Indiana Court Decisions — Sept. 24-Oct. 6, 2020

7th Circuit Court of Appeals

Oct. 6

Civil Plenary — Elections/‘No Excuse’ Absentee Voting

Indiana Vote by Mail, Inc. v. Paul Okeson

20-2605

The effort to allow all Hoosiers to vote by absentee ballot in the November presidential election has been blocked by the 7th Circuit Court of Appeals which, in an echo of the state’s argument, found Election Day is too close to make any changes now.

Indiana Vote by Mail and other individual plaintiffs had challenged Indiana’s prohibition on no-excuse absentee balloting, arguing the restrictions were unconstitutional. The plaintiffs had sought a preliminary injunction preventing Indiana from enforcing the limitations so that all Indiana residents would have the option of mailing in their ballot Nov. 3 as they had been able to do for the June primary, when restrictions were lifted due to the pandemic.

In August, the U.S. District Court for the Southern District of Indiana denied the motion for preliminary injunction. The plaintiffs’ appeal was expedited with oral arguments held Sept. 30 and the 7th Circuit issuing its ruling Oct. 6, affirming the lower court’s decision.

“The (U.S.) Supreme Court told us that the fundamental right to vote does not extend to a claimed right to cast an absentee ballot by mail,” Judge Michael Kanne wrote, citing McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802,807 (1969). “And unless a state’s actions make it harder to cast a ballot at all, the right to vote is not at stake.”

Indiana had argued, in part, the plaintiffs were calling for a significant change to the state’s electoral process with the general election just a short time away. Expanding absentee balloting at this stage would potentially confuse voters, the state asserted.

The appellate panel agreed. Citing Purcell v. Gonzalez, 549, U.S. 1, 4 (2006), the court said the federal courts had to exercise caution and restraint before changing procedures on the eve of an election.

“Given that voting is already underway in Indiana, we have crossed Purcell’s warning threshold and are wary of turning the State in a new direction at this late stage,” Kanne wrote.

The decision was unanimous, with Judge Kenneth Ripple writing a concurring opinion.

Indiana Attorney General Curtis Hill applauded the ruling, saying the decisions are enforcing the state’s election laws as written by the Indiana General Assembly.

“The message is starting to get through that courts should not be tinkering with election laws within a month of Election Day, even during the pandemic,” Hill said in a statement. “The U.S. Supreme Court has said that the courts should not issue election-related injunctions at the eleventh hour and perhaps that standard is starting to resonate.”

Indiana Vote by Mail issued a statement, saying it was “deeply disappointed” by the decision. The grassroots organization said the appellate court’s decision to not expand absentee balloting would disenfranchise Hoosier voters. Indiana Vote by Mail did not immediately indicate whether the ruling will be appealed.

“Yesterday’s ruling is the latest in a growing number of federal court decisions in which judges have refused to acknowledge the substantial burdens imposed on voters by the pandemic or require the states to make adjustments in state election laws to alleviate those burdens and increase accessibility to the voting process,” Indiana Vote by Mail said. “The opinion blames the pandemic and ignores the fact that the Constitution and Indiana’s elected officials may and should protect Hoosiers, instead of endangering them.”

The 7th Circuit held the provision in Indiana Code section 3-11-10-24(a)(5) which allows Hoosiers 65 and older to vote by mail, does not violate the 26th Amendment. Plaintiffs had argued the state statute violated the amendment by using the age of the voter to determine who could cast an absentee ballot.

The appellate panel found the restrictions Indiana places on absentee balloting do not inhibit Hoosiers’ “fundamental right to vote.” If the law allowing elderly voters to vote by mail was struck down tomorrow, all Indiana residents would still be able to vote in-person either on Election Day or during the 28 days of early voting in the state.

Also, the court acknowledged the plaintiffs’ concern about the risk of exposure to COVID-19 while voting in-person. Indiana Vote by Mail asserted Hoosiers were being forced to choose between putting their personal health in danger by going to the polls or staying home and not participating in the election.

Kanne’s opinion noted the Governor Eric Holcomb’s stay-at-home order had expired and twice he mentioned the state had progressed to Stage 5 of its reopening. On the latter point, he referred to an article published in the Indianapolis Star on Sept. 23 but which was not mentioned in either of the parties’ briefs to the court.

The court was hesitant to enter what it sees as the purview of the state Legislature. It noted the state has taken steps to “lighten COVID-19’s burden on voters” by allowing early voting, implementing safety guidelines and procuring protective equipment for Election Day.

“‘[T]he balance between discouraging fraud and other abuses,’ on the one hand, and ‘encouraging turnout’ and voter safety, on the other, ‘is quintessentially a legislative judgment,’” Kanne wrote citing, Griffin v. Roupas, 385, F.3d at 1131 (7th Cir. 2004).

Habeas — Death Penalty/Stay of Execution Vacated

Alfred Bourgeois v. T.J. Watson

20-1891

The 7th Circuit Court of Appeals reversed a stay of execution for a Louisiana man scheduled to die by lethal injection in an Indiana federal prison, finding he does not meet the stringent requirements for savings-clause eligibility.

Alfred Bourgeois, an inmate on death row at the high-security U.S. Penitentiary in Terre Haute, was convicted and sentenced to death in 2004 after he brutally abused and murdered his then-2-year-old daughter. An appeal of his conviction and sentence were denied, as was his motion to vacate pursuant to 28 U.S.C. § 2255 in the Southern District of Texas.

In July 2019, the Department of Justice set Bourgeois’ execution date for January 2020, one of five federal executions the Department initially scheduled after a 17-year moratorium on lethal injections.

By August 2019, Bourgeois had filed the instant habeas petition in the Southern District of Indiana pursuant to 28 U.S.C. § 2241. He also moved to stay his execution, again arguing that he was intellectually disabled and that his death sentence ran afoul of Atkins v. Virginia, 536 U.S. 304 (2002) and the FDPA.

Chief Judge Jane Magnus Stinson for the Southern District Court concluded that Bourgeois made a strong showing that he is likely to succeed on the merits of his FDPA claim, finding that the respondents waived any contention that Bourgeois’ FDPA claim cannot proceed in the § 2241 action.

But the 7th Circuit reversed the district court’s stay of Bourgeois’ execution, finding that he does not meet the stringent requirements for 28 U.S.C. § 2255(e)’s “savings-clause” eligibility.

“The district court found that Bourgeois had met all four stay factors, but we only reach the first one: likelihood of success on the merits. The district court’s determination that Bourgeois was likely to succeed on the merits of his FDPA claim rested on a preliminary finding that the government had waived any argument that Bourgeois’s FDPA claim was not cognizable under § 2255(e)’s savings clause. That is where we part ways with the district court. We find that the government did not waive, or even forfeit, this argument. And even if it had forfeited the argument, we would excuse that forfeiture on these facts,” Circuit Court Judge Amy St. Eve wrote for the 7th Circuit.

“We proceed to consider whether Bourgeois’s Atkins and FDPA claims are cognizable under the savings clause. They are not. With no procedural home for his claims, Bourgeois’s likelihood of success on the merits is nonexistent. Thus, we vacate the stay,” it concluded.

First, the 7th Circuit concluded that the district court’s factual determination that the government intentionally waived its argument was clearly erroneous and amounts to an abuse of discretion. It found similarly on the issue of forfeiture, concluding that even if the government had forfeited its FDPA argument, forfeiture would not prevent the 7th Circuit from considering the savings-clause issue.

Moving to the main issue of the case — whether Bourgeois’s case “fits within the narrow confines of the safety valve” — the 7th Circuit concluded that “the savings clause is not simply another avenue for appeal.”

“Indeed, Bourgeois had the chance to appeal the court’s denial of his intellectual-disability claim, yet he chose not to do so. At this stage of the proceedings, our only role is to determine whether there was something ‘structurally inadequate or ineffective about section 2255 as a vehicle’ for Bourgeois. There plainly was not,” it wrote.

The 7th Circuit further found no support for Bourgeois’ argument over the word “is,” therefore making it “unwilling to accept Bourgeois’ sweeping argument that a fresh intellectual-disability claim arises every time the medical community updates its literature.”

Additionally, the 7th Circuit noted that the three main cases where it has found the savings clause applicable — Davenport, 147 F.3d 605; Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001); and Webster I, 784 F.3d 1123 — “merely illustrate the ‘something more’ that Bourgeois is missing.” It ultimately concluded that Bourgeois is not eligible for savings-clause relief on either his Atkins claim or his FDPA claim.

“The question in this appeal is not whether Alfred Bourgeois is intellectually disabled. It is, instead, whether he was able to litigate his intellectual-disability claim in his § 2255 motion. He was, and he did. The savings clause is a narrow route to relief that exists only to prevent fundamental errors that § 2255 could not have corrected. It does not invite federal prisoners to relitigate their claims every time the Supreme Court refines the relevant legal standard.”

In reversing the district court, the 7th Circuit also remanded with instructions for the district court to deny Bourgeois’ motion for a stay of execution and dismiss his § 2241 petition in Alfred Bourgeois v. T.J. Watson, 20-1891.

On a final note, the 7th Circuit declined the government’s request that it issue its mandate immediately. Instead, it stated that “the mandate shall issue seven days after the date this opinion is issued.”

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Oct. 5

Civil Plenary — Social Security Benefits/Dual Citizenship

Lorraine Beeler v. Andrew M. Saul

19-2099

A split 7th Circuit Court of Appeals panel affirmed a grant of summary judgment to the Social Security Administration in a class-action suit brought by a Canadian woman with dual citizenship who alleged her U.S. Social Security benefits were wrongly reduced based on similar benefits she receives from Canada.

Lorraine Beeler, a dual citizen of Canada and the United States, has established nearly 20-year careers in both countries and receives monthly retirement benefits from the Canada Pension Plan, that country’s equivalent to U.S. Social Security. She also worked at jobs on which she paid Social Security taxes in the United States.

Beeler’s earnings in Canada were not subject to Social Security taxes, and her earnings in the United States were not subject to Canada Pension Plan taxes. But Beeler ran into a problem after she alleges her Social Security benefits were wrongly withheld. She then sued the Social Security Administration in the U.S. District Court for the Southern District of Indiana in the class action case of Lorraine Beeler v. Andrew M. Saul, 19-2099.

There, Beeler asserted that the reduction of her U.S. benefits is a violation of two Social Security provisions: The Windfall Elimination Provision and the U.S.-Canada totalization agreement. The class claims that both the statutory language of the WEP and the terms of the agreement prohibit the reduction of Beeler’s benefits.

But Senior Judge Sarah Evans Barker of the Southern District Court in a merits ruling granted summary judgment to the Social Security Administration after considering whether the provision applies given plaintiffs’ Canada or Quebec Pension Plan payments, and if so whether those benefits are specifically excluded from the provision.

The district court examined the Act’s definition of “employment” under § 410(a)(C), but rejected Beeler’s argument that the totalization agreement designates paid work in either country as covered employment or equivalent to covered employment in both countries. It also rejected the plaintiffs’ argument that application of the provision based on their receipt of Canada or Quebec Pension Plan benefits violates the totalization agreement because Canada does not reciprocally reduce plaintiffs’ Social Security benefits.

Finally, the district court concluded that Beeler’s Canada or Quebec Pension Plan benefits do not fall within an exclusion to the provision because plaintiffs receive them independently and the benefits are not based on the totalization agreement.

The 7th Circuit Court of Appeals split in affirming the district court’s decision, with the majority concluding the agency correctly ruled that plaintiffs’ Canadian employment was noncovered under the Social Security Act, and thus the provision applied to reduce their Social Security benefits.

The plaintiffs asserted three arguments on appeal: the provision does not include Canada or Quebec Pension Plan benefits within its scope, so plaintiffs’ Social Security benefits should not have been reduced; the provision’s implementing regulation exempts Canada or Quebec Pension Plan benefits because they are based on citizenship or residence; and applying the provision violates the U.S.-Canada totalization agreement.

As to the first issue, the majority of judges Michael Brennan and Frank Easterbrook found that because plaintiffs’ work in Canada is not considered “employment” under § 410, the provision of § 415 applies and reduces plaintiffs’ Social Security benefits. Moving to the plaintiffs’ second point, the 7th Circuit concluded that the agency’s interpretations of the provision and its implementing regulation were permissible, as was its application of the provision to reduce plaintiffs’ Social Security benefits.

Finally, the 7th Circuit ruled for the agency on the plaintiffs’ contention that the provision should not apply because their Canada or Quebec Pension Plan benefits are “payment[s] by a Social Security system of a foreign country based on an agreement concluded between the United States and such foreign country pursuant to section 433 of this title …”

“But plaintiffs’ foreign pension benefits are based on their employment in Canada, not on the totalization agreement,” the majority noted. “… Plaintiffs cannot have it both ways. Either their Canada or Quebec Pension Plan benefits are merely a creation of the agreement between the United States and Canada (a conclusion that would have significant consequences moving forward), or they are established based on their years of service to their foreign employers, independent of any international agreements. We conclude they are the latter, and therefore neither ‘based on’ the totalization agreement nor exempt from application of the provision. Because plaintiffs’ Canada or Quebec Pension Plan benefits are not based on the agreement, plaintiffs’ employment in Canada does not qualify as covered employment under the Act, and the agency correctly applied the provision to the Social Security benefits.”

But Circuit Judge Amy St. Eve dissented from the majority’s opinion, finding that its analysis “rests on an unsupported premise to exclude Beeler’s work from the definition of employment.

“… There may be other arguments, including ones based on the regulations, for reducing Beeler’s benefits and avoiding her windfall,” St. Eve wrote in dissent. “The majority, though, accomplished this goal only by equating coverage with employment while outright ignoring Beeler’s argument for why the two concepts can be separated in the international sphere. Because I agree with Beeler that employment is not necessarily covered employment, the majority’s reasoning does not convince me that affirmance is appropriate. I therefore respectfully dissent.”

Indiana Supreme Court

Oct. 4

Civil Plenary — Defamation/Default Judgment

Dawn Riddle and Matthew Riddle v. Dennis Cress, Haley Wilkerson, and Helen Cress

20S-PL-573

A split Indiana Supreme Court granted transfer and affirmed a trial court’s ruling in a default judgment dispute involving alleged defamation and false reporting, siding with a dissenting appellate court judge.

In the case of Dawn Riddle and Matthew Riddle v. Dennis Cress, Haley Wilkerson, and Helen Cress, 20S-PL-573, Dawn and Matthew Riddle sued Dennis and Helen Cress and the Cresses’ granddaughter, Haley Wilkerson, alleging that certain statements Wilkerson made to the Department of Child Services constituted defamation and false reporting.

Summonses and a complaint were served on the Cresses in November 2018 and on Wilkerson in December 2018. However, the defendants did not enter appearances or respond to the complaint, and the trial court granted default judgment to the Riddles in January 2019.

The next month, counsel entered an appearance for the defendants and moved for relief from default judgment under Trial Rule 60(B)(1), arguing that various personal complications defendants experienced during the fall and winter of 2018 prevented them from responding to the complaint.

A trial court subsequently entered an order granting the defendants relief from the default judgment and finding “[w]hile Plaintiffs debunked most of the specific reasons Defendants set forth, the Court was nonetheless left with the impression that Defendants, unsophisticated and unrepresented by counsel, were sincerely confused about their obligation to respond.”

The Indiana Court of Appeals divided, with the majority concluding the Johnson Superior Court abused its discretion by setting aside the default judgment. But a majority of Supreme Court justices sided with dissenting appellate judge Patricia Riley, who would have affirmed the trial court under the deferential standard of review.

“We find the standard of review dispositive here,” the high court majority wrote in a per curiam opinion. “The trial court rejected most of the personal circumstances Defendants cited in their motion for relief from judgment — including the Cresses’ auto accident and Chapter 13 bankruptcy and Wilkerson’s knee injury and household move — as insufficient to establish excusable neglect. But it also heard evidence that Plaintiffs had a long history of sending harassing letters and purported legal documents to the Cresses and other family members, supporting the conclusion that Defendants were sincere in their confusion as to whether they needed to respond to this complaint. The trial court’s assessments of the parties’ credibility and demeanor are the type of fact-sensitive judgments that may not be second-guessed under the deferential standard of appellate review and, here, are sufficient to establish at least ‘slight evidence’ of excusable neglect.”

Thus, having granted transfer and affirming the trial court, the justices remanded the matter to the trial court for further proceedings consistent with its opinion. Justice Geoffrey Slaughter dissented, believing transfer should be denied.

Indiana Court of Appeals

Sept. 28

Civil Plenary — Medical Malpractice/Independent Contractor

Richard Jernagan v. Indiana University Health a/k/a Indiana University Health ACO, Inc.

20A-PL-41

Judgment for IU Health on a complaint stemming from a near-fatal surgery has been reversed, with the Indiana Court of Appeals finding an issue of fact as to whether the patient in question knew his anesthesiologist was an independent contractor.

On the day that Richard Jernagan was due to have spine surgery, he was handed a business card for Dr. Michael Miller, the anesthesiologist who would be assisting the surgeon during the procedure. However, Jernagan was not informed that the anesthesiologist was an independent contractor and not an employee of IU Health, where his surgery was performed.

When Jernagan suffered a cardiac arrest during the procedure and had to be resuscitated, it was Miller who spoke with Jernagan’s family about what had happened. Later, Miller corresponded directly with Jernagan’s wife to answer questions about her husband’s prognosis.

After an adverse ruling from a medical review panel – which did not address Miller’s conduct – Jernagan sued his surgeon and IU Health in Marion Superior Court. The surgeon was later dismissed at Jernagan’s request, while IU Health moved for summary judgment on Jernagan’s claim that it was vicariously liable for Miller’s acts during the procedure.

The hospital’s initial summary judgment motion was denied, but it prevailed on a second motion, with the trial court concluding that “by providing [Jernagan] with Dr. Miller’s business card at check-in prior to surgery, [IU Health] sufficiently notified [Jernagan] that it was not the provider of anesthesia care.” Therefore, the trial court ruled, the hospital was not vicariously liable pursuant to Sword v. NKC Hospitals, Inc., 714 N.E.2d 142 (Ind. 1999).

Additionally, the trial court concluded IU health was entitled to summary judgment because Jernagan had “failed to identify any expert to testify that IU Health, through the actions or conduct of its nursing staff, breached the applicable standard of care.”

The Indiana Court of Appeals, however, reversed that decision in Richard Jernagan v. Indiana University Health, a/k/a Indiana University Health ACT, Inc., 20A-PL-41.

Ruling first on IU Health’s cross-appeal, the appellate court held that because Jernagan requested that the trial court extend his deadline to file his response to the hospital’s motion for summary judgment pursuant to the directives of HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind. 2008), Jernagan’s response was timely and would not be stricken.

Turning next to Jernagan’s argument, the panel concluded that a genuine issue of material fact exists as to whether the business card could be considered meaningful written notice to Jernagan, acknowledged at the time of admission, that Miller was an independent contractor.

Additionally, the court concluded that given the Sword analysis, vicarious liability claims do not fall within the purview of the medical review panel or the Medical Malpractice Act.

“Accordingly, as the medical review panel’s procedure is a legal construction solely used in medical malpractice claims, we conclude that Jernagan did not need to file a proposed Complaint with respect to Dr. Miller to the medical review panel prior to commencing a vicarious liability claim against IU Health,” Judge Patricia Riley wrote. “As there is a genuine issue of material fact whether IU Health can be held vicariously liable pursuant to the Sword doctrine, we reverse the trial court’s grant of summary judgment to IU Health on this issue.”

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Oct. 7

Criminal — Attempted Murder/Lesser Included Offenses

Javier Thurman v. State of Indiana

19A-CR-3068

The Indiana Court of Appeals has vacated a Tipton County man’s pointing a firearm and criminal recklessness convictions, finding them to be included offenses of his separate convictions for attempted murder.

In December 2018, Javier Thurman pulled a gun on two separate people outside a Love’s Truck Stop in Tipton. He first pointed the gun at Clark Culp’s face as Culp was leaving the store and as Thurman was leaving Culp’s vehicle, shooting twice and hitting Culp with the second round. Culp ran after he was shot, and Thurman then unsuccessfully attempted to get a ride from a driver sleeping in his car, pointing the gun at Maynor Soto’s face and shooting after Soto refused.

Thurman was later arrested and admitted to entering Culp’s vehicle to steal money, the shootings, pointing the gun at Culp and firing, pointing the gun in the general area of Soto, and firing a shot at the driver’s side window of Soto’s vehicle.

He was ultimately charged with Level 1 felony attempted murder of Culp; Level 1 felony attempted murder of Soto; Level 4 felony possession of a firearm by a serious violent; Level 6 felony pointing a firearm at Culp; Level 6 felony pointing a firearm at Soto; and two counts of Level 6 felony criminal recklessness.

A jury found Thurman guilty of two counts of attempted murder, two counts of Level 6 felony pointing a firearm, and two counts of Level 6 felony criminal recklessness. The state moved to dismiss the remaining counts, and the Tipton Circuit Court granted the motion. It sentenced Thurman to a combined 75 years for the first two counts to be served consecutively, with a total of 10 years on the remaining counts to be served concurrently.

The Indiana Court of Appeals affirmed in part and reversed in part, concluding that Thurman’s actions related to Soto and Culp were so compressed in terms of time, place, singleness of purpose, and continuity of action, that they constitute one continuous transaction.

“To the extent the State asserts that Counts II, VI, and VIII, the charges related to Thurman’s acts against Soto, pertain to different acts, we note that the prosecutor made no temporal distinction in either the charging information or the jury instructions,” Judge Elaine Brown wrote for the appellate court.

Under the circumstances, it concluded that Count V, pointing a firearm at Culp as a Level 6 felony, and Count VII, criminal recklessness, are included offenses of Count I, attempted murder of Culp. It likewise concluded that Count VI, pointing a firearm at Soto as a Level 6 felony, and Count VIII, criminal recklessness, are included offenses of Count II, attempted murder of Soto.

The court affirmed Thurman’s convictions for attempted murder and vacated his convictions of pointing a firearm and criminal recklessness.

The panel remanded for the trial court to enter a sentence consistent with its opinion, adding in a footnote that the reversal of Thurman’s convictions under Counts V through VIII does not impact his aggregate sentence.•