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Indiana justices granted transfer to two cases for the week ending June 23, including one that involves Duke Energy’s nearly $2 billion economic development plan.
However, the court also denied transfer to a separate case involving Duke, with one justice penning a concurrence to the decision.
In the case granted transfer — Indiana Office of Utility Consumer Counselor, et al. v. Duke Energy Indiana, LLC, et al., 23S-EX-162 — the Indiana Utility Regulatory Commission approved the development plan proposed by Duke Energy, but Duke Industrial Group argued on appeal that the commission erred by misapplying two sections of Indiana’s transmission, distribution and storage system improvements, or TDSIC, statute.
The Court of Appeals of Indiana affirmed the IURC’s decision.
The COA disagreed that each project in the plan needed to be cost-justified, finding instead that proposed improvements are justified under Indiana law by the benefits attributable to the plan as a whole. It also ruled that it was reasonable for the commission to interpret state law in a way that includes operating and maintenance expenses in the amount for which recovery is deferred.
Oral arguments in that case have not yet been scheduled.
The Supreme Court also granted transfer to P.L. v. M.H., et al., 23S-AD-158, handing down an opinion last week that dismissed the appeal for lack of jurisdiction.
The COA had previously reversed a temporary custody order in a memorandum decision, finding the trial court erred when it denied P.L.’s Trial Rule 60(B)(6) motion to set aside the order. It determined that the lack of notice of the adoption proceedings to P.L. voided all orders from the adoption court due to lack of personal jurisdiction over him.
The adoptive parents challenged the Court of Appeals’ decision, and the high court agreed that the appellate court erred in requiring notice. However, the justices dismissed the appeal on the narrower ground of lack of appellate jurisdiction over the custody issue.
Specifically, the justices concluded the trial court’s denial of the motion to set aside the temporary custody order was not a final appealable order.
The Supreme Court also denied transfer to 25 cases last week, including another involving Duke Energy that the Supreme Court already weighed in on in 2017.
In that case — Duke Energy Indiana, LLC v. Bellwether Properties, LLC, 21A-CT-1848 — Bellwether Properties alleged Duke engaged in inverse condemnation of its property and properties owned by other similarly situated landowners by telling Bellwether its proposed warehouse would have to be redesigned or moved to comply with National Electric Safety Code clearance requirements.
A trial court granted Duke’s motion to dismiss, but the COA reversed in 2016. The Supreme Court also reversed, but on different grounds.
Duke moved for summary judgment on remand, and the trial court denied the motion.
Back in the COA, the issue was whether Duke took a portion of Bellwether’s land, and the COA determined it did not.
The Supreme Court heard oral arguments in that case in May.
All justices concurred in denying transfer this time around.
In a separate opinion, Justice Geoffrey Slaughter wrote that in his view, the COA was correct that Duke didn’t “physically invade” Bellwether’s property and that “this case should be analyzed, if anything, as a regulatory taking.”
“In a future case, I remain open to adopting an Indiana-specific takings standard — one consistent with the text, history, and structure of article 1, section 21 of our state constitution and with broader protections for property owners than federal law,” he wrote.
Slaughter and Chief Justice Loretta Rush voted to grant transfer to A.R. v. State of Indiana, 22A-JV-156, where a split COA found a man wasn’t wrongfully ordered by a juvenile court after he turned 18 to register under the Sex and Violent Offender Registration Act.
Rush and Justice Derek Molter also voted to grant transfer to Paul Steven Mills v. State of Indiana, 22A-CR-2216, where the COA affirmed in a memorandum decision a trial court’s denial of Paul Mills’ petition to modify his sentence.
Finally, Rush was the lone vote in favor of granting transfer to Daymeis Jones v. State of Indiana, 22A-CR-1890, where the COA dismissed Daymeis Jones’ appeal of his sentences for convictions that included rape and burglary.
The justices concurred in all other denials, although Justice Mark Massa did not participate in the decision regarding Mmoja Ajabu v. Correct Care Solutions, LLC, et al., 21A-CT-2540.
The full list of transfer decisions is available online.
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