Indiana Court Decisions – Oct. 7-Oct. 21, 2020

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7th CircuitCourt of Appeals

Oct. 6 (posted on Oct. 7)

Civil Plenary — Election/“No-Excuse” Absentee Voting

Indiana Vote by Mail, Inc. v. Paul Okeson


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 in Tully et al v. Okeson et al., 20-2605.

“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,” Judge Michael Kanne wrote.

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

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 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).

He continued, “This court is ill equipped to second guess, let alone override, the rational policy judgments of Indiana’s elected officials ‘on the eve of an election,’” citing Republican Nat’l Comm. V. Democratic Nat’l Comm., 140 S.Ct. 1205, 1207 (2020).

Likewise, Indiana Vote by Mail pointed out the decision to not enable all Hoosier voters to vote absentee was made by elected officials.

“It’s important for Hoosier voters to bear in mind, as they stand in 3-hour lines in close proximity to strangers, that they are doing so only because Gov. Holcomb and Secretary of State (Connie) Lawson refused to allow every voter the option of voting safely from home in the general election during this unprecedented health emergency,” the organization said. “The failure of these elected officials to protect voters during this pandemic is appalling and unconscionable.

Habeas — Reversal of Stay of Execution

Alfred Bourgeois v. T.J. Watson


The 7th Circuit Court of Appeals on Oct. 6 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 the case of 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.”


Oct. 13

Civil Plenary — Election/Absentee Ballot Receipt Deadline

Common Cause Indiana, et al. v. Connie Lawson, et al.


Absentee ballots received by local election officials after noon on Election Day will not be counted, the 7th Circuit Court of Appeals has ruled, reversing a lower court that had issued an injunction in light of likely mail slowdowns caused by a surge in mail-in voting due to the pandemic.

The ruling by a three-judge panel upholds provisions of Indiana election law found at I.C. 3-11.5-4-3 and 3-11.5-4-10 that require noon receipt of absentee ballots for those ballots to count. Southern Indiana District Senior Judge Sarah Evans Barker had issued an injunction to plaintiffs Common Cause Indiana and the Indiana State Conference for the National Association of the Advancement of Colored People, which she stayed pending this appeal.

“The district court’s premise is that the Constitution entitles all persons who cast absentee ballots to be free of any risk that the ballot will not count, even if they mail their ballots close to Election Day,” Judge Frank Easterbrook wrote.

“Because the pandemic has made additional demands on the Postal Service and increased the probability that a ballot mailed near Election Day will arrive afterward, the judge deemed the state’s system unconstitutional. But a recent decision of this court holds that the premise is not correct — that as long as the state allows voting in person, there is no constitutional right to vote by mail,” Easterbrook wrote, citing the court’s opinion eight days ago upholding Indiana’s limitations on who may cast an absentee ballot, Tully v. Okeson, 20-2605 (7th Cir. Oct. 6, 2020).

“People who worry that mail will be delayed during the pandemic can protect themselves by using early in-person voting or posting their ballots early. … During a pandemic a reasonable person entitled to vote by mail transmits the ballot earlier than normal or uses another approved method,” Easterbrook wrote.

The ruling in the noon deadline case, Common Cause Indiana, et al. v. Connie Lawson, et al., 20-2911, aligns with a ruling by a separate 7th Circuit panel days earlier in a similar Wisconsin case that affirmed an 8 p.m. Election Day deadline for the receipt of absentee ballots in the Badger State. Democrats who filed the Wisconsin challenge to the absentee ballot receipt deadline said they will ask the U.S. Supreme Court to review the ruling.

Indiana Supreme Court

Oct. 8

Civil Tort — Insurance/Uninsured Motorist Coverage

Steven Glover, As Personal Representative of the Estate of Shelina M. Glover v. Allstate Property and Casualty Insurance Company


Indiana Supreme Court justices have vacated a ruling in favor of a deceased woman’s parents’ insurance company, concluding that her estate is entitled to summary judgment on whether she was considered an insured person under her parent’s coverage.

Shelina Glover died in a three-vehicle car crash while riding as a passenger in a vehicle driven by her estranged husband. Her estate settled its claims against the two responsible drivers, whose insurers paid policy limits totaling $75,000. Her estate also received separate settlements of $25,000 each for underinsured-motorist coverage from Shelina’s own carrier and from that of her estranged husband.

The estate then requested further UIM coverage of $25,000 under Shelina’s parents’ Allstate policy, which provides up to $100,000 per person for bodily injury, including death.

But Allstate opposed the estate’s claim on two grounds. First, that Shelina was not a “resident relative” under the policy because her parents did not notify Allstate that she had been living with them. Second, Allstate argued that even if Shelina were an insured person under her parents’ policy, the policy’s offset and anti-stacking provisions bar the estate from recovery because the $125,000 the estate received from other insurers exceeds the limits under the policy.

The Marion Superior Court entered summary judgment for Allstate “based solely on [Allstate’s] position regarding offsets,” but denied it with regard to the “question of notification.” The Indiana Court of Appeals subsequently affirmed after finding the estate of Shelina Glover Robinson was not entitled to more recovery under her parents’ Allstate automobile insurance policy because its uninsured motorist coverage recovery limit was reduced to zero after the estate received settlements totaling more than $100,000.

But the Indiana Supreme Court rejected both of Allstate’s arguments in Steven Glover, As Personal Representative of the Estate of Shelina M. Glover v. Allstate Property and Casualty Insurance Company, 20S-CT-23.

First, it concluded that Shelina was a “resident relative” to which the notice requirement did not apply, making her an “insured person” under the Glovers’ Allstate policy.

“Unfortunately, Allstate’s policy does not define ‘operator’. And in briefing before the court of appeals and our Court, Allstate did not propose a definition. Given the policy’s silence and the term’s plain meaning, we interpret ‘operator’ to be a person who is or will be operating one of the vehicles covered under the policy. Applying this interpretation, we hold that Shelina was not an operator,” Justice Geoffrey Slaughter wrote for the Supreme Court.

Applying its precedent, the Supreme Court additionally held that Allstate’s anti-stacking clause prevents only the aggregation of UIM policy limits; it does not bar aggregating more than one UIM recovery.

“Then, we hold that Allstate’s $100,000 per-person UIM limits are offset by the $75,000 the Estate received from Hahn’s and Bogue’s liability insurers. These payments were made on behalf of the two drivers “legally responsible” for Shelina’s death,” the justices wrote. “But Allstate’s UIM limits are not offset by the UIM payments the Estate received from Robinson’s and Shelina’s own policies. Unlike the liability payments, the UIM payments were not made on behalf of persons ‘legally responsible’ for Shelina’s death.

“Thus, the Estate can recover $25,000 in excess UIM benefits under the Allstate policy as its total UIM recovery will still be less than the policy’s $100,000 UIM limits,” it concluded.

The high court therefore vacated the trial court’s judgment and remanded with instructions to grant the estate’s cross-motion for summary judgment.

IndianaCourt of Appeals

Oct. 15

Civil Tort — Dog Bite/Animal Shelter Liability

Brooke Brown, By Next Friend, Mark Brown v. Southside Animal Shelter Inc., et al.


A south side Indianapolis animal shelter must face a lawsuit from an adopter whose child was attacked by a dog with a history of aggression, the Indiana Court of Appeals ruled, reversing a trial court’s grant of summary judgment for the shelter.

In 2014, the Clinton County Humane Society received a dog named Grieg who was surrendered by his owner for not getting along with another dog in the household. Within the following year, Grieg was adopted out and returned by three separate owners, all of whom experienced aggression from the dog.

According to one adopter, Grieg lunged and bit her 2-year-old son, causing the child significant injuries. After that event, Grieg was surrendered to Marion County Animal Control, where a second adopter returned Greig after it also lunged at him.

Grieg’s third adopter, Mark Brown, returned the dog to the Southside Animal Shelter after it attacked Brown’s 6-year-old daughter, Brooke, who sustained injuries to her face that required surgery.

After Southside informed MCAC that it did not want Grieg back and refunded the Browns the adoption fee they paid for Grieg, the MCAC euthanized the dog. The Browns then sued Southside, Clinton County Humane Society, Indianapolis Animal Control Services and MCAC, alleging they were negligent. Brown also added claims that Southside committed fraud and constructive fraud when it represented that Grieg’s history was unknown on the adoption release.

The Marion Superior Court ultimately granted summary judgment to Southside, CCHS, Indianapolis Animal Control Services and MCAC in three separate orders, none of which provided any reasoning for its decision.

In response, the Browns appealed only the trial court’s grant of summary judgment for Southside in the case of Brooke Brown, By Next Friend, Mark Brown v. Southside Animal Shelter Inc, et al., 20A-CT-00066.

The Indiana Court of Appeals ultimately reversed for the Browns, holding that Southside, as the owner and/or keeper of Grieg, had a duty to inform the Browns of Grieg’s “vicious characteristics” so far as it knew, or to the extent such knowledge was ascertainable by the exercise of reasonable care.

“The parties disagree as to whether Southside knew, or should have known by exercise of reasonable care, of Grieg’s past aggressions. For example, Southside contends (Darcie) Kurtz was not an employee or volunteer at the time of Grieg’s arrival at Southside, and thus any information CCHS gave Kurtz could not be considered information given to Southside by virtue of Kurtz as Southside’s agent. The Browns maintain Kurtz was a volunteer at Southside at the time relevant to this action. Further, there also remains a question of fact regarding whether Southside exercised reasonable care in ascertaining Grieg’s behavioral history prior to allowing the Browns to adopt him. As we have determined Southside had a duty to Brown, significant issues of material fact preclude summary judgment in this action,” Judge Melissa May wrote for the appellate court.

The appellate court remanded for proceedings consistent with its opinion.


Oct. 16

Civil Tort — Personal Injury/Remand for Damages Retrial

Sydney Renner v. Trevor J. Shepard-Bazant


The Indiana Court of Appeals has reversed and remanded for retrial on the issue of damages in a negligence case brought by a Lake County woman who suffered a concussion stemming from a car crash.

As she was leaving school in 2016, then-high school student Sydney Renner was involved in a three-vehicle crash that left her with a concussion.

Renner, who had already sustained two concussions in previous years, was diagnosed with postconcussional syndrome and suffered two additional head injuries in the following months. She attended physical therapy to address her dizziness, balance and speech issues in the following months, which eventually improved.

Renner’s headaches continued in the following years and she struggled with memory loss and concentration throughout college, causing her to struggle academically and change her career plans.

Renner sued Trevor Shepard-Bazant, a classmate who hit her vehicle in the 2016 wreck, for negligence, and he defaulted as to liability. The Lake Superior Court after holding a weeklong bench trial on damages issued a final judgment in favor of Renner, awarding her $132,000 in damages. However, it rejected Renner’s requested damages, finding that she had not proven by the greater weight of the evidence that Shepard-Bazant’s negligence was the sole, responsible cause of all her damages.

It later denied Renner’s filed motion to correct error, in which she asked the trial court to increase the award of damages to $692,433.79. The Indiana Court of Appeals reversed, finding the trial court erred in denying Renner’s motion to correct error.

First, the appellate court concluded that the trial court’s order denying Renner’s motion to correct error does not address or acknowledge the rule that a tortfeasor takes a victim as they find them. Instead, it noted that the court merely stated that Shepard-Bazant is not “excused from liability” because of the prior concussions.

“Given the applicable law, and the undisputed evidence regarding the effects of Renner’s prior concussions upon the severity and long-term effects of the concussion she sustained due to Shepard-Bazant’s negligence, we conclude the court’s treatment of Renner’s prior two concussions as separate incidents, rather than as contributing to Renner’s injuries and damages arising from the auto accident, was against the logic and effects of the facts and circumstances before the court and resulted in error in the calculation of damages,” Senior Judge Ezra Friedlander wrote for the appellate court.

The panel further disagreed with Shepard-Bazant’s argument that the trial court did not abuse its discretion in denying the motion to correct error, and did not err in calculating damages, finding “no evidence to support Shepard-Bazant’s claim of superseding causation.”

It likewise rejected Shepard-Bazant’s reliance on Spaulding v. Cook, 89 N.E.3d 413 (Ind. Ct. App. 2017), finding it distinguishable from Renner’s case and concluding that the trial court erred in Renner’s case.

Turning to the question of remedy, however, the appellate court agreed with Shepard-Bazant that the record demonstrates the trial court adopted its own method of calculating damages.

“The court took Renner’s projected life expectancy, calculated a value of $30.00 per day of her life, and adjusted the multiplication by a portion of her damages for which Shepard-Bazant is liable. On this record, we will not order the trial court to grant Renner a specific amount of damages. Instead, we must remand for a retrial,” it concluded.

The appellate court therefore reversed and remanded in the case of Sydney Renner v. Trevor J Shepard Bazant, 19A-CT-02745.


Oct. 21

Juvenile Termination of Parental Rights/Best Interests

Termination: O.G. v. Indiana Department of Child Services, et al.


Termination: K.T. v. Indiana Department of Child Services, et al.


The Indiana Court of Appeals in a decision admonishing the Indiana Department of Child Services has reversed the termination of a mother’s parental rights to her son, while upholding the termination of his father’s parental rights in a separate case.

A unanimous appellate panel in December 2016 reversed a decision terminating mother K.T. and father O.G.’s parental relationships with their child, O.G. II, holding that the evidence did not support the termination of their parental rights.

In May 2011, the child was removed from the parents’ home and later found to be a child in need of services due to their drug use and domestic violence issues. DCS later moved to terminate the parent-child relationship in May 2015, and the motion was granted in April 2016. But both parents appealed and the appellate court reversed in their favor, finding that the Department of Child Services had exhibited an “extraordinarily troubling pattern of behavior.”

However, the trial court again terminated their parental rights in January 2020 after finding the relationships were not in the child’s best interests, among other things.

The COA affirmed the termination of father’s parental rights in Termination: O.G. v. Indiana Department of Child Services, et al., 20A-JT-00272, concluding that he failed to complete DCS services, cannot provide a safe environment for child, has not communicated with child since 2013, and is consistently incarcerated for violent crimes.

However, it reversed the termination of mother’s parental rights and remanded in Termination: K.T. v. Indiana Department of Child Services, et al., 20A-JT-00271, after finding her behavior to be starkly different from father’s during the proceedings.

Specifically, the appellate panel concluded that mother is a fit and available parent and that terminating her rights is “contrary to the purpose of the termination statute and to case law.”

It first noted that instead of a finding of unfitness, the trial court found that child’s relationship with mother poses a threat to child’s well-being because he has suffered “significant anxiety and behavioral problems” and expressed a strong desire to avoid contact with his mother.

“These are insufficient reasons to break the parent-child relationship. The emotional and behavioral problems Child experienced throughout the proceedings on remand are not the result of anything Mother did or did not do but were instead compounded by DCS’s lackluster reunification attempts. Reunification was never going to be an easy road, but DCS’s missteps exacerbated the already tense reunification situation,” Judge Nancy Vaidik wrote for the appellate panel, joined by Judge L. Mark Bailey and Judge Leanna Weissmann.

The appellate panel further noted that the Marion Superior Court’s finding that “DCS has made reasonable efforts toward reunification” is clearly erroneous.

“We acknowledge the importance of permanency and stability in a child’s life. But this alone cannot trump the fundamental and constitutional right parents have to the care and custody of their children,” the panel wrote. “Essentially, the trial court terminated Mother’s parental rights because — in the four non-consecutive months she was allowed to attempt parenting time — she was ‘unable to build a bond with [Child.]’

“However, Mother and Child previously had a strong bond, a bond DCS wrongly severed years ago and made no true attempt to repair. Allowing DCS to remove a child from its fit parent, stall reunification until there is no relationship left, and then claim reunification cannot occur because of the lack of relationship would set a terrifying precedent,” the appellate panel wrote.

Acknowledging that “reunification could have serious psychological and emotional ramifications for Child,” the appellate court concluded that the alternative is worse.

“DCS cannot be allowed to wrongly withhold a child from a fit, loving, and available parent for years and then ask this Court to affirm that injustice in the name of the child’s happiness. This is a painful decision, and there is no happy outcome. We cannot give Mother and Child back the relationship they once had or the years they have lost together. We cannot give Child the future he wants with his foster family. We can only follow the law, which requires us to reinstate the parental rights of Mother, a willing and able natural parent,” it concluded.

The matter was therefore remanded to the trial court with instructions to hold a hearing within 30 days of this opinion, “at which the parties can present evidence and recommendations as to how to best proceed with a quick and safe reunification between Mother and Child.”

It further advised that a specific plan “for actual reunification” should be created and adhered to and that the “the trial court need not await a certification of this opinion by the Clerk of Courts before conducting the hearing and beginning reunification.”•

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