Indiana Court Decisions – Oct. 22-Nov. 4, 2020

7th CircuitCourt of Appeals

Oct. 23

Civil Plenary — Election/Standing to Seek Polling Hours Extension

Common Cause Indiana v. Connie Lawson, et al.

20-2877

The 7th Circuit Court of Appeals upheld the amended Indiana election law that prohibits individual voters from asking state courts to extend voting hours on Election Day.

Common Cause Indiana had filed a lawsuit to block the 2019 amendments to Indiana Code § 3-11.7-2 and §§ 3-11.7-3 and 3-11.7-4 that created a new process for extending polling hours.

Previously, voters could go directly to state courts to seek an extension of polling place hours when they encountered barriers to casting their ballots. The amended statutes now allow only a county election board to file a petition to keep polling locations open beyond 6 p.m. Also, getting an extension is limited to the specific circumstances where the polling site was delayed in opening or closed during the normal voting hours.

In September, the U.S. District Court for the Southern District of Indiana granted the plaintiff’s motion for a preliminary injunction. District Judge Richard Young found Common Cause was likely to succeed on its claim that the amendments unconstitutionally burdened the right to vote.

However, the 7th Circuit reversed the lower court by issuing a stay of the injunction. The Oct. 23 per curiam ruling in Common Cause Indiana v. Connie Lawson et al., 20-2877, found the district court had abused its discretion and agreed with the Indiana defendants that the injunction will cause irreparable harm.

Indiana Attorney General Curtis Hill applauded the appellate panel’s ruling. In a press release, he maintained the Indiana General Assembly limited the law’s reach in order to avoid “inundating courts with demands for extended polling hours.” Also, he asserted Hoosiers have “ample opportunity” to vote before Election Day and voters still can file claims under federal law.

“Fortunately, we are seeing federal appeals courts nationwide recognizing states’ legitimate authority to enact and enforce reasonable election laws,” Hill said in a statement. “Taken as a whole, election regulations must exist for elections to be fair, meaningful and legitimate.”

Common Cause also noted voters who encounter problems voting can seek relief under federal law.

“Judge Young’s injunction restored important protections for Indiana voters who face disenfranchising conditions at polling places on Election Day,” said Julia Vaughn, Common Cause Indiana policy director. “While we are disappointed by the Seventh Circuit’s ruling, the Court’s decision does make clear that Indiana voters may seek to extend voting hours using Section 1983 claims in state and federal court.”

Common Cause had argued the amendments created a “functionally insurmountable” multiple-step process that would prevent voters from petitioning the courts to extend the polling hours. The state defendants countered that under the Anderson-Burdick test — described in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992) — courts cannot evaluate each clause of a state’s election code in isolation but must look at the whole electoral system.

The 7th Circuit panel of Chief Judge Diane Sykes and Judges Frank Easterbrook and Michael Brennan agreed with the state defendants. The panel found that Indiana’s election rules and their burdens on voters remained essentially unchanged by these amendments to state law.

“(Common Cause Indiana), in support of its claim that the amendments burden Indiana citizens’ right to vote, points to evidence that unforeseen circumstances on election day would disenfranchise voters unless they obtain an extension of polling hours,” the appellate panel wrote. “What plaintiff desires — and what the district court held is essential — is a private right of action to enforce the amendments. But we are not aware that the (U.S.) Supreme Court or any court of appeals has held that the Constitution requires a state to provide a private right of action to enforce any state law.”

Also in the ruling, the 7th Circuit pointed to federal law, 42 U.S.C. § 1983, as providing a way for Hoosier voters to invoke their federal rights to seek an extension of voting hours.

In its complaint, Common Cause had argued the amended election law violated the Supremacy Clause because the amended state laws limited voters’ ability to use Section 1983. The organization argued the amendment to I.C. 3.11.7-2 stripped Indiana courts of the authority to consider voters’ claims against state and county election officials under Section 1983.

However, the 7the Circuit agreed with the state defendants that the plaintiff misread the amendments.

“The amendments describe a state-law cause of action to obtain an extension of polling hours, with specific limitations on who may sue, the available justifications, and the scope of the remedy,” the 7th Circuit wrote. “Those limits on standing remedies are reasonably read to apply only to the claim described in the amendments, not otherwise.”

The ruling was the third setback for challenges to Indiana election law. In Common Cause Indiana et al. v. Connie Lawson, et al., 20-2911, the 7th Circuit upheld state law prohibiting election officials from counting mail-in ballots received after noon on Election Day. Also, in Tully et al. v. Okeson et al., 20-2605, the appellate court affirmed a state law limiting absentee voting to particular categories of voters.

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Indiana Supreme Court

Oct. 22

Miscellaneous — Employment/IDEM Whistleblower Suit

Timothy J. Brown v. Indiana Department of Environmental Management

20S-MI-609

Indiana Supreme Court justices affirmed the denial of a fired Indiana Department of Environmental Management chemist’s petition for judicial review, but vacated a portion of an appellate panel’s decision that it considered too broad.

After more than 20 years of employment, Timothy Brown was terminated from his position as an environmental chemist with IDEM for running samples without verifying a valid calibration and for reporting invalid data as valid. Brown, however, alleged that he was fired in violation of Indiana’s Whistleblower Law.

The State Employees’ Appeals Commission initially dismissed Brown’s complaint and found that the emails he had sent to his supervisor were not reports and that he failed to show that his alleged protected activity was related to his termination.

The Marion Superior Court granted judicial review and reversed the dismissal, concluding that Brown’s emails constituted reports and that SEAC erred by dismissing the case without considering the emails’ content. But on remand, the SEAC granted summary judgment in favor of IDEM.

On Brown’s second attempt for judicial review, the trial court denied the petition and concluded that “Because SEAC’s summary judgment order addresses a different legal issue and different evidence, the law-of-the-case doctrine does not apply here.”

“On Brown’s appeal, the Court of Appeals affirmed the judgment of the trial court. It agreed that the law-of-the-case doctrine does not apply here because ‘the standards of review for judgment on the pleadings and summary judgment are different’ and ‘additional evidence was considered by the SEAC, including Brown’s emails, on remand.’ But the Court of Appeals went further and found that the law-of-the-case doctrine ‘is applicable only when an appellate court determines a legal issue, not a trial court.’

“The Court of Appeals need not have reached so broad a conclusion to resolve the issue,” the justices wrote in a per curiam order.

“Accordingly, we grant transfer, vacate that portion of the Court of Appeals opinion, and affirm the trial court’s conclusion that the law-of-the-case doctrine does not apply in this case’s specific circumstances. In all other respects, we summarily affirm the Court of Appeals opinion,” the high court concluded.

The case is Timothy J. Brown v. Indiana Department of Environmental Management, 20S-MI-609.

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IndianaCourt of Appeals

Oct. 26

Criminal — Rape/Impartial Jury, Change of Venue

Hayden J. Nix v. State of Indiana

20A-CR-521

The Indiana Court of Appeals has affirmed a Hancock County man’s conviction for felony rape, finding he was not denied an impartial jury, among other things.

In the case of Hayden J. Nix v. State of Indiana, 20A-CR-521, Hayden Nix was convicted of Level 3 felony rape and sentenced to 16 years behind bars, with three years suspended to probation.

Nix, who was represented by private counsel, asked the Hancock Superior Court for public funds to aid in the costs of obtaining a “mitigation specialist” to assist with his arguments at sentencing. The trial court denied his request, but Nix was still able to hire a mitigation specialist who testified, among other things, that Nix suffered from “fetal alcohol spectrum disorder.”

During closing arguments at Nix’s sentencing hearing, the state argued that “at no point in time during the trial did the [S]tate elicit any information with regard to [his prior convictions],” nor at any point during voir dire. But Nix’s counsel noted that after the trial, the jury foreperson said, “I know about his prior cases. He’s already proven himself to be a piece of sh[*]t.” Nix’s counsel also pointed to concurrences from other jurors who said they too had read in the news about Nix’s other cases.

The trial court, however, did not find Nix’s evidence or arguments persuasive and sentenced him accordingly. The appellate court likewise upheld Nix’s conviction.

In affirming the trial court, the appellate panel first rejected Nix’s arguments that he was denied an impartial jury and his related argument that he should have received a change of venue.

“There are a number of flaws with Nix’s argument. First, the premise of his argument — his own counsel’s statement to the court at the close of sentencing — is not evidence, and Nix cites no other portion of the record to demonstrate any apparent bias in a juror from his trial,” Judge Edward Najam wrote for the appellate court.

“Indeed, Nix did not respond to the jury foreperson’s purported disclosure after the trial by immediately informing the court and calling the jurors to question them and make a record. Rather, he waited several months to make a passing comment about it at the close of the sentencing hearing, and he uses that passing comment on appeal to engage in speculation about what it might mean,” the appellate court wrote.

The panel concluded that given Nix’s arguments were nothing more than speculation, he did not show that a fair trial was impossible. It therefore declined his invitation to consider his fundamental error argument or arguments regarding jury impartiality.

The panel likewise found that the trial court did not abuse its discretion when it denied Nix’s motion for a change of venue, noting Nix accepted the jury.

Further, the appellate court rejected Nix’s argument that the testimony of certain witnesses was “drumbeat repetition” used by the state to vouch for the victim’s credibility, finding no fundamental error.

Lastly, the court affirmed the trial court’s denial of Nix’s motion for funds to hire a mitigation specialist.

“The trial court denied Nix’s motion on the ground that he apparently had access to funds to obtain private counsel and therefore could cover his own costs for a mitigation specialist,” Najam wrote. “Nix’s argument on appeal is simply a request for this Court to reassess the facts and circumstances that were before the trial court, which we will not do.”

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Trust — Summary Judgment Reversal/Restraint on Marriage

Roger D. Rotert v. Connie S. Stiles

20A-TR-773

A split appellate panel reversed in a trust dispute between siblings, concluding that the language in their mother’s trust regarding her son was ultimately a restraint on marriage and therefore void.

In February 2018, siblings Roger Rotert and Connie Stiles found themselves on opposite sides of the courtroom following a disagreement they had over language in a sub-trust to their mother’s Marcille Borcherding Revocable Living Trust.

Language in the trust documents at issue stated that in the event Rotert was unmarried at the time of Marcille’s death, he would receive his share of her estate outright and the provisions of the trust would have no effect. However, in the event Rotert was married at the time of Marcille’s death – which he was – his share of the rest and residue of her property would be given to Stiles, including insurance proceeds, as trustee of the sub-trust, known as the Roger D. Rotert Trust.

The Jackson Circuit Court ultimately denied Rotert’s motion for summary judgment contending certain language in the Rotert Trust was void under Indiana law as a restraint against marriage, and instead granted Stiles’ cross-motion. Rotert appealed, asserting that the requirement that he is unmarried at the time of Marcille’s death as a prerequisite to take his inheritance outright can only be interpreted as a restraint on marriage and therefore is void as against public policy.

A split Indiana Court of Appeals panel agreed with Rotert, ultimately reversing and remanding for the trial court to enter summary judgment in his favor and against Stiles.

“Here, in absence of any evidence establishing a support reason or economic basis, the marriage provision simply cannot be interpreted as anything other than an encouragement for Rotert to divorce his wife of almost twenty years upon the opening of the estate and the condition operates to divest Rotert of an outright ownership of his interest in the Trust estate upon Marcille’s death,” Judge Patricia Riley wrote, joined by Judge Robert Altice.

The majority rejected Stiles’ argument that Rotert waived his challenge to the Rotert Trust by agreeing to the accord and satisfaction to settle the Beneficiary’s Request for Distribution. Instead, it concluded that because the marriage provision never had any legal existence, the provision cannot be saved by an agreement or waiver of the parties.

“In a similar effort to protect the Rotert Trust, Stiles argues that even if the marriage provision is declared void, Rotert would still receive any distributions in trust pursuant to the language in the Borcherding Trust. However, this is an incorrect interpretation of the mechanism of the interlocking trusts,” the appellate majority wrote.

But Judge Melissa May, writing in dissent, said she would not find the trust language at issue to be void as a restraint on marriage or as an incentive to divorce in the case of Roger D. Rotert v. Connie S. Stiles, 20A-TR-773.

Noting that the form of Rotert’s inheritance was fixed at the moment of Marcille’s death, May wrote that, “By the very terms of that devise, any action Rotert might take with regard to his marriage after the opening of the estate would be inconsequential to the form of his inheritance.”

The dissenting judge further said she would hold instead that the devise is enforceable as written in accordance with Dickey v. Citizens’ State Bank of Fairmount, 180 N.E. 36, 98 Ind. App. 58 (1932).

“In accordance with the (Restatement (Second) of Property) and Dickey, I would uphold the Trust provision and, therefore, I dissent from the Majority’s reversal of the trial court’s judgment,” May concluded.

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Oct. 27

Civil Tort — Negligence/Reversal, Denial of New Trial

University of Notre Dame v. Carol H. Bahney

20A-CT-219

A divided Indiana Court of Appeals panel reversed in favor of the University of Notre Dame in a negligence dispute brought by a woman who broke her shoulder after tripping during a basketball game.

While attending a Notre Dame women’s basketball game in December 2014, Carol Bahney tripped over a short riser set up in front of the stands and fell, breaking her shoulder. Two years after the accident, she sued the school, arguing that it “negligently failed to maintain a safe and unobstructed floor” and “failed to warn plaintiff of the floor’s defective condition[.]”

Photos taken by Notre Dame’s attorney of the area where Bahney fell showed tables and chairs set up on the edge of the riser, which Bahney’s primary liability witness testified were not there at the time of the fall. However, at a deposition held two weeks before trial, Notre Dame associate athletic director Monica Cundiff testified that she believed the tables and chairs were on the riser when Bahney fell, as depicted in the photograph.

Cundiff later found video of the game on YouTube and saw “that the tables weren’t there,” which was relayed to Notre Dame’s attorneys but not to Bahney, who learned of the information for the first time at jury trial. The jury ultimately found Bahney 90% at fault and entered a verdict for the school, though the trial court set aside the verdict on a motion for relief from judgment.

Calling its decision “a very close call,” the St. Joseph Superior Court ruled that Notre Dame failed to comply with Trial Rule 26(E) as to Cundiff’s incorrect deposition testimony. That noncompliance “likely interfered to some extent with the case Ms. Bahney would otherwise have presented,” the lower court held.

But a split Indiana Court of Appeals reversed, disagreeing in University of Notre Dame v. Carol H. Bahney, 20A-CT-219.

“We agree with the trial court that Notre Dame’s failure to correct Cundiff’s deposition testimony before trial violated Trial Rule 26(E) and constituted ‘misconduct’ under Rule 60(B)(3), even if it was not an intentional concealment,” Judge Nancy Vaidik wrote for the appellate court, joined by the COA’s newest member, Judge Leanna Weissmann.

“However, we conclude that Bahney failed to show that this misconduct prevented her from fully and fairly presenting her case at trial,” Vaidik continued. “Such a showing is required because Rule 60(B)(3) ‘creates a limited exception to the general rule of finality of judgments.’ If a party cannot show that the misconduct ‘substantially prejudiced the party’s presentation of the party’s case, a court should not set aside an otherwise final judgment.’”

The majority also noted that Bahney had “every incentive” to secure photographs of the risers at issue in the two years before trial, and thus could not “blame that failure on Cundiff’s deposition testimony … .”

It therefore concluded, among other things, that Bahney did not establish that Notre Dame’s failure to correct Cundiff’s deposition testimony before trial “substantially prejudiced” her presentation of her case, and the trial court abused its discretion by ordering a new trial on that ground.

But dissenting from the majority’s reversal, Judge L. Mark Bailey in a separate opinion argued that the photographic misrepresentation – “presented early and often” – would have left an indelible impression on the jury.

“Yes, the jury was verbally informed that the photograph did not precisely depict the site of the fall, but then again, a picture is worth a thousand words,” Bailey wrote in dissent.

“I have little difficulty believing that, had there been discovery compliance, Bahney would have moved to exclude the photograph from evidence and/or to introduce the video. The video of game day, if authentic, would have been the best evidence of the metal riser configuration,” he opined.

“That said, we are not conducting a line item or de novo review of Notre Dame’s Trial Rule 26(E) compliance or Bahney’s trial choices and strategy. Rather, we are simply evaluating whether Bahney was entitled to equitable relief. Because I cannot say as a matter of law that it was an abuse of discretion, I respectfully dissent.”

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Oct. 29

Miscellaneous — Sexually Oriented Business Ordinance/Injunction

B&S of Fort Wayne Inc., et al. v. City of Fort Wayne

20A-MI-466

Several Fort Wayne adult cabarets could not convince the Indiana Court of Appeals that an ordinance proposed by the city would pose irreparable harm to their businesses if enforced.

In August 2019, the city of Fort Wayne passed Fort Wayne Ordinance No. G-19-19, regulating “sexually oriented businesses” including “adult cabarets.” The Fort Wayne City Council adopted the ordinance, which was intended to “protect and preserve the health, safety, and welfare” of both patrons of sexually oriented businesses and “citizens of the City[.]”

Specifically, language at issue in the instant appeal holds that, “No person shall knowingly or intentionally, in a sexually oriented business, appear in a semi-nude condition unless the person is an employee who, while semi-nude, remains at least six (6) feet from all patrons and on a stage at least eighteen (18) inches from the floor in a room of at least six hundred (600) square feet.”

A series of local businesses, including Showgirl I, Showgirl III and Brandy’s Lounge, objected and filed a complaint against the city, asserting the ordinance ran afoul of Indiana Code § 7.1-3-9-6 and was preempted by Indiana Code § 36-1-3-8(a)(7).

The plaintiffs argued, among other things, that the ordinance “‘impermissibly regulates, restricts and limits the operation’ of their businesses in several ways in violation of the statute, including requiring the Nightclubs ‘to undertake extensive and costly remodeling of their permit premises’ to satisfy the six-foot spacing requirement; ‘diminish[ing] the number of patrons that their businesses can accommodate and thus reduce the audience’; and requiring ‘that an Operator of the business be present in the same room whenever a semi-nude performance is taking place.’”

The Allen Superior Court, however, denied the nightclubs’ request for a preliminary injunction and granted the city’s request for a preliminary injunction, finding the nightclubs failed to prove a reasonable likelihood of success at trial.

The Indiana Court of Appeals affirmed in the case of B&S of Fort Wayne, Inc., d/b/a Showgirl I; Showgirl III, Inc., d/b/a Showgirl III; and JCF, Inc., d/b/a Brandy’s Lounge v. City of Fort Wayne, Indiana, 20A-MI-466, finding the trial court did not err.

The appellate court first agreed with the trial court’s interpretation of Indiana Code § 7.1-3-9-6, noting the appellate court had previously held that the zoning ordinance was not prohibited by the statute’s predecessor.

“Likewise, here, nothing in the ordinance either directly or indirectly regulates, restricts, enlarges, or limits the operation or business of the Nightclubs’ permits to sell alcohol,” Judge Edward Najam wrote for the appellate panel. “We therefore hold that the ordinance does not violate Indiana Code Section 7.1-3-9-6. The trial court did not err when it concluded that the Nightclubs have not shown a likelihood of success at trial on this issue.”

The panel likewise found the nightclubs to be incorrect in their assertion that the ordinance is preempted by Indiana Code § 36-1-3-8(a)(7) of the Home Rule Act. It also disagreed with their argument that the state has occupied the field with respect to regulating adult entertainment, including adult cabarets.

Lastly, the appellate court concluded nothing in the ordinance restricts the size of the nightclubs’ audiences. It also found the trial court did not err when it concluded the nightclubs did not show a likelihood of success at trial on their claim that the ordinance violates their First Amendment rights, as set out in Justice Anthony Kennedy’s concurring opinion in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 444 (2002) (Kennedy, J., concurring).

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Nov. 2

Criminal — Burglary, Robbery/Criminal Informant Interview

State of Indiana v. Justin Jones

20A-CR-00664

Following several failed attempts to interview a confidential informant without compromising the informant’s identity, the Indiana Court of Appeals affirmed an order requiring the CI to have a face-to-face interview with opposing counsel.

In 2018, Justin Jones was charged in Marion Superior Court with Level 2 felony burglary, Level 3 felony counts of robbery, criminal confinement and kidnapping as well as Level 5 felony kidnapping and Level 6 felony auto theft.

The charges came after Indianapolis police investigated an incident involving two men who assaulted and robbed a woman in her home. Other officers who responded to a report that shots had been fired at a different location the next day discovered the woman’s stolen vehicle and a flip phone belonging to Jones.

Additionally, an officer investigating a group of “serial burglars” in Indianapolis spoke with a CI who had specific information about a home invasion and possible subjects. That information was forwarded to the officers who were investigating the robbery of the woman’s home, leading to Jones’ charges.

After three failed attempts at questioning the CI in a manner that protected the informant’s identity, the trial court ordered the state to produce the CI for a face-to-face interview with Jones’ counsel. It ordered, however, that Jones’ counsel not to ask “any questions that may disclose the [CI’s] identity, identifiers, residence, etc.”

In an interlocutory appeal, the state asserted that the trial court erred when it granted Jones’ motion to compel, arguing that the court abused its discretion because the face-to-face interview between the CI and Jones’ counsel would lead to the identification of the CI.

It likewise argued that the informer’s privilege is applicable in State of Indiana v. Justin Jones, 20A-CR-00664 to protect the CI’s identity.

But the Indiana Court of Appeals agreed with Jones that the “State never goes beyond an assumption that defense counsel seeing the informant will reveal the informant’s identity.”

“If we were to adopt the State’s position, we would, in essence, preclude the disclosure of any communications in which someone could potentially identify a CI. We decline to adopt that position,” Judge Edward Najam wrote for the appellate panel.

“Here, the court fashioned a solution that balanced Jones’ right to information that would allow him to prepare his defense with the State’s desire to keep the CI’s identity hidden when it allowed Jones’ counsel to interview the CI without asking any questions that would reveal the CI’s identity. Because the State did not meet its burden to demonstrate that the CI’s identity would be revealed, it has failed to meet its initial burden to establish that the informer’s privilege applies in this case,” the appellate court wrote.

Even if it were to agree with the state that it had properly invoked the privilege, the COA found that Jones had met his burden to demonstrate that the CI had information that is relevant and helpful to his defense or necessary for a fair trial.

It therefore concluded that the trial court did not abuse its discretion when it granted Jones’ motion to compel.•