decree should no longer be in effect, we have no need to address whether the district court had authority to enter the Decree. And we need not remand the case to the district court for vacatur. Given our authority to vacate district court judgments — including consent decrees — we can and should vacate the Decree ourselves.”
As part of its order, the 7th Circuit panel mandated both sides in the lawsuit bear their own costs.
Another voting lawsuit brought by Common Cause, the Indiana NAACP and the Indiana League of Women Voters is still awaiting a ruling from the 7th Circuit.
That case, Common Cause Indiana, the Indiana State Conference of the National Association for the Advancement of Colored People and the League of Women Voters of Indiana v. Connie Lawson, et al., 18-2491, challenges Indiana’s use of the controversial Crosscheck database to purge the state’s voter registration lists.
Civil Tort — Fair Debt Collection Practices Act/Injury, Circuit Split
Paula Casillas v. Madison Avenue Associates, Inc.
A woman who wasn’t informed she needed to respond to a debt collection letter in writing lost at the 7th Circuit Court of Appeals, whose ruling that the collection agency simply made a mistake that didn’t cause her any injury created a split among circuit courts. Three judges authored a published dissent from a subsequent denial of rehearing en banc.
When debt collection agency Madison Avenue Associates, Inc. sent Paula Casillas a debt-collection letter for money she allegedly owed to a credit union, it failed to include a required statement saying that Casillas must submit her notification disputing the debt in writing.
That omission prompted Casillas to file a class action against Madison, alleging it failed to comply with a provision of the Fair Debt Collection Practices Act by neglecting to inform her of the writing requirement.
Casillas argued that failure constituted a concrete and material breach of her rights under the act, and she personally sought to recover a $1,000 statutory penalty, as well as a $5,000 statutory penalty for the unnamed class members, along with attorney fees and costs.
However, the U.S. District Court for the Southern District of Indiana concluded that the 7th Circuit Court of Appeals’ decision in Groshek v. Time Warner Cable, Inc., 865 F.3d 884 (7th Cir. 2017) required it to dismiss Casillas complaint. It ruled that absent an allegation that Madison’s violation had caused her harm or put her at an appreciable risk of harm, Casillas lacked standing to sue.
The 7th Circuit agreed, noting that Casillas could not demonstrate standing by simply pointing to Madison’s procedural violation. Rather, she must show that the violation harmed or “presented an ‘appreciable risk of harm’ to the underlying concrete interest that Congress sought to protect.” That, the panel concluded, Casillas did not do.
“The only harm that Casillas claimed to have suffered, however, was the receipt of an incomplete letter — and that is insufficient to establish federal jurisdiction,” Judge Amy Coney Barrett wrote. “As the Supreme Court emphasized in Spokeo, Inc. v. Robins, Casillas cannot claim ‘a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III.’
“Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions,” the panel continued. “Because Madison’s violation of the statute did not harm Casillas, there is no injury for a federal court to redress.”
The ruling in Paula Casillas v. Madison Avenue Associates, Inc., 17-3162, conflicts with the 6th Circuit Court of Appeals holding Macy v. GC Servs. Ltd. P’ship, 897 F.3d 747 (6th Cir. 2018), on materially indistinguishable facts. Because of that conflict, Casillas was circulated to all active 7th Circuit judges under Rule 40(e), but a majority declined to hear the case en banc.
However, Chief Judge Diane Wood, joined by Circuit Judges Ilana Rovner and David Hamilton, filed a published dissent from the denial of en banc rehearing.
Wood noted that she was troubled by the fact that the panel’s opinion would make it “much more difficult” for consumers to enforce the protections against abusive debt collection practices that Congress conferred in the act.
“But what troubles me even more is the light this case shines on the need for a clear test in this circuit to distinguish between statutory protections that create, on the one hand, a ‘bare procedural injury’ that does not support standing, and, on the other hand, statutory protections for the type of concrete, particularized, and actual or imminent injury that meet Article III standards,” Wood opined.
“In my view, the rejection of standing in the case before us is not so self-evident that we should resolve it using the truncated Rule 40(e) process. We should instead have a full adversarial presentation before the en banc court,” Wood wrote.
Indiana Supreme Court
Criminal — Miranda/Evidence of Silence
Delmar Kelly v. State of Indiana
Indiana Supreme Court justices have affirmed a trial court’s admission of a man’s post-arrest silence before he was read his Miranda rights, finding he opened the door of evidence and that no fundamental error existed.
After a five-mile chase ensued following an attempted drug purchase from Delmar Kelly, officers removed Kelly and two other men from the vehicle at gunpoint. The men had thrown drugs and scales out of the car windows during the pursuit.
A jury later found Kelly guilty of dealing in a narcotic drug and resisting law enforcement. When Kelly appealed his narcotics conviction, he argued the Hendricks Superior Court committed fundamental error by allowing the state to present evidence of his post-arrest, pre-Miranda silence during trial.
The Indiana Court of Appeals affirmed the dealing conviction, relying on Myers v. State, 27 N.E.3d 1069, 1080 (Ind. 2015), to determine there was no error in using Kelly’s silence as substantive evidence against him. It also held that even if there was an error, it wasn’t fundamental error because the references to Kelly’s silence were used to rebut his defense that he was oblivious to a drug transaction taking place and that there was substantial evidence that Kelly knew about the drugs in the car.
The Supreme Court also affirmed in Delmar Kelly v. State of Indiana, 18S-CR-585, though it concluded Myers did not apply to the case at hand.
Instead, Justice Steven David wrote for the unanimous court that Kelly opened the door to the prosecutor’s comments regarding his silence. Additionally, because the mentions of his silence were minimal and ample evidence existed to prove his guilt, no fundamental error was committed.
“As noted above, our Court of Appeals applied this Court’s opinion in Myers, 27 N.E.3d at 1080, to find that because there is nothing in the record to suggest that Kelly had been advised of his Miranda rights, the State’s use of Kelly’s silence did not violate his constitutional rights,” David wrote “However, Myers does not go so far as to state that any post-arrest, pre-Miranda statements may be used against a defendant.
Instead, Myers notes that even if Myers was provided with Miranda warnings, under the facts and circumstances of that case, a constitutional violation did not occur because the testimony at issue in that case was from Myers’s mother, who commented that he did not want to speak to police and that he wanted an attorney,” David continued. “Further, in footnote 3 of our Myers opinion, we state that our constitutional analysis is case-specific.”
Justices instead found Cameron v. State, 22 N.E.3d 588 (Ind. Ct. App. 2014), to be more factually analogous.
“Similarly, in this case, Kelly offered his defense theory that he was unaware of the drug deal but rather was an unwitting participant, and in response, the State offered testimony and argument that he was aware of the drug deal, both because he did not say anything indicating that he was unaware of why the police were arresting him and because of his demeanor and behavior,” David wrote.
The court further concluded that even if the trial court had erred in admitting the evidence, it was not a fundamental error pursuant to Owens v. State, 937 N.E.2d 880, 894 (Ind. Ct. App. 2010). The officer’s testimony in reference to Kelly’s silence was minimal in the context of the entire trial, it noted, and while the statements made by the prosecution in closing did reference Kelly’s silence, they steered toward his unsurprised demeanor and behavior, rather than his silence.
Thus, the admission of the debated evidence did not make Kelly’s trial fundamentally unfair in light of the other substantial evidence in the case, the panel concluded.
All justices concurred in affirming the trial court’s decision.
Post Conviction — Offer of Proof/Contempt Threat
Anthony Bedolla v. State of Indiana
Indiana Supreme Court justices have reversed a post-conviction court’s ruling after agreeing it abused its discretion by using heavy-handed threats of contempt that prevented an attorney from making an offer of proof.
Anthony Bedolla was convicted of murder, but later found a jail cellmate who revealed information that could exonerate him. As Bedolla’s counsel arranged to have cellmate Miguel Barragan-Lopez testify at an evidentiary hearing, he was moved from Indianapolis to Leitchfield, Kentucky, a week before the hearing.
Bedolla’s counsel then struggled to secure the testimony based on Barragan-Lopez’s hesitancy and other factors, and the state offered objections before the Marion Superior Court at a status hearing. After Bedolla’s counsel explained the roadblocks she was facing, she sought leave from the court to try again to secure the testimony.
But the post-conviction court refused to hear argument from Bedolla’s attorney and denied her an opportunity to make an offer of proof, subsequently ending discovery, closing the evidence, and demanding proposed findings and conclusions from the parties.
When Bedolla’s counsel attempted to make her case and develop a record for appeal, the Marion Superior Court silenced her with threats of contempt by saying: “Counsel, if you don’t move away from the table right now, I’m going to ask the deputy to put you in the back. All right. I have told you three times your case is over. … If you have a difficulty with that, then you can always go to the higher court.”
Bedolla filed a motion to correct error that was denied, arguing the post-conviction court erred in denying his counsel the chance to make an offer of proof and in refusing to hear counsel’s argument concerning his right under the Trial Rules to request sanctions against Barragan-Lopez.
The Indiana Court of Appeals concluded there was no abuse of discretion in not sanctioning Barragan-Lopez and concluded that his testimony would not amount to newly discovered evidence entitling Bedolla to a new trial.
However, a majority of Supreme Court justices concluded the post-conviction court abused its discretion by preventing and denying Bedolla’s attorney the opportunity to make an offer of proof concerning Barragan-Lopez’s anticipated testimony.
It noted that the state did not oppose the deposition, made no argument against Bedolla’s counsel that she abused the discovery process, or that it would be prejudiced by allowing another deposition.
“Yet the post-conviction court, after hearing only the State’s argument, refused to listen to Counsel’s offer of proof and warned that a deputy would remove her if she did not yield her spot at counsel’s table,” Justice Christopher Goff wrote for the majority. “In our view, the post-conviction court ‘respond[ed] to [this] factual context in an unreasonable manner.’”
The majority further noted that a court cannot “ensure fundamentally fair proceedings that ‘promote discovery of truth,’ without listening to arguments from both parties.” Although trial court judges may be afforded ample latitude in controlling the proceedings, it continued, the case at hand stepped over the line.
“The post-conviction court’s refusal to hear further argument and its intemperate demeanor amount to an abuse of discretion — they even undermine the fundamental fairness the Indiana Constitution demands,” the majority wrote.
Thus, the high court concluded that Bedolla may proceed with the deposition based the essential information presented for an offer of proof in the record in Anthony Bedolla v. State of Indiana, 19S-PC-328, reversing and remanding the lower court’s ruling.
“Based on conversations with Barragan-Lopez, Bedolla and his Counsel anticipate that Barragan-Lopez will testify that (witness Sarai) Solano recanted her testimony that Bedolla murdered (Erick) Espinoza and she identified Jose Reyes as the killer. Testimony that, if true, would exonerate one man and implicate another certainly meets the low bar for relevance under our evidentiary rules,” the high court wrote.
“As for admissibility, Bedolla anticipated the testimony could be admissible as a Statement Against Interest under Rule 804(b)(3). Based on this piecemeal offer to prove — coupled with the fact that both parties and the post-conviction court agreed to the deposition — we remand the matter with instructions to proceed with the deposition,” the majority concluded.
Chief Justice Loretta Rush and Justice Steven David concurred, with Justice Mark Massa concurring in result. While Justice Geoffrey Slaughter concurred in part regarding the post-conviction court’s “heavy-handed” approach, he dissented in a separate opinion on the issue of Bedolla’s granted relief.
The amount of relief awarded to Bedolla exceeded the “proper and proportional” remedy for the wrongs he suffered, Slaughter argued, and was therefore unwarranted. He first dissented that the relief was more than Bedolla sought, which was to enforce the deposition subpoena by ordering sanctions against Barragan-Lopez under Indiana Trial Rule 37.
“Instead of addressing Bedolla’s request for sanctions, the Court skips over that step and orders that he be permitted to depose Barragan-Lopez,” Slaughter opined. “The Court thus says, in effect, it doesn’t matter what the trial court might conclude on remand after hearing Bedolla’s offer of proof. Bedolla gets to take the deposition no matter what. In that sense, the Court’s holding today is broader than it lets on.”
Additionally, Slaughter argued that Bedolla was seeking relief from the wrong court and that nothing in Rule 37 entitled him to an award of sanctions from the Marion Superior Court because the deponent is outside of its jurisdiction.
“He is not a party to a pending suit in Marion County, and he is physically located in another state,” Slaughter concluded. “What Bedolla should have done is sought sanctions in the court where Barragan-Lopez is in custody.”
Criminal — Child Molesting/Suppression of Statements to Police
State of Indiana v. Ernesto Ruiz
An accused child molester who was not convicted due to a mistrial has won his argument that incriminating statements he made during a police interrogation were rightfully suppressed during trial because he was not read his Miranda warnings.
A majority of the Indiana Supreme Court upheld the suppression in State of Indiana v. Ernesto Ruiz, 19S-CR-336.
The Ruiz case began when two Seymour Police officers interrogated Ernesto Ruiz “(i)n a small, windowless room in a secured area of the Seymour Police Department.” Ruiz was facing a Level 4 felony child molesting charge, but neither officer read him his Miranda warnings before beginning the interrogation.
At Ruiz’s ensuing trial, he moved to suppress video evidence of the interrogation, and after hearing evidence on the matter, the Jackson Circuit Court determined Ruiz was in custody during the interrogation and, thus, granted the motion. The court then declared a mistrial because a jury had been empaneled and the state said it could not proceed without the suppressed statements.
The Indiana Court of Appeals in a memorandum decision reversed the suppression last July, but in a split decision, the Indiana Supreme Court on granted transfer and reinstated the suppression. Chief Justice Loretta Rush — writing for a majority including justices Steven David and Christopher Goff concurring and Justice Mark Massa concurring in result — said there was “substantial, probative evidence of circumstances that, taken altogether, met both criteria of Miranda custody.”
First, under the totality of the circumstances, Rush said a reasonable person in Ruiz’s shoes would not have felt free to leave the interrogation. While there was evidence that supported the state’s argument that Ruiz was not in custody, the majority pointed to evidence “in the opposite direction” that would support the trial court’s suppression.
Specifically, Rush noted a police officer showed up at Ruiz’s home, informed him of the allegations and asked him to come to the police station without offering an alternate time or place for questioning. Further, though Ruiz was told once he was free to leave, he was told multiple times to “sit tight.” Finally, Rush said the second officer who entered the interrogation room was aggressive, changing the nature of the questioning.
“The officers were explicit that they believed Ruiz had engaged in the accused conduct,” the chief justice wrote. “And their questions were accusatory — not exploratory, like ones to identify suspects in the early stages of an investigation.”
The interrogation also included coercive pressures that qualified for Miranda custody, the majority said, noting Ruiz’s questioning was prolonged and isolated.
“First, after the interrogation began, the officers kept Ruiz ‘off balance’ in the already unfamiliar environment,” Rush wrote, pointing to the introduction of a second, more aggressive officer after questioning had begun. “… Detective (Troy) Munson then used subterfuge, lying to Ruiz about the accuser having taken a lie-detector test.”
“… Other pressures piled on,” Rush continued. “The officers said that they ‘knew’ the allegations were true; they engaged in prolonged, persistent, and accusatory questioning that focused on encouraging Ruiz to admit to the officer’s description of the wrongdoing; and they instructed Ruiz to stay put in the interrogation room while the time to pick up his daughter passed.”
Thus, under the totality of the circumstances, the majority determined Ruiz was in Miranda custody, so his statements were properly suppressed.
Justice Geoffrey Slaughter dissented without a separate opinion, believing transfer should be denied.
Estate, Unsupervised — Special Administrator Appointment/“Race to the Courthouse”
In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr. v. Shana Toliver and Kathy Calloway
The Indiana Supreme Court has upheld the removal of a father as the special administrator of his deceased son’s estate, writing that trial courts should hold hearings on special administrator appointments to avoid confusion caused by a “race to the courthouse.”
In July 2017, Orlando Lewis Jr. and his wife, Shante, along with Shante’s mother, were killed after their vehicle was struck by a bus. The only survivor in Lewis’ vehicle was his 4-year-old daughter, K.L., who placed under the guardianship of her aunt, Kathy Calloway.
Three days after the accident, Lewis Jr.’s father, Orlando Lewis Sr., petition the Johnson Superior Court to appoint him as special administrator of his son’s estate for the purpose of pursuing wrongful death damages. The court granted the petition, and Lewis Sr. filed his wrongful death suit in Monroe Circuit Court.
But one day after Lewis Sr. petitioned for appointment, Shana Toliver, the mother of Lewis Jr.’s other child, J.T., petitioned for appointment as special administrator in the Marion Superior Court. Her petition was also granted, and she filed a wrongful death action in Marion County.
Then in August 2017, Tolliver and Calloway individually moved to intervene in the Johnson County proceedings, seeking Lewis Sr.’s removal as special administrator and their appointment in his place. They argued they were the legal guardians of Lewis Jr.’s children, while prior to his son’s death, Lewis Sr. had met his grandchildren only a handful of times.
The Johnson Superior Court agreed to rescind Lewis Sr.’s appointment and appointed Toliver and Calloway as co-special administrators to pursue the wrongful death claim. The Indiana Court of Appeals affirmed in July, and after hearing oral arguments in November, the Supreme Court likewise affirmed in In the Matter of the Unsupervised Estate of Orlando C. Lewis, Jr., Orlando Lewis, Sr., v. Shana Toliver and Kathy Calloway, 18S-EU-507.
Writing for a unanimous court, Justice Geoffrey Slaughter first held that the trial court could reconsider its appointment of Lewis Sr. because the underlying matter was still pending. The court based that decision on its similar ruling in Estate of Hammar, 847 N.E.2d 960 (Ind. 2006).
Further, again relying on Hammar, the majority found that the reconsideration of Lewis Sr.’s appointment was not an abuse of discretion. Slaughter noted the Hammar court replaced the original special administrator with one who “stood in closer proximity to the estate … .” Likewise here, Toliver and Calloway have “long-term, ongoing relationships” with Lewis Jr.’s beneficiaries.
“After all, the beneficiaries of the wrongful-death claim are not Junior’s parents but his surviving children,” Slaughter wrote. “The court thus gave higher priority to the rights of these children’s parents or guardians than to their grandparents. And it defended that determination by finding that neither grandparent was particularly close to either grandchild before the accident.”
Noting the appointment petitions in this case were filed just one day apart, the justices addressed the “race to the courthouse” often present in special administrator appointments by noting the applicable statute, Indiana Code section 29-1-10-15, requires no notice to beneficiaries or other interested parties before a special administrator is appointed, nor does it afford a right of appeal. Even so, the justices wrote that judges considering motions for appointment should provide notice to beneficiaries or their counsel, as identified in the motions, and hold a hearing.
“The hearing is to determine whether the movant would be a suitable special administrator and to permit other interested persons the opportunity to object or to file their own requests for appointment,” Slaughter wrote. “If the motion does not identify a potential beneficiary or legal representative, it is more likely the trial court will have abused its discretion if it later refuses to rescind its appointment should that person, unnamed and unidentified in the initial motion, later come forward and assert an interest in the appointment.
“Though not required by Trial Rule 53.4, the trial court should promptly (within five days) schedule a hearing and provide notice when someone moves to reconsider the appointment of a special administrator,” he concluded.
Civil Plenary — Annexation/Statutory Requirements
Town of Brownsburg, Indiana, et al. v. Fight Against Brownsburg Annexation, et al.
Brownsburg has lost its final bid to annex nearly 4,500 acres of land after fighting all the way to the Indiana Supreme Court against residents who prevailed at every stage of the litigation. Justices ruled the town “did not satisfy its burden of proving it had met the statutory requirements for annexing the disputed territory.”
The state’s high court affirmed a Hendricks Superior Court ruling denying the town’s bid to annex property that met organized opposition in the form of a citizens group called Fight Against Brownsburg Annexation. The city continued to fight, losing at the Indiana Court of Appeals and in a unanimous Indiana Supreme Court ruling June 5.
The court also held that in annex cases, trial courts must consider the evidence presented by both the municipality seeking to annex land and remonstrators who oppose the consolidation.
Brownsburg failed to meet requirements of state law that any proposed annexations be at least 60 percent “subdivided,” which Justice Geoffrey Slaughter wrote was a term undefined in the legal sense. However, he noted that more than 70 percent of the land included in the proposed Brownsburg annexation area was agricultural land.
Justices also provided guidance for determining when proposed annexation areas meet statutory requirements for percentage of subdivided land and other factors.
“…(T)he only permissible unit of measurement is acreage and not the number of parcels or tracts of land,” Slaughter wrote. “…(A)ll acreage within the proposed annexation territory must be included in the ratio’s denominator, and none should be exempted or excluded.
“Unlike the trial court, we are agnostic about whether the legislature should define ‘subdivided’ — a key statutory term, to be sure, in many annexation disputes. That is a matter for the legislature. But until or unless the legislature specifies the term’s meaning, courts and communities interested in local annexation issues should proceed with these guideposts in mind.”
Brownsburg had provided expert testimony from a city employee who had used various methods, including calculating the number of individual parcels of land or lots in platted subdivisions to represent a total exceeding the 60 percent threshold. Remonstrators prevailed on a survey from the Indiana Advisory Commission on Intergovernmental Relations showing that nearly 77 percent of the land was agricultural.
Justices also found Brownsburg failed to meet another requirement of state law showing that the land is needed by the town for development “in the reasonably near future.” The town proposed a future extension of Ronald Reagan Parkway to relieve traffic on Raceway Road and State Road 267, a project first conceived in the 1980s.
“Even the Town agrees that the timeframe for extending the Parkway past its current terminus within the Town’s limits through the annexation area is ‘[o]ver the next five to fifteen years,’” the court noted. “And even then, the ‘timing of construction is not precisely known.’”
Other projects on the Brownsburg drawing board, such as a new bridge over Interstate 74, likewise were not imminent enough to meet the “in the reasonably near future test,” justices concluded. “As with the sixty-percent subdivided requirement, we hold that the court’s findings of fact here are not clearly erroneous, and that the record supports its conclusions of law,” Slaughter wrote.
Deciding the matter on these bases, the court did not address arguments that Brownsburg’s annexation plan was not legally contiguous to existing town limits or that the town’s fiscal plan for the annexation area was not sufficient.
The case — which also garnered friend-of-the-court briefs from Accelerate Indiana Municipalities and the Indiana Municipal Lawyers Association — is Town of Brownsburg, Indiana, et al. v. Fight Against Brownsburg Annexation, et al., 19S-PL-342.
Indiana Court of Appeals
Miscellaneous — Civil Forfeiture/Order for Reimbursement
Alvin L. Lewis v. Putnam County Sheriff’s Department
The state must pay back more than $77,000 to a man after seizing cash from his vehicle, the Indiana Court of Appeals has ruled, finding the money was unlawfully seized and turned over to the federal government.
In Alvin L. Lewis v. Putnam County Sheriff’s Department, 18A-MI-1869, Alvin Lewis’ vehicle was stopped on Interstate 70 in Putnam County after local Deputy Dwight Simmons observed the vehicle weaving back and forth with a temporary Arizona license plate that was hard to read. Lewis told Simmons he had purchased the vehicle from a friend and had taken steps to fix the title issues with the Bureau of Motor Vehicles.
Simmons invited Lewis to sit in his police vehicle while Simmons checked his license, and the driver agreed. Simmons then began asking Lewis questions about his family, his work and a recent hotel stay, among other personal questions. During the conversation, Lewis gave some inconsistent/evasive answers, such as referring to his partner as both his girlfriend and his wife and changing his story on who he bought the vehicle from.
After about 20 minutes in the squad car, Simmons told Lewis he would let him off with a warning. However, Simmons then asked if Lewis had ever been in trouble for drugs, and the driver indicated he had some legal trouble in Detroit. Simmons then asked Lewis if he had drugs in the car, and Lewis paused before answering negatively.
Simmons then asked if Lewis would consent to a search of his vehicle, and when the driver refused, the officer conducted a K-9 sweep. The dog alerted on the vehicle, and a subsequent warrantless search of the car revealed $77,060 in cash and two digital scales. Lewis claimed the money wasn’t his, but Simmons seized the cash and the Putnam Circuit Court later granted a motion to turn the money over to the United States government.
But after hearing oral arguments last week, the Indiana Court of Appeals overturned the seizure of the cash and ordered the state to reimburse Lewis. Judge John Baker, after rejecting the state’s argument that Lewis lacked standing to challenge the turnover, noted at the outset of the court’s analysis that “there is no evidence whatsoever that a crime occurred.”
“No drugs were found. The State did not bother to test the scales or the cash for residue, so no drug residue was found. No drug paraphernalia was found,” Baker wrote. “…The plain language of the statute requires the State to prove that the money is directly related to some sort of criminal activity. Here, there is a complete dearth of evidence in that regard.
“Under these circumstances, the State has wholly failed to prove that the cash was properly seized pursuant to Indiana Code chapter 34-24-1,” Baker continued. “Therefore, it has failed to show that it is entitled to a turnover order under Indiana Code section 35-33-5-5(j), and the trial court erred by granting the State’s motion.”
Rather than requiring Lewis to personally seek his money from the federal government, the COA ordered the state to reimburse Lewis for the full amount immediately. Then, it may “choose to try to recoup that money from the federal government.”
Finally, in a footnote, the COA expressed concern that “Simmons has apparently already, and prematurely, turned the currency over to federal law enforcement.”
“It appears, as a result, that the currency is in federal, rather than state, possession at this time,” the court wrote. “We strongly encourage law enforcement officers to abide by state law with respect to forfeiture and turnover proceedings.”
Juvenile Paternity — Immigration/Special Immigrant Juvenile Findings
In the Matter of the Paternity of Kevin Yafet Mendoza Bonilla, aka Kevin Yafeth Mendoza Bonilla, a Minor, By his Next Friend, Perla Maily Bonilla Acosta v. Marco Tulio Mendoza Maldonado
A man born in Honduras was granted his request for special immigrant juvenile status after the Indiana Court of Appeals concluded a trial court does have the authority and duty to make requisite findings in accordance with federal law.
In July 2018, the Marion Circuit Court entered an order establishing paternity of Kevin Yafet Mendoza Bonilla, granting his mother sole legal and physical custody and finding, among other things, that Kevin’s father had abandoned him at birth and contributed nothing to support Kevin for 18 years. It also found that Kevin’s return to Honduras would pose a risk of harm or injury and that it would not be in his best interests.
Kevin, by his mother as next friend, later filed a Motion for Clarification of Final Order asserting that to be eligible to apply to U.S. Citizenship and Immigration Services for Special Immigrant Status, a “juvenile or State court” must first make findings of fact, including that “[t]he child’s reunification with one or both parents is not viable due to abuse, neglect, abandonment, or similar basis found under State law within the meaning of 8 U.S.C. § 1101(a)(27)(J).”
Additionally, he requested that the court clarify its final order to specify its authority to enter the order; that reunification with his father was not viable due to father’s abandonment; and to enter an order substantially similar to the court’s final order reflecting such a finding.
But the trial court denied entry of an amended final order, stating in part that it could not “make a finding based upon the application of federal law” and that “there is no comparable basis for a finding of abandonment within the Indiana state paternity statutory authority.”
Kevin argued on appeal that the special immigrant status process directs the collaboration of state and federal systems, and that the trial court has the authority to make all requisite SIJ findings and must consider the evidence and present findings for or against the juvenile.
Specifically, Kevin cited Matter of Guardianship of Luis, 114 N.E.3d 855, 857 (Ind. Ct. App. 2018) asserting it was consistent with decisions of appellate courts that similarly ruled that state juvenile courts must entertain a request for SIJ findings and issue a ruling accordingly.
The Indiana Court of Appeals agreed, noting that although the trial court stated it could not make a finding based upon the application of federal law and that there was no comparable basis for a finding of abandonment within the Indiana state paternity statutory authority, it had previously found in its earlier order that Kevin’s father had abandoned him.
“Based upon the record, Indiana statutory law, and in light of Luis, we conclude that Kevin has established prima facie error and we remand for the trial court to consider the request for SIJ findings and articulate the relevant determinations pursuant to 8 U.S.C. § 1101(a)(27)(J),” Judge Elaine Brown wrote for the court.
The case is In the Matter of the Paternity of Kevin Yafet Mendoza Bonilla, aka Kevin Yafeth Mendoza Bonilla, a Minor, By his Next Friend, Perla Maily Bonilla Acosta v. Marco Tulio Mendoza Maldonado, 18A-JP-2488.•