IN justices grant transfer to 2 Duke Energy cases, vacate transfer in suppression case

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The Indiana Supreme Court bench. (IL file photo)

The Indiana Supreme Court has granted transfer to two cases involving Duke Energy, including one in which the company challenged the city of Noblesville’s jurisdiction to regulate its activities.

Justices denied transfer to nine other cases for the week ending May 19. That includes vacating an order to grant transfer in a case involving a man who argued evidence stemming from a traffic stop should be suppressed.

The case of Duke Energy Indiana LLC v. City of Noblesville Indiana, 23S-PL-130, started with Duke’s construction project plans in Noblesville, which required the demolition of a residential home and garage to make way for a new utility substation.

The city demanded that Duke comply with local ordinances for the demolition and that it obtain location improvement and building permits for the project.

Duke rejected the demand, so the city filed a complaint in Hamilton Superior Court, which granted Noblesville’s motion for summary judgment.

The Court of Appeals of Indiana affirmed that ruling in December 2022, ruling the power company must follow Noblesville’s ordinances.

The appellate court rejected Duke’s argument that the Indiana Utility Regulatory Commission has virtually unlimited authority over utility matters. It also rejected Duke’s challenge to the financial penalties imposed by the trial court.

In The City of Carmel, Indiana v. Duke Energy Indiana, LLC, et al., 23S-EX-129, the city of Carmel filed a complaint with the IURC against Duke. The city requested the IURC make Duke relocate some of its facilities and pay for the costs of doing so.

The commission found two of the city’s ordinances related to the request were unreasonable and void.

But the Court of Appeals reversed in a memorandum decision in October 2022, ruling the commission erred in its determination.

The Carmel case will be heard at 10 a.m. on Thursday, Sept. 21, followed by the Noblesville case at 11 a.m.

Justices last week also voted to vacate an order granting transfer in Avis Deforest White v. State of Indiana, 22A-CR-978, so transfer is now denied and the COA opinion stands as precedent.

In that case, Avis White was pulled over and charged with cocaine possession and other felonies, but he successfully argued at the Court of Appeals that evidence stemming from the stop should be suppressed.

The Court of Appeals ruled the officer who made the stop in Brownsburg conflated the word “inactive” with “expired” in reference to the car’s registration status. Justices originally voted to grant transfer in March.

The order vacating transfer says the Supreme Court determined it shouldn’t assume jurisdiction over the case after a discussion among justices following oral arguments.

Justices Mark Massa and Derek Molter dissented.

Justices also denied transfer to the case of C.F. v. C.M., et al., 21A-AD-2766, which involved competing petitions to adopt from a grandmother and foster parents.

The Hamilton Superior Court granted the foster parents’ petition, and the Court of Appeals affirmed, ruling the trial court didn’t abuse its discretion in denying the grandmother’s motion to intervene.

Chief Justice Loretta Rush and Justice Massa voted to grant transfer.

In a dissenting opinion, Rush said transfer was warranted to clarify that a party does not need to satisfy common-law standing requirements to request permissive intervention under Trial Rule 24(B)(2).

Rush also said transfer was warranted to clarify when a jurisdictional priority problem presents “extraordinary circumstances,” compelling post-judgment intervention.

Massa joined the dissenting opinion. Justice Molter did not participate in the vote.

Justices concurred in all other denials except for Megan M. Smith v. State of Indiana, 22A-CR-1166.

In that case, the Court of Appeals affirmed in a memorandum decision Megan Smith’s convictions of Class A misdemeanor domestic battery and Class A misdemeanor invasion of privacy, finding Smith didn’t preserve her argument that the Knox Superior Court could not consider the record of proceedings on an order for protection.

Rush voted to grant transfer.

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