Indiana Court Decisions – June 8-21, 2016

7th Circuit Court of Appeals

June 8

Civil – Appointed Counsel

Anastazia Schmid v. Steven McCauley, superintendent, Indiana Women’s Prison

14-2974

The 7th Circuit Court of Appeals ruled a mentally ill woman who filed a federal lawsuit challenging her conviction and sentence for murder should have had a lawyer appointed to her and remanded the case to District Court.

Anastazia Schmid was convicted in state court of murdering her boyfriend in 2001. During the trial she testified she heard a voice telling her she is the Messiah. She said the voice told her the boyfriend needed to die because he sexually abused her daughter. She was sentenced to 55 years in prison, the last five suspended to probation.

She sought collateral review in state court and had a lawyer appointed to her. When those proceedings were finished, she filed in federal court, but the District Court ruled her filing was 15 months too late. Schmid, who filed pro se, argued equitable tolling should have applied because the previous lawyer on the case was slow in getting needed papers to her, and because of her mental problems. The District Court denied her filing as untimely as Schmid did not identify the particular documents she needed or why she needed them.

The 7th Circuit ruled that the District Court should have appointed counsel to Schmid. “Counsel could have investigated Schmid’s mental condition and explored the contents of prior counsel’s files, formulating an explanation for delay satisfactory to the district judge. We remand this case with directions to appoint counsel and, if appropriate, hold an evidentiary hearing,” Judge Frank Easterbrook wrote for the panel.

June 17

Civil – Attorney Fees/Copyright

Richard N. Bell v. Charles Lantz

15-2341

The 7th Circuit Court of Appeals found the District Court did not calculate attorney fees correctly in a dismissed copyright lawsuit and remanded the case so the correct amount could be awarded.

Richard Bell brought a copyright lawsuit against Charles Lantz and 46 other defendants alleging each of them violated the Copyright Act in using a photo of the Indianapolis skyline on their websites. After interrogatories it was confirmed Lantz did not violate the copyright and the District Court granted Lantz’s motion to dismiss the claim with prejudice.

Lantz then filed a motion as the prevailing party for costs and attorney fees under the Copyright Act. Bell did not challenge the fact that attorney fees should be awarded, but challenged the amount of fees.

In the decision written by Circuit Judge Ilana Rovner, the panel said the District Court incorrectly calculated the attorney fees that were awarded to Lantz. Fees of $250 an hour should have been awarded, not the $410 that was awarded by District Judge Tanya Walton Pratt, who found there was no evidence for the $250 fee. Rovner wrote evidence was submitted for the $250 rate, but it was under seal, so Pratt may not have noticed it.

The evidence included an engagement letter from Overhauser Law Office LLC to Lantz confirming the engagement of the firm in the case at $250 per hour. It also said the firm would direct its invoices to LegalShield “for now.” There were also many invoices with the $250 rate on them that Bell submitted as evidence.

Lantz argued the $250 rate invoices were those sent to LegalShield and copied to him because LegalShield’s hourly cap was $250, and Lantz was liable for the rest of the fees up to $410 an hour, but the 7th Circuit did not accept this argument. The engagement letter said Overhauser would direct his invoices to LegalShield, and if there were more to pay, Overhauser would have sent invoices to Lantz directly. Also, invoices showed the $250 rate and not the $410 rate.

Bell also argued that the District Court erred in refusing to reduce the fee award based on Lantz’s failure to mitigate his own costs and fees. However, the 7th Circuit noted there was no factual basis for this allegation and dismissed it. The 7th Circuit also rejected an argument that fees spent by defense counsel defending the fee petition should not be charged.

Indiana Supreme Court

June 16

Criminal – Depositions/Indigent Defendants

Thomas L. Hale v. State of Indiana

35S02-1601-CR-37

A Huntington County man’s conviction for dealing meth and 40-year sentence were reversed by the Indiana Supreme Court, which remanded the case for a new trial and used the decision to send a message to trial courts. The court ruled the denial of depositions of state witnesses by indigent defendants must be supported in the record by findings of fact.

Thomas Hale was convicted of Class A felony dealing in methamphetamine, but he was denied the opportunity to depose two potential co-defendants who had struck plea deals with the state. Huntington Superior Judge Jeffrey R. Heffelfinger denied Hale’s motions to depose Amanda Casto and Greggory Fisher the same day the motion was filed. The Indiana Court of Appeals affirmed Hale’s conviction, finding Hale had waived his objection when he failed to re-raise it when the co-defendants were called to testify at his trial.

But a unanimous Supreme Court found the trial court had abused its discretion by rejecting Hale’s motion to depose the co-defendants, because the denial failed to issue findings explaining the court’s rationale. Justice Mark Massa wrote for the court that denials of motions to depose must include findings addressing tests for whether the discovery request is sufficiently designated, material to the defense, and whether the state made a sufficient showing of paramount interest in non-disclosure. These tests spring from Dillard v. State, 257 Ind. 282, 291–92, 274 N.E.2d 387, 392 (1971), and Crawford v. State, 948 N.E.2d 1165, 1169 (Ind. 2011).

“Here, Hale sought to depose two State’s witnesses, after they had pleaded guilty to pending charges and were disclosed as State’s witnesses. On its face, the motion clearly satisfied the first two parts of the Dillard test: it identified the two witnesses sought to be deposed and why the proposed deponents were material to the State’s case,” Massa wrote. “And Hale even went beyond these requirements, noting how long the depositions were expected to last (a mere half-hour each), and that counsel had already coordinated a deposition time with counsel for both of the proposed deponents so that the depositions could occur on the same day, still some three weeks in advance of the date then scheduled for trial. Yet the motion was denied the same day it was filed, without explanation.

“(W)e believe that when the trial court denies an indigent defendant’s motion to conduct a deposition at public expense, the court should issue factual findings addressing each part of the Dillard/Crawford test. The trial judge is ultimately in the best position to consider the sincerity of the parties’ arguments regarding the three-part test, as well as the overall costs associated with the proposed depositions, and potential alternatives that may better promote pre-trial efficiency of the case. But without the benefit of knowing the trial court’s rationale, our appellate courts are forced to presume that ‘exculpatory or mitigating evidence would have surfaced from the depositions sought,’” Massa wrote, citing Murphy v. State, 265 Ind. at 121, 352 N.E.2d at 483 (1976). “Specific findings by the trial court, however, should resolve that ambiguity going forward.”
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June 8

Juvenile – Custody

In the Matter of J.B. and L.B.: J.J. (Mother) v. The Indiana Department of Child Services

20A05-1510-JC-1612

The Indiana Court of Appeals ruled a juvenile court does not have jurisdiction to modify a paternity court’s custody order and sent the case back to the lower court.

At some point father G.B. established paternity of J.J.’s children and shared custody pursuant to a paternity court’s custody order. Last year, J.J., while under the influence of methamphetamine, was involved in a car accident with her children. Two weeks later, the Indiana Department of Child Services filed a petition in Elkhart Circuit Court’s Juvenile Division alleging the children were children in need of services. The parents admitted in juvenile court they were CHINS and DCS recommended services for mother only. The court then scheduled a dispositional hearing.

Before the hearing, DCS filed a motion for change of custody that said based on the accident, there has been a change in the factors considered for the custody order and asked the juvenile court to grant the father custody of the children, with mother having visiting rights. The juvenile court did this and terminated the CHINS case. The mother appealed.

Chief Judge Nancy Vaidik wrote in the appellate court’s decision that once the juvenile court dismissed the parents from the court, its jurisdiction over them ended and the old custody agreement from the paternity court ruled, placing the children back in the custody of the mother.

“While the juvenile court could enter a dispositional decree that removed the children from Mother and authorized DCS to place them with Father, as soon as the juvenile court discharged the parties, it lost jurisdiction,” Vaidik wrote. “But because it appears that the juvenile court would not have discharged the parties and terminated the CHINS case had it not thought that Father was getting full custody, we reverse and remand this case for further proceedings.”

Civil Tort – Termination

City of Lawrence Utilities Service Board, City of Lawrence, Indiana, and Mayor Dean Jessup, Individually and in His Official Capacity v. Carlton E. Curry

49A02-1506-CT-699

The Indiana Court of Appeals reversed summary judgment in a split decision for ex-city of Lawrence Utilities Board Superintendent Carlton Curry, finding the newly elected mayor had authority to terminate Curry’s employment, so Curry can’t prevail on a wrongful discharge claim.

The COA also affirmed the trial court that Curry has no right to recover under the Wage Payment Statute.

Curry was named superintendent of the city of Lawrence Utilities Service Board in 2009 and stayed in that position until January 20, 2012, when new mayor Dean Jessup terminated his employment. Jessup and Curry had disagreements about whether a new wastewater treatment plant should be built in Lawrence, and Jessup wanted a superintendent who would implement his own objectives.

At the end of 2012, Curry filed a complaint against the city, the utility services board and Jessup, alleging federal and state claims, which was moved to federal court. The District Court granted summary judgment on Curry’s federal claims in 2014 and remanded the case to state court for consideration of his state law claims. Those claims are wrongful discharge, defamation, intentional interference with employment relationship and the Wage Payment Statute Claim.

The trial court granted summary judgment for Curry on the wrongful discharge claim, summary judgment for the government on the defamation and Wage Payment Statute claims, and denied summary judgment on the intentional interference claim. The government filed an interlocutory appeal on the wrongful discharge and intentional interference claims. Curry cross-appealed on the Wage Payment Statute claim.

In the decision written by Judge John Baker, the COA ruled that the mayor has the ability to remove the utility superintendent without cause because the statute regarding that position, I.C. 8-1.5-3-5, doesn’t mention the mayor does not have power to remove him. “We infer from the legislature’s silence that the authority to terminate a superintendent without cause is not vested solely in the USB; similarly, we infer from the legislature’s silence that the superintendent is not entitled to notice or a hearing when he is terminated without cause,” Baker wrote.

Baker wrote that if this weren’t the case, the position of utility superintendent would be a lifetime position, which the COA did not think was the Legislature’s intent. One purpose of the statute could be to act as a check on the mayor’s power; if the mayor hired someone who deserved to be fired, but the mayor did not want to fire him, the utility board could do it for cause. However, the statute did not limit the mayor’s power to terminate the position.

Also, the utility board exercised its approval of the mayor’s actions by unanimously appointing the mayor’s replacement, so even if the mayor didn’t have authority, the board approved his action.

The COA also ruled Curry is not entitled to any wages under the Wage Payment Statute. Curry has not been working at his job since he was terminated, so it doesn’t matter whether he was effectively discharged. If he were to receive payment for work he had not performed, it would be an undeserved windfall.

Judge Elaine Brown agreed on the Wage Payment Statute ruling, but dissented on the majority’s reversal of summary judgment for Curry. Brown disagreed that by granting summary judgment for Curry it creates essentially a lifetime appointment. She thought that there could still be circumstances the board could remove the superintendent for cause and the majority interpreted “for cause” too narrowly.

She also thought Curry’s intentional interference claim contained determinations of fact that could not be resolved on summary judgment.
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June 10

Criminal – Rehearing/Double Jeopardy

Myles K. Martin, Jr. v. State of Indiana

82A01-1507-CR-966

The Indiana Court of Appeals ruled on rehearing that a man’s two convictions for resisting law enforcement violated Indiana’s double jeopardy prohibition and remanded the case to trial court to vacate one of them.

Officers attempted to stop Martin as he drove a stolen SUV, but Martin chose to flee. After officers disabled the vehicle, Martin fled from officers on foot. The state separately charged Martin with resisting law enforcement as a Class D felony while in the car, and resisting law enforcement as a Class A misdemeanor while on foot.

In the rehearing, Judge Edward Najam wrote for the majority, joined by Judge Melissa May, that “when a defendant flees from law enforcement by a vehicle and then exits that vehicle to continue fleeing by foot, the defendant has committed one continuous act of resisting law enforcement,” citing Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App. 2015). Subsequently, the COA reversed Martin’s Class A misdemeanor conviction and remanded for the trial court to vacate it and the resulting sentence.

Judge Patricia Riley would deny rehearing without opinion.•