Justices accept 5 cases

The Indiana Supreme Court has granted transfer to five cases, including a first impression issue dealing with Social Security income and restitution.

In Rebecca D. Kays v. State of Indiana, No. 42S05-1107-CR-441, the Indiana Court of Appeals reversed the restitution order entered against Rebecca Kays following her conviction of misdemeanor battery. The trial court ordered she pay $1,500 to the victim but didn’t adequately consider her ability to pay. Kays lived on $647 in monthly Social Security benefits.

The appellate court found that 42 U.S.C.A. Section 470(a) precludes the trial court from considering SSI in determining the ability to pay restitution. Judge Melissa May wrote this approach follows the purpose of Social Security benefits, which is to assure that the recipient’s income is maintained at a level viewed by Congress as the minimum necessary for the subsistence of that person. The case was remanded to the trial court to determine how much Kays is able to pay.

In Sheila Perdue, et al. v. Anne W. Murphy, et al., No. 49S02-1107-PL-437, the COA found the Family and Social Services Administration’s adverse notices pertaining to public benefits programs that do not name specific missing eligibility documents don’t comport with the requirement of procedural due process.

The American Civil Liberties Union of Indiana sued the FSSA on behalf of people who have applied for or receive public benefits. The lawsuit seeks to enjoin the state agency from issuing adverse action notices regarding Medicaid, Temporary Assistance to Needy Families and the Supplemental Nutrition Assistance Program.

If an applicant is denied benefits, he will receive a generic notice alleging failure to cooperate, but the notice does not specify what verification document was missing. A Marion Superior court found the FSSA procedures as a whole satisfied procedural due process, but issued a declaratory judgment and injunction against FSSA because the agency had violated federal law governing SNAP by utilizing a “failure to cooperate” standard as opposed to a “refusal to cooperate” standard. The COA reversed on the due process issue and affirmed the declaratory judgment and injunction regarding SNAP.

In Rodney Nicholson v. State of Indiana, No. 55S01-1107-CR-444, the Court of Appeals was divided in reversing Rodney Nicholson’s stalking conviction. The decision looked at the term “repeated” in Indiana’s anti-stalking laws and the majority held that the state didn’t prove Nicholson’s conduct under the stalking statute was “repeated or continuing” harassment. The majority noted that the Legislature hadn’t put definitive time limitations in the statute.

Judge Cale Bradford dissented, believing the gap of time between the repeated conduct aimed at the same victim is a “non-factor” under the wording of the statute.

In Harold J. Klinker v. First Merchants Bank, N.A., No. 01S04-1107-PL-438, the Court of Appeals affirmed summary judgment for First Merchants Bank in its complaint for fraud and damages against Harold Klinker, who had borrowed money to buy cars for his used car dealership. Although the trial court should have considered Klinker’s affidavit in opposition to the motion for summary judgment, as the appellate court found the affidavit was properly designated in his memorandum, the trial court was correct in granting summary judgment for the bank.

The justices also took Hugh David Reed v. Edward Reid, Reid Machinery Inc., et al., No. 40S01-1107-PL-436, a civil case out of Jennings County that has not been heard by the Court of Appeals.

The high court denied transfer to 25 cases. The justices didn’t accept or deny any cases for the week ending July 15.